FILED
MAY 26 1987
Clerk, U.S. DISTRICT COURT
DISTRICT OF COLUMBIA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA
        v.                           Criminal No. 87-60
SCOTT  M. GALINDEZ                   Criminal No. 87-159
AKA SCOTT E. GALINDEZ

UNITED STATES OF AMERICA
        v.                           Criminal No. 87-61
 STEPHEN SEMPLE
    AKA Sunrise

UNITED STATES OF AMERICA 
        v.                           Criminal No. 87-62
WILLIAM THOMAS

UNITED STATES OF AMERICA
        v.                           Criminal No, 87-63
PHILIP JOSEPH

UNITED STATES OF AMERICA
        v.                           Criminal No. 87-64
ELLEN THOMAS

OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE

The defendants in the above-captioned cases were charged with camping in Lafayette Park on December 22, 1986, in violation of 36 C.F.R. s 7.96(i). On April 23, 1987, the Court conducted a pre-trial motions hearing in these cases. The Court found that nothing in the record controverted defendants" assertions that the actions that led to their arrest were motivated by a sincerely held religious belief. It also found that the Government failed to proffer a compelling interest for interfering with those beliefs and also failed to show that its acts were the least restrictive means possible for achieving whatever interest it had. Accordingly, the Court granted defendants' motion to dismiss the prosecutions against them the grounds that they impermissibly interfered with defendants' rights to free exercise of religion. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1472); Murdock v. Pennsylvania, 314 U.S. 105 (1443). The Court thereafter dismissed defendants' remaining motions as moot.

Now before the Court is the Government's Motion to Reconsider that dismissal. The Government has asked for a hearing on this motion, but the Court believes that a hearing is not necessary, and would not be helpful, for the disposition of this motion. Consequently, the Court will deny the Government's request for a hearing. Also before the Court is defendant William Thomas's motion to reconsider the Court's denial of defendants' other motions. The Court will decide that motion on the papers as well.

THE GOVERNMENT'S MOTION TO RECONSIDER MUST BE DENIED

The Government Points to several "grounds" for reconsidering the Court's decision, most of which are refuted by reference to the record of the April 23 hearing. First, the Government argues that the motion to dismiss on first amendment grounds was not ripe for decision, as the Government had received the motion shortly before the hearing commenced. This may be true. But the Court specifically asked if the Government was prepared to argue the motion and the Government responded affirmatively. See Transcript of April 23, 1987 Hearing (hereinafter "Transcript"), at 47, 48. As the Court proceeded only on the basis of that representation, the Government cannot now change its mind and argue that it actually was unprepared.

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Second, the Government intimates that the Court "invited" defendants to join in the motion, which defendant William Thomas had submitted on his own behalf. Government counsel should be more careful in her characterization of the Court's activities, for the Court did no such thing. Rather, each defendant expressed his or her desire to join in every motion filed by defendant William Thomas. See Transcript at 21-22. As such, both the Court and the Government had a duty to regard defendant William Thomas's motion as a motion filed on behalf of every defendant and the Court's behavior was nothing but an attempt to fulfill that duty.

The Government next contends that the Court did not adequately or properly determine that each defendant had a sincerely held religious belief that required him or her to undertake the actions that allegedly resulted in his or her arrest. The Government again mischaracterizes what transpired at the hearing. After defendants stated that their actions were compelled by their sincere religious beliefs, counsel for the Government informed the Court that the Government did not doubt the sincerity of those beliefs, but believed that religious beliefs did not excuse commission of a crime. See Transcript at 48-49. Had the Government questioned either the sincerity of the beliefs or the relation between the beliefs and the activity, the Court would have had to embark upon a lengthy examination of each defendant. See, e.g.,Wisconsin v. Yoder, 406 U.S. 205, 216-19 (1972). Instead, the Government made the inquiry unnecessary, and perhaps even inappropriate, by admitting the sincerity of the beliefs and by failing to challenge the tie between belief and conduct.

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The Court is well aware that sincerity is only one factor that the Court must consider when confronted with a free-exercise based challenge to a criminal prosecution· See, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943). It must also examine whether the government action burdened the individual's religious beliefs and, if so, whether the government has a compelling interest in its actions and chose the least restrictive means for achieving that interest. See, e.g. Yoder v. Wisconsin, 405 U.S. 205. Nothing in the Government's motion supports reconsideration of the Court's earlier findings on these points.

First, the Government errs when it contends that defendants failed to show that the regulation under which they were prosecuted burdened their religious beliefs. Once again, the Government's failure to controvert defendants' assertions left the Court no alternative but to accept the defendants' arguments. Indeed, given the Government's failure to contest the sincerity of defendants' beliefs, the Court cannot imagine how the Government could have controverted defendants' arguments; there is no doubt that defendants were arrested as a result of their acts, which the Court must, on the basis of the record before it, conclude were religiously motivated.

Moreover, the Government has utterly failed to sustain its burden to show that its actions were appropriate under tile circumstances· Neither at the hearing nor in its Motion for Reconsideration did the Government claim to have a compelling interest in the regulation at issue. See Transcript at 49. Nor has the Government ever claimed that the regulation and the criminal penalties it carries were the least restrictive means

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for achieving whatever interest it has in the regulation. Without this showing, the Court cannot conclude that the Government's interest was sufficient to overcome the defendants' uncontroverted first amendment interests in their behavior in Lafayette Park. See, e.g., L. Tribe, American Constitutional Law, at § 14-10.

The Government has advanced one final argument for reconsideration. It contends that defendants could have continuously exercised their First Amendment rights in Lafayette Park without "camping." This cannot be a serious argument. On the record before the Court, defendants have shown that their vigil-like activities in the Park were religiously based. Since the regulation includes "sleeping" within the definition of camping, see 36 C.F.R. § 7.96(i), the Court can conceive of no way in which defendants could remain in Lafayette Park for long-term vigils without sleeping and thereby running afoul of the regulation.

Although the Court does not enjoy chiding counsel, it must make one additional point. Quite in contrast to the Government's belief that the Court "invited" the defendants to join in defendant William Thomas's motion, what the Court invited, if it invited anything at all, was a proper showing by the Government that would have allowed the Court to balance the competing claims of defendants and the Government. At the end of the hearing, despite the Government's earlier assurances that it did not question defendants' sincerity or have a compelling interest in prosecuting these defendants, the Court again asked the Government if it wished to question defendants, cross-examine defendants, or put forth any evidence or reason

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for its acts. See Transcript at 47-52. Given the Government's rejection of this offer to make a record, the Court can only conclude that the Government is now trying to obscure what actually transpired at the hearing and to make amends for its failure to defend against the motion to dismiss. The Court will not be a party to such efforts on the Government's part.

DEFENDANT THOMAS'S MOTION FOR RECONSIDERATION MUST BE DENIED

Defendant Thomas has moved for reconsideration of this Court's dismissal of his motions to dismiss for lack of offense, for malicious prosecution, for ex post facto enforcement, and his motion to proffer a defense of necessity. In light of the Court's dismissal of the underlying prosecution, there is no need for the Court to reconsider these other notions.

The Court will enter an Order, of even date herewith, memorializing these findings.

(signed)
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE


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