United States v. Thomas CR 87-0231

Richard G. Robbins, Assistant Solicitor for National Capital Parks in the Department of Interior, was called as a witness by defendants. Mr. Robbins indicated that part of his job is to provide legal advice to the National Capital Region of the federal parks system, including questions regarding demonstrations in those parks, Robbins stated that he was familiar witk defendants' demonstration site and agreed that over the last year, defendants' site had generally been in compliance with the storage-of-property regulations.

Robbins testified also that the camping and storage of property regulations were now supplemented by permit conditions.

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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

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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

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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

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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

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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

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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

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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