Robbins testified also that the camping and storage of
property regulations were now supplemented by permit conditions.
10
These conditions prohibit a plastic tarp, for example, but aliow
smaller pieces of plastic which are used as a raincoat or ta
cover papers. Robbins acknowledged that by themselves, 24-hour
vigils and sleeping were not prohibited, nor were blankets or
sleeping'bags. Instead, Robbins indicated that sleep, and the
length of sleep, were elements which in the context of other
activity might or might not constitute a violation of the camping
regulatians. If sufficient other indications of camping were
present, he noted, a person could be in violation of the
regulation without sleeping at all,
On Mr. Thomas' request, Robbins read from William Thamas'
defendant's exhibit #4, 47 Fed. Reg. 24301 (1982) (section III of
final rule and policy statement), to the effect that short time,
casual sleeping and first amendment rights were not to be
affected by the camping regulations, which was only intended to
prevent harm to the parks.
During examination by counsel for Ellen Thomas, Robbins
attempted to answer a number of hypothetical questions posed to
determine the boundaries of the camping regulation, Personal
possessions such as literature, writing materials, rainwear, and
food would be allowed, Robbins stated, if they amounted only to
what reasonably would bg used in one day. Robbins stated that
by itself, a 24-hour vigil was permissible, but that if done by
one person for 365 days, or even a week, it would violate the
camping regulation's prohibition against using the park as a
living accommodation, even if that person only needed a couple of
11
hours of sleep every night, One or two days of continuous
presence, however, would not violate the regulation. When posed
with the hypothetical of a person who performed many activities
outside of the park, such as taking showers, preparing food, and
washing clothes, and who only slept two to three hours twice a
day, Robbins acknowledged that such a person might not be in
violation of the regulations.
Winifred Gallant testified for defendants concerning their
living accommodations. Ms. Gallant testified that Ellen Thomas
uses her home at 1440 N Street, N.W., to prepare food, to rest,
to shawer and use the bathroom. Ellen Thomas also stores
clothing, paint, literature, and personal items there; she has
access to a word processor, telephone, and VCR. Gallant also
stated that she has never seen Ellen Thomas store clothes in
plastic bags at her demonstration site.
On cross-examination by the government, Gallant acknowledged
that she did not have specific knowledge of defendants'
whereabouts during March 22 to March 29, 1987. She stated also
that she had seen one or two trash bags at defendants' site on
occasion as well as a bicycle,
On examination by William Thomas, Gallant testified that she
has rarely seen William Thomas withaut his backpack; she has seen
him take documents out of it but nothing else, She stated also
that he keeps all of his clothes in a trunk in 1440 N St and has
access to the same facilities as Ellen Thomas. To her
knowledge, besides the clothes he keeps in the trunk, the
12
backpack, and papers keptin file cabinets at 1440 N Street, the-
only other items William Thomas owns are a pail full of tools and
some paint. She volunteered furthennore that people often try to
leave things at the demonstration site but that defendants have
fought it.
Ellen Thomas took the stand in her own defense. Ms. Thomas
stated that her living accommodations were at 1440 N Street,
where she bathes, washes clothes, cooks, has privacy, stores
clothes, writes, and makes telephone calls.
During the period March 22 to March 29, 1987, Ellen Thomas
testified, she was demonstrating at her signs, carrying out her
religious duty to do something about the threat of nuclear
warfare. Using the signs in Lafayette Park.to attract attention,
she talked to passersby, distributed literature, and asked people
to sign their petition. She also did volunteer work at a soup
kitchen and attempted to help the homeless by lobbying Congress
and the city, talking to the press, and writing. She estimated
that she spent from 12 to 20 hours each day in Lafayette Park,
Ellen Thomas testified also that on March 26, 1987 she had
sought clarification of the park regulations from Patricia
Bangert, Assistant Solicitor in the Department of Interior. She
also testified that because of a physical problem, she could not
sit on the ground and needed to have something at the site to sit
on,
On cross-examination, Ms. Thomas acknowledged that she had
taken the "night shift" at the demonstration site and would sit
13
or lie down on tihnkets lor sleepins bags there throughout the
night. She stated, however,-that during the week in question,
she did not sleepduring the hours of 11:00 p,m, and 6:00 a.m.
She stated also that the purpose of the sleeping bag and blankets
was dnly to keepwarm, not to sleep, and that she was often
subject to assault from passersby. The sleeping bags are taken
out of the park early every morning, she testified.
William Thomas testified, pro se, in his own defense. Mr.
Thomas stated thdr he was in the park for most of the time during
March 22 throughMarch 29, 1987; his purpose was to persuade the
notion to pursue peace. He spent his time in the park, Thomas
reported, not just for a symbolic purpose, but also to be
available to all who want to talk to him. Defendant spent
time at 1440 N St., N.W. as well. He went there to make
telephone calls, pick up papers, drop off property, and shower.
In addition, Mr. Thomas reported that he occasionally ate food,
watched television, and had sex with his wife at this residence.
Defendant stated that one object of his life was to live
without accommodations, and so he tried to minimize his use of
the N Street residence, while still abiding by the park
regulations. Thomas testified further that he did not use the
bathroom or wash in the park, that he did not cook In the park,
and that none of the things which accommodate his living are done
in the park.
Although stating that he only "napped" and did not sleep
for extended periods of time without interruption, defendant
14
conceded that most of what sleep he did get occurs in Lafayette•:
Park. He noted that he often involuntarily fell asleep in other
places, such as the place he did word processing, when he was
outside the park.
Defendants renewed their motion for judgment of acquittal,
which was denied. William Thomas renewed his motions to dismiss:
(1) for lack of an offense and (2) for unconstitutional
application, These motions were denied.
On the basis of this evidence the court finds beyond a
reasonable doubt that during the week of March 22 through March
29, 1987, defendants William Thomas and Ellen Thomas used
Lafayette Park for living accommodation purposes, in violation of
the regulation again6t camping. 36 C.F.R. § 7.96(i)(1). Both
defendants have testified that they spent most of their time in
Lafayette Park and with occasional exceptions, spent every night
there. William Thomas acknowledged that with the exception of
the "involuntary" naps he took when out of the park, whatever
sleeping he did was done in the park. Ellen Thomas testified
that she had the *night shift" at their demonstration site in the
park and did not testify that she slept anywhere else.
The testimony of the Park Police officers established that
during the period in question, defendanes were observed at
numerous times late at night and in the early morning to be lying
prone, on bedding materials, with their eyes closed. Despite
defendants' assertions that they were not in fact sleeping on the
specific occasions alleged by the government, the court concludes
15
beyond a reasonable doubt that'defendants laid down bedding for
the purpose of sleepfng and slept in the park with such frequency, and for such periods of time as to constitute camping in violation of 36 C.F.R. 7.96(1)(1).
The court is mindful of defendants' right to express their
religious beliefs however they choose, so long as they conform
with reasonable time, place and manner restrictions placed upon
the use of the park by the Department of Interior. The Supreme
Court has held tbe camping regulations at issue here to be
reasonable and not violative of first amendment freedoms. See
Clark v. Community for Creative Non-Violence, 468 U.S, 288, 297-
300, 104 S.Ct. 3171-72 (1984). The regulation against camping
appears to permit some 24-hour vigils, such as a vigil which
lasted for only a day or two. It also would seem to permit some
continuing vigils, such as where a presence was maintained only
during daylight hours. However, it does not permit individuals
to spend substantially all of their time, including sleeping
hours, in the parL on a continuing basis. Despite the
limitations that these regulations impose on defendants' ability
to choose certain methods of expressing their religious beliefs,
defendants must comply with them.
While defendants have made some efforts to avoid violating
the regulations, such as removing their sleeping bags from the
park during the day and carrying out other domestic chores
outside of the park, the court finds defendants' use of the park
still exceeds the threshold of using the park for living
16
accommodations. It is not possible to define here the exact
point at which a legal vigil or presence in the park will in all
circumstances become the use•of the park for living
accommodations. The court does find, however, that lying on top
and within bedding materials throughout the night, for a one-week
period, without evidence of any other sleeping quarters, is
sufficient evidence of the use of the park for living
accommodations. Defendants are guilty as charged,
An appropriate Order and Judgment accompanies this
Memorandum.
(signed) Thomas Flannery
UNITED STATES DISTRICT JUDGE
Case Intro
Case Listing --- Proposition One ---- Peace Park