SCHEDULED FOR ORAL ARGUMENT ON NOVEMBER 8, 1988 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 88-3034 and 88-3035, Consolidated

UNITED STATES OF AMERICA
Appellee,

v.

WILLIAM AND ELLEN B. THOMAS
Appellants.

REPLY BRIEF OF APPELLANTS

Mark A. Venuti, Esquire
Suite 100
3600 M Street, N.W.
Washington, D.C. 20007
(202) 965-9700

Counsel, Appointed by the Court, for William and Ellen B. Thomas

Appellee's brief in opposition to appellants' brief raises no significant new or different legal authority, but its emphasis on and use of certain factual issues deserves comment.

A. STORAGE OF PROPERTY
IS NOT RELEVANT TO THIS APPEAL

The government attempts to support the convictions in these cases with police testimony concerning property observed at or near the Thomas vigil. Brief of Appellee, 20-21. The government would like the Court to assume the Thomases were "storing personal belongings" in Lafayette Park because that is one example of an action which, taken "in light of all the circumstances," might indicate camping or using park land for living accommodation purposes. 36 C.F.R. 7.96(i)(1). There is an insurmountable problem with this argument.

The police testimony concerning property at the vigil was disputed by the Thomases and other defense witnesses, and the district court did not resolve the dispute nor rely on storage of property in finding the Thomases guilty of camping. This was no oversight by the district court. The government stressed the storage of property point in its case and argument, but the court declined to find for the government on the issue or rely on it to support the convictions. See Transcript (hereinafter Tr.) 291, and Memorandum of February 5, 1988, 15-17.

The fact finder in this case has given the specific reasons for its Judgment (unlike in the usual Jury trial where a general verdict is announced), and these did not include storage of property. This Court cannot do what the district court declined to do: resolve a disputed factual issue in favor of the government and use it to support the convictions.1/

The government also attempts to prejudice the Court by giving the impression that the Thomases used tarps and created a tent to shelter the vigil. See Brief of Appellee, 18, 22, 30. The citations to "a plastic tarpaulin - type covering" and "a tarp" on page 18 of Appellee's Brief are distortions of the testimony. Pieces of plastic were used to cover papers from the rain, and, on one occasion, the Thomases. Never was a tent created out of the pieces of plastic. Moreover, as with the alleged property discussed above, the district court made no finding on this point and did not mention it or rely on it in finding the Thomases guilty of camping.

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 (e.g., in the Winter, blankets or sleeping bags; in the rain, plastic).


1/ The government exaggerates the evidence in its favor on this point. The police testimony on storage of property was primarily conclusory and confused, unsupported by the criminal incident reports prepared by the officers in support of the citations (Tr. 23-24, 93), and inconsistent. See Brief of Appellants, 26. For example, this is what Officer Doerrler observed on March 29: "At the time, to the best of my recollection, I can recall observing large quantities of various bundles and heaps of bags and other type materials which I did not identify at this time [or ever]." Tr. 88.

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.

Community for Creative Non-Violence_v. Watt, 703 F.2d 586, 589 (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, 19-20) and the district court (Tr. 111), the real issue in this case and in applying the camping regulation to demonstrators is sleep (and 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.2/ See Brief of Appellants, 16-17.

Of course, it is 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 area 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

2/ 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, 31 n.31. 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, 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.

There is another reason why the camping regulation should not be applied to the Thomas vigil. The new camping restriction was supposedly necessary to protect certain national parks "from activities for which they are not suited and the impacts of which they cannot sustain." 74 Fed. Reg. 24,304 (1982). Pitching tents in Lafayette Park and sleeping in them, i.e., CCNV, is clearly camping and the type of impact from which Lafayette Park is legitimately to be protected.

On the other hand, the Thomas vigil is on the large public sidewalk bordering the Park and Pennsylvania Avenue, and it does not create any impact on the Park land that is the focus of the regulation. The government may not "transform the character" of the bordering public sidewalk, which it has no more interest in, vis-a-vis camping, than any other public sidewalk, "by the expedient of including it within the statutory definition" of Lafayette Park, which it does have an interest in protecting from camping. United States v. Grace, 461 U.S. 171, 180 (1983).

The Court should construe the camping regulation to cover the Park land and its contents, not the bordering public sidewalk.

C. THE PARK SERVICE HAS CHANGED ITS
INTERPRETATION OF THE REGULATION WITHOUT NOTICE

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, 28-33. See also Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1035 (D.C.Cir. 1980). Related to this argument is that, if the regulation now applies to the Thomases, its scope has been changed without adequate notice to the Thomases.

There is evidence of specific Park Service policies concerning the ambit of the camping regulation. The first is that sleeping at a demonstration connotes impermissible camping only when it is done within a temporary structure. See Section B. supra. The second is that sleeping in the Park becomes camping only after four hours. See Brief of Appellants, 18; Brief of Appellee, 30 n.30. In other words, casual or intermittent sleep is not evidence of camping, but overnight sleeping or sleeping for large portions of the night or day is. See Brief of Appellants, 19-20.

The Thomases knew of these policies and acted accordingly to avoid violating the law, but they were charged and convicted nevertheless. This violates the fundamental rule that one cannot proceed under a new interpretation of a regulation without fair warning. See Keeffe v. Library of Congress, 777 F.2d 1573, 1582 (D.C.Cir. 1985) (regulation unconstitutional as applied because of failure to warn of new interpretation).

The government's claim that the Thomases were given adequate notice of the new interpretations, and that their conduct violated the regulation, by the very citations at issue in this case is absurd. Brief of Appellee, 28-29 n.29. 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 is 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 bags.

Yes, when not talking or reading or meditating they may doze 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?

These camping arrests were 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.3/

3/ By the same token, we agree with the government that enforcement of the regulation should not hinge upon an individual's sensitivity to noise or insomnia. The difference is that our interpretation of the regulation provides meaningful limits while the Governments can serve to trap the unwary.

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 no 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

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 only, not campers and they do not use the Park as a living accommodation. They are participants in a 24-hour vigil, who, according to the government's best evidence, bundled themselves from the cold on a few Winter's nights and fell asleep. For this they spent thirty days in jail.

This Court should bring reason to this shameful situation and reverse the convictions.

Respectfully submitted,

/s/Mark A. Venuti
Mark A. Venuti
Suite 100
3600 M Street, N.W.
Washington, D.C. 20007
(202) 965-9700

Counsel for Appellants, Appointed by the Court

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Reply Brief of Appellants was mailed, first class postage prepaid, this 21st day of October, 1988, to:

U.S. Attorney's Office
Edith S. Marshall, Esquire
555 - 4th Street, N.W.
Washington, D.C. 20001

/s/Mark A, Venuti
MARK A VENUTI


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