SCHEDULED FOR ORAL ARGUMENT ON DECEMBER 2, 1988
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Nos. 88-3015 and 88-3023, Consolidated
UNITED STATES OF AMERICA
WILLIAM AND ELLEN B. THOMAS
REPLY BRIEF OF APPELLANTS
Appellee's brief in opposition to appellants' brief merits
a short reply.
A. THERE IS NO PERSUASIVE EVIDENCE
THAT THE THOMASES WERE SLEEPING
The Thomases were tried with two co-defendants, and the
government in its brief, and the district court in its decision,
wrongly lump all the defendants together to draw the conclusion
or create the inference that the observing police officer believed
the Thomases to be sleeping. See Brief of Appellee at 4-6, 12-13.
However, the officer never testified that he believed the Thomases
to be asleep during his observation, and, moreover, his criminal
incident report on all of the defendants states specifically that
the other defendants, not the Thomases, appeared to be sleeping
during his observation of December 22, 1986. Transcript at 61-62.
B. THE CAMPING REGULATION
DOES NOT APPLY TO DEFENDANTS' VIGIL
The Thomases do not use a tent or tent-like structure for shelter
at their vigil. They have no camping or living accommodation articles
at the vigil other than the clothing or covering necessary to
sustain them depending on the weather, and there is no evidence
to the contrary in this case.
According to the Park Service's inter-pretation 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.
Community for Creative Non-Violence v. Watt, 703 F.2d
(D.C.Cir. 1983), rev'd on other grounds, Clark v. Community
for Creative Non-Violence, 468 U.S. 288 (1984).
According to the government (Brief of Appellee at 11-13)
and the district court (Tr. 65, 134), the real issue in this case
and in applying the camping regulation to demonstrators is sleep
making preparations to sleep). However, under the "Park Service's
interpretation" of the camping regulation, reported by this
Court in Watt, any sleeping done by the Thomases at their vigil
would not violate the camping regulation. 1/
Of course, it may be possible to camp without a tent or
structure, if one takes part in other camping activities such
as building a fire, preparing food, or otherwise preparing an
and using it as a campsite. But the Thomases were not engaged
in those activities. They were and are conducting a vigil, and
their camping convictions rest solely on sleeping or preparing
to sleep (laying down bedding), and, absent a structure or other
non-sleep indicia of camping, this conduct simply does not come
under the regulation.
Furthermore, the government's desire to make the "reasonable
inference" that one who lies down with a sleeping bag at
1/ The government criticizes our use of this Court's
description in Watt of the Park Service's policy on sleeping as
part of a 24-hour demonstration. Brief of Appellee, 20 n.23. The
Watt description of this policy was based on undisputed facts
and past practices of the Park Service, and it was not limited
to that case or any particular set of facts or time period. The
government does not deny this was the Park Service's policy, nor
does it argue or come forth with any proof that this policy has
been changed or disavowed in a legally operative manner.
the cold is sleeping or preparing to sleep (Brief of Appellee
at 12-13) is a reasonable inference when applied to a camper or
in the normal situation, but not when applied to persons indisputably
conducting a long-term continuous vigil well known to the authorities.
The Thomas vigil is on the sidewalk bordering Pennsylvania
Avenue and Lafayette Park; it is not in what the lay observer
would call Lafayette Park. This violates the principle set out
in United States v. Grace, 461 U.S. 171, 180 (1983), that
the government may not "transform the character" of
a sidewalk bordering a dedicated enclave or grounds "by the
expedient of including it within the statutory definition"
of that dedicated area.
The government treats this point in a footnote (Brief of
Appellee at 21-22 n.25), claiming that it is not properly before
the Court, and also by claiming a particular interest in the public
sidewalk. Although the precise point was not made in the District
Court, the Thomases have claimed throughout the case that their
vigil does no damage to the Park and their activities do not come
under the legitimate purview of the regulation. See Motion to
Dismiss for Lack of an Offense (filed March 13, 1987); Tr. 131.
Furthermore, the government's citation on this point is
incomplete. The rule is that issues not asserted in the district
court are ordinarily not heard on appeal, especially when there
is a need to determine a question of fact. However, "in exceptional
circumstances, where injustice might otherwise result, we have
the discretion to consider questions of law that were neither
raised below nor passed upon by the District Court." District
of Columbia v. Air Florida, 750 F.2d 1077, 1085 (D.C.Cir.
Here, there is no open fact question. The question presented
on this issue is the same legal question presented in Grace: can
the government change the character of a public sidewalk that
is not different from any other public sidewalk by simply including
it in the statutory definition of bordering property. The answer
is the same as in Grace, no, and the government's feeble effort
to state some special interest in Pennsylvania Avenue's northern
public sidewalk is nonsense.
This case presents exceptional circumstances: it is a criminal
case in which an injustice has been worked that this Court can
and should remedy.
C. THE REGULATION IS VAGUE AS APPLIED
We have argued, if the Thomases were camping within the
meaning of the regulation, the regulation is unconstitutionally
vague as applied to their vigil. Brief of Appellants, 22-25. 2/
2/ The government states it is not clear that this
argument was raised in the district court, although it notes that
Mr. Thomas made arguments and posed questions suggesting the contention.
Brief of Appellee at 15 n.l9. Mr. Thomas may not have precisely
named the issue, but it was clearly raised and before the district
court. See Motion to Dismiss for Lack of an Offense (filed March
13, 1987); Transcript at 86-87, 109, 130-131; William Thomas Exhibits
1, 2, and 3. Also, for the reasons stated above regarding the
sidewalk issue, the Court can and should decide this issue.
The camping regulation lists several potential indicia of
camping, but goes on to state that the "above-listed activities
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 C.F.R. 7.96(i)(1). The problem is that living accommodation
is never defined, and that leaves this crucial component up to
the predilections of officers and judges. What to one officer
or judge may be a living accommodation is to another a vigil where
the participants fell asleep or bundled-up to protect themselves
from the cold. There is nothing in the regulation to guide the
Thomases or officers or judges as to when a legal vigil crosses
the line into a living accommodation, and that violates vagueness
doctrine. See Kolender v. Lawson, 461 U.S. 352 (1983).
The government argues that laying down bedding, which it
invites the Court to infer was for the purpose of sleep, is alone
enough to sustain a conviction under the regulation (Brief of
Appellee at 17 and 15 n.18), but that misreads the regulation.
None of the potential indicia of camping listed in the regulation
constitute camping unless the finder of fact also believes, after
looking at all of the circumstances, that the participants are
in fact using the area as a living accommodation (which is undefined).
The Thomas vigil is well known to the authorities; there is no
dispute that all of the circumstances show that a
vigil was being conducted. On the other hand, whether the sidewalk
was the Thomases' living accommodation is hotly contested and
a matter of opinion. 3/
The truth is that the Thomases have limited their activities
and the property they have at the vigil solely to avoid violating
the applicable regulations, and it would be difficult to remain
alive at the vigil with less. To call their vigil a "living
accommodation" is a distortion of any normal understanding
of the phrase.
The government's claim that the Thomases were given adequate
notice of the new interpretation of the regulation, and that their
conduct violated the regulation, by camping citations received
in related cases (Appeal Nos. 88-3034 and 88-3035) is wrong. The
government states that the related citations preceded the citation
in this case (Brief of Appellee at 18 n.22), but they did not.
The citation in this case was given on December 22, 1986, and
in the related cases in March, 1987.
Furthermore, even if the Thomases had been cited for camping
before the time at issue here, that would not provide the required
notice. After three years of similar conduct without incident,
the government would have the Thomases accept the citation of
the officer on the beat as notice that their conduct
3/ The "significance here that Park Service
Assistant Solicitor Robbins agreed that 'theoretically"'
(Brief of Appellee at 15 n.18) the Thomas vigil does not violate
the camping regulation is, among other things, that it shows that
whether one is in violation of the regulation (under the government's
interpretation) is a matter of opinion.
was suddenly unlawful. The warning or opinion of a police officer,
or a formal charge by prosecuting authorities, for that matter,
does not provide sufficient notice or cure regulatory vagueness.
Under the government's theory, mere warning of an impending arrest
would immediately remedy all Constitutional defects.
If the point of the camping regulation is to protect park
land and not to inhibit speech activities, the limiting constructions
advanced by the appellants (and, regarding sleeping without structures,
by the Park Service in the past) not only make practical sense
but are also necessary to protect the unwary from arbitrary enforcement.
Many things and activities accommodate living, but they are not
all indicia of camping. The regulation must be defined to separate
campers from demonstrators like the Thomases (or even people with
blankets sleeping in the Park on their lunch-hours).
It is necessary to look at intent and "all the circumstances."
35 C.F.R. §7.96(i)(1). The Thomases are conducting a 24-hour
vigil and that is not prohibited. They speak with their continuous
presence and are committed to being available at any time of the
day or night to communicate with visitors and passersby. Because
there are few visitors and passersby late on cold winter nights,
they are not active then and must protect themselves from the
weather to survive. This has meant using blankets and sleeping
Yes, when not talking or reading or meditating they may
off, usually to be soon awakened by any one of many normal
occurrences which make undisturbed sleep impossible for two people
conducting a 24-hour vigil on the sidewalk bordering Pennsylvania
Avenue. Because they are human and must sleep some time, must
they, to avoid jail, play cat and mouse with the police or give
up the vigil they have been conducting for years?
This camping arrest was the first in three years. Should
they have anticipated the arrests, and, failing that, have then
assumed the officers were right in citing them for camping? Not
according to the record in this case.
The Park Service wants this Court to write it a new policy
statement on the reach of the camping regulation. It wants the
Court to state that the camping regulation prohibits a continuous
presence on the sidewalk bordering the Park for more than a day
or two because no one can stay awake longer than that.
Not so? There is more to it than sleep? Then the camping
regulation is a foul weather regulation. In the summer there are
no arrests of the Thomases because they do not need coats or
blankets or sleeping bags for warmth. It is in the winter, or
the rain, that they violate the regulation because they must have
protection for their literature and themselves.
The choice is between a regulation that applies to campers
who potentially threaten to damage protected park land, or one
that applies arbitrarily to a large class of persons who pose
threat or potential threat to park resources. 4/
The Court must resist the temptation to ignore what the
Thomases are actually doing, their purpose and the meaning of
their presence on the sidewalk; it must resist the temptation
to see past them and merely tally arguable indicia of living accommodations,
as if they were squatters looking for a place to live.
Instead, the Court must see the Thomases for what they
are, and this prosecution for what it is. There are separate regulations
which, among other things, protect government property from damage,
restrict storage of property in Lafayette Park, and limit the
size and number of signs allowed by demonstrators in the Park.
These regulations keep demonstrations and vigils like the Thomas
vigil within clear limits.
The camping regulation has no legitimate bearing on the
Thomas vigil. Its legitimate focus is on campers and those who
threaten park land by using it for living accommodations, i.e.,
breaking ground, pitching tents, building fires, storing property,
preparing food, eliminating wastes, etc. The Thomases are not
campers and they do not use the Park as a living accommodation.
They are participants in a 24-hour vigil, who, according
4/ The interpretation of the camping regulation currently
sought by the Park Service would subject a homeless person or
family to arrest for sleeping in the Park. We are not aware of
any citations for camping given to homeless people who frequent
and sleep in the Park. At this time, at least, it appears the
camping regulation is applied in Lafayette Park to demonstrators
to the government's best evidence, bundled themselves from
the cold on a Winter's night and fell asleep. For this they spent
fifty and sixty days in jail.
This Court should bring reason to this shameful situation
and reverse the convictions.
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Reply Brief of Appellants
was mailed, this 14th day of November, 1988, to:
(signed Mark A. Venuti)
Mark A. Venuti
2001 S Street, N.W.
Washington, D.C. 20009
Counsel for Appellants, Appointed
by the Court
U.S. Attorney's Office
Edith S. Marshall, Esq.
555 - 4th Street, N.W.
Washington, D.C. 20001
(signed Mark A. Venuti)
Mark A. Venuti