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.
1
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.
2
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
3
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
4
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
Contents
Case Listing --- Proposition
One ---- Peace Park