UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES,

     Versus                          CRIMINAL NO. 87-60
                                     Chief Judge Richey
WILLIAM THOMAS, Defendant

MOTION TO DISMISS FOR LACK OF OFFENCE

BACKGROUND

On February 18, 1987, the United States, by and through the Office of the U.S. Attorney in the District of Columbia, filed an Information, (U.S. Mag. No. 87-0114M-01), which read:

"On or about December 22, 1986, within the District of Columbia, William Thomas, did camp in a park area not designated for camping, that is, Lafayette Park, 1600 Pennsylvania Avenue, N.W., in that the defendant used park land for living accommodation purposes such as sleeping activities, making preparations to sleep (including the laying down of bedding for the purpose of sleeping), and storing personal belongings (using tents, shelters, and other strutures {sic} for sleeping)."

On March 3, 1987, by and through Linda S. Chapman, Assistant United States Attorney (AUSA) the United States filed a Motion For Consolidation in which the United States notes that:

"Park Police officers observed the defendants lying in an area of Lafayette Park for a number of hours in the earlly morning, apparently sleeping. These defendants were charged individually..." Motion to Consolidate Cases For Trial (Mot. Con.), filed March 3, 1987, page 1.

The United States erroneously hypothecates that:

"(D)efendants participated in the same act, that is sleeping in Lafayette Park in the early morning hours of December 22, 1986, that constitutes the offense in each case." Ibid, page 2.

ARGUMENT

"Sleeping" does not constitute the offense of "camping" which, the regulation unambiguously defines as a situatioin when it "reasonably appears that the participants are using an area for living accomodation purposes." (Emphasis added.)

The purported offense of "sleeping" is vaccuous.

When published the United States (DOI) purported that the "camping" rules were "intended not to stifle First Amendment expression, but rather to protect undesignated areas from activities for which they are unsuited, or the impacts of which they cannot sustain. Short term casual sleep which does not occur in the context of using an area for living accomodation purposes will not be affected by these regulations." (Federal Register, June 4, 1982, at 24301; Tr. Ex. 28.)

Assuming, arguendo, that Thomas had actually been sleeping that action cannot offend the United States. :"Sleeping" does not constitute any offense against the United States because the Government has not, and cannot, illustrate that the Government has suffered any injury as a result of that action. SEE, Gomillion v. Lightfoot, U.S. ____, (1969).

Moreover stare decisis brightly illuminates the permissive nexus which has always existed between "sleeping" and expressive activity.

"...In the unusual circumstances of an individual demonstrator's round-the-clock vigil incidental sleep which occurs during the course of the vigil must be considered sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance." (United States v. Abney, 534 F2d 984.)

Further in Clark v. Community for Creative Non-Violence (CCNV), Syllabus, June 26, 1984 at 3, the Majority Opinion noted:

"We need not disagree with the view of the Court of Appeals that sleeping in the context of a demonstration is expressive activity which is protected to some extent by the First Amendment."

It has long been recognized that "the Secretary *** cannot by his regulation alter or amend the law. All he can do is carry into effect that which the Congress intended." See Morrill v. Jones, U.S. (1881).

CONCLUSION

WHEREFORE, it being apparent that the United States cannot reasonably be offended by the activity of "sleeiping," Thomas moves this Court to Dismiss the charges lodged against him by the Information filed in this case.

Respectfully sumitted, this 13th day March of 1987,

William Thomas
1440 N Street N.W.
Washington, D.C.
Apt. 410 20005
(202) 4662-0757

CERTIFICATE OF SERVICE

I, William Thomas, certify that a copy of the foregoing MOTION TO DISMISS FOR LACK OF OFFENSE was served y U.S. Marshal upon Linda S. Chapman, Assistant United States Attorney 555 5th Street, N.W.., Room 5915 Washington, D.C. 20001, (202) 272-9078 on this 13th day of March 1987.

William Thomas


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES,

     Versus                          CRIMINAL NO. 87-60
                                     Chief Judge Richey
WILLIAM THOMAS, Defendant

ORDER

Upon consideration of the MOTION TO DISMISS FOR LACK OF OFFENSE, filed by defendant Thomas, March 13, 1987, and any response filed by the United States theereto, it is, this __th day of March, 1987,

ORDERED: Wheereas "sleeping" is not an act by means of which the United States may be legally offended, in the interests of judicial economy, as well as societal sanity, defenndat's MOTION TO DISMISS FOR LACK OF OFFENSE be and hereby is GRANTED

Chief Judge, U.S. District Court,
District of Columbia