703 F.2d 586 (D.C. Cir. 1983), 82-2445, Community for Creative Non-Violence v. Watt

Docket Nº:82-2445, 82-2477.
Citation:703 F.2d 586
Party Name:The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants, v. James G. WATT, Secretary of the Interior, et al. The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants, v. James G. WATT, Secretary of the Interior, et al.
Case Date:March 09, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 586

703 F.2d 586 (D.C. Cir. 1983)

The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants,

v.

James G. WATT, Secretary of the Interior, et al.

The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants,

v.

James G. WATT, Secretary of the Interior, et al.

Nos. 82-2445, 82-2477.

United States Court of Appeals, District of Columbia Circuit

March 9, 1983

Argued Jan. 14, 1983.

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 82-02501).

Burt Neuborne, New York City, of the bar of the State of N.Y., by special leave of Court, pro hac vice, with whom were associated Arlene S. Kanter, Laura Macklin, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., argued the case on behalf of appellants.

John D. Bates, Asst. U.S. Atty., with whom were associated Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., argued the case on behalf of appellees.

Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges.

ON REHEARING EN BANC

PER CURIAM:

Circuit Judge Mikva files an opinion, in which Circuit Judge Wald concurs, in support of a judgment reversing. Chief Judge Robinson and Circuit Judge Wright file a statement joining in the judgment and concurring in Circuit Judge Mikva's opinion

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with a caveat. Circuit Judge Edwards files an opinion joining in the judgment and concurring partially in Circuit Judge Mikva's opinion. Circuit Judge Ginsburg files an opinion joining in the judgment. Circuit Judge Wilkey files a dissenting opinion, in which Circuit Judges Tamm, MacKinnon, Bork and Scalia concur. Circuit Judge Scalia files a dissenting opinion, in which Circuit Judges MacKinnon and Bork concur. The judgment appealed from is reversed, and the case is remanded to the District Court with instructions to enjoin appellees from prohibiting sleeping by demonstrators in tents on sites authorized for appellants' demonstration.

MIKVA, Circuit Judge:

The Community for Creative Non-Violence (CCNV) applied for and was granted a renewable seven-day permit to conduct a round-the-clock demonstration, commencing on the first day of winter, on the Mall and in Lafayette Park in Washington, D.C. The declared purpose of the demonstration was to impress upon the Reagan Administration, the Congress, and the public the plight of the poor and the homeless. The National Park Service (Park Service) granted CCNV a permit to set up two symbolic campsites, one on the Mall with a maximum of one hundred participants and forty tents, and one in Lafayette Park with approximately fifty participants and twenty tents.

Although the permit allowed the demonstration participants to maintain a twenty-four hour presence at their symbolic campsites, the Park Service denied the participants a permit to sleep. According to the government, such conduct would violate the Park Service's recently revised anti-camping regulations, see 36 C.F.R. Secs. 50.19, 50.27 (1982). CCNV claims that this prohibition strikes at the core message the demonstrators wish to convey--that homeless people have no permanent place to sleep. Accordingly, CCNV and seven individuals who wish to participate in the demonstration seek a court order invalidating the permit's limitation on sleeping as an unconstitutional restriction on their freedom of expression. Following cross-motions for summary judgment, the district court decided in favor of the Park Service and the case arose on expedited appeal. After briefing and oral argument before a motions panel, but before that panel issued a decision, the case was heard en banc.

Because we conclude that the government has failed to show how the prohibition of sleep, in the context of round-the-clock demonstrations for which permits have already been granted, furthers any of its legitimate interests, we reverse the district court's decision and grant CCNV's request for injunctive relief.

I. BACKGROUND

  1. The Regulatory Framework

    This case presents the second occasion in which the government has sought to apply anti-camping regulations to demonstrations proposed by this appellant. In 1981, the Park Service allowed CCNV to erect nine tents in Lafayette Park to symbolize the desperation of homeless persons, but denied the demonstrators permission to dramatize this concern by actually sleeping in the tents. Under the regulations then in effect, 36 C.F.R. Sec. 50.19(e)(8) (1981) (use of temporary structures); id. Sec. 50.27(a) (camping), the Park Service reasoned that overnight sleeping would carry the demonstration beyond the permissible "use of symbolic campsites reasonably related to First Amendment activit[y]" and into the impermissible realm of "camping primarily for living accommodation," see 46 Fed.Reg. 55,961 (1981). CCNV appealed that ruling.

    In Community for Creative Non-Violence v. Watt (CCNV I), 670 F.2d 1213 (D.C.Cir.1982), this court held that the Park Service had misapplied those regulations to CCNV's proposed activity. Because the regulations precluded only camping "primarily for living accommodation," and the act of sleeping in CCNV's demonstration was not to be done for that purpose, the court found that such conduct fell outside of the Park Service's proscription:

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    [T]here is no evidence in the Record suggesting that the handful of tents in Lafayette Park is intended "primarily for living accommodation." The appellees will not prepare or serve food there; they will not build fires or break ground; they will not establish sanitary or medical facilities. Indeed the uncontroverted evidence in the case is that the purpose of the symbolic campsite in Lafayette Park is "primarily" to express the protestors' message and not to serve as a temporary solution to the problems of homeless persons. Thus the only activity at issue here--sleeping in already erected symbolic tents--cannot be considered "camping" ....

    Id. at 1217. As a result of the court's decision, CCNV staged its demonstration, including sleeping, for approximately seven weeks last winter.

    The Park Service has since revised its camping regulations for the National Capital Region through a formal rulemaking. 47 Fed.Reg. 24,299-306 (1982) (codified at 36 C.F.R. Secs. 50.19, 50.27 (1982)). The new regulations, set out in the margin, 1 specifically include within the definition of prohibited camping the act of sleeping "when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging." 47 Fed.Reg. at 24,30 2. Although the amended regulation admittedly permits some leeway for administrative discretion, the Park Service has determined that the regulation prohibits the sleeping that would be done at CCNV's demonstration this winter.

    To understand fully the government's current policy on sleeping in the capital's parks, it is important to note that sleeping is not, per se, illegal. Visitors to the capital, or workers on their lunch breaks, may safely catnap for short periods of time without running afoul of the law. Sleeping, in these circumstances, conjures up no threats to peace and public order. Although the Park Service's anti-loitering regulation prohibits sleeping with intent to remain for more than four hours, it contains an exception for those with the proper authorization of the Superintendent of the National Capital Parks. See 36 C.F.R. Sec. 50.25(k) (1982). And, as mentioned, the government's camping regulation also allows for "sleeping activities" that are not deemed to constitute use of the area for living accommodation. An example of the

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    discretion inherent in this latter determination is evidenced by the Park Service's authorization, for participants in a Vietnam veterans' demonstration on the Mall in May 1982, 2 of all-night sleep at a mock Vietnam War-era "firebase" where some of the demonstrators were periodically roused to stand symbolic "guard duty." 3 See Park Service Permit to Vietnam Veterans Against the War dated April 20, 1982 and accompanying letter, reprinted in Record Document (RD) 5. The only apparent distinction between the sleeping in the veterans' demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground, without any shelter. 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.

    The Park Service nonetheless allows the erection of temporary structures, including tents, in connection with permitted demonstrations under 36 C.F.R. Sec. 50.19(e)(8) (1982). 4 Originally worded to allow any "temporary structures ... reasonably necessary for the conduct of the demonstration," 41 Fed.Reg. 12,879, 12,883 (1976), this regulation was amended in 1982 to state specifically that temporary structures "may be erected for the purpose of symbolizing a message," 47 Fed.Reg. at 24,305. Since that amendment, the Park Service has, on at least two occasions besides this one, granted permits to groups of demonstrators to erect symbolic tents. See Park Service Permit to ACORN dated June 18, 1982, reprinted in RD 5 (50 tents dramatizing housing crisis); Park Service Permit to Palestine Congress of North America dated September 8, 1982, reprinted in RD 5 (107 tents symbolizing Palestinian refugee camp). Tents were also allowed prior to the amendment to symbolize conditions in Vietnam, the plight of American Indians, and the plight of the...

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