UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, Appellant,
v. (D.C. App. No. 87-3041)
(Cr. No. 87-60)
SCOTT M. GALINDEZ, Appellee,
UNITED STATES OF AMERICA, Appellant,
v. (D.C. App. No. 87-3042)
(Cr. No. 87-61)
STEPHEN SEMPLE, Appellee,
UNITED STATES OF AMERICA, Appellant,
v. (D.C. App. No. 87-3043)
(Cr. No. 87-62)
WILLIAM THOMAS, Appellee,
UNITED STATES OF AMERICA, Appellant,
v. (D.C. App. No. 87-3044)
(Cr. No. 87-63)
PHILLIP JOSEPH, Appellee,
UNITED STATES OF AMERICA, Appellant,
v. (D.C. App. No. 87-3044)
(Cr. No. 87-64)
ELLEN THOMAS, Appellee.
REPLY TO OPPOSITION FOR
MOTION FOR SUMMARY REVERSAL
Appellant hereby submits this reply to Appellee Ellen Thomas'
Opposition to Appellant's Motion for Summary Reversal ("Opposition").
In her Opposition, appellee argues that the
District Court's decision was adequately supported by the
1
record. Alternatively, appellee claims that the government
"conceded" at the hearing that appellee's activities
in Lafayette Park were compelled by her religious beliefs. Appellee
also contends that she satisfied any burden that she had of establishing
a free exercise claim simply by showing that her religious beliefs
were sincere. Furthermore, although apparently acknowledging that
camping is at most "facilitative activity", appellee
nonetheless claims that it is protected by the free exercise clause.
Finally, appellee asserts that the government did not demonstrate
a "substantial" interest in enforcing the camping prohibition,
and that Clark v. Community for Creative Non-Violence (CCNV),
468 U.S. 288 (1984), is "distinguishable" because the
government has not shown that appellee's "solitary vigil"
presents a danger to Lafayette Park comparable to that posed by
the demonstrators in Clark v. CCNV. These contentions are
all meritless.
Contrary to appellee's Opposition, there is no factual
basis in the record for the District Court's conclusion that appellee,
in camping in Lafayette Park, was engaged in a religious exercise
or practice. Ellen Thomas, like the other appellees, proffered
nothing at the hearing concerning her "religion." She
did not explain what her beliefs were, or why they were religious
in nature. Nor did she in any way demonstrate a link between her
beliefs and her activities in Lafayette Park. Rather, like Stephen
Semple, Phillip Joseph,
2
and the absent Scott Galindez through his attorney 1/, Ellen
Thomas merely adopted William Thomas' "testimony" --
which amounted only to a conclusory assertion that his activities
were inspired by his sincere religious beliefs -- as her own.
As explained in Appellant's Motion for Summary Reversal ("Motion"),
this does not constitute a sufficient showing of an exercise of
a religion. (See Motion at 13-20).
Appellee now seeks to fill this void in the record by asserting
for the first time in her Opposition that she has been engaged
in a three and one-half year old vigil "in order to proclaim
the message of God's love and the incompatibility of nuclear weapons
with his love." (Opposition at 5). Appellee further states
in her Opposition that her religious beliefs "compel her
to act as an earthly messenger proclaiming the danger of the threat
posed by nuclear weapons," (Opposition at 10), and "compel
her to conduct an around-the-clock-vigil" which requires
the "aid of intermittent sleep." (Opposition at 11).
Notably, none of these claims were presented to the District Court,
and the record fails to support these assertions. Although it
is not surprising that appellee now seeks to supply in her Opposition
the factual showing missing below, the District Court's decision
cannot be upheld based on unsupported allegations that the District
Court never heard.
______________________
1/ Scott Galindez was not even present at the hearing,
yet the Court, incredibly, allowed Galindez to join in Thomas'
motion and answers and affirm his sincerity through his attorney.
3
Recognizing the inadequacy of the record, appellee claims that
little or no showing of an exercise of a religion was required
because the government "conced[ed]" at the hearing that
appellee's "actions were compelled by her deeply held religious
beliefs." (Opposition at 2). Appellee is wrong. The government
never conceded that appellee's beliefs were religious, and never
conceded that appellee was "compelled" by her beliefs
to camp in Lafayette Park. Although the prosecutor did not vigorously
contest the religious nature of appellees' activities in the park,
instead arguing that appellees' beliefs were not a defense to
the camping prohibition even if religious and sincere, 2/
that was because the prosecutor was caught off-guard by the last
minute filing of William Thomas' motion and surprised by the Court's
reading of it as raising a free exercise claim. 3/ In any
event, this Court's decision in Founding Church of Scientology
v. United States, 409 F.2d 1146 (D.C. Cir.), cert.
denied, 396 U.S. 963 (1969), makes clear that even when the government
does not contest a party's assertion that its activities are religious,
the claimant must still establish a prima facie case
__________________________
2/ Of course, the prosecutor was correct; the government's
substantial interest in maintaining Lafayette Park in "an
attractive and intact condition," Clark v. CCNV, 468
U.S. 288, 296 (1984), does in fact override even a legitimate
free exercise claim. (See Motion at 23-27).
3/ As noted in our Motion, the government immediately
sought to correct any error on its part by moving for rehearing
and reconsideration. The Court denied the government such an opportunity,
erroneously stating that the government had affirmatively indicated
at the hearing that it was prepared to respond. (See Motion at
10-12, 17).
4
that it is engaged in the exercise of a religion in order to
be accorded First Amendment protection. Id at 1160. Ellen Thomas,
like the other appellees, has plainly failed to make such a showing.
(See Motion at 13-20).
Also missing from appellee's Opposition is any explanation
whatsoever of the significance of Lafayette Park to appellee's
religion. This omission, in itself, is fatal to appellee's case.
Contrary to appellee's Opposition, a party seeking to invoke the
free exercise clause as a defense to a regulation of general applicability
must show not only that his beliefs are religious and sincere,
but that the regulation burdens him in the exercise of his religion.
See, e.g., Abington School District v. Schempp, 374 U.S.
203, 233 (1963) (claimant must demonstrate the "coercive
effect of the enactment as it operates against him in the practice
of his religion"); Wilson v. Block, 708 F.2d 735,
740 (D.C. Cir.) (party asserting free exercise claim has "initial
burden" of proving that the regulation infringes upon a religious
belief or practice), cert. denied, 464 U.S. 956 (1983).
Here, even assuming that appellee's religion compels her
to conduct an around-the-clock vigil in opposition to nuclear
weapons --a somewhat unusual religious practice to be sure -appellee
has not explained in her Opposition, and never showed at the hearing,
why her religion requires her to conduct this vigil in Lafayette
Park. Unlike the Indian tribes in Wilson v. Block, appellee's
religion does not appear to be "site specific," and
it defies imagination that appellee views
5
Lafayette Park as a "sacred" spot. See Wilson v.
Block, 708 F.2d at 740. Having failed to demonstrate any connection
between her beliefs, even if religious, and Lafayette Park itself,
appellee has not shown that the anti-camping regulation burdens
her "religion." (See Motion at 19-20).
Nor has appellee explained why camping in Lafayette Park,
as opposed to conducting her anti-nuclear protest there, is entitled
to First Amendment protection. Sleeping on the ground is not,
in and of itself, a religious act. Moreover, unlike the demonstrators
in Clark v. CCNV, who sought to sleep in the park to demonstrate
the plight of the homeless, camping has no antinuclear significance.
Nor can appellee seriously claim that she can communicate her
anti-nuclear views while asleep. Indeed, appellee appears to recognize
that camping, in this case, is at most "facilitative activity",
and as such is protected by the First Amendment "only insofar
as its restriction imposes burdens on expression itself."
White House Vigil for the ERA Committee v. Clark, 746 F.2d
1518, 1540 (D.C. Cir. 1984); (see Opposition at 11). Yet appellee
fails to explain why she cannot sleep some place other than Lafayette
Park, and return to the park to conduct her protest once awake.
Consequently, she has failed to show that the prohibition on camping
restricts the expression of her religious views. Camping in the
park is simply a
"convenience" for appellee, which the First Amendment
does not require the government to furnish. See Heffron v.
International Society for Krishna Consciousness, Inc. 452
U.S. 640, 647 (1981); (see Motion at 22-23).
6
Finally, appellee asserts that the government has not demonstrated
a "substantial" interest in enforcing the anti-camping
regulation (Opposition at 3, 9), and that Clark v. CCNV
is "distinguishable" from this case because the large
number of demonstrators in Clark v. CCNV posed a "self-evident"
threat to Lafayette Park, whereas the government has not show
that appellee's "solitary vigil" has caused or will
cause any damage. (Opposition at 12-13). 4/ These contentions
are frivolous. The prosecutor specifically stated at the hearing
that the government's interest in enforcing the camping prohibition
was to protect Lafayette Park from the damage that camping would
necessarily cause. The Supreme Court, as the government pointed
out to the District Court, has expressly recognized that this
interest -- "maintaining the parks in the heart of our Capital
in an attractive and intact condition" -- is a "substantial"
one, 5/ which overrides even a legitimate First Amendment
claim. Clark v. CCNV, 468 U.S. at 296, 299.
Nor must the government show that appellee poses a danger
to Lafayette Park comparable to the demonstrators in Clark
v. CCNV in order to prevent her from camping there. Lafayette
Park
____________________________
4/ Appellee does not quarrel with the proposition that
appellees' activities in the park, like those of the demonstrators
in Clark v. CCNV, were subject to legitimate time, place,
and manner restrictions. (See Motion at 24-26).
5/ Because appellees were engaged, at most, in religiously
motivated expression, it is unnecessary to determine whether the
anti-camping regulation satisfies a higher, "compelling"
interest standard of review. The government submits, however,
that the Supreme Court's decision in Clark v. CCNV indicates
that the regulation satisfies even this higher standard. (See
Motion at 25-26, n. 15).
7
is not a campground. It is a "garden park with a . . .
formal landscaping of flowers and trees, with fountains, walks
and benches." Clark v. CCNV, 468 U.S. at 290 (quotations
and citations omitted). Any camping in Lafayette Park damages
it, renders it less attractive, and unfairly interferes with its
use by the "millions of people who wish to see and enjoy"
it. Id. at 296.
Furthermore, this is not a "solitary" vigil,
as appellee claims. This case alone involves five individuals
camping in the park, and appellee, by her own admission, has been
camping there for over three years. Moreover, as this Court is
aware, and as Clark v. CCNV shows, appellees are not alone
in their desire to sleep in the park in connection with the exercise
of their First Amendment rights. Park officials plainly cannot
be required to estimate the amount of damage any particular "camper"
or group of "campers" will cause. Nor may they be called
upon to somehow distinguish between the various groups who seek
to camp in the park. Indeed, the Supreme Court, in Clark v.
CCNV, expressly recognized that the validity of the anti-camping
regulation "need not be judged solely by reference to the
demonstration at hand." Id. at 296-297. (See Opposition at
26-27). The First Amendment thus does not require granting appellee
an exemption to the camping prohibition -- even assuming that
she poses less of a danger to the park than the protesters in
Clark v. CCNV --
8
nor could any intelligent exception be carved out. Hence, appellee's
claims are totally meritless. 6/
WHEREFORE, appellant respectfully submits that its motion
for summary reversal should be granted.
(signed)
JOSEPH E. DIGENOVA A:
United States Attorney
(signed)
ROYCE C. LAMBERTH
Assistant United States Attorney
(signed)
MICHAEL J. RYAN
Assistant United States Attorney
(signed)
JOHN D. BATES
Assistant United States Attorney
(signed)
CURTIS E. HALL
Assistant United States Attorney
____________________________
6/ On August 3, 1987, appellee William Thomas filed
an Opposition To Appellant's Motion For Summary Reversal and Motion
For Summary Affirmance. The following day, August 4, 1987, Thomas
filed a Motion For Leave To File A Petition For Writ of Mandamus
and a Petition For Writ of Mandamus, in which Thomas indicated
that he had not intended to file an Opposition to the government's
motion, and instead wished the Court to consider, in its place,
his mandamus petition. Regardless of Which pleading is properly
before this Court, William Thomas' claims are groundless and do
not warrant a response.
9
CERTIFICATE OF SERVICE
I, Curtis E. Hall, hereby certify that on August 17th ,
1987, I served a copy of the foregoing Appellant's Reply To Appellee
Ellen Thomas' Opposition To Appellant's Motion For Summary Reversal
by causing a true copy thereof to be mailed, by first-class mail,
postage prepaid, to William Thomas, 1440 N. Street, N.W., #410,
Washington, D.C.; Phillip Joseph, P.O. Box 27217, Washington,
D.C.; John M. Copacino, Esquire, attorney for Ellen Thomas, 25
E. Street, N.W., Washington, D.C. 20001; Mona Asiner, Esquire,
attorney for Scott Galindez, 1717 K. Street, N.W., #1200, Washington,
D.C. 20036; and Stephen Semple, P.O. Box 2717, Washington, D.C.
(signed Curtis E. Hall)
CURTIS E. HALL
Assistant United States Attorney
Civil Division
Judiciary Center Building
555 4th Street, N.W. - 4th Floor
Washington, D.C. 20001
(202) 272-9224