Plaintiffs' challenge to the Park Police's enforcement of
7
these indisputably valid regulations against them raises more
difficult questions. Plaintiffs allege a pattern of arrests and
seizures of property that exceed, in their view, the appropriate
scope of enforcement of the regulations. See. Complaint (1) at
paras/ 64-71. Relying on that pattern, plaintiffs claim that
defendant Hodel and two Assistant Solicitors for the Department
of Interior, as the ultimate supervisors of the Park Police, have
pursued a policy intended to prohibit demonstrations and protests
altogether in Lafayette Park "on an incremental basis." at paras. 84-86. Yet, central to plaintiffs' claims, as
expressed in both actions, lies their contention that
[t]he [Lafayette Park] regulations have had the propensity
or effect to be enforced in such a manner as to effectively
disrupt or terminate every form of legitimate communication
in which plaintiffs were engaged . . ., as well as
subjecting plaintiffs to unend[ing] mental anguish , and a
judicial system whose patience for "repeat offenders" might
be wearing a bit thin.
Plaintiffs' Statement of Material Facts in Dispute, filed with
Plaintiffs Opposition to Federal Defendants' Motion to Dismiss,
or for Summary Judgment (No. 87-1820) (filed Oct. 28, 1987)
[hereinafter Plaintiffs' 2d Statement of Facts] at para. 22.
Plaintiffs thus raise a serious vagueness challenge to the
regulations. Regulations of the sort at issue here are criminal
laws. "'No one may be required at peril of life,
8
liberty or property to speculate as to the meaning of penal
statutes. All are entitled to be informed as to what the State
commands or forbids."' Bouie v. City of Columbia, 378 U.S. 347,
351 (1964) (quoting Lanzetta v. New Jersev, 306 U.S. 451, 453
11939)). In order to confona to the due process component of the
Fifth Amendment, a criminal provision must
define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.
Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citing, inter alia,
Grayned v. City of Rockford, 408 U,S. 104 (1972) and Papachristau
v. City of Jacksonville, 405 U.S. 156 (1972)). Accordingly, under
the void-for-vagueness doctrine, criminal statutes, as well as
administrative regulations`carrying penal sanctions, must be held
unconstitutional when they fall short of this standard. See
Grayned, 408 U.S, at 108. vagueness is an especial evil where the
criminal provision "abut[s] upon sensitive areas of basic First
Amendment freedoms' [because] it 'operates to inhibit the
exercise of [those] freedoms.'" Id. at 109 (quoting Baggett v.
Bullitt, 377 U.S, 360, 372 (1964), and Cramer v. Board of Public
Instruction, 368 U.S. 278, 287 (1961)). Vague time, place, and
manner regulations cause citizens to steer wider of the unlawful
zone than they would if the boundaries of the
9
forbidden areas were clearly marked. See United States Civil
Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548,
577-81 (1973) (hereinafter Letter Carriers) (subjecting Civil
Service regulation that prohibits participation in partisan
politics to scrutiny under vagueness doctrine and concluding that
regulation is constitutional); Keeffe v. Library of Congress, 777
F.2d 1573, 1581 (D.C. Cir. 1985) (applying "the degree of
precision required by Letters Carriers" to all regulations
*validly promulgated under an enabling statute*).
In Kolender v. Lawson, supra, the Supreme Court observed
that, although the vagueness doctrine "focuses both on actual
notice to citizens and arbitrary enforcement," its most important
aspect "'is not actual notice, but . . . the requirement that a
legislature establish minimal guidelines to govern law
enforcement."' 461 U.S. at 357-58 (quoting Smith v. Groguen,
415 U.S. 566, 574 (1974)). Kolender held unconstitutionally vague
a California penal statute that required persons who loitered or
wandered an the streets to provide a "credible and reliable"
identification and to account for their presence when detained by
a police officer. Finding that the "credible and reliable"
standard provided insufficient particularity "for determining
what a suspect has to do in order to satisfy the requirement,"
the Court ruled the statute "unconstitutionally vague on its face
because it encourages arbitrary enforcement . . ." Id. at
10
358, 361.
Plaintiffs here report a series of incidents over the past
six years in which one, some, or all of them were arrested,
threatened with arrest, or otherwise confronted by Park Police
officers regarding alleged violations of the Lafayette Park
regulations, See Memorandum Opinion, Report & Recommendation of
Magistrate Burnett (No. 84-3552, filed Jan. 23, 1983) at 8-14
(summarizing factual allegations contained in 1984 complaint);
Plaintiffs ' Motion for Additional Discovery and for Leave to
Perfect Service of Process, Statement of Claims and Issues for
Trial, and Response to Magistrate's Report and Recommendations
(filed in 84-3552 on March 6, 1987 by counsel Mark Venuti) at
17-20 (characterizing defendants' reaction over time to
plaintiffs' persistent demonstration as a "campaign of harassment
and unlawful arrest"); Plaintiffs' 2d Statement of Material Facts
at pp 2-12 (narrating incidents in 1986 and 1987). Defendants do
not contest the claim that plaintiffs have been repeatedly
arrested for violations of the "camping" and other regulations
and have had property seized by Park Police in conjunction with
their expressive activities in Lafayette Park, See Federal
Defendants' Statement of Material Facts Not in Dispute (filed
August 29, 1986, in C.A. No, 84-3552) [hereinafter Defendants'
1st Statement of Facts] at para 2; Federal Defendants' Statement
of Material Facts Not in Dispute (filed in C.A. No. 87-1820)
(hereinafter Defendants'
11
2d Statement of Facts] at paras. 1-10. Defendants do, however,
deny that the regulations, as written or as enforced against
plaintiffs, are unconstitutionally vague. See Federal Defendants'
Opposition to Plaintiffs' Motion for a Preliminary Injunction and
Temporary Restraining Order at 23.
Plaintiffs maintain that they sincerely want to conduct
their demonstration within the boundaries of legitimate time,
place, and manner restrictions. They contend that they have
attempted to clarify with the Secretary of Interior or his
delegates the terms and conditions which would have enabled a law
abiding person to accommodate a protest like [plaintiffs'] with
the valid laws regulating the use of public parks." Memorandum
in Support of Plaintiff's [sic] Notice of Filing [hereinafter
Notice of Filing] at 3. Indeed, plaintiffs proffer evidence of
persistent correspondence to this end with, among others, the
Assistant Secretary for Fish and Wildlife and Parks, id. at
Exhibit 6 (letter from plaintiffs dated July 21, 1984),
defendant Secretary of the Interior, id. at Exhibit 10 (letter
from plaintiffs dated April 28, 1986), the Director of Public
Affairs for the National Park Service, id. at Exhibit 13 (letter
from plaintiffs dated May 17, 1986), and defendants' counsel, id.
at Exhibit 19 (letter from plaintiffs' counsel dated March 26,
1987). These letters reveal a sustained effort by plaintiffs to
ascertain the precise meaning and
12
scope of the Lafayette Park regulations in order to avoid both
criminal sanctions and the concomitant interruption of their
expressive demonstration.
Plaintiffs' uncertainty centers on two particular elements
of the Park regulations: the ban on "camping" codified at 36
C.F.R. section 7.96(i) and the ban on the storage of personal
property, contained within the ban on camping. See Plaintiffs'
Response to Federal Defendants' Opposition to Plaintiffs' Motion
for a Preliminary Injunction and Temporary Restraining Order
[filed in 87-1820, July 27, 1987 at 2-3). The regulation
provides:
Camping is defined as the use of park land for living
accommodation purposes such as sleeping activities, or
making preparations to sleep or storing personal
belongings
36 C.F.R. 1 7.96(i).
Defendants and others associated with the Department of the
interior have made a considerable effort to specify the acts
that, in their view, fall within the area of legitimate
expressive activity untouched by these regulations. Although they
have refused to meet with plaintiffs to discuss the restrictions
in person, defendants have engaged in extensive correspondence
with plaintiffs and their representatives regarding the precise
requirements imposed by the "camping" and "storage of property"
rules. See Federal Defendants' Opposition to Motion for
Preliminary Injunction at Exhibits 3-9. For example, towards the
end of March 1987, the
13
Department of the Interior issued a memorandum entitled "Permit
Conditions" to demonstrators in Lafayette Park, which memorandum
plaintiffs acknowledge having received. Id. at Exhibit 3; See
Plaintiffs' Notice of Filing at Exhibit 15 (letter dated March
27, 1987 from plaintiffs to official who signed memorandum and
referring to contents). The memorandum reminds all demonstrators
that their activities are subject to, among other things, the
proscription of "camping or using park land for living
accommodations purposes." Further, the memorandum gives notice
that the Regional Director of National Capital Parks had imposed
additional conditions on all demonstrations, including the
following:
Property may not be stored in the Park, including, but not
limited to construction materials, lumber, paint, tools,
household items, food, tarps, bedding, blankets, sleeping
bags, luggage, and other personal property. (In this
regard, certain personal property that is reasonably
required by a demonstration participant during any one
24-hour period will not be considered to violate this permit
condition. Such property may include items such as a coat, a
thermos, and a small quantity of literature. however, the
quantity of these items may not exceed that which is
reasonably necessary in a 24-hour period)
Defendants' Opposition, Exhibit 3 at 2.
Case Listing --- Proposition One ---- Peace Park