homeless to wayward travelers, not necessarily for defendant in particular.
Finally, after being informed of his privilege against self-incrimination, defendant waived the privilege and testified on his own behalf. After submitting into evidence several passages from a book on the philosophy of Jesus, defendant testified that the extra blankets, food, and sleeping bags were at his site not for his own use, but for others to use if needed. He also insisted that he was not sleeping when discovered by Officer Fornshill on April 8, 1988, and that he was not using Lafayette Park for living accommodation purposes.
On cross-examination, however, defendant stated that most of the time he sleeps in Lafayette Park, although he occasionally sleeps elsewhere. Responding to an inquiry from the Court, defendant stated that he spends at least four hours a day out of the park, but that this time is usually spent shopping for and cooking food. Defendant did not assert that the time he spends out of the park is generally spent sleeping.
The defendant and others who are maintaining vigils in Lafayette Park may be eccentric. But they have stood up day and night for their beliefs in spite of repeated arrests and convictions and the dangers encountered when sleeping unprotected from the weather and other perils that lurk in the middle of a city at night. Their protests have been peaceful. They are not venal criminals, and application of criminal sanctions to them puts strain on the criminal justice system. That system is designed to protect the public from crime, to condemn and punish criminals, and to deter others from committing crime. The justification for condemning and punishing a peaceful protester like defendant is not immediately apparent. The effectiveness of the criminal sanction as a protection of the public or as a deterrent to repetition when applied to persons like defendant is also questionable.
As was suggested in Thomas, there exists for groups of demonstrators of 25 or more a judicially reviewable permit process with conditions that are enforceable, if necessary, by civil injunction. See A Quaker Action Group, supra; cf. Community for Creative Non-Violence v. Carvino, 660 F. Supp. 744 (D.D.C. 1987). It could be extended by the National Park Service to regulate persons who conduct, alone or in small numbers, a continuing demonstration such as defendant's so-called "vigil." Such a process, unlike the blunt instruments of criminal prosecutions, would provide a mechanism for defining exactly what is required of persons in defendant's situation.
Indeed, were it not for the availability of the permit process to clarify the limits of the camping regulation, that regulation might well be unconstitutionally vague as applied to defendant and others similarly situated. See Thomas, supra, memo op. at 19-25, 696 F. Supp. at 709-11.
Nevertheless, no permit was sought by or issued to defendant for his demonstration on April 8, 1988. Furthermore, the Supreme Court has explicitly upheld the constitutionality of the camping regulation against a First Amendment challenge. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984). Thus, Semple's only available defense is on the facts.
The information charges violation of two "prongs" of the camping regulation: (1) making preparations to sleep and storing personal belongings and (2) "sleeping activities." The government did not prove the "storage of property" prong beyond a reasonable doubt. The only items for which the government adduced direct evidence of possession by defendant were: two signs, one bookbag, two blankets, two pieces of plastic, a guitar, and a guitar case. Possession of these materials does not violate the conditions of defendant's probation. See United States v. Semple, Crim. 87-0466-LFO, Order of June 8, 1988. Nor does possession of these items, in all the circumstances here, constitute using the park for living accommodation purposes.
While the government sought to prove "storage of property" by inference using evidence of additional items -- large bags of bread, a pile of blankets, and some sleeping bags -- in the immediate vicinity, the government never adequately established that the additional property belonged to defendant or was controlled by him. Indeed, Officer Fornshill testified that he never inquired of the other people in defendant's immediate vicinity whether the property at issue belonged to them. Defendant denied that this property was his, and there was no proof to the contrary beyond a reasonable doubt. The presence of all of these items may be evidence of camping by someone. But their presence near defendant does not establish his criminal responsibility for the storage of the items.
The "sleeping activities" prong is another matter. The Supreme Court has interpreted 36 C.F.R. § 7.96(i) (1) as including a ban on "overnight sleeping." Clark, supra, 468 U.S. at 295. Discussing that regulation, the Court in Clark held:
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.
Id. at 297 (emphasis added).
Obviously, the information does not specifically charge defendant with "sleeping overnight." It does, however, charge him with, inter alia, using Lafayette Park for living accommodation purposes such as "sleeping activities" and "making preparations to sleep." Overnight sleeping is simply the Supreme Court's interpretation -- and perhaps even its implicit limitation on language that might otherwise preclude mere napping on a sunny afternoon -- of the more general regulatory terms. As stated in Thomas, supra, memo op. at 17, 696 F. Supp. at 709, "casual dozing in a park is a generally accepted American tradition but for the regulation which forbids use of a national park for living accommodations." By charging "sleeping activities," the information sufficiently charges defendant with "overnight sleeping." While the Sixth Amendment requires that a defendant in a criminal case have notice of the "nature and cause of the accusation" against him, the sufficiency of an information "depends upon whether it clearly informs the defendant of the precise offense of which he is accused so that he may prepare his defense." United States v. Conlon, 202 U.S. App. D.C. 150, 628 F.2d 150, 156 (D.C. Cir. 1980), cert. denied, 454 U.S. 1149, 71 L. Ed. 2d 304, 102 S. Ct. 1015 (1982). Because "sleeping activities" is a somewhat broader term than "overnight sleeping," the former term plainly encompasses the latter. In any event, its use in the information provided defendant with sufficient notice of precisely the activity for which he was being prosecuted. Therefore, if the government has proved beyond a reasonable doubt that defendant was "sleeping overnight" in Lafayette Park, defendant must be found guilty. The government has met that burden in this case.
At least two interpretations of "sleeping overnight" are conceivable. First, the Supreme Court may have intended its interpretation of the camping regulation to be taken literally: "sleeping overnight" could mean sleeping from sunset to sunrise without interruption. Such an interpretation, however, would be excessively technical and could effectively render the camping regulation a nullity. It is unlikely that either the National Park Service or the Supreme Court intended that result. Indeed, the Supreme Court has identified the government's regulatory interest to be "preserving park lands" and stated that "there is no gainsaying that preventing overnight sleeping will avoid a measure of actual or threatened damage to Lafayette Park." Clark, supra, 468 U.S. at 299. The more sensible interpretation relies on common usage. "Overnight sleeping," while it may mean more, means at least that sleep necessary for a human being to sustain his or her life over time in reasonably good health.
Although proving "overnight sleeping" may often be difficult, see Thomas, supra, memo op. at 16-17, 696 F. Supp. at 708-9, circumstantial evidence and reasonable inferences therefrom establish beyond a reasonable doubt that, before and at the time of defendant's arrest, it was his practice to "sleep overnight" in Lafayette Park and not elsewhere. Defendant testified, without compulsion, that although he was away from the park for as many as four hours in a 24 hour day, he did not use that time for sleeping. If he did not sleep outside of the park, and he needs sleep, as all humans do, to sustain his life over time in reasonably good health, he must necessarily have been using the park for "overnight sleeping." This reasonable inference is confirmed by photographs admitted as Government Exhibits 1 (b), (c), (d) (f), (g), (h), (n), (o), (p), (q), (r), (t), (u), and (v), and the testimony of Officer Fornshill, all of which demonstrate that in the afternoon of April 8, 1988, defendant was lying on a sidewalk in Lafayette Park with his head and body buried under a blanket.
Defendant is not saved by the fact that he may well have been in substantial compliance with the conditions of his probation when he was arrested on April 8, 1988. The probation conditions were established to provide the National Park Service, the United States Probation Office, the Court, and defendant with some fairly simple, objective tests for compliance. If defendant violated the conditions of his probation, he had clearly violated the regulation, and his probation could be revoked without the need for a difficult revocation hearing focusing on the relatively amorphous question of whether defendant had used the park for "living accommodation purposes." The inverse, however, is not true. If defendant complied with the conditions of his probation, he was not necessarily in compliance with the camping regulation. Conditioning defendant's probation on his spending at least 35 hours every seven days outside of the park gave defendant an opportunity to use that time to get elsewhere the sleep he would need to sustain himself and function over time in reasonably good health. If he had done that, there might well have been a reasonable doubt as to whether he was guilty of overnight sleeping in Lafayette Park. But defendant chose to spend his time outside of the park in other ways and as a result has left the Court no alternative but to find that the government has proved beyond a reasonable doubt that he was sleeping overnight, and therefore "camping," in Lafayette Park.
Accordingly, an accompanying Order will find defendant guilty as charged in the Information and set a date for sentencing.
For the reasons stated in the accompanying Memorandum, it is this 8th day of December, 1988, hereby
ORDERED: that defendant's motion to dismiss the information should be, and is hereby, DENIED; and it is further
ORDERED: that upon consideration of the evidence in this matter, defendant should be, and is hereby, adjudged GUILTY of the offense charged in the information and shall appear for sentencing on February 17, 1989, at 9:00 a.m. A pre-sentencing hearing may be held, if necessary, on February 13, 1989, at 1:45 p.m.