UNITED STATES OF AMERICA, Appellant, versus (D.C. App. No. 87-3041) SCOTT M. GALINDEZ Appellee, UNITED STATES OF AMERICA Appellant, versus (D.C. App. No. 87-3042) STEPHEN SEMPLE, Appellee, UNITED STATES OF AMERICA, Appellant, versus (D.C. App. No. 87-3043) WILLIAM THOMAS, Appellee, UNITED STATES OF AMERICA, Appellant, versus (D.C. App. No. 87-3044) PHILLIP JOSEPH, Appellee, UNITED STATES OF AMERICA, Appellant, versus (D.C. App. No. 87-3045) ELLEN THOMAS, Appellee,
1/ e.g. United States v. Thomas, 87-341, J. Flannery, Trial date October 13, 1987, and United States v. Thomas, USDC Cr. No. 8760, J. Richey, barring reversal by this Court.
in this case should not have been dismissed for the reasons given by the district court." Memo, page 4.
"(w)e assume, as did the district court, that appellees' anti-nuclear vigil in Lafayette Park was the product of sincerely held religious beliefs" (Memo, page 1);
through a misapprenhension of fact;
"(d)epending on which characterization of the facts is accepted, the restrictions at issue here pertain either to the manner in which appellants (sic) communicate (through their signs while sleeping) or to conduct which facilitates that communication in the place chosen by appellants (sic) for that purpose (sleep enables continuous vigil)" (Memo, page 2, ftn. 1);
to a conclusion that is unrelated to the facts of this case:
"Once camping is permitted for one or a few, it may not be denied to others who seek equal access. Clark, 468 U.S.
at 296-97." Memo, page 3.
2/ Appellee filed a number of motions, contained in the record below, which were denied by the District Court as moot (see Order, J. Richey, April 23, 1987, page 3, Appendix 2, and Order, J. Richey, May 26, 1987, page 6, Appendix 3). Some of the issues raised in those motions are germane to the instant petition, and must, in the interest of justice, be considered here. Accordingly a number of attachments (Defendant's Exhibits) to those motions are included in the Appendix which accompanies this Petition.
"The purpose of my life is to acquire wisdom and attain moral perfection.
"I live as a penniless wanderer and a pilgrim ...
"I ... was compelled to enter the United States despite my vigorous objection....
"Given the option of living my life in decadent luxury at the expense of my fellow creatures, or voluntarily laying it down in the service of Truth, Justice and Freedom I would choose the latter. I entreat those who understand my words to confront the evils of the nation-state by gathering at the White House to pray for Reason, Sanity and an End to War in illustration of the ideals of non-violence." Appendix 4F.
4/ "The term 'demonstrations' includes ... holding vigils, or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent, or propensity to draw a crowd or onlookers." 36 CAR 9.76(g)(1)(i). Appendix 7.
7/ "'Camping' does not mean 'casual sleep' (Federal
Register, June 4, 1982, Vol. 47, No. 108, p. 24301)." Proposed
Order, filed October 19, 1985, para. (2)(a).
"We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs ...." Thomas v. Review Board, 450 U.S. 707 (1981), page 717.
III. Clark v. CCNV, 104 S. Ct. 3065, 3073-3080 (1984) -"SLEEPING" IS NOT "CAMPING."
"In the unusual circumstances of an individual protester's round-the-clock vigil in Lafayette Park, unavoidable sleeping 'must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance'." CCNV v. Watt, USDC App. No. 82-2445, decided March 9, 1983, page 5, quoting United States v. Abney, 534 F.2d 985 (1976). SEE ALSO Appendix 11.
"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." Clark, op. cit., 3068, 3069.
"(A)lthough we have assumed for present purposes that the sleeping banned in this case would have an expressive element, it is evident that its major value to this demonstration would be facilitative. Without a permit to sleep, it would be difficult to get the poor and homeless to participate or to be present at all." Clark, page 3074.
"The *** apparent distinction between the sleeping in the veterans' demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground, without any shelter. According to the Park Service's interpretation of the new regulations, one's participation in a demonstration as a sleeper becomes impermissible 'camping' when it is done within any temporary structure erected as part of the demonstration." CCNV v. Watt, USDC App. No. 82-2445, decided March 9, 1983, page 5; SEE ALSO Appendix 13.
8/ "I find it difficult to conceive of what 'camping' means, if it does not include pitching a tent and building a fire. Whether sleeping or cooking follows is irrelevant. With all its frailities, the English language, as used in this country for several centuries, and as used in the Park Service regulations, could hardly be clearer in informing the public that camping in Lafayette Park was prohibited." Clark v. Community For Creative Non-Violence, 104 S. Ct., 3072, C.J. Burger, concurring opinion.
9/ "(T)he Park Service neither attempts to ban sleeping generally nor to ban it everywhere in the Parks." Clark, p. 3065.
10/ "The regulations prohibiting camping are not intended 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 accommodation purposes will not be affected by these regulations." Federal Register, June 4, 1982, page 24301. Appendix 14.
To make the term "living accommodation purposes" synonymous with the word "alive" simply deprives words of meaning. 11/
"the Government has no interest per se in prohibiting any of these particular defendants from sleeping in the park." Transcript of the hearing, April 23, 1987, page 49.
11/ In pertinent part the regulation reads: "Temporary structures may not be used outside designated camping areas for LIVING ACCOMMODATION activities such as sleeping, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping) or storing personal belongings, or making any fire, or doing any digging or earth breaking or carrying on cooking activities. The above-listed constitute camping when it REASONABLY appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a LIVING ACCOMMODATION...." 36 CFR(g)(5)(vii), EMPHASIS ADDED.
12/ "You have also filed a motion to proffer evidence in support of a defense of necessity. That motion is that, even assuming you violated the regulation, you did so because of your belief or beliefs, (and) a vow of poverty...." Judge Richey, Transcript, April 23, 1987 hearing, page 41. Appendix 15.
"When it has been shown that an individual has acted contrary to law out of a 'sincerely held religious belief,' it is the Government's responsibility to show that it has a compelling interest in the law at issue and that it has enforced the law with the least restrictive means with respect to that religious belief. SEE Wisconsin v. Yoder, 406 U.S. 205 (1972); Murdock v. Pennsylvania, 319 U.S. 105 (1943); see also Thomas v. Review Board, 450 U.S. 707 (1981); L. Tribe, American Constitutional Law section 14-10. The Government did not offer a scintilla of evidence to that effect. Nor did it proffer a single reason sufficient in law to support a claim of compelling interest." Order of Judge Richey, April 23, 1987, page 3.
IV. THERE IS NO NECESSITY TO GRANT ACCESS TO ALL OTHERS.
3068), and that difference explains, in part, why it is also incorrect to hypothecate that the ability to maintain a continuous presence, if "permitted for one or a few, ... may not be denied to others who seek equal access" (Memo, page 3). Without doubt such access could be limited or denied to others:
"A variety of circumstances already require government agencies to engage in the delicate task of inquiring into the sincerity of claimants asserting First Amendment rights. See e.g. Wisconsin v. Yoder, 406 U.S. 205 (9172), Welsh v. United States, 398 U.S. 343-344 (l970)." Clark, Id. 3076.
Quaker Action Group v. Morton, 148 U.S. App.D.C. 342, 356, dealt with a nearly identical factual situation involving a "continuous presence" on the White House sidewalk. There the court found a ready alternative to denying access to one or admitting access to all through the imposition of reasonable limitations on the number of persons (750) permitted to participate in a demonstration on the sidewalk. 36 CFR 7.96(g)(5)(i). Appendix 7.
V. THE COURT HAS APPLIED THE WRONG PRECEDENTS
was unintended. Appendix 16.
"As the society around (Thomas) has become more populous, urban, industrialized, (militarized) and complex, particularly in this century, government regulation of human affairs has correspondingly become more detailed and pervasive. (Thomas') mode of life has thus come into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to the majoritarian standards.... As the record so strongly shows, the values and programs of the modern (military/industrial complex) are in sharp conflict with the fundamental mode of life mandated by (Thomas') religion." Wisconsin v. Yoder, 406 U.S. 217 (1971), (parentheses substituting).
VI. IMPORTANCE OF THE CASE
"I am sensitive, perhaps more sensitive than most, to the fact that if your country suppresses the kind of protest that you are engaged in, we would be jeopardizing the liberty of us all." U. S. v. Thomas, USDC Cr. No. 83-186, sentencing transcript, December 21, 1987, page 29. J. Oberdorfer.
"there remains an incredible number of incidents stemming from (arrests of Thomas') on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Magistrate Burnett's Memorandum Opinion, Report & Recommendation, Thomas v. USA, CA 84-3552, filed January 13, 1987, at page 9.
Filing. In the interests of civilization appellee humbly urges the Court adopt the former possibility.
William Thomas, appellee, pro se
1440 N Street NW #410
Washington, DC 20005
I, William Thomas, hereby certify that, this 9th day of October,
1987, I served a copy of the foregoing PETITION OF APPELLEE WILLIAM
THOMAS FOR REHEARING by hand delivering it to the Office of the
Clerk of the U.S. District Court and requesting
that it be placed in the U.S. Attorney's box for Mr. John D. Bates.
1. Per Curiam Order and Memorandum, USDC App., September 22, 1987, and Federal Defendant's Notice of Filing, September 30, 1987, Thomas v. USA, CA. No. 84-3552.
2. Order of District Court Judge Charles Richey, April 23, 1987.
3. Order of District Court Judge Charles Richey, May, 26, 1987.
4. Secret Service Report, June 6, 1981, and attachments, Manifesto of Independence. Defendant's Exhibit 4-f, Motion to Dismiss for Intentional Ex Post Facto Enforcement, filed April 15, 1987.
5. Boston Globe article, August 27, 1981, Defendant's Exhibit
6, Motion to Dismiss for Intentional Ex Post Facto Enforcement, filed April 15, 1987.
6. "Religion is a Way of Life," Defendant's Exhibit 10, Motion to Dismiss for Malicious Prosecution, filed April 15, 1987.
7. 36 CFR 7.96, October 17, 1986, Federal Register.
8. Encyclopedia Brittanica, "SLEEP", pages 876 thru 883.
9. Order of District Court Judge Louis Oberdorfer, filed April 4, 1986, USA v. Thomas, Cr. No. 83-186, Attachment 1 to Response of Defendant William Thomas to Motion of U.S. to Consolidate Cases for Trial, filed March 13, 1986.
10. Proposed Order, Thomas v. USA, Defendant's Exhibit 20, Motion for Judicial Notice, filed May 12, 1987 .
11. Transcript of CCNV v. Watt, Civ. No. 81-2844, November 25, 1981, Defendant's Exhibit 1, Response To Government's Opposition to the Motion to Dismiss For Lack of Offense, filed March _, 1987.
12. Second Declaration of Defendant William Thomas, Defendant's Exhibit 12, MOTION TO DISMISS BY REASON OF AN ACT OF GOD, filed April 21, 1987.
13. Transcript of CCNV v. Watt, Civ. No. 81-2844, November 24, 1981, Defendant's Exhibit 2, Response to Opposition to the Motion to Dismiss For Lack of Offense, filed March 13, 1987 .
14. Federal Register, June 4, 1982
15. Motion Of Defendant William Thomas To Proffer Evidence In Support Of A Defense Of Necessity, filed April 15, 1987.
16. Federal Register, March 5, 1986.
17. Motion To Empanel a Three Judge Court, Thomas v. USA, 843552, filed October 5, 1987.