Watt v. CCNV
The COMMUNITY FOR CREATIVE NON-VIOLENCE,et al., Appellants,
James G. WATT, Secretary of the
Interior, et al.
Nos. 82-2445, 82-2411.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 14, 1983.
Demonstrators permitted to participate in round-the-clock demonstration
on the Mall and in Lafayette Park in Washington D.C. brought action
challenging the United States Park Service's denial of permission to sleep
in temporary structures permitted to be erected as part of the
demonstration. The United State District Court for the District of
Columbia, John H. Pratt, J., granted the government's motion for summary
judgment, and demonstrators appealed. The Court of Appeals held that
regulation against sleeping in public parks was unconstitutionally
applied to demonstrators where sleeping was part of demonstrators'
Mikva, Circuit Judge, filed opinion in support of reversal in which Wald,
Circuit Judge, concurred.
Spottswood W. Robinson, III, Chief Judge, and J. Skelly Wright, Circuit
Judge, filed concurring statement.
Harry T. Edwards, Circuit Judge, concurred and filed opinion.
Ginsburg, Circuit Judge, concurred in the judgment and filed opinion.
Wilkey, Circuit Judge, dissented and filed opinion in which Tamm,
MacKinnon, Bork, and Scalia, Circuit Judges, joined.
Scalia, Circuit Judge, dissented and filed opinion in which MacKinnon and
Bork, Circuit Judges, concurred.
Decided March 9, 1983.
Constitutional Law -90.1(4)
United States Park Service regulation prohibiting sleeping as part of
camping in certain areas in national capital region was unconstitutional as
applied to demonstrators participating in round-the-clock demonstration on
the Mall and in Lafayette Park in Washington D.C. to call attention to the
plight of the poor and the homeless where the Park Service allowed
protestors to erect symbolic tents and where sleeping was part of
demonstrators' expressive conduct protected by First Amendment. U.S.C.A.
Appeals from the United States District Court for the District of
Columbia (D.C. Civil Action No.82-02501).
Burt Neuborne, New York City, of the bar of the State of N.Y., by special
leave of Court, pro hac vice, with whom were associated Arlene S. Kanter,
Laura Macklin, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C.,
argued the case on behalf of appellants.
John D. Bates, Asst. U.S. Atty., with whom were associated Stanley S.
Hanis, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S.
Attys., Washington, D.C., argued the case on behalf of appellees.
Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, WILKEY, WALD,
MIKVA,EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges.
ON REHEARING EN BANC PER CURIAM:
Circuit Judge Mikva files an opinion, in which Circuit Judge Wald concurs,
in support of a judgment reversing. Chief Judge Robinson and Circuit Judge
Wright file a statement joining in the judgment and concurring in Circuit
Judge Mikva's opinion
with a caveat. Circuit Judge Edwards file an opinion joining in the
judgment and concurring partially in Circuit Judge Mikva's opinion. Circuit
Judge Ginsburg files an opinion joining in the judgment Circuit Judge
Wilkey files a dissenting opinion, in which Circuit Judges Tamm
MacKinnon, Bork and Scalia concur. Circuit Judge Scalia files a dissenting
opinion in which Circuit Judges MacKinnon anc Bork concur. The judgment
appealed fron is reversed, and the case is remanded to the District Court
with instructions to enjoir appellees from prohibiting sleeping by dem
onstrators in tents on sites authorized for appellants' demonstration.
MIKVA, Circuit Judge:
The Community for Creative Non-Violence (CCNV) applied for and was granted
a renewable seven-day permit to conduct a round-the-clock demonstration,
commencing on the first day of winter, on the Mall and in Lafayette Park in
Washington, D.C. The declared purpose of the demonstration was to impress
upon the Reagan Administration, the Congress, and the public the plight of
the poor and the homeless. The National Park Service (Park Service) granted
CCNV a permit to set up two symbolic campsites, one on the Mall with a
maximum of one hundred participants and forty tents, and one in Lafayette
Park with approximately fifty participants and twenty tents.
Although the permit allowed the demonstration participants to maintain a
twenty-four hour-presence at their symbolic camp sites, the Park Service
denied the participants a permit to sleep. According to the government,
such conduct would violate the Park Service's recently revised anti-camping
regulations, see 36 C.F.R. §§ 50.19, 50. 27 (1982). CCNV claims that this
prohibition strikes at the core message the demonstrators wish to convey
--that homeless people have no permanent place to sleep. Accordingly, CCNV
and seven individuals who wish to participate in the demonstration seek a
court order invalidating the permit's limitation on sleeping as an
unconstitutional restriction on their freedom of expression. Following
cross-motions for summary judgment, the district court decided in favor of
the Park Service and the case arose on expedited appeal. After briefing and
oral argument before a motions panel, but before that panel issued a
decision, the case was heard en banc.
Because we conclude that the government has failed to show how the
prohibition of sleep, in the context of round-the-clock demonstrations for
which permits have already been granted, furthers any of its legitimate
interests, we reverse the district court's decision and grant CCNV's
request for injunctive relief.
Case Listing --- Proposition One ---- Peace Park