The opinion of the court was delivered by: GASCH
Defendant Stephen Semple is charged with violating the provisions of 36 C.F.R. § 7.96(i)(1) on successive days. This regulation proscribes camping in Lafayette Park. He seeks trial by jury. His counsel's theory is that he is subjected on each charge to a maximum penalty of $500 or imprisonment for not more than six months, or both, plus an obligation to pay costs of the proceeding.
Whether defendant is entitled to trial by jury depends on whether defendant is charged with a petty offense or a crime (Art. III § 2 and amendment 6 to the Constitution). Ordinarily, imprisonment for a period not to exceed six months is regarded as a penalty for a petty offense, 18 U.S.C. § 1(3), for conviction of which one would not be entitled to trial by jury. Cheff v. Schnackenberg, 384 U.S. 373, 16 L. Ed. 2d 629, 86 S. Ct. 1523 (1966). Cheff had been convicted of contempt for violation of a pendente lite order of the Court of Appeals. He had demanded trial by jury, which was denied. A sentence of six months was imposed.
Cheff's argument is unavailing, for we are constrained to view the proceedings here as equivalent to a procedure to prosecute a petty offense, which under our decisions does not require a jury trial. Over 75 years ago in Callan v. Wilson, 127 U.S. 540, 557 [32 L. Ed. 223, 8 S. Ct. 1301] (1888), this Court stated that "in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose," a jury trial is not required. And as late as 1937 the Court reiterated in District of Columbia v. Clawans, 300 U.S. 617, 624 [81 L. Ed. 843, 57 S. Ct. 660,] that: "It is settled by the decisions of this Court . . . that the right of trial by jury . . . does not extend to every criminal proceeding. At the time of the adoption of the Constitution there were numerous offenses, commonly described as 'petty,' which were tried summarily without a jury . . . ." See also Natal v. Louisiana, 139 U.S. 621 [35 L. Ed. 288, 11 S. Ct. 636] (1891); Lawton v. Steele, 152 U.S. 133, 141-42 [38 L. Ed. 385, 14 S. Ct. 499] (1894); Schick v. United States, 195 U.S. 65, 68-72 [49 L. Ed. 99, 24 S. Ct. 826] (1904); District of Columbia v. Colts, 282 U.S. 63, 72-73 [75 L. Ed. 177, 51 S. Ct. 52] (1930). Indeed, Mr. Justice Goldberg, joined by The Chief Justice and Mr. Justice Douglas, took the position in his dissenting opinion in United States v. Barnett, supra, at 751, that "at the time of the Constitution all types of 'petty' offenses punishable by trivial penalties were generally triable without a jury . . . ."
Cheff v. Schnackenberg, supra, 384 U.S. at 379. In a subsequent contempt case, Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), the Supreme Court observed:
In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled by District of Columbia v. Clawans, supra, to refer to objective criteria, chiefly the existing laws and practices in the Nation. In the federal system, petty offenses are defined as those punishable by no more than six months in prison and a $500 fine . . . .
Duncan v. Louisiana, supra, 391 U.S. at 161 (footnote omitted). One of the cases mentioned both in Cheff and Duncan was District of Columbia v. Clawans, 300 U.S. 617, 81 L. Ed. 843, 57 S. Ct. 660 (1937). In that case defendant had been convicted of engaging, without a license, in the business of selling secondhand personal property. She had of the regulations,
and it was decided prior to the decision of the Supreme Court in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984). The Supreme Court in Clark addressed the section of the regulations involved in this case and answered defendant's contention with respect to his alleged constitutional right to sleep symbolically in the Park.
That sleeping, like the symbolic tents themselves, may be expressive and part of the message delivered by the demonstration does not make the ban any less a limitation on the manner of demonstrating, for reasonable time, place, or manner regulations normally have the purpose and direct effect of limiting expression but are nevertheless valid . . . . Neither does the fact that sleeping, arguendo, may be expressive conduct, rather than oral or written expression, render the sleeping prohibition any less a time, place, or manner regulation. To the contrary, the Park Service neither attempts to ban sleeping generally nor to ban it everywhere in the parks. It has established areas for camping and forbids it elsewhere, including Lafayette Park and the Mall. Considered as such, we have very little trouble concluding that the Park Service may prohibit overnight sleeping in the parks involved here.
Clark v. Community for Create Non-Violence, supra, 468 U.S. at 294-95 (citations omitted). To demonstrate that defendant may bear collateral consequences comparable to those mentioned by the Ninth Circuit in United States v. Craner, 652 F.2d 23 (9th Cir. 1981), counsel points out that, although the same penalty provision for the park regulations in Craner was involved, nevertheless, the Ninth Circuit concluded that a jury trial was warranted. After discussing the offense charged in that case, particularly that one charged with driving while under the influence of liquor might lose his license, the Ninth Circuit stated the basis for its grant of a jury trial:
At least seven of the states in this Circuit guarantee the DUI defendant the right to a jury trial. This is a better objective gauge of the common perception of the gravity of the offense than the broad formula for classifying crimes found in 18 U.S.C. § 1. It accords with the relevant state and federal practice that Craner have the jury trial he seeks.
United States v. Craner, supra, 652 F.2d at 27 (footnote omitted).
We have difficulty, therefore, in understanding why the prohibition against camping, with its ban on sleeping overnight, is not a reasonable time, place, or manner regulation that withstands constitutional scrutiny. Surely the regulation is not unconstitutional on its face. None of its provisions appears unrelated to the ends that it was designed to serve. Nor is it any less valid when applied to prevent camping in Memorial-core parks by those who wish to demonstrate and deliver a message to the public and the central Government. Damage to the parks as well as their partial inaccessibility to other members of the public can as easily result from camping by demonstrators as by nondemonstrators. In neither case must the Government tolerate it. All those who would resort to the parks must abide by otherwise valid rules for their use, just as they must observe ...