and that evening he had to find a place to sleep and what he did he had no idea he had entered federal land it walked through a breach in the fence it was a path a well worn path had no idea that he that point he never again can he was arrested he didn't have a chance to camp at that point so the camping connection to go away was there or dispute in the law court over his refusal he was told that he could go to this ranch is a question around he said he didn't that was never told he could go there and his prior experience he testify that he is known that he can't just show up to a ranch like that at the middle of the night except the so he had no idea to go to the ranch and if he could go to the ranch the only way to get there with either go a few miles through the wilderness the bony hills or whatever which had been dangerous for him and the mule or to go back the path and go around the streets well which would also be dangerous because the cars go by and he's i mean i thought there was testimony in the record that this ranch if that's the right word for it was down the administrative road by several miles rather than either through the woods or out on the public streets i think the rangers claimed it was like to you miles and i think that's the ministry of road i know since road goes down to the city street and then the street down to the right ok but you're also telling us that's not what you just told us may or may not be in the record what we have is the testimony from both sides right ok but it was sure i totally approve of it all circumstances which applied for certain public welfare statutes mens rea intention knowledge those things they're not required why is this not a public of involvement in new york the prospect of a prison for however short time will seldom be viewed by the cute as trivial or petty matter and may well result in quite serious repercussions i think it's career and reputation and that's one of the you do it that's a violation period so i'm not really talking about the length of the punishment i'm talking about the type of the act right well perhaps if it were if the law was lighting fires here rea argument if the factor rocket supports the thought that he's not only on notice for the rangers at some point that he's in a prohibited you know area against camping and support that he refused saying that he was going to sleep there anyway overnight despite that notice or get at that point he did have notice and but in terms of so the camping up we have the notice that he would he is told by the rangers that he's camping where he should not be and so he now is on notice and he says now you can go down down the way here when there is through the woods or across the street i'm not now stress of high to the horse ranch you're saying that that was so dangerous that he's got a defense of necessity a man who well let's talk a legal terms instead of risk his life well what's the defense than the defense for the theft of years that there was he was faced with a choice of evils and that he acted to prevent imminent harm to evil or remaining sleeping with much of an evil or risk going through the dark after walking fifteen or twenty miles with tired mules and had a flashlight that's not enough to light a way to go through you know the wilderness or enough to light your way on the street and that he reasonably anticipated a c his testimony they said they told him but either way he thought have to get there and risk harm enough that he told us of it's not safe for me to leave that's why he refused to leave ok and then in terms of the right to jury the game to the length of punishment again he should you know six months is serious six months incarceration is a serious penalty i know the supreme court  held that that that by itself is not enough to entitle so into a jury but here we have that plus five thousand dollar fine plus five years and in federal court they only have formal probation so you have a you could have a good morning your honors may please the court mark your holman behalf of the united states i want to start by clarifying a few points about the record from my opponent's argument first with respect to the way by which the thing that would have gotten to daniels and rants are volume two pages thirty to thirty one the testimony is that it would be two miles down the administrative road and as your honor suggested judge watcher second near the end of his argument my opponent said that the defendant pulled the officers it's not safe for me to leave respectfully that is nowhere in the record the only place in the record where defendant ever suggest that it's not safe to leave is in his own opening statement but if you actually look at his testimony when he was pro se and he's pro se in front of a magistrate judge and i'm not inclined to be hyper technical about whether a needs when he's hypothetically on the stand in revealing himself or whether he says it in his opening statement if he says it he says it i agree with that however it's not that he says in his opening statement i told the officers it's not safe to leave he says sitting here today it's not safe for me to leave but when he gives the account of what he said to the officers which is that you are going to page fifty one he doesn't mention it at all instead he describes a conversation in which he gives them a speech about his right to sleep or he wants some public land he says we told them that we were there because we were walking all day and we stopped to rest for the night and it was public land and public spaces all there is left now really to stop and rest everything else is private it's highly populated if you're going to move freely in this country if you're going to be able to walk do something besides sit in a car you have to have access to public space you have to sleep at night in public spaces where you can do that and so we were claiming our right to do just that this is public space that's defendant's own account of the conversation he had with them and incidentally look the defendant has clearly this creed of the not busy have to tell them that in his view it's unsafe in order for it to be unsafe no not in order for it to be unsafe but i think yes in order for him to claim the necessity defense well why is that so and he is either necessary or not necessary whether he tells the officers or not no respectfully no your honor because there are things the officers could do to what women a the danger short of a defendant to violate the law in this case we know the officers had vehicles capable of transporting mules because they didn't fact transport the mules to an animal care center over the night we know they had vehicles capable of transporting the defendant because they did in fact transport him so as you know this court has held in order to claim genius in camp is there any way you can get me there i think the record here supports that they could but again i also want to be clear about what exactly this interview theory is it's not the government's burden now to prove beyond any shred of a doubt the only way the court could have found was a lack of necessity is defendant's burden to show that no rational fact finder could have rejected in the sestina offense and where the only evidence if you considered evidence of necessity is this one line in his opening statement and then there is other things from which you could infer some degree of necessity like it is dark out that night but there isn't overwhelming evidence that it would have been a terrible danger to walk beginning there are two different charges here one of them is camping and the other one of refusing a lawful order after the officers come up and the rangers come up and say hey you can't be here and he does appear to be violating an order but he's no longer camping so right i don't know that's right your honor what he is camping now for though the regulation defines camping as the temporary use of national forest service for the purpose of overnight occupancy without a permit a fixed structure and that those sources come like domicile so once you started camping you're still camping until you quit camping it's an interesting question i mean we normally you know when i would camp i would talk about breaking camp your honor you know after you gather up your year in you're ready to continue on i would call that breaking camp but this isn't like being found in the united states without having internet legally where there robust body of this law we can turn to it's really just a matter of you know will work so much that inter meeting that where i'm heading with this question is if we were to set aside the conviction for camping but to leave intact t gather yes yeah i just want one observation concerning the record following up on judge fletcher question about is was he camping the record shows that he was in his sleeping bag already fires were out i believe and he was awakened grumbly perhaps coming out of the back and this is when this this all followed up followed occurred my concern here is and we've seen what i would consider to be perhaps more serious offenses all they may be treated the same way under these talking rules and regulations that sometimes the officers are given the discretion to make an arrest supposed to given notice sometimes i see in cases reason you know i think in this case the park service officers rangers behaved absolutely appropriately and the reason why is as as they testified to this very area had suffered a  wildfire not long in the past and they were concerned about that fine and you're absolutely right judge will now that a warning would not necessarily have sufficed to ensure that the defendant wouldn't have started that fire again in the morning to make his coffee or his breakfast what have you secondly they were concerned quite frankly about the animals as well one of which wasn't had dared and wandering about in the ranger said that he was concerned that there are rattlesnakes in the area that there are coyotes in the areas that could have posed a danger to the animal and you know dependent sort of to prove that when you close it down how much how much can i sort of interject my own practical knowledge of the danger that a rattlesnake poses  again i mean i'm not sure we're now quite a bit outside the record but typically designated campsites have been cleared of brush so that there's not a risk of fire there's not the same risk of snakes  there ok yes i was on down the ranch i think it would have followed him respectfully and the record is silent and i mean this is it's silent because this isn't a legal issue that the case presents but the they would have probably followed him precisely because if you look at the way these rangers acted here they're acting not just as stewards of the land but they're acting in the defendant's own interests he himself says they were incredibly solicitous to him incredibly nice his absolutely no complaints about the way they handled the situation and so that's he himself you know so why not just give him a notice well because they again because they were concerned about the risk of fires they're concerned about the danger to the animals and i think this is  if ever there was a place which this court's well established rule of deferring to on force and on judgments like this should apply respectfully it's with the park service these are not a cowboy cops who are you know trying to do something to put notches on their bow these are stewards of the land who know this very area now you may be right judge fighter that rattlesnakes don't pose a risk to mules at night but i have to say if i had to pick between you your honor and one of the park service rangers as to who knows that area better i'm going to pick the park service rangers well i understand that that's a normal way to do it but what happens if i so totally disbelieve the dangerous certain about gravel snakes  dangerous to mills at night but that causes me to question the rest of the testimony of the rangers i understand what you're doing but i want to tell you that everybody knows that rattlesnakes can be dangerous but the danger necessarily do it but that's one of the justifications given by the rangers is one of the justifications they used and reiterated and i just want to express my thanks substantial skepticism as to the degree of danger posed by a rattlesnake at night to a meal and to be clear i'm not sure that they were saying that their concern was that during the night the mule would get bitten by a rattlesnake as i understood it their concern was that a mule being untethered in wilderness land poses that danger and it's unclear if that's because they think the danger would occur as i suspect would make much more sense during the day if the mule had wandered off the day got warmer or what again though were many going to say i think the rattlesnake and coyote that's a big part of the concern here is preserving these natural spaces and defendants basic view of this is there are these few last wilderness places where a person can commune with nature and therefore i should be allowed to use them however i want and respectfully that is something that president roosevelt recognized couldn't work with parks the national parks were open to use however anyone wanted they would not be the pri places that defendant wants to walk in with his own before your time runs let me tell you what really bothers me about this case according to the testimony of mr sears not challenged in this case he went through an opening in the founts so  maintained found there was nothing posted within sight of where he went through the fans to indicate that this was national park he then goes to sleep he's waking by the rangers this is the first time he knew that this was national parkland  and then all the rest of this follows if you guys had maintained your fences never what happened well i guess of a few answers to that i think that that is not necessarily clear to me you mean you think you would have broken down the fence i think he would have just gone through the gate and still parked there anyway if you're goes through the gate there's a sign that tells him he's not supposed to be there yes and this is a man who has said he doesn't think that he has he is allowed to park in public lands a matter of not camped here and i think the answer is no the record supports an inference that he would camp there because he has said in thirty one years of going north and south through this city he has never once camped we go early in a designated campsites because they won't let him do it not that he doesn't camp in state parks generally but they say he won't stay in there campsites because there can't say rules won't let him stay there with them you i read it differently but perhaps you're right about i read it to say i don't go out of the state parks as they won't let me do it that's not how i read the record and i don't think that it is incumbent on the park service or even advisable for the park service to build a wall around the national parks i want to be good to maintain their fans no respectfully i don't think that's a legal necessity as is held in this case is prior decisions in this very area in wilson and can't both cases a that because of the difficulty of setting up means of showing people when they're entering park service land there shouldn't be a men's rare requirement for that is based on a presumption that there wouldn't be fences with signs all around it and that makes perfect sense because if you in this particular patch of the santa monica mountains there may be a fence but generally speaking it's not like yellowstone is surrounded by a giant wall with signs on it saying this is a national park nor should it be because that would disrupt the natural habitats of the creatures that don't draw distinctions between park service objective not just subjective and i thought the response actually is a fairly good one which is to say had he told the officers listen i'm really day i'm really worried about this one they might very well have said well listen we understand that there may be some danger will take care of that for you probably didn't say that and then of course they didn't respond either by the never offered to take him to this ranch and and equipment to take the mules away didn't come until after he was arrested over the question for you please don't we have circuit precedent that says that there is no man's rare required for this type of action there is case is about so this case is just mere sleeping i don't think it's a public welfare offense where they can just be strict liability and they have to be some knowledge that what he's doing is against the law and he needs some kind of notice that he's doing that so we find this to be a public welfare regulation a law wouldn't that gargantuan argument for the need for an interest if this wasn't a public if this was if we leave out of the circuit there was a national forest regulation at issue there were military requirement was not found necessarily right i believe that case was about chopping down timber and that when you chopping down timber that's something you could think would be regulated by the regulated or as were you just trespassing or sleeping somewhere you wouldn't think that highly regulated but i don't i don't agree with your premise on that if i can just interject when we're dealing with wilderness and public lands why can't the park rangers feel that the aggregate effect of letting people sleep there is going to going to harm the the natural environment or because even even if a million people sleep there's no harm by just sleeping there it's natural environment it's not for the feed you all but when they when they sleep there they can sleep there without walking into another cross the grounds they're sleeping in right well this park your logic in the water i think even at night they're allowed to walk there it's just they were allowed to camp there just a good question or refresh my memory and can't again it can't because it dealt with as you stated this logging issue which is a to me somewhat of in part of economic concern as well that military might have been a requirement there here the issue deals with public safety in the sense of why farmers you heard your opponent talk concerning the mandrake issue the broken fence as mentioned by the judge was just questioning the idea that you had as well i think a sign posted concerning the prohibited camping in that area about three hundred feet away from where he entered the the grounds which eventually camped if you take those in combination with the facts here and then being told that the officers said that this is prohibited area taken all of the details of the circumstances here i'm finding it hard to believe that this that the law required here men dress not personally maybe i would go well i want to have to say this way if you're prohibiting camping you were limited in the risk that the camper will have a fire took a meal so by prohibiting camping in open fires in non designated areas which then protection against wildfires and that may be a more effective way of protecting against wildfire than preventing fires because it's very easy to detect someone who's camping but hard to detect someone has a fire because the light a fire for cooking and then the fire will be gone so i think even though this is a problem and against camping and a charge of forbidden camping i think the same rationale with respect to fire still exists but then they could say well if you want to prevent fires just keep people out of parks altogether and i mean other way to do so is just i  got no further question ok thank you think think both sides for their argument i understand you took this case pro bono well thank you very much for doing or some behalf not all of your client but on behalf of the court and given the nature of the case you've done a fine job i will compliment the u s attorney for doing a fine job but you got paid to think both of united states versus