UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES              )
                           )
     versus                )         CRIMINAL NO. 87-60
                           )         Judge Charles Richey
                           )
WILLIAM THOMAS, defendant  )

MOTION TO DISMISS
FOR INTENTIONAL EX POST FACTO ENFORCEMENT

Pursuant to the Fed. R. Cr. P. defendant William Thomas, presently pro se, respectfully moves this court to dismiss the Information in this case on the ground that the regulation has been arbitrarily and capriciously enforced against him as an ex post facto remedy to expressive activity protected under the First, Ninth, and Fourteenth Amendments to the Constitution of the Unites States.

The specifics of this Motion are more fully laid out in the accompanying Memorandum of Points and Authorities.

Respectfully submitted this 15th day of April, 1987.

//s// w.thomas
William Thomas, Defendant Pro Se
1440 N Street NW #410, DC 20005
(202) 462-0757

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT THOMAS'
MOTION TO DISMISS
FOR INTENTIONAL EX POST FACTO ENFORCEMENT

BACKGROUND

1. Thomas incorporates by reference Defendant's Exhibits 1, 2, and 3, filed at the Motions hearing held before J. Richey on March 25; 1987, and further states:

FACTS

2. On February 18, 1987, the United States, in the District of Columbia, filed an information (U.S. Mag. No. 87-0114M-01) which charged this defendant with "camping," allegedly in violation of 36 CFR section 7.96(i).

3. Since at least as early as June 5, 1981 the Government has been aware that this defendant was involved in an effort to communicate with the general public, and the intent of that effort. (SEE Defendants' Exhibits 4 thru 4-F hereto.)

4. In previous proceedings the U.S. Attorney's Office has recognized that this defendant has been engaged in a long-term, on-going vigil (SEE Defendants' Exhibit 5, hereto -- NOTE The charges in the matter represented by Defendants' Exhibit § were dropped), and the public was likely to recognize the significance of Thomas' activities (SEE Defendants' Exhibit 6).

5. Further, on numerous occasions preceding the June 4, 1982 promulgation of the amendment to the regulation under which Thomas is presently charged, he was arrested for performing precisely the same activity charged here, but the charges were dismissed (SEE Defendants' Exhibits 7, 8, and 9).

6. In the instances represented by Defendants' Exhibit 7, 8, and 9 Thomas maintained the position that his activity did not

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constitute "camping," but was rather a symbolic activity intended to communicate a message.

7. The Appeals Court for this District has held that:

"(I)n 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. Stacy Abney, 534 F.2d 984 (1976). See Also Defendant's Exhibits 1 and 2, submitted at the Motions Hearing on March 25, 1987, AND Motion to Dismiss For Lack of Offense, at pages 2 and 3. 1/

ARGUMENT

8. Comparing the arrests of Thomas on November 27, 1981 (Defendants' Exhibit 7), December 10, 1981 (Defendants' Exhibit 8), and December 12, 1981 (Defendants' Exhibit 9) with this present charge, and considering that Thomas has been engaged in the same long-term, on-going, expressive activity during all these intervening years, it becomes strikingly apparent that we are faced with a classic example of an ex post facto "under color of regulation'' (SEE 42 USC Section 1985(3)) application to a protected activity.

9. "(A)n ex post facto law is one which ... changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters the situation of a party to his disadvantage." Duncan v. Missouri, 152 U.S.
_______________________

1/ In Clark v. Community for Creative Nonviolence (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."

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377, 382 (1893); SEE ALSO: Dyke v. Meachum, 785 F2d 267 (1986), Damiano v. Florida Parole Board, 785 F2d 927 (1986), Albenco v. U.S., 783 F2d 1024 (1986), Hammond v. U.S., 786 F2d 8 (1986), People v. Coleman, 111 Ill. 2d 87 (1986).

10. "If an expressor has a constitutional right (to make certain expressions), it cannot be denied that he may make subsequent expressions for the same purpose. If his right exists plaintiff does not lose his right by exercising it." Near v. Minnesota, 283 US 720.

11. "(The decision in King v. Missouri, 107 U.S. 221) proceeded upon the ground that the state constitution deprived the accused of a substantial right which the law gave him when the offense was committed, and. . . altered the situation of the party to his disadvantage." Hopt v. Utah, 100 U.S. 574, 589 (1883).

12. "The difficulty is not so much as to the soundness of the general rule. . . as in determining whether particular (regulations) by their operation take from an accused any right that was regarded at the time of the adoption of the (regulation), as vital to the protection of life, and liberty, and which he enjoyed at the time of the commission of the offense charged against him." Thompson v. Utah, 170 U.S. 343, 352 (1897).

13. This defendant believes he can establish beyond any reasonable doubt that A) the activity in which he has been involved since June 3, 1981 (SEE Declaration of William Thomas, filed as Defendant's Exhibit # 3, March 25, 1987 hearing) was "vital to the protection of (Thomas') life and liberty ... which

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he enjoyed at the time of the commission of the offense," as an expressive activity designed to address an issue of broad public concern, and B) as an exercise of defendants' religious principles. Likewise the defendant can establish a reasonable inference that 1) officials involved with the promulgation of 36 CFR 7.96(i) on June 4, 1982 (published as 36 CFR 50.27(a) SEE, Federal Register, Vol. 47, No. 108, page 34302) formulated and applied that revision because they were "having trouble getting convictions" of Thomas under pre-existent regulatory schemes, and that 2) the effect of the present regulation has been to deprive Thomas of a substantial right which the law gave him when the "offense" was committed.

14. Should this Court deem it necessary defendant Thomas is prepared to present documentary evidence and testimony in a hearing on this issue.

CONCLUSION

THEREFORE Defendant Thomas moves for dismissal of these charges because it is reasonable to infer that the regulation in question was unconstitutionally applied as an ex post facto remedy intended to deprive defendant of a "right that was regarded at the time of the adoption of the (regulation), as vital to the protection of life, and liberty, and which (Thomas) enjoyed at the time of the commission of the offense charged against him." Thompson, supra.

Respectfully submitted this 15th day of April, 1987.

. //s// w. thomas
William Thomas
1440 N Street NW, #410,
Washington, DC 20005
(202) 462-0757

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