United States v. Louis R. Beam

JERRE S. WILLIAMS, Circuit Judge,

dissenting:

I would affirm the district court and uphold the petty misdemeanor conviction of Beam for holding an assembly on public lands without obtaining a permit.

The opinion of the Court finds that in the wording of the regulation, “public” applies to an “assembly” and a “special event” as well as to a “meeting”. The intricacy of its reasoning goes far beyond any required analysis of the meaning of a regulation when that regulation is intended for public application and which speaks openly to the public for itself. Such a regulation should not be interpreted and applied through an analysis so meticulous as to be worthy of a graduate English grammar text.

The finding by the Court that there is no difference between a public meeting and an assembly simply belies a pragmatic consideration of the facts of this very case. The Ku Klux Klan members most obviously were not participating in a public meeting. It is just as obvious that they were participating in an “assembly” for their own purposes. Meetings can consist of two people, can be chance encounters, can be quite informal; see the Merriam- Webster Third International Unabridged Dictionary. Hence the requirement of “public” meetings before the permit obligation arises. Assemblies are larger, formal, and planned, by definition. Hence no need for the “public” requirement.

The national convention of a political party is not a public meeting. It is clearly an assembly. Further, the kind of assembly involved in this case is an assembly which the public interest has a right to evaluate insofar as it has an impact on the use of public lands. If the assembly is a closed convention of pharmacists, or farmers, lawyers, former football players, or a large religious group, it raises questions about the use of the facility. And yet, none of these are “public meetings”. These questions as to use, of course, have to do with possible intrusions upon the use of the lands by others, possible long term effects of the use, and possible illegal use, among others.

There is no issue in this case about whether or not a permit would have been refused. None was applied for. Refusal after full disclosure of the plans by the Klan would raise serious questions. But such questions are not here at issue. They were not placed at issue because of the obviously misleading nature of the statement made by Beam to the government official which was only to the effect that a group of people were planning a “camping” trip.

The majority opinion does not fully relate the facts. Here was a substantial group of men acting out battle maneuvers. A camp was set up with sentries securing a perimeter. The fact that the ammunition in the rifles which the men carried was blank would have been little solace to others who might have come upon these extraordinary maneuvers in their own tranquil use of public lands. At one time a sentry reported to the commander by radio that a stranger was approaching. He was instructed to turn the stranger away by telling him that the group was a local guard unit. This was not a camping trip. Nor was it a hunting trip by a few friends who come into the site together. This was an organized specific activity by a militant group which obviously constituted an assembly and raised questions about the effect its activities might have on lands which are owned by all of us and which others were entitled to use.

I am also concerned about that portion of the opinion for the Court which involves itself in the legislative policy behind this regulation by evaluating in detail the impact that various kinds and sizes of activities might have upon the public lands. Such an evaluation is not a function of the Court. There is no requirement that this regulation be perfect in that it insure that all activities beyond a perfectly defined level of risk to the public lands and their use be subject to a permit and all activities below that level be free of a permit requirement. The regulator has the right to develop a regulation which will fill the desired function in approximate and pragmatic terms.

I do confess to a measure of concern about the fact that the record may reveal a laxity in the government’s enforcing its permit requirement as to other assemblies. But certainly the record is not adequate to establish that there has been a deprivation of the rights of the defendant by failure to enforce the law with a completely even hand across the board. It is well established that someone in violation of law cannot escape on the ground that not everyone who has violated the law has been prosecuted — absent a bad faith prosecutorial intent to intrude upon the particular constitutional rights of the person prosecuted. United States v. Rice, 659 F.2d 524, 526 (5th Cir. 1981).

Yet even this concern about selective , prosecution fades to a substantial extent in this case when a comparison is made between, on the one hand, a secret site organized as a military base and with its occupiers carrying rifles and engaging in military activities, and, on the other hand, a Boy Scout troop camping out and while doing so exploring such matters as first aid that go with life in the outdoors.

Finally, I do not find any requirement of guilty knowledge and guilty intent under this regulation or in the Constitution. See United States v. Ayo-Gonzalez, 536 F.2d 652 (5th Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 808, 50 L.Ed.2d 789 (1977). Citizens are expected to know the laws under which they act. Anyone engaging in such a formal and organized use of public lands as was Beam and the Ku Klux Klan in this case must be responsible for compliance with the requirements for such use. That Beam was being secretive in not disclosing the nature of the intended use is made very clear by his casual statement that he and a group of persons were going to “camp out”. He cannot now claim, even if there were a “minimum” scienter requirement,¹ that he was caught unawares. He misdescribed what was contemplated to the public official to whom he made inquiry.

This is not a “great case” involving a complicated and detailed regulation of the Internal Revenue Service in which anyone intending to comply would expect to hire a lawyer and accountant to lead him through the maze. This is a simple regulation intended to be dealt with by the public. Without an intense consideration of how it might have been better drafted, it can most readily and simply be read as making a distinction between “public meetings” on the one hand and “assemblies” and “special events” on the other, as far as'the “public” requirement is concerned. To hold that large or highly organized non-public assemblies, whatever their nature, are not subject to this regulation flies in the face of its obvious intent and purpose.

Holding these views, I must express my dissent.

1 . In United States v. Delahoussaye, 573 F.2d 910, 912 (5th Cir. 1978), we held that in a conviction for hunting birds over baited land it need only be shown that the baiting could have been discovered by a hunter checking over the area for baiting. Note that this case placed the obligation upon the hunter just as Beam was under an obligation to know the regulation in view of the unusual use to which he and those he “commanded” expected to subject the public land.