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McPHERSON SQUARE: WHO MADE THE DECISION

TO ALLOW INDEFINITE CAMPING IN THE PARK?

HEARING

BEFORE THE

SUBCOMMITTEE ON HEALTH CARE, DISTRICT OF

COLUMBIA, CENSUS AND THE NATIONAL ARCHIVES

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

JANUARY 24, 2012

Serial No. 112–129

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform
(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

SUBCOMMITTEE ON HEALTH CARE, DISTRICT OF COLUMBIA, CENSUS AND THE

NATIONAL ARCHIVES

TREY GOWDY, South Carolina, Chairman

PAUL A. GOSAR, Arizona, Vice Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

PATRICK T. MCHENRY, North Carolina

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

DANNY K. DAVIS, Illinois, Ranking Minority

Member

ELEANOR HOLMES NORTON, District of

Columbia

WM. LACY CLAY, Missouri

CHRISTOPHER S. MURPHY, Connecticut
(III)

C O N T E N T S

Page

Hearing held on January 24, 2012 ......................................................................... 1

Statement of:

Quander, Paul, Jr., Deputy Mayor for Public Safety and Justice, District

of Columbia, accompanied by Cathy Lanier, chief, Metropolitan Police

Department and Mohammad Akhter, M.D., director, D.C. Department

of Health; Timothy Zick, Cabell research professor of law, William

and Mary School of Law; and Jonathan Jarvis, Director, National Park

Service ............................................................................................................ 15

Jarvis, Jonathan ........................................................................................ 33

Quander, Paul, Jr. ..................................................................................... 15

Zick, Timothy ............................................................................................. 25

Letters, statements, etc., submitted for the record by:

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 13

Davis, Hon. Danny K., a Representative in Congress from the State

of Illinois, prepared statement of ................................................................ 7

Issa, Hon. Darrell E., a Representative in Congress from the State of

California, information concerning Occupy D.C. ........................................ 3

Jarvis, Jonathan, Director, National Park Service, prepared statement

of ..................................................................................................................... 35

Quander, Paul, Jr., Deputy Mayor for Public Safety and Justice, District

of Columbia, prepared statement of ............................................................ 18

Zick, Timothy, Cabell research professor of law, William and Mary School

of Law, prepared statement of ..................................................................... 27

(1)

McPHERSON SQUARE: WHO MADE THE DECISION TO ALLOW INDEFINITE CAMPING IN

THE PARK?

TUESDAY, JANUARY 24, 2012

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON HEALTH CARE, DISTRICT OF

COLUMBIA, CENSUS AND THE NATIONAL ARCHIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:30 a.m. in room

2154, Rayburn House Office Building, Hon. Trey Gowdy (chairman

of the subcommittee) presiding.

Present: Representatives Gowdy, Issa, McHenry, DesJarlais,

Walsh, Cummings, Norton, Clay and Davis.

Staff present: Ali Ahmad, communications advisor; Kurt

Bardella, senior policy advisor; Michael R. Bebeau and Gwen

D’Luzansky, assistant clerks; Robert Borden, general counsel; Will

L. Boyington and Drew Colliatie, staff assistants; Molly Boyl, parliamentarian; Lawrence J. Brady, staff director; Joseph A.

Brazauskas and David Brewer, counsels; Sharon Casey, senior assistant clerk; John Cuaderes, deputy staff director; Howard A.

Denis, senior counsel; Adam P. Fromm, director of Member services

and committee operations; Linda Good, chief clerk; Christopher

Hixon, deputy chief counsel, oversight; Ryan Little, James Robertson, and Michael Whatley, professional staff members; Mark D.

Marin, director of oversight; Jeff Wease, deputy CIO; Jaron

Bourke, minority director of administration; Beverly Britton Fraser, Yvette Cravins, and Brian Quinn, minority counsels; Kevin

Corbin, minority deputy clerk; Carla Hultberg, minority chief clerk;

Paul Kincaid, minority press secretary; Adam Koshkin, minority

staff assistant; Lucinda Lessley, minority policy director; William

Miles, minority professional staff member; and Susanne Owen, minority health policy advisor.

Mr. GOWDY. The committee will come to order.

This is a hearing on McPherson Square: Who Made the Decision

to Allow Indefinite Camping in the Park?

I will recognize myself for an opening statement and yield to the

chairman of the full committee, the gentleman from California, Mr.

Issa.

Mr. ISSA. Thank you, Mr. Chairman.

I ask unanimous consent that a statement prepared by the individuals or group of individuals currently residing in McPherson
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Square as part of Occupy D.C. be placed into the record in its entirety.

Mr. GOWDY. Without objection.

[The information referred to follows:]
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Mr. ISSA. I thank you. I yield back.

Mr. GOWDY. I thank the gentleman from California.

Among the pillars that undergird this grand republic, at least

two are at bar this morning: number one, the freedom of speech

and expression; and two, a respect for the rule of law. These two

principles are entirely consistent, indeed, they have to be consistent. They can and they do coexist.

Today we are not here to discuss the merits or the demerits of

the Occupy movement, at least, I am not. I am here to try and

glean what process, if any, the National Park Service goes through

in determining whether to allow a residential encampment among

the homes and offices in a busy area in downtown D.C., especially

one where camping is strictly prohibited.

It is impossible to explore the role of the National Park Service

without also hearing from the leaders within the District of Columbia. I suspect the witnesses from the District of Columbia will testify, as has been publicly reported, with respect to any adverse consequences associated with this encampment.

We have all read, with outrage and shock, about an infant abandoned in a tent on one of the coldest days of the year. Mayor Gray

wrote the Park Service on January 12th to warn them of dangerous

rodent infestation, the risk of food-borne illnesses and other potentially deleterious, if not deadly, concerns such as hypothermia and

carbon monoxide poisoning.

The District of Columbia and its leaders are in a completely untenable position. It is their responsibility to protect the health and

safety of its residents, including those residents in McPherson

Square; however, they do not have the authority to make the decision whether or not to allow the camp to exist.

The Federal Government owns the land and governs its use,

sharing responsibility for the health and safety of those in the

park. The Department of Interior has taken responsibility for the

decision to allow the indefinite overnight camping at McPherson

Square and the process by which they reached this decision is, at

best, curious and legally fragile.

Many of us look forward to today’s hearing because we were

under the apparent misapprehension that camping was illegal in

McPherson Square. We look forward to hearing the National Park

Service explain the difference between camping and a 24-hour vigil,

especially when that 24-hour vigil lasts several months.

The evidence is clear, at least in my judgment, that sleeping,

cooking and camping are taking place in McPherson Square, despite protestations to the contrary, and apparently despite the clear

prohibition against camping.

To sum, issues of public safety for the protestors and others is

important. Issues of free speech are important. Issues of cost and

who bears the costs are important. It is manifestly unfair that the

District of Columbia assume all the costs and liabilities for decisions made by the National Park Service.

At the bottom of it all is the issue of fair and equal application

of the law because from this vantage point, it appears that there

are at least two very different sets of rules. With the spring and

summer a short distance away, I find it curious that tourists cannot come and pitch a tent in McPherson Square if they are camp-
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ing for fun, but if they are camping in protest of fun, the National

Park Service would welcome them.

Mr. GOWDY. With that, I would recognize the gentleman from Illinois, the ranking member, Mr. Davis.

Mr. DAVIS. Thank you, Mr. Chairman.

Mr. Chairman, the First Amendment of the U.S. Constitution

reads, ‘‘Congress shall make no law abridging the freedom of

speech or of the press or the right of people peaceably to assemble

and to petition the government for redress of grievances.’’

Of course the right to protest is not unrestricted. The Supreme

Court has determined that certain limitations can be imposed to

strike a delicate balance between order and the right to be heard.

In a public forum, the government may restrict expression with

time, place and manner regulations. However, restrictions cannot

be based upon the content of the speech and the regulation must

not be substantially broader than necessary to achieve the government’s interest.

The history of dissent is a long and productive one from the abolitionist flyers to the labor movement of the early 20th century, to

women’s suffrage, to the civil rights marches and peace protests.

Our country has become a more inclusive and enlightened Nation

because people spoke truths to power.

Dissenters met government resistance but persevered. Around

the clock vigils and sit-ins are nothing new. The students that

maintained their seats at a North Carolina Woolworth’s lunch

counter ignited a movement to challenge injustice and helped

change America. I understand that to be a part of civil disobedience.

I encourage those who seek government redress to operate in a

peaceful manner. That being said, I certainly appreciate the National Park Service and the U.S. Park Police measured approach to

D.C. occupiers. We have not seen the disarray here that has been

broadcast across our television screens from other cities.

The Federal agencies overseeing the lands and parks have a specific role in insuring that the First Amendment rights are respected

and protected. The District of Columbia, as a protest site, is of particular significance and importance. The District has a history of

hosting some of the most significant protest activities of the modern era. Accordingly, in 2011, there were over 600 First Amendment activities on our national park lands.

I find it curious that this particular demonstration has risen to

the level of a congressional hearing. The Occupy D.C. movement

has not encountered widespread arrests; the vigils are in a concentrated area; the District receives funds for reimbursement annually for such activities. Further, the discretion allowed the Park

Service allows for a reasonable approach of compliance, banning

enforcement or expulsion.

I believe going forward the Occupy D.C. movement should continue to be closely monitored to ensure proper safety, health and

sanitation. Interaction and cooperation of the various agencies to

monitor the site should be encouraged. However, this protest, in its

current form, does not rise to the level of necessary congressional

intervention. This subcommittee should defer to the discretion of
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the National Park Service and err on the side of the First Amendment.

I would like to yield for just a minute to myself to read a portion

of the statement from the Occupy D.C. General Assembly submitted to staff.

‘‘Like so many whose voices are not heard in the halls of Congress, we have been precluded from speaking today on a matter

that directly concerns us. That we have to ask a Member of Congress to speak for us here is symbolic of the disenfranchised and

top down nature of the government that we are fighting to democratize.’’

‘‘Citizens of a free country should not have to ask for permission

to occupy public spaces. Our occupation of McPherson Square is an

expression of our First Amendment right to free speech and peaceful assembly. We are maintaining a site of protest, a physical presence that gives visibility and voice to our dissent. We are creating

a space in which free speech flourishes, not only the free speech of

occupiers, but that of the general public, the empowered and the

disenfranchised alike.’’

‘‘Like most people, the members of Occupy D.C. at McPherson

Square do not relish being in uncomfortable conditions that humans without housing have endured for a millennia. We do so because it has become a necessary tactic to express our concern for

the Country’s direction in a way that will maintain public attention.’’

‘‘Two out of three Americans, incidentally, agree that our Country is headed in the wrong direction. A far smaller percentage approve of the job Congress is doing. While foreclosure has become

a hallmark of modern America, the solutions to our Country’s numerous problems do not include suppressing free speech and evicting patriots from their tents.’’

‘‘The very existence of a committee of politicians controlling the

city, none of them were elected and it is offensive, though McPherson Square happens to have been declared Federal land. D.C.’s full

submission to congressional control is the height of hypocrisy for a

nation that considers itself the global arbiter of democracy.’’

Mr. Chairman, I thank you for the opportunity and yield back

the balance of our time.

[The prepared statement of Hon. Danny K. Davis follows:]
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Mr. GOWDY. I thank the gentleman from Illinois.

The Chair will now recognize the gentleman from California, the

chairman of the full committee, Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

If this were about protest today, we would not be having this

hearing. I was here May 4, 1971, the first anniversary of the

killings at Kent State in which the Mall was filled with protestors,

anti-war protestors and protestors over the campus disruptions and

the early dismissal of universities throughout the country as the

result of their law-abiding protests.

The fact is we are all here respecting and promoting the idea

that D.C. is and will continue to be a place for protests to occur.

If anything, I believe we facilitate it like no other city in the United

States and I want to continue to do so.

Mr. Chairman, let me give you a fairly straightforward number.

I am not the smartest guy in the world but I looked up that an

acre is roughly 208 feet by 208 feet, so 1.66 acres, the size of this

square, makes it one of the smallest parks that the Park Service

oversees.

If we are to say that any place here in the District or around the

country for a protest can become a campground simply because

someone is protesting, as we hear from Mr. Jarvis and others, we

are basically going to have to figure out a way to put showers, restrooms and other sanitary requirements in parks that may be an

acre or two. We are going to have to station park rangers to do

their job because not all those who would choose to camp can be

trusted the way so far this has worked out. We have challenges

that we have to face.

The real reason we have the Park Service here today is to find

out why the District of Columbia for one, and it does not matter

which side, ideologically driven protest is breaking all of its own

rules, citing some First Amendment that if you cited uniformly will

change the whole dimension of where people get to go to national

parks.

Plenty of national parks take everyone out, if necessary at gunpoint, at dark, and tell them they are no longer welcome in the

park, that their hours of operation are dawn to dusk or some other

time. There are all kinds of areas in which you can or cannot be

in various Federal lands. That is not what we are debating here.

We are debating the uniform use of a designation of campground

versus not campground and more importantly, we will hear from

two distinguished members of the District of Columbia, we are

dealing with the fact the District of Columbia is bearing the brunt

of this lack of uniformity, lack of enforcement, even when there is

a Supreme Court decision that makes it very clear that campers

should not be there.

Protestors during our hours of operation, actually protestors 24

hours a day, they want to come with candles and stand, that is

fine. Freedom is not an absence of uniform rules. Yesterday, there

was a National Right to Life protest in the city. They came, they

protested and they left. If they had chosen to stay, they would have

been expected to get hotel rooms or in some other lawful way, to

find accommodations.
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We are going to hear from the city what this is doing to them.

Hopefully, we will hear what would happen if this became sort of

the law of the land, whether it was for the left or the right. How

would we deal with it? What would we have to fund the city? What

would be the sanitary requirements and the like? Ultimately,

would this simply become I protest, therefore, I can stay anywhere

I want?

Mr. Chairman, I asked to have the Occupy D.C. statement put

in the record. I appreciate that you did so at the very opening. I

want them to be heard, but candidly, I want to hold our government agencies, Federal Government agencies, to respect a uniform

set of rules and not choose which First Amendment advocates to

choose.

We will hear in their opening statements today, exactly that. We

will hear that this is narrowly trying to balance. The Supreme

Court has already spoken on what the balance is. They have a

clear ability and requirement to prohibit overnight camping according to their own rules and they are not doing it.

I am deeply disappointed. I feel the Park Service has entered

into an ideological fray by making this decision on behalf of the administration when, in fact, the decision could have been very clear.

Stay awake, stay vertical, do not be camping here, and you are welcome to stay and have an active protest as long as you want. When

you need to sleep, go elsewhere and come back. When you need to

use the restroom facilities, showers and other hygienic requirements that are not actively available in this very, very small, 1.66

acres, go elsewhere and come back.

That is the message we should have sent and as the committee

that oversees and has responsibility to protect the rights, privileges

and candidly, obligation that we put on the District of Columbia,

we must first and foremost remember this is the District of Columbia’s burden being borne by this lack of uniformity. If we do not

find a common and predictable set of rules for the future, then we

put the District of Columbia in a very untenable position that

while welcoming legitimate protests, they find themselves unable

to predict who will sleep where and what they will or will not be

able to do with it.

Mr. Chairman, this is a narrow hearing. I appreciate your calling

it. I believe the issue is important, albeit it very, very much about,

as I previously said, what we, as a committee, need to make sure

is fair and right for the District of Columbia.

I appreciate your indulgence and yield back.

Mr. GOWDY. I thank the chairman.

The Chair will now recognize the gentleman from Maryland, the

ranking member of the full committee, Mr. Cummings.

Mr. CUMMINGS. Thank you very much, Mr. Gowdy and Ranking

Member Davis, for holding today’s hearing and providing us with

an opportunity to speak on behalf of the millions of Americans who

are demanding justice and fairness from both their government

and elements of the private sector.

In fact, Mr. Chairman, in many ways, I find it baffling that we

are actually convening this morning’s hearings to debate the merits

of allowing Americans to use their public parks as a venue in

which to express their First Amendment rights, a practice that is
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as old as our republic and as fundamental to our democracy as our

Constitution which guarantees the right of assembly.

Even more alarming is that the majority has fast-tracked today’s

hearing while repeatedly ignoring and dragging their feet when I

requested to fully investigate mortgage servicers’ alleged abuses

against American families. Given the extent of the foreclosure crisis and harm it has caused to many homeowners across the Nation,

I am deeply concerned about the committee’s failure to use its investigative power to protect American consumers or examine the

numerous allegations of wrongdoing by banks.

I have repeatedly raised these concerns and today I sent a letter

to the chairman renewing my request for a comprehensive investigation into wrongful foreclosures and other abuses by mortgage

servicing companies.

While neglecting the harm that many Americans are suffering at

the hands of mortgage servicers, the majority has leapt to investigate whether banks have been the victims of abuse from American citizens. The majority sent letters to several banks requesting

information that supports the highly improbable allegation that

representatives of the Occupy movement attempted to extort major

banks. The responses have stated that the banks are not aware of

any instances of the alleged conduct.

I too want to welcome our witnesses and thank you for agreeing

to come before us today.

The District of Columbia is no stranger to the host of challenges

and benefits that have come with being the home of the national

government in the world’s oldest democracy. Given the constant

stream of citizen demonstrations, special events, marches and petitions for redress of grievances, I recognize that balancing the right

of our fellow citizens to assemble peacefully while simultaneously

protecting the health, safety and property of the city’s residents

and visitors is no easy task. Therefore, I applaud both the city government and the myriad of Federal agencies that work collectively

and routinely to balance these interests.

But, folks are hurting and struggling as many Americans presently are, it is all the more critical that they be able to raise their

voices and demand change. The recent Occupy movement that has

emerged in cities and communities across this great Nation represents the peoples’ demand for progress. People want jobs, they

want better treatment, they want adequate housing and most importantly, they want action, and they have the constitutional right

to make their voices heard.

While practical considerations associated with the prolonged

presence of Occupy D.C. protestors at McPherson Square certainly

must certainly be addressed, concerns over grass seeds should not

outweigh grassroots efforts to seek improvements and help for our

most vulnerable citizens. Nor should rats be allowed to stand in the

way of the demand for real reform, especially when there are easy

ways to rectify such problems at limited costs.

A little over a week ago, our country came together to celebrate

the life and the legacy of the legendary Reverend Dr. Martin Luther King, Jr. He stood for equal opportunity and equal rights for

all. Dr. King exemplified how the peaceful exercise of the rights enshrined in our Constitution can truly change the world. Reverence
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for these rights must remain at the heart of all that we are as a

nation.

Again, I want to thank each of our witnesses for coming before

us today. I especially what to express my heartfelt sympathy to

you, Dr. Jarvis, for your agency’s recent loss of Park Ranger Margaret Anderson in Mt. Rainier, Washington. It is truly an unfortunate reminder that our Federal public servants are, in fact, exposed to significant risks while performing their daily duties.

With that, Mr. Chairman, I yield back.

[The prepared statement of Hon. Elijah E. Cummings follows:]
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Mr. GOWDY. I thank the gentleman from Maryland.

Members may have 7 days to submit opening statements and extraneous material for the record.

We will now welcome our distinguished panel of witnesses: Mr.

Paul Quander is the deputy mayor for public safety and justice for

the District of Columbia; Chief Cathy Lanier is the chief of the

Metropolitan Police Department; Dr. Mohammad Akhter is the director of the D.C. Department of Health; Mr. Timothy Zick is the

Cabell research professor of law at William and Mary School of

Law; and Mr. Jonathan Jarvis is the Director of the National Park

Service.

We will now hear your opening statements. We will start with

you, Mr. Quander and go from my left to right, your right to left.

The lights mean what they traditionally mean in life. Green means

go; yellow means speed up and go as fast as you can; and red

means stop.

Pursuant to committee rules, we will swear the witnesses. I ask

that you rise and raise your right hands.

[Witnesses sworn.]

Mr. GOWDY. Mr. Quander, we will now recognize you for your

opening statement.

STATEMENTS OF PAUL QUANDER, JR., DEPUTY MAYOR FOR

PUBLIC SAFETY AND JUSTICE, DISTRICT OF COLUMBIA, ACCOMPANIED BY CATHY LANIER, CHIEF, METROPOLITAN POLICE DEPARTMENT AND MOHAMMAD AKHTER, M.D., DIRECTOR, D.C. DEPARTMENT OF HEALTH; TIMOTHY ZICK,

CABELL RESEARCH PROFESSOR OF LAW, WILLIAM AND

MARY SCHOOL OF LAW; AND JONATHAN JARVIS, DIRECTOR,

NATIONAL PARK SERVICE

STATEMENT OF PAUL QUANDER, JR.

Mr. QUANDER. Good morning, Chairman Gowdy and members of

the Committee on Oversight and Government Reform.

Thank you for the opportunity to present testimony and observation on issues surrounding Occupy D.C. encampments located at

Freedom Plaza and McPherson Square.

My name is Paul Quander and I serve as the deputy mayor for

public safety and justice in the District of Columbia. I am joined

today by Chief Cathy Lanier of the Metropolitan Police Department

and Dr. Mohammad Akhter, Director of the District of Columbia

Department of Health.

On October 6, 2011, the National Park Service granted permission to and allowed two very distinct Occupy D.C. groups to establish sites upon Federal property for the purpose of protesting a variety of issues. These sites and demonstrations were and continue

to be located at Freedom Plaza, 14th and Pennsylvania Avenue,

N.W., three blocks southeast of the White House and McPherson

Square, two blocks northwest of the White House at 15th and K

Street, N.W., Washington.

During the first week of the Occupy movement, there were approximately 150 protestors at Freedom Plaza and 250 at McPherson Square. Since Thanksgiving, the number of occupants has fluctuated with the Freedom Plaza group numbering approximately 30
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to 40 participants and the McPherson Square contingent numbering about 25 to 50 participants.

Initially, a significant number of Metropolitan Police officers

were deployed to address Occupy D.C., including the Metropolitan

Police Department’s Special Operations Division, SOD, as well as

the Civil Disturbance Unit which is staffed by patrol members.

After the first week, however, MPD was able to decrease the resources used for Occupy D.C. except for major movements or incidents.

In the ensuing weeks of the encampments, there were approximately four occasions which required the Metropolitan Police Department to detail more than one or two officers per patrol district

per shift from the Civil Disturbance Units. These events included

the Americans for Prosperity meeting at the Convention Center on

November 4; the march on Key Bridge on November 17; the K

Street protest on December 7; and the Occupy Congress march last

week on January 17th. MPD staffing for those incidents ranged

from 80 to 400 officers.

For the most part, protests and the occupants of the encampments have been peaceful. There have been the usual taunting and

insulting of police, which is common. However, on a few occasions,

the tactics of the protestors has become very aggressive and dangerous, resulting in injuries and situations where law-abiding citizens were unable to exit buildings or travel on our public roadways.

For instance, one incident at the Convention Center involved

blocking entrances and exits to the Convention Center using children as impediments as well as physically challenging attendees of

the events espousing opposing political views. These are all unacceptable tactics and potentially very harmful. Blocking traffic and

jumping in front of vehicles is especially dangerous.

Furthermore, there have been incidents of destruction of property. Most worrisome has been the incidents of violence at McPherson Square such as the attacks on a Park Police officer and later

an occupant of the encampment, both of which resulted in hospitalizations. Most recently we had the neglect of a 13-month-old

child, barely clothed, who was left unattended by her father.

As of January 19th, the Metropolitan Police Department has arrested 68 individuals affiliated with the Occupy protest. An additional 13 protestors were arrested by another District Police force

on the grounds of Franklin School. There have been other arrests

by Federal law enforcement officers.

While the numbers of protestors has dwindled, it does not alleviate the potential for escalating protest tactics. The point of any protest is to exercise a constitutional right and at the same time attract attention to the cause. If the sheer numbers do not demand

notice, experience has shown us that escalating tactics may be used

to garner attention.

The District has a continuing obligation to provide for the overall

health and welfare of its residents and visitors to the city. Several

District of Columbia agencies are working to ensure the wellbeing

of the protestors and to assess and mitigate the impact of their

presence on the community. Although there have not been any public health emergencies such as outbreaks of communicable diseases
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or reports of food borne illnesses, we will remain vigilant in monitoring and protecting the health and safety of the demonstrators.

The Department of Health has led an effort to address many of

the issues. I just need to point out certain areas on which we are

concentrating. Hypothermia remains a serious condition. Rodent

harborage and abatement is a major factor. Food safety, prescription medications and physical health screenings are something we

are encouraging the participants to participate in. We also need to

be cognizant of emergency evacuation plans. When makeshift utensils and heating apparatuses are used, there is the potential for

harm and danger.

With this, Mr. Chairman, I conclude my testimony and look forward to answering any questions the committee may have.

[The prepared statement of Mr. Quander follows:]
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Mr. GOWDY. Thank you, Mr. Quander.

I have been informed, but I want to verify, the District of Columbia representatives will have one opening statement?

Mr. QUANDER. One opening statement and Chief Lanier, Dr.

Akhter and I will be available to answer and respond to any questions you may have.

Mr. GOWDY. I did not want to skip over anyone.

I will now go to Professor Zick.

STATEMENT OF TIMOTHY ZICK

Mr. ZICK. Thank you, Mr. Chairman.

Although we are focused here on a particular public place, I

think this is an important national issue. There have been Occupy

movements, as you know, across the country. This is a protest that

is unique, a demonstration that is unique in its methods and it

raises some of the same resource concerns that sit-ins, parades and

marches do, but it is different in an important respect. That is this.

The movement seeks permanence of place, it seeks to occupy or

commandeer a place as part of its First Amendment message. I

think it is important to keep that in mind as you consider the First

Amendment implications of possibly evicting them from this place.

It is not simply, as Chairman Issa said, an opportunity to be heard;

it is also an opportunity to be seen. Both of those things are protected under the First Amendment.

The place that is being occupied and demonstrated in, in this

particular incidence, is a special place. It is a public forum which

under First Amendment doctrine means that, as the Supreme

Court has said, time out of mind, people have gathered there for

assembly, speech and petition to discuss matters of public concern.

In particular, in the District of Columbia, given the site of government, these places have been treated by the D.C. Circuit and other

courts as special forums or as a locus for protest activity.

That said, and as some committee members have already suggested, protest rights in public places are not absolute. That is

true. The agency that is charged with managing this property has

two main responsibilities. The first, I think it has discharged quite

well, particularly in light of its history in the courts, I can speak

to that in questions rather than in my statement, is to make sure

that First Amendment rights are fully preserved and robustly protected.

It has done that in this particular case through a process of negotiated management rather than forceful eviction. In my mind, that

is a plausible choice to make and a worthy one. I am in the odd

position here of actually defending an agency for potentially over

protecting speech. It is a rather odd position for me because normally I am critical of the government for restricting First Amendment rights in public places.

In terms of that particular trusteeship obligation to protect the

rights of people to assemble, petition and speak in public places,

the agency, as I said, has discharged its responsibilities and obligations quite well. I know the committee though is concerned about

the balance of those particular fundamental liberties with the interest of the public in safety, health and order and those sorts of

concerns.
26

I can say, having looked at the regulations, the agency is in compliance with most of them. I cannot speak in particular to the

camping one because that depends on facts on the ground and a

totality of circumstances determination by the agency. No permit

is required for a demonstration of this size; there are no explicit

time limits in the regulations on protests. Some structures are permitted and some, as I understand it, have been removed upon action of the agency and local officials. In large part, the agency has

been in compliance with its own regulations.

I understand the concern that the agency not be permitted to

prefer some speakers over the others. I want to be clear about what

that obligation is under the First Amendment. It is not inappropriate necessarily to prefer fundamental liberties to other uses of

the property. What would be inappropriate is to prefer some speakers over others based upon their viewpoint or the content of their

message.

I am not aware of any instance in which the agency has not permitted a group to occupy a place in this fashion, to demonstrate in

this way, but permitted this particular demonstration to go forward. It is not clear to me the agency has done anything in violation of that principle of content neutrality. In my view, it can prefer that use to other uses of the public property.

There are concerns, I think, about allowing people to occupy and

demonstrate in this fashion and what that will do to public parks.

The chairman raised that particular issue. I would say allowing

this activity to take place and this demonstration to occur does not

mean you cannot enforce reasonable time, place and manner regulations, including on the time and location of public demonstrations. Again, in McPherson Square, the regulations permit an assembly of this sort, a demonstration of this sort.

I would be happy to answer your questions.

Thank you.

[The prepared statement of Mr. Zick follows:]
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Mr. GOWDY. Thank you, Professor Zick.

Mr. Jarvis.

STATEMENT OF JONATHAN JARVIS

Mr. JARVIS. Mr. Chairman and members of the subcommittee, I

appreciate the opportunity to appear before you today to discuss

the National Park Service’s handling of the Occupy D.C. demonstrations at McPherson Square.

This hearing takes place in the District of Columbia, the Capital

of our Nation and the seat of our Federal Government. It is here,

perhaps more than any other place in the United States, that

Americans come to exercise their First Amendment rights to peacefully assemble, to petition their government for redress of grievances and to exercise their right of freedom of speech. All 397 of

America’s national parks, but especially the national parks in

Washington, DC, are places where citizens’ rights are guaranteed

under our Nation’s Constitution.

Among law enforcement agencies in the Nation, the National

Park Service and its urban law enforcement organization, the U.S.

Park Police, have perhaps the greatest experience handling First

Amendment activity. In 2011 alone, there were 626 permitted First

Amendment activities on MPS lands in Washington, DC. Not all

First Amendment activities require a permit. Therefore, these

numbers are only a portion of those taking place in our capital city.

A few examples of the historic large scale, First Amendment

demonstrations here on MPS lands include the annual Right to

Life march, the Million Man march, Promise Keepers, and the

World Bank International Monetary Fund protests. Some of these

events have changed our Nation such as when Dr. Martin Luther

King, Jr.’s civil rights march took place on the National Mall.

Though many of these First Amendment demonstrations are

short term, some are longer term vigils. In 1979, 6,000 family farmers drove their tractors to Washington, DC, to protest American

farm policy. They were on the Mall for 7 weeks. A month after Dr.

King’s assassination, thousands of demonstrators set up a shantytown known as Resurrection City for a month-long vigil here in

Washington. In 1985, Vietnam veterans’ vigil groups began to demonstrate on behalf of servicemen and servicewomen. Rolling Thunder continues that 24-hour vigil to this day.

The success of the National Park Service and the U.S. Park Police in managing these demonstrations is directly attributed to our

reason and measured and progressive response. The MPS and the

U.S. Park Police handling of First Amendment activities begins at

the lowest level of enforcement and then increases if the situation

warrants. This strategy insures the health and safety of the demonstrators as well as D.C. residents and visitors.

Courts have recognized that this kind of reasoned and measured

technique of law enforcement helps minimize the potential for disorder. The courts have also afforded the NPS a great deal of discretion to enforce rules and regulations in the manner that best fits

the situation.

In the case of the McPherson Square demonstrations, NPS personnel concluded that the activities in the Square were protected

by the First Amendment and that there were less than 500 dem-
34

onstrators therefore, in accordance with our regulations, no permit

is required. NPS regulations do not allow for camping within

McPherson Square. However, temporary structures including tents

are permissible as part of a demonstration and a 24-hour, roundthe-clock vigil is also allowed.

From the outset, NPS has been working with the District of Columbia including the Metropolitan Police Department, the Departments of Health, Fire and EMS, to ensure that the demonstrations

at McPherson are conducted in a safe and lawful manner. Just this

week, we conducted a joint health inspection with the D.C. Department of Health. U.S. Park Police have at all times maintained a

law enforcement presence and patrols at McPherson Square in

order to protect health and safety of park visitors and the demonstrators and have taken enforcement action when necessary.

The NPS has employed a reasoned, measured and incremental

approach to address regulatory violations that minimize the

threats to public safety while protecting First Amendment activities. This process has involved an evolution from outreach and education to formal notices of the rules that govern use of McPherson

Square.

I want to be clear that we take seriously District residents’ concerns and are constantly monitoring and evaluating conditions in

the Square. I understand this demonstration has impacted some

District of Columbia businesses and visitors alike and I appreciate

their efforts to tolerate this activity.

It is important to note that absent an emergency or threat to

public or health and safety, demonstrators at McPherson Square

must be allowed to continue their vigil in accordance with existing

regulations and well established judicial interpretations of their

First Amendment rights. As long as the demonstration continues,

however, the NPS will take an enforcement approach that seeks to

protect the health and safety of all respecting their First Amendment rights.

This concludes my statement and I am open to questions.

[The prepared statement of Mr. Jarvis follows:]
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Mr. GOWDY. The Chair will recognize himself for questions at

this point.

Mr. Jarvis, one reason that I like law enforcement like Chief Lanier and the other men and women who are in uniform today and

everywhere else across the country, is there really are not

protestors that are Republican or Democrat in their judgment;

there are not laws that are Republican or Democrat; there are not

crime victims that are Republican or Democrat. It is just the law.

What I am trying to glean is what is the law because whatever

you saw with respect to McPherson Square is going to have to be

applicable everywhere else in this country, so the notion that you

think Washington may have special First Amendment privileges, it

does not. There are no more First Amendment rights in this town

than there are in any other city, town, hamlet in this country.

Define camping for me. You say it is prohibited. Tell me what it

is.

Mr. JARVIS. Yes, sir, I agree with you that the First Amendment

applies everywhere in the United States. It is just in the District

of Columbia, we have more experience with it because we have

more protests, we have more First Amendment activities in the

District than any other place in the country.

The U.S. Park Police and the National Park Service that manage

the National Mall handle hundreds of these kinds of events. We

take exactly the same approach every time. That is a measured

and reasoned response. What is unique about the McPherson Occupy group is that they are disorganized; there is no unit leader

we can go to and negotiate our expectations of their compliance.

Mr. GOWDY. Mr. Jarvis, I hate to cut you off. I have 5 minutes.

I need a definition of camping because I need to go back to South

Carolina and tell everyone who wants to spend the summer in one

of our parks what camping is and what it is not. Define camping

for me juxtaposed with a 24-hour vigil because you seem inclined

to draw a distinction and I cannot draw a distinction. What is the

definition of camping?

Mr. JARVIS. The distinction is for a 24-hour vigil they are awake

at all times providing information or signs or whatever associated

with their First Amendment activities. Camping is defined as

sleeping or preparing to sleep at the site.

Mr. GOWDY. Is there sleeping going on in McPherson Square?

Mr. JARVIS. Yes, sir, we do believe there is.

Mr. GOWDY. Is there preparing to sleep or are they all

insomniacs?

Mr. JARVIS. I believe that there are some preparing to sleep.

Mr. GOWDY. So you are not drawing a separate, First Amendment rule for insomniacs versus narcoleptics?

Mr. JARVIS. What I am stating is that we do believe that there

is some camping going on at McPherson Square associated with

their vigil.

Mr. GOWDY. How much investigation have you done into that?

Mr. JARVIS. We are, as I indicated, taking a measured and reasoned approach to this.

Mr. GOWDY. I do not know what that means. I am just an old

country prosecutor. Measured and reasoned approach does not

mean anything to me. What means something to me is can you de-
40

fine camping because you strictly prohibit it; you just said it is

going on; and that is fine. If you want to change the rules, that is

fine. Just let me tell my constituents who want to visit D.C. this

summer that they can come to any park they want, bring their tent

as long as they say they are protesting. Can I tell them that?

Mr. JARVIS. They can bring their tent, absolutely.

Mr. GOWDY. They can stay. They can sleep?

Mr. JARVIS. No, they cannot.

Mr. GOWDY. Is there sleeping going on in McPherson Square?

You said there is. What is the difference?

Mr. JARVIS. What I said, and I will continue to say, is that the

protestors, the demonstrators, exercising their First Amendment

rights have the rights to be in McPherson Square 24 hours a day.

That is nothing new.

Mr. GOWDY. You view them as a unit. As long as one of them

is awake, that gives constitutional cover for the rest to sleep. Is

that the new analysis?

Mr. JARVIS. No, I do not say that. What I said is that they, as

group, have the right to be there on a 24 hour vigil, individuals.

The camping regulation is an individual violation, not a group violation.

Mr. GOWDY. How many people have been cited for camping?

Mr. JARVIS. At this point, none.

Mr. GOWDY. You told me people were sleeping.

Mr. JARVIS. We are in the process of gaining compliance with the

occupiers through a series of ramping up the enforcement at the

site to gain compliance. That is the approach we have used for

First Amendment activities in this town for decades and it has

been quite successful.

Mr. GOWDY. How long has gaining compliance been going on?

When did the movement start in D.C.?

Mr. JARVIS. This particular movement began in October.

Mr. GOWDY. October, November, December, so 90 days, coming

up on 100 days, is that right? How long do you think it will take

you to gain compliance?

Mr. JARVIS. I hope we can gain complete compliance very soon.

Mr. GOWDY. No citations for sleeping?

Mr. JARVIS. We have issued a lot of other citations but not particularly for camping.

Mr. GOWDY. Is that the lynchpin of the definition of camping,

sleeping?

Mr. JARVIS. Sleeping, yes, it is one of the definitions, sleeping or

preparing to sleep.

Mr. GOWDY. To prove your ideological neutrality, if the NRA or

the Chamber of Commerce, the National Federation of Independent

Businesses or anyone associated with the other side wants to come

to McPherson Square this afternoon with tents, as long as one person remains vertical, they can stay?

Mr. JARVIS. I am ideological neutral on this. I could care less

what their cause is. My job as a 35 year veteran of the National

Park Service is to protect the individuals’ rights under the First

Amendment.

Mr. GOWDY. Wait a second. To protect their rights under the

First Amendment, is it not also your job to enforce the law?
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Mr. JARVIS. Absolutely, it is my job.

Mr. GOWDY. Is it against the law to camp?

Mr. JARVIS. The courts have afforded us a great deal of discretion

in how we enforce the law in order to protect the First Amendment.

That is exactly what we are doing.

Mr. GOWDY. Do you agree the Supreme Court has said sleeping

and camping can be prohibited?

Mr. JARVIS. Yes, they can, but at the same time, they gave us

the discretion in how and when we implement that regulation.

Mr. GOWDY. I am going to be making sure that anyone who

wants to camp throughout the United States as long as they say

they are in protest of something can do whatever they want in Federal parks.

With that, I would recognize the gentleman from Illinois, Mr.

Davis.

Mr. DAVIS. Thank you very much, Mr. Chairman.

I too want to thank our witnesses for their testimony and for

being here.

The courts have traditionally upheld the right of governments to

manage and supervise public property as long as there is a rational

basis for the rules. No point of view is being discriminated against

but the very name Occupy suggests a constant presence and commitment not to move in the face of perceived injustice.

Director Jarvis, let me ask you, due to the length of the vigil, did

your office have any special concerns about health and safety?

Mr. JARVIS. Yes, sir. We have been concerned actually the most

about health and safety from the very beginning. We have been

working with the District of Columbia to put in place both the systems. For instance, the National Park Service increased the trash

collection at McPherson to three times a day so that there would

not be an accumulation of attraction or distraction at the site.

Mr. DAVIS. Your office did work with the Park Police on an ongoing basis?

Mr. JARVIS. Absolutely, yes, sir.

Mr. DAVIS. How would you characterize the response of the Occupy D.C. protestors to whatever concerns that might have been

expressed to them?

Mr. JARVIS. Initially, because there is no one leader there that

we could go to and discuss specifically with them our concerns for

health and safety, cleanliness at the site and other concerns, and

ititially they were antagonistic to our presence at the site. That has

significantly changed. Through the great work of the U.S. Park Police and our staff within the National Mall, we have developed a

rapport at the site, we have gained a great deal of compliance.

They notify us when there are concerns particularly with law enforcement, so I believe we have made some great inroads.

Mr. DAVIS. You would say they have basically been cooperative

after the initial resistance?

Mr. JARVIS. Yes, sir.

Mr. DAVIS. Are there any benefits to the Occupy D.C. protestors

to maintaining vigils in a few locations? Is it best that they be concentrated or have the ability to move from one perhaps location or

one spot to another?
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Mr. JARVIS. It is an advantage from a law enforcement standpoint that they are concentrated in one area. That allows us to

work directly with the Metro PD to provide around the clock law

enforcement services at the site rather than being spread across a

very large area, as well as the impact to the grass has already happened. Moving to another site would just result in new impacts to

one of our other First Amendment sites.

Mr. DAVIS. You mentioned your 35 years of service with the Park

Service. Obviously you have seen many permits, many protests,

many demonstrations. Have you seen any that have raised the

level of concern that Occupy D.C. seems to be raising to the point

of a congressional hearing?

Mr. JARVIS. This is the first congressional hearing where I have

testified related to a First Amendment activity.

Mr. DAVIS. Thank you very much.

I yield back.

Mr. GOWDY. I thank the gentleman from Illinois.

The Chair would now recognize another gentleman from Illinois,

Mr. Walsh.

Mr. WALSH. Thank you, Mr. Chairman. Thank you for hosting

this hearing.

Mr. Jarvis, welcome. I apologize if I want to pull us back and get

some context.

It is always so dangerous at hearings because we focus on things

maybe we should not be focused on. I want to focus on one very

specific notion.

There is a statute, I believe, that says camping is illegal. Camping in McPherson Park is against the law, is that correct?

Mr. JARVIS. That is correct.

Mr. WALSH. In fact, I believe the Park Service handed out a document early on in the Occupy D.C. process to the folks at McPherson Park that I found quite helpful, which spelled out the definition of camping that you and I both agree is not allowed. It says

‘‘camping is defined as the use of parkland for living accommodation purposes such as sleeping activities or making preparations to

sleep including the laying down of bedding for the purpose of sleeping or storing personal belongings or making any fire or using any

tents or shelters or other structure vehicle for sleeping or doing any

digging or earth breaking.’’

Mr. Jarvis, based on your own definition of camping, are they

camping at McPherson Park?

Mr. JARVIS. We believe that there are individuals there that are

doing those activities that would result in us saying they are camping, yes.

Mr. WALSH. Why have they not been removed? Why has your

own statute not been enforced?

Mr. JARVIS. Because each of our First Amendment demonstrations are a little bit unique. This one is, let us say, unprecedented

in part in that it has been stated that the core of their First

Amendment activity is that they occupy the site. As we have approached this, how we are trying to manage this activity, our first

goal in the National Park Service in allowing and providing for

First Amendment activities is the health and safety of the community and the demonstrators themselves.
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We felt that going in right away and enforcing the regulations

against camping could potentially incite a reaction on their part

that would result in possible injury or property damage.

Mr. WALSH. Mr. Jarvis, I appreciate the candor and the answer.

You have acknowledged that they are camping, you have acknowledged that there are individuals in McPherson Park breaking the

law. They have been there since October. It is not like 3 or 4

months later now you have been too quick to enforce the law. They

have been there 4 months. We are not even yet getting into many

of the other issues that the city is having to deal with.

Again, nobody up here, Republican or Democrat, I do not think

anybody in this hearing room questions at all their right to protest.

That is not what this hearing is about. You are not enforcing your

own statute. Who is telling you, I know this is not you, who is telling you not to enforce the statute? It is not your job to determine

how to treat protest groups differently. They are breaking the law.

Why aren’t you enforcing that law? It has been 4 months.

Mr. JARVIS. All of our decisions related to the way this particular

protest has been handled has been made on the ground first and

foremost by our U.S. Park Police officers and commanders. I served

as a law enforcement officer and law enforcement officers are

granted a great deal of discretion in terms of how they enforce and

what they enforce and when they enforce.

Mr. WALSH. Mr. Jarvis, my time is running out. Are there some

political sensitivities at play here that is sort of preventing you all

from enforcing the law?

Mr. JARVIS. Absolutely not.

Mr. WALSH. Are you getting any sort of advice or orders from

people above you?

Mr. JARVIS. I am regularly briefing the Secretary of Interior as

would be expected under any issue that faces the National Park

Service, but I am not taking direction on this on how the site

should be handled.

Mr. WALSH. Mr. Chairman, I will close with this because I see

my time is running out. I had a staff member visit McPherson Park

last night just to sort of learn from our own what is going on. Obviously what we found out seconds your opinion that folks are sleeping, they are camping. I appreciate your candor. I do not think this

is your decision. I appreciate that the city of Washington, DC, is

at a breaking point right now and I am just really curious as to

why people above you do not let you enforce the law.

Thank you, Mr. Chairman.

Mr. GOWDY. Thank the gentleman from Illinois.

The Chair will now recognize the ranking member of the full

committee, the gentleman from Maryland, Mr. Cummings.

Mr. CUMMINGS. First of all, I want to thank all of you for your

testimony.

Mr. Jarvis, I just want to thank you for using your discretion. As

a child, starting at 9 years old, I started participating in protests

just to get some rights. I realize what a delicate balance it can be

when you have people together who are frustrated and who are

very, very sensitive and while trying to protect their health and

safety, it must become difficult at time to try to figure where that
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balance is. Obviously you have done a very good job of dealing with

it.

At the same time, I was sitting here listening to the last questioner. Our law enforcement people, our park people and our government folk, who have to carry out these very difficult tasks, it

is easy for us to sit up here and second guess the people on the

ground like Chief Lanier and others, but the fact is you are the

ones who have to deal with this on a day to day basis.

I appreciate your discretion. I appreciate you understanding that

something could get out of hand. The implication a moment ago,

which I would find very insulting, is that you did your job using

the discretion the courts have given you and the implication was

somebody is telling you what to do and how to do it. That is not

true, is it? In other words, you make your best judgment. Is that

true?

Mr. JARVIS. That is correct, sir.

Mr. CUMMINGS. Chairman Issa claims that the NPS has allowed

protestors to damage the park significantly and that the NPS took

no action until the protestors attempted to build a wooden structure. Is it fair to say that the NPS neglected to do some duty at

any time since the Occupy protest began?

Mr. JARVIS. No, sir. I believe we have taken exactly the appropriate approach from the very beginning in terms of attempting to

contact and develop an understanding of the expectations and desires and intentions of the occupiers at the site. Again, because

they did not have a central leader, most of this work has been done

through observation. Since we didn’t have someone to hand the fliers that were indicated, we posted them at the site and worked toward gaining their voluntary compliance and expectations at the

site from the very beginning.

We told them that permanent structures were not going to be allowed and when they attempted to put up the permanent structure,

we did move in and remove it. I want to compliment the U.S. Park

Police in the handling of that. If you remember, the press was

quite good and we actually even received compliments from the

demonstrators in terms of the way that was handled.

Mr. CUMMINGS. What was the significance of the attempt to build

a wooden structure? What was the significance of that?

Mr. JARVIS. I am not really sure what their intention was but

they had been well informed that we would not allow a permanent

structure.

Mr. CUMMINGS. Why would that trigger a response?

Mr. JARVIS. They were going to build something on the site. This

is a national park unit and temporary structures are allowed under

the First Amendment in support of their protest, but not permanent structures.

Mr. CUMMINGS. There comes a point where discretion ends and

then you have to act, is that correct?

Mr. JARVIS. Yes, sir, that is correct.

Mr. CUMMINGS. I would take it that a wooden structure would

be a clear signal that you had to do something?

Mr. JARVIS. Yes, sir. It was essentially viewed as an escalation

of their occupation at the site, so we felt it was time to step in and

remove that.
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Mr. CUMMINGS. No matter what group this might have been,

whether they were protesting right, left, far right, far left, it would

not have made a difference, you would have carried it out that way,

is that right?

Mr. JARVIS. Yes, sir, that is absolutely right.

Mr. CUMMINGS. You said this is a kind of unique situation. Have

you ever seen anything like this in your 35 years?

Mr. JARVIS. We do have long term vigils on the Mall. As I indicated, the Vietnam War vigil that takes place at the Vietnam Memorial near the Lincoln has been going on since the 1980’s. We

have had other long term protests such as the farmers’ workers

that came in who were here for multiple weeks occupying sites on

the Mall.

Mr. CUMMINGS. Again, I want to thank you for your 35 years of

service.

Thank you, Mr. Chairman.

Mr. GOWDY. I thank the gentleman from Maryland.

The Chair will now recognize the gentleman from Tennessee, Dr.

DesJarlais.

Dr. DESJARLAIS. Thank you, Mr. Chairman.

Mr. Jarvis, do you feel you are doing a good job handling this

matter?

Mr. JARVIS. Yes, sir, I do.

Dr. DESJARLAIS. Do you think it is necessary that we are here

today to discuss this?

Mr. JARVIS. I have no opinion on that.

Dr. DESJARLAIS. Why wouldn’t you have an opinion?

Mr. JARVIS. I am a big believer in the three branches of government and I believe the legislative branch has its rights as does the

executive branch.

Dr. DESJARLAIS. When do you suspect that this problem will be

reconciled? We are all here today, this is time-consuming and it is

obviously important that we are here. I am not sure you think it

is important we are here but when can we count on you to have

this problem solved so we do not have to have meetings like this?

Mr. JARVIS. We are planning very soon, I cannot give you a specific date, to begin the enforcement of the camping regulation. We

feel we have given them plenty of time to come into compliance, we

have given them plenty of warning, we are about to give them one

more warning and recognition and notice and then we will be enforcing the camping regulation.

Dr. DESJARLAIS. Do you think that is the way it is handled

across the country in various State parks that if somebody wants

to go in there, not pay their fee, set up a tent, say they are protesting, that is okay and they can have about 100 days to sort that

out?

Mr. JARVIS. Each of our First Amendment activities in places

across the country are handled on a site by site, case by case basis.

Dr. DESJARLAIS. You think this one is being handled appropriately?

Mr. JARVIS. I do, sir.

Dr. DESJARLAIS. Chief Lanier, is this costing the taxpayer any

money as far as additional police force being brought in to handle

problems?
46

Chief LANIER. For the most part, we are using our Special Operations Division that normally handles protests on a daily basis but

we had to pull overtime officers from the patrol districts and hold

over officers so we do not have it impacting the community, so

there has been a cost.

Dr. DESJARLAIS. Are there other people breaking laws that you

are aware of?

Chief LANIER. I know there have been arrests at the site by the

Park Police and we have made some arrests out in the D.C. public

space.

Dr. DESJARLAIS. Is it patrolled at night? If some citizen just

wanted to walk through the park, do you feel it is safe? There have

been allegations that there is improper use of toilet facilities and

I guess that would mean maybe going to the bathroom where you

are not supposed to. If somebody did that out here on any of the

other grasslands around the Capitol or near the White House, I assume they would be arrested?

Chief LANIER. On D.C. public space, it is prohibited.

Dr. DESJARLAIS. So that is a problem that is going on in McPherson Park?

Chief LANIER. I would defer to Dr. Akhter who has done the walk

through, but it is my understanding that there have been some

issues with that, yes.

Dr. DESJARLAIS. It seems if everyone was doing their job, we

would not be here today. If there are laws being broken and people

were being arrested and these problems were being resolved as

they happened, it should not take 100 days to fix the problem.

Chief LANIER. I can sympathize a little bit with the process of

getting gradual compliance because you have to do that and then

deal with the courts in that case. I can sympathize a bit with the

responses we have had to take with demonstrations in the city in

the past.

Dr. DESJARLAIS. Dr. Akhter, what do you feel are the health

risks not just for the people protesting but average citizens who

want to use the facility? Are their rights being infringed upon?

Dr. AKHTER. I appreciate the opportunity.

Health risks are real to the protestors themselves and to the people at large. I say this not only because of the sanitary conditions

that exist in the park, but also because people go back and forth.

The virus, the bacteria and the others do not know any boundaries.

There are homeless people in the mix who may have infectious disease, so that really creates the environment that is not healthy not

only for the protestors, but for the residents and the rest of us who

are visiting or live in the city.

Dr. DESJARLAIS. You feel that it is an unsafe situation that has

arisen over the past 3 months?

Dr. AKHTER. It is the height of the situation that is in the center

of our city and I think, with all due respect to my colleagues from

the Federal Government, the big issue is lack of clarity and jurisdiction. The Federal Government has jurisdiction over the area. If

they are allowed to stay, we better provide them the facilities and

services that are needed for them to be healthy and for the community to be healthy.

Dr. DESJARLAIS. Who should pay for that?
47

Dr. AKHTER. I think if it is Federal land, the Federal Government should pay for it.

Dr. DESJARLAIS. The taxpayer should pay for it?

Dr. AKHTER. Absolutely. Somebody has to pay for these things,

if we are allowing people to stay. My question is, this is the Nation’s capital. We are the United States of America and people are

living in suboptimal conditions where they are putting themselves

at risk and the rest of the community at risk and nobody is really

taking full responsibility for providing the services to them, so it

falls by default on the D.C. Government for us to step in and try

to do the clean up after the fact whereas there needs to be facilities

right on the front end.

If these people are going to stay any length of time, I submit to

you all that we provide them the services they need so they can

be healthy and not pose any risk to our community.

Dr. DESJARLAIS. The point is there are laws being broken. We established that today. There is camping laws being broken, people

are violating laws about urinating on capital property, but Mr. Jarvis does not think there is a problem here and he thinks he is

doing a good job. I think we all should not be sitting here today

if everybody was doing their job. Clearly, we have a bit of work to

do.

I am out of time. Thank you.

I yield back.

Mr. GOWDY. I thank the gentleman from Tennessee.

The Chair would now recognize the gentlelady from the District

of Columbia, Ms. Holmes Norton.

Ms. NORTON. Thank you, Mr. Chairman.

There are legitimate questions being raised here in the District

of Columbia. The Federal Government has always cooperated well

in order to handle them. These questions go to safety and health

but they also go to First Amendment rights.

I want to register my objection that there is no Occupy representative here. The chairman of the full committee said he thinks

they should be heard. There would be no better place for them to

be heard but at a hearing concerning their alleged actions. This

would be the place. This is not a country where we talk about people and do not invite them to defend themselves.

I want to congratulate the Park Police and the National Park

Service.

Mr. ISSA. Would the gentlelady yield? I will be brief.

Ms. NORTON. If I can recover my time, of course I would then

yield to the chairman.

Mr. ISSA. I ask unanimous consent I have 30 seconds to engage

in colloquy.

Mr. GOWDY. Without objection.

Mr. ISSA. I thank the gentleman.

Madam, the best way I can put this is this hearing, at least from

my view, was intended to be about what would happen with the

next group of protestors now that we have set a formal precedent.

Although within the committee’s jurisdiction, if the gentlelady and

the ranking member would like to have a minority day and have

the other side come in and talk about why camped and why that

should be allowed and why 400 other protests per year should be
48

allowed similarly, you are certainly welcome to, but I would hope

you heard in my opening that this is narrow. We are not talking

about this group. We are talking about the next group and the

group after of how we are going to protect the District of Columbia

from, if you will, having lots of these kinds of events.

I thank the gentleman and yield back.

Ms. NORTON. I thank the gentleman. We are aware of our rights

for a minority hearing. The place to be heard is at this hearing, of

course, because if we want to know what to do about the next

group, the best way to understand that is to hear from all involved

with this protest, not with only law enforcement officials or the officials of the Federal Government.

I want to thank the police, the various police departments for

their approach to seeking compliance. If the District of Columbia

wants to have some problems, if the Park Police in fact had not engaged in the kind of ramping down to get compliance, then you

would have had big-time involvement of the D.C. Police Department.

Mr. Quander, are you aware that for years now, indeed for the

10-years since 911, I have been able to get an annual appropriation

from the Federal Government that allows the District of Columbia

to draw down the costs of demonstrations like the Occupy demonstration?

Mr. QUANDER. Yes, I am aware.

Ms. NORTON. Have you drawn down any of that money?

Mr. QUANDER. Money is being requested.

Ms. NORTON. So this is not costing the District of Columbia

funds. If that money is drawn down, it can be paid for as it is always paid for because this is the Nation’s Capital and while the

chairman of the subcommittee is right that there is no preference

in First Amendment rights, there is a deep sensitivity for how to

enforce those rights at the seat of government. Have there been

residents coming forward in significant numbers to complain about

the presence of Occupy in our city?

Mr. QUANDER. There have been a number of residents.

Ms. NORTON. In large or significant numbers?

Mr. QUANDER. We have received a number of emails and residents.

Ms. NORTON. Is it not true that the District of Columbia, the

Mayor and the City Council, while they have raised concerns about

health and safety matters, the Mayor has asked for some change

in where the occupation is taking place, that neither the Mayor nor

the City Council have asked that these demonstrators be removed

from Washington, DC?

Mr. QUANDER. The Mayor has not made that request.

Ms. NORTON. Is it true, Dr. Akhter, to read from your testimony

with your concern about these and the rest—no, this is Mr.

Quander’s testimony. ‘‘Although there have not been any public

health emergencies such as outbreaks of communicable disease or

reported illnesses, we will remain vigilant in monitoring.’’

Your vigilance, of course—which will be paid for by the Federal

Government—is what we are concerned about but Mr. Quander in

his own testimony says that whatever have been the health prob-
49

lems, and there surely have been some, they have not presented

major problems.

Mr. Quander, when you use the words escalating tactics, have

you seen escalating tactics or have you seen just the opposite, an

outbreak here and there; the occupiers get themselves together,

quieted down themselves and keep the matter from escalating.

Hasn’t that been the pattern rather than escalating tactics?

Mr. QUANDER. What I said in my testimony is that our concern

is for escalating tactics.

Ms. NORTON. Just a moment. This is a fact-finding hearing. Isn’t

it the case that there have not been escalating tactics? Shouldn’t

we give these demonstrators their due that there has been cooperation with the police and instead of escalating tactics, they have

self-policed their movement? Isn’t that the model we would like to

see when demonstrators come to this city?

Mr. QUANDER. That is the model that we would like to see.

Ms. NORTON. Mr. Chairman, I come from a generation that tried

a new tactic too. It was a new tactic to change the United States

of America. Nobody much wanted it. When Resurrection City was

out there and it was raining cats and dogs and there was mud during civil rights protests, nobody said because of your health, we are

going to get you out of this place. I think it is incumbent upon us

to respect the different tactics of different generations.

Let me say this as somebody who represents this city, has deep

respect for the First Amendment first and foremost. What Mr. Zick

said is very important to understand about the First Amendment

and its enforcement. When you see me protecting First Amendment

rights here, do understand that you are hearing it from a Member

who spent the first part of her life as a constitutional lawyer protecting demonstrators, many of whom I disagreed with, including

a case in the Supreme Court where I argued in face of a set of racists who wanted to continue their protest.

The First Amendment knows no advantage. The Tea Party people would get the same respect and I am confident the same kind

of treatment from the Federal Government and the Park Service

that they have gotten here. It is up to the District of Columbia and

its services to adhere to the First Amendment as well as anybody

else. You are very fortunate that we have been able to get you the

funds so that this does not cost the city a dime. Her overtime will

be paid for and it is important that the rights be seen in those contexts and that there continue to be and indeed must be even greater cooperation between the Park Service and the District of Columbia because guess what, neither of you is going anywhere and the

demonstrators are going to continue to come.

This committee expects grown up responses as we have gotten

from the Mayor of the District of Columbia and the Council of the

District of Columbia, from all of its officials as well as from the

Park Service.

I yield back the remainder of my time.

Mr. GOWDY. I thank the gentlelady from the District of Columbia.

The Chair would now recognize the chairman of the full committee, the gentleman from California, Mr. Issa.
50

Mr. ISSA. Thank you and I ask unanimous consent that the three

additional minutes the gentlelady from the District took be allowed.

Mr. GOWDY. Without objection, Mr. Chair.

Mr. ISSA. Thank you.

My obligation as the chairman of this committee is first and foremost for the District of Columbia to ensure that we do no harm to

the District. I am not for a moment going to side with the

gentlelady, the delegate from the District, my friend, Eleanor, and

say that just because we let you draw down on a payment that we

are not harming you. I think we are.

I certainly think when the Mayor of the city sent to Mr. Jarvis

a letter at the end simply saying ‘‘At a minimum, the Occupy D.C.

sites at McPherson Square and at Freedom Plaza must be consolidated at Freedom Plaza to allow for elimination of a rat infestation,

clean up and restoration of McPherson Square.’’ That is the District

of Columbia that the gentlelady represents and that I am honored

to have oversight of.

I’m afraid many of you didn’t get an answer.

Doctor, first with you, is that a problem that legitimately the

District has a responsibility, needs to make sure occurs, that is not

occurring today?

Dr. AKHTER. Mr. Chairman, I am not quite sure. The issue of jurisdiction has not been settled.

Mr. ISSA. I was actually talking about the rat infestation.

Dr. AKHTER. No jurisdiction. They never asked D.C. for a permit.

Mr. ISSA. Impacting residents of the District of Columbia until it

is cleaned up, right?

Dr. AKHTER. That is why we are involved in this process. Nobody

supports more the First Amendment right of the people than I do.

I have taken oath twice, once becoming a citizen to uphold the Constitution and the other time, becoming the Director of Health for

the city. We support that, but people must be healthy to be able

to stand up, be heard and be seen. If they are living in rat infested

places, that is putting them at risk and putting our residents at

risk. This is no demonstration of their First Amendment rights.

Mr. ISSA. I think you have made your point very clearly. I appreciate your having an opportunity to do that.

I might point out that the ranking member representing Baltimore represents a city that handcuffed Occupy Baltimore

protestors as did New York when they were trespassing.

Mr. Jarvis, you are the focus here because you are, in fact, turning a blind eye to 4 months of law breaking. You mentioned your

background in law enforcement. I appreciate that there is discretion, but do you have discretion to ignore overtly criminal activity

or do you have discretion to concentrate on the most egregious, to

prioritize? Which is it and I do not ask you for a third answer if

you do not mind?

Mr. JARVIS. We have the discretion to focus on the most egregious which we have made over 80 arrests.

Mr. ISSA. So you are focusing on the subpart but for 4 months

saying, we will focus on people who commit criminal activities beyond the core criminal activity that led to those arrests, right?
51

Mr. JARVIS. We have focused on crimes against individuals, public urination and those types of crimes at the site.

Mr. ISSA. In your opening statement, you talked about First

Amendment balance. Is somebody sleeping in a tent a legitimate

First Amendment part of a protest, yes or no, please?

Mr. JARVIS. No, it is not.

Mr. ISSA. In fact, the moment somebody begins sleeping in a

tent, basically using somebody else’s asset, the American peoples’

asset in a way not prescribed or allowed within the regulations set

about for all citizens, the moment they do that they are committing

a crime which you have an obligation to enforce, how many enforcement actions have you taken over people who have ceased protesting and are simply camping there?

Mr. JARVIS. To this date, we have taken none.

Mr. ISSA. I will ask you the rhetorical question I noticed when

I made my opening statement you wrote down, are there parks in

America in which park rangers usher people out of all or part of

the park at sunset because in fact there are often designated camping areas and there are simply areas of the park you cannot be all

night?

Mr. JARVIS. I believe that probably is true. I cannot tell you specifically where that might be the case, but certainly there are areas

in our national parks that are closed at certain times of the day.

Mr. ISSA. That is for a number of reasons including the conservation of assets. Sometimes it is just plain money. You guard the

campgrounds 24 hours a day, you do not guard all of very large

Federal lands, right?

Mr. JARVIS. No, we try to extend our enforcement responsibilities

throughout. I do want to correct you on this because it is an important point. Most of our national parks are open 365 days a year,

24 hours a day.

Mr. ISSA. For camping?

Mr. JARVIS. We have areas that are specifically identified for

camping and we do have areas that camping is prohibited.

Mr. ISSA. I would ask I have an additional 2 minutes.

Mr. GOWDY. Without objection.

Mr. ISSA. I am an avid camper, both RV and tent over the years

and a very old Boy Scout. Basically, it is a regular practice of the

any Federal park that, first of all, they check to see if somebody

is allowed to be a camper because you limit the number of campers

and people who simply want to exceed that are ushered and you

ensure that people are camping within lawfully designated areas,

correct?

Mr. JARVIS. That is correct.

Mr. ISSA. Yet for some reason, there has been an exception here.

Let me ask you the most important question I ask hopefully rightfully on the side of the District of Columbia. Can we expect additional exceptions like this in the future? Is this a one-time occurrence that we are going to bring to an end once and for all or is

there an expectation that this or any administration can pick and

choose based on whether they like or do not like the First Amendment rights being asserted and allow some to stay and others to

go or are we going to uniformly simply say if you are a protestor,

you get to stay on Federal lands while you are protesting?
52

Mr. JARVIS. The answer is that each First Amendment activity

is going to be approached with the same set of principles.

Mr. ISSA. Okay. So camping is not a First Amendment. Camping

is in fact a violation of law. The sleeping is a violation of the law.

If protestors choose to camp, you and the Obama administration

will make a case by case decision about whether or not you agree

with the protestors’ line, whether or not this group of protestors

gets to stay and others get to leave, that is really what you are saying, isn’t it?

Mr. JARVIS. No, I am not saying that. Whatever they are protesting is irrelevant to our decisions. Our decisions are based on

the totality of the circumstance.

Mr. ISSA. In the history of the Park Service and the Federal Government, how many times have protestors been allowed to stay in

campgrounds when it was clearly an unlawful activity, to your

knowledge, and been allowed to consider it a First Amendment

event by the Park Service?

Mr. JARVIS. Within my testimony, I specified at least three—

when the farm workers’ movement came here, lived on the Mall for

7 weeks; I indicated Resurrection City and they were here for at

least a month on the Mall. We do not pick and choose. Each one

is the totality of the circumstances and then our goal here from the

beginning as well as the end is to gain compliance of all of our regulations. It has been an incremental enforcement and we intend to

gain complete compliance with this group as well in particular as

it relates to camping.

Mr. ISSA. Mr. Zick, as the minority’s chosen witness, they did not

choose the people sitting behind you, they chose you to speak on

their behalf when asked who they wanted. Do you agree that incremental, selective and periodic, and some get it and some don’t, is

okay under the Constitution?

Mr. ZICK. I said you have to be very careful with viewpoint discrimination but I will say this with respect to camping, there is a

world of difference between a recreational camper and somebody

who camps as part of a protest. The Supreme Court did not say

camping is not a First Amendment activity. It said the opposite. It

did say the government had the authority to limit or prohibit, in

Clark v. CC&V, that activity.

I do not join issue with whether or not the camping regulation

has been enforced here but I take your point. It cannot be enforced

against some groups and not others when they are exercising First

Amendment rights because the government agrees or disagrees

with the message. That is true.

Mr. ISSA. Thank you.

Thank you, Mr. Chairman, for focusing on this and hopefully we

are bringing some resolution. I think we heard here today that the

protestors are, in fact, being given notice and in a foreseeable period of time, a very short period of time will pass before they will

have to find other accommodations and protest only during the day.

I yield back.

Mr. GOWDY. I thank the gentleman from California.

The Chair would now recognize the gentleman from Missouri,

Mr. Clay.

Mr. CLAY. Thank you, Mr. Chairman.
53

Normally, I would say thank you for this hearing but because of

the tone and tenor, I am not going to say that. The tone and tenor

of this hearing is rather disturbing.

I visited an Occupy camp in St. Louis, my hometown, Kiener

Plaza. I found it to be orderly, organized and very sanitary. I went

inside some tents and they had computers set up and all of that.

It was very organized, so I did not experience what you say you

have experienced here in D.C.

The tone and tenor of this hearing is on the wrong track. When

we talk about peaceful assemblage in this country, I think back to

being a very small child in the summer of 1963 and seeing the images come across my TV of those peacefully assembled in Birmingham, Alabama and were met by Bull Connor with dogs and

fire hoses. He was wrong then and I think that the majority is

wrong on this instance.

When you think about our First Amendment rights for all Americans to be able to assemble peacefully to voice their concerns about

issues in this country, we should not try to tamp that down, we

should not try to distinguish between one form of assemblage to

another.

Former Secretary of Labor Robert Reich described the message

of the Occupy movement this way. He says, ‘‘If there is a single

core message to the Occupy movement, it is that the increasing

concentration of income and wealth at the top endangers our democracy. With money comes political power, yet when people without money assemble to express their dissatisfaction with all this,

they are told the First Amendment doesn’t apply. Instead, they are

treated as public nuisances, clubbed, pepper sprayed, thrown out of

public parks, and evicted from public spaces.’’

Professor Zick, are government agencies like the Park Service

limited in what steps they may take to contain a protest by their

legal obligation to uphold the First Amendment rights of the

protestors?

Mr. ZICK. They are.

Mr. CLAY. My understanding is that the seminal Federal case,

Quaker Action v. Morton is decades old, isn’t that right?

Mr. ZICK. That is correct.

Mr. CLAY. Is there anything new about that obligation or about

Occupy D.C. that would make the Park Service’s recent decisions

out of line with decades of past practice?

Mr. ZICK. There is nothing new in the jurisprudence. I think

what is new and what people have been pointing out is quite new

is the use of this kind of a protestor demonstration to make a public point, to join a public debate. The use of public place in this

fashion is, I think, unprecedented. The closest thing I suppose

would be a sit-in. This is a large, outdoor sit-in activity that does

pose some stress for public concerns of safety and health and so

forth, but there is nothing in the jurisprudence that has changed

since Quake Action in the 1970’s, no.

Mr. CLAY. This is just another form of peaceful assemblage of

Americans protesting what they think is wrong and having a voice

in their government, is that correct?
54

Mr. ZICK. To the extent it is peaceable assembly and to the extent it is not as we have heard testimony the criminal laws are

being enforced.

Mr. CLAY. Thank you.

Mr. Chairman, I yield the balance of my time to the gentlewoman from the District of Columbia.

Ms. NORTON. I thank the gentleman for yielding.

Mr. Jarvis, let me again thank the Park Police that there has not

been escalation, in part, because of how the occupiers have conducted themselves, but also because the Park Police have done very

expert policing to ramp down the problems and to get enforcement.

We want more of that because we do not want the city torn up by

demonstrators.

Let me ask you, Mr. Jarvis, has the bulk of the police work been

done by the Park Police rather than the District of Columbia police?

Mr. JARVIS. In the case of the site itself, McPherson Square, the

U.S. Park Police, the National Park Service.

Ms. NORTON. So the daily policing has not been a matter for the

city, but the Federal Government has, in fact, been doing the daily

policing for the most part?

Mr. JARVIS. Yes, ma’am.

Ms. NORTON. In light of Dr. Akhter’s concern about rats, have

you been in touch with the Public Health Service or Dr. Akhter and

the District of Columbia Public Health Service at all, sir?

Mr. JARVIS. Yes, the Public Health Service Corps works for the

National Park Service. Captain Chuck Higgins has been working

directly with the District on a Public Health review of the site.

Ms. NORTON. They are cooperating. You believe they will get any

matters involving public health under control because of cooperation between the Federal and the District Governments on public

health matters?

Mr. JARVIS. Yes, I do believe that.

Ms. NORTON. Do you agree, Dr. Akhter, as well?

Dr. AKHTER. We have started the communication. There has

been one meeting between Captain Higgins and myself. We have

discussed the issues and mutually agreed that action needs to be

taken to make sure that the site is cleaned up and is healthy for

the protestors and our residents.

Ms. NORTON. Thank you.

Mr. GOWDY. I thank the gentlelady from the District of Columbia

and the gentleman from Missouri.

The Chair will now recognize the gentleman from North Carolina, Mr. McHenry.

Mr. MCHENRY. I thank the chairman and I would like to yield

the balance of my time to the chairman so he can continue his line

of questioning from earlier.

Mr. GOWDY. I thank the gentleman from North Carolina.

Professor Jarvis, I know that you are an expert in research. Do

you also teach criminal process or constitutional law? I am sorry,

Professor Zick?

Mr. ZICK. I am sorry. The question again?

Mr. GOWDY. Are you familiar with criminal process and constitutional law?
55

Mr. ZICK. I teach constitutional law.

Mr. GOWDY. What is selective prosecution?

Mr. ZICK. Singling out and individual for prosecution on some

sort of invidious basis.

Mr. GOWDY. Could it also include a misuse of your prosecutorial

discretion?

Mr. ZICK. I suppose. We are getting far afield of my expertise.

Mr. GOWDY. Mine too. You are the professor.

Mr. ZICK. Not necessarily criminal procedure, but it certainly

could.

Mr. GOWDY. It seems clear that you can’t enforce or non-enforce

based on content. Would you also agree you cannot enforce or nonenforce based on geography or jurisdiction?

Mr. ZICK. I am not sure I understand in what sense.

Mr. GOWDY. Is there a different First Amendment rule for the

District of Columbia than there is for Utah?

Mr. ZICK. I think there is a heightened sensitivity and, in part,

for this reason. You have a right to petition the Federal Government. You can do that far more effectively from two blocks from

the White House than you can from Cleveland.

Mr. GOWDY. You think that there would be a different First

Amendment analysis based on where you are in this country?

Mr. ZICK. I am not sure it would be different First Amendment

analysis, but as someone put it, there would be a heightened sensitivity to the First Amendment right in question. The doctrine

would not change.

Mr. GOWDY. That creates a very curious result. The closer you

get to the District of Columbia, you have more First Amendment

rights.

Mr. ZICK. I do not know that you have more First Amendment

rights, but the D.C. Circuit, in particular, has recognized that

given, again, the location, the proximity to the seat of government,

there is a special sensitivity for First Amendment rights.

Mr. GOWDY. But this is not the only seat of government. There

are 50 capitals, aren’t there?

Mr. ZICK. Yes, sir.

Mr. GOWDY. There are thousands of county seats, so you are not

arguing that because this is the seat of the Federal Government,

that they would have more First Amendment rights than the capital of Nevada, are you?

Mr. ZICK. I am not arguing necessarily there are more First

Amendment rights, but in the balance the courts undertake in

terms of balancing free speech rights against other concerns, I

think it is appropriate to take that into account. I think some

courts have, in fact, done that, the D.C. Circuit chief among them.

Mr. GOWDY. I want you to balance this. Mr. Jarvis, have there

been any arrests for camping in the country in the last 12 months?

Mr. JARVIS. I have no idea.

Mr. GOWDY. What do you think?

Mr. JARVIS. I would not like to speculate on that. The National

Park system is a big place.

Mr. GOWDY. Right. Let me say, Mr. Cummings if it was entirely

correct to commend you for your 35 years of service. In a former

life, I actually had the pleasure of prosecuting some of your cases
56

in South Carolina. My fear is this. I understand you are in a difficult position. I really do.

My fear is this. If someone in South Carolina, Georgia, Utah or

Maryland is going to be charged with camping, it makes it really

difficult to say that we are one Nation under the law if you have

different applications of the law based on where you are. I think

you and I both, if we look hard enough, could find someone who

was arrested and prosecuted for camping.

To Professor Zick’s point that there is something called selective

prosecution, I would be curious how we explain to that person who

paid a fine or perhaps was incarcerated what the difference is.

Mr. JARVIS. I think that as the professor indicated, recreational

camping is different than First Amendment activities that include

a 24-hour vigil.

Mr. GOWDY. Is there First Amendment sleeping versus recreational sleeping?

Mr. JARVIS. In this case, we have a 24-hour vigil which we do

believe.

Mr. GOWDY. That actually was not my question. Is there First

Amendment sleeping versus recreational sleeping?

Mr. JARVIS. I do not really understand that question.

Mr. GOWDY. Here is the question. You already said that sleeping

is prohibited because it is one of the examples of camping. You also

said people are sleeping in McPherson Square. My question is, are

there certain constitutionally protected forms of sleeping or are you

admitting that you have selectively prosecuted certain people and

not others?

Mr. JARVIS. No, I am not admitting in terms of selective prosecution. What I am saying is that we have gained compliance through

an incremental approach. The important point here is that sleeping

and camping is an individual regulation. It is against an individual, not a group.

Mr. GOWDY. How does a group sleep?

Mr. JARVIS. There is no regulation that we can apply toward Occupy D.C. on camping. There is a camping regulation that we need

to build a body of evidence around an actual individual, a person

with a name, that they are camping at McPherson. It is our intent

to do that but we have done that at the end of a long progression

of gaining compliance and health and safety first.

Mr. GOWDY. Mr. Jarvis, I want to say again, Mr. Cummings was

right, you have a very difficult job. I knew that actually before he

said it, but he is to be commended for saying it again. As everyone

on both sides has said, you have a difficult job, just like Ms.

Holmes Norton had a very difficult job when she had to defend

someone whose speech she disagreed with. That would be a very

challenging thing to do.

My concern is not today, it is not this movement, it is not what

is happening in Washington. My concern is the fabric of this republic is going to unravel if we treat people differently. It is unraveling

because there is a perception that we treat people differently. If

you can guarantee me that the exact thing would happen in Utah

or South Carolina, or if people who had a conservative ideology

came to McPherson Square, I would still say this. Either enforce
57

the regulation or do away with it, but to have a regulation and not

enforce it undermines respect for the rule of the law.

I think there has been a request for a second round of questions.

Mr. Davis, are you amenable to that?

Mr. DAVIS. Yes, sir.

Mr. GOWDY. Would it suit if we had an abbreviated 3 minutes

as opposed to five?

Mr. DAVIS. I think that would work.

Mr. GOWDY. With that, I guess I was finishing out Mr.

McHenry’s time. I do not want to monopolize it. Mr. McHenry or

Mr. Walsh? I am going to give it to Mr. Walsh because I have been

talking too much.

Mr. WALSH. I will be brief. Thank you, Mr. Chairman.

Mr. Jarvis, let me just second what the chairman just said. I respect the job you have and I understand what you are going

through. You said one thing in the first line of questioning that is

eating at me and maybe I misinterpreted it. You said that because

the word occupy was in the name of this protest group, you were

treating them a little differently. Was that right?

Mr. JARVIS. No. If I could correct the record on that, let me just

say that each First Amendment protest has its unique components.

In this particular one, as stated by the professor, their principle behind their First Amendment activity is to ‘‘occupy’’ a piece of public

land.

Mr. WALSH. Which has given you a bit more discretion in how

you deal with them?

Mr. JARVIS. I would say a bit more of a challenge in how we deal

with it.

Mr. WALSH. If I had a group that was ‘‘Live-In D.C.,’’ would you

let me live there for a couple years? Would you have more discretion with how you would deal with me if the name of my group was

‘‘Live-in D.C.?’’ Do you see what I am saying?

Mr. JARVIS. I see what you are saying but I am not using the

name say with a capital ‘‘O.’’ I am using it in terms of a verb, they

are occupying the site.

Mr. WALSH. Right.

Mr. JARVIS. Any protest that comes to Washington, DC, with

First Amendment rights has to be evaluated in terms of how we

deal with them to gain compliance. As we said, it is unprecedented.

We are working our way through this.

Mr. WALSH. Mr. Chairman, with your indulgence, we had staff

last night pay a visit to Occupy D.C. With your permission, I would

love to show just a 2-minute video. I think it seconds a lot of what

Mr. Jarvis has said as far as them camping and sleeping.

Mr. GOWDY. Without objection.

[Video presentation.]

Mr. WALSH. Thank you, Mr. Chairman.

Mr. GOWDY. Thank the gentleman from Illinois.

The Chair would now recognize the other gentleman from Illinois, Mr. Davis.

Mr. DAVIS. Thank you very much, Mr. Chairman.

Director Jarvis, let me ask, how do you distinguish between D.C.

Occupy protestors and homeless people who might find their way

into McPherson Square?
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Mr. JARVIS. This has been a concern, Congressman, that we do

believe some homeless people have moved in to join the occupiers

and have taken advantage of the situation there both in terms of

the services. That is one reason we have been working with the

Metropolitan Health Department to provide social services at the

site as well. I think they have been subject to some of the arrests

we have made at the site for a variety of activities but it is a concern.

Mr. CUMMINGS. I am delighted to know that there are some

homeless people who have joined the Occupy protestors.

In your testimony and in response to inquiry today, you mentioned a number of times that there were other long term vigils—

veterans, farmers. Did they go to hotels, to your knowledge, when

they were there? How did they maintain themselves? Did they

come out during the day and then in the evening go down to the

Grand Hyatt or someplace, get a room, sleep and then come back

the next day and get on their tractors?

Mr. JARVIS. They maintained 24-hour vigils in each of those situations. I am not knowledgeable enough about those actual protests

to give any details as to how they managed all of that activity.

Mr. DAVIS. Then it would be fair to suggest that perhaps these

protestors, Occupy D.C., are handled no differently than what other

long term vigil protestors have been treated?

Mr. JARVIS. I think that is correct, yes, sir.

Mr. DAVIS. Let me thank you very much because the more I listen to this discussion and the more I hear what has taken place

and what is taking place, the more I am convinced that your 35

years of law enforcement have served you well, that you have made

some solid, sound, rational decisions and you really represent the

best of what law enforcement ought to be.

I commend you and I commend the Park Service for the way in

which you have handled a very difficult situation and that you

really understand what it means to have freedom of speech, First

Amendment protection.

I yield back, Mr. Chairman.

Mr. GOWDY. I thank the gentleman from Illinois.

The Chair would now recognize the gentleman from California,

the chairman of the full committee, Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

I apologize. We had a vote next door in Judiciary. As I come

back, I have just a couple quick questions.

Mr. Jarvis, we had a lot of debate about the past and the future.

At times, protestors have come to the city, they camped and they

have been in some way accommodated. You made that point in

your opening statement. Have there been times when protestors

came, they camped and they were not accommodated?

Mr. JARVIS. I have no information on that. I do not know.

Mr. ISSA. That was the subject of today’s hearing and you came

not knowing if Park Police had ever arrested somebody who asserted they were a protestor and you said, that is nice, but you cannot camp here?

Mr. JARVIS. I am sorry, I do not have that but I would be absolutely glad to find out and come back to the committee with that

information.
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Mr. ISSA. We would appreciate an answer for the record.

Mr. JARVIS. Yes.

Mr. ISSA. Mr. Zick, this a constitutional question to a great extent and this is not the constitutional committee. This is the D.C.

Committee more than anything else. If we were to make it clear

in the future through some statute, in addition to the Supreme

Court decision, that protestors would not be accommodated unless

that area was either permitted or by requesting a permit, therefore, obviously port-a-potties and all the other facilities which we

do for various demonstrators even if they are not staying the night

or in fact, they stayed at a facility that was already allowed.

In other words, if we made it clear in statute that it was not discretionary and we did so uniformly by statute would that pass the

smell test of there are plenty of places to protest but you cannot

sleep there, it is not a constitutional question. In other words, your

testimony today and this problem, isn’t ambiguity to a certain extent a problem?

Mr. ZICK. The regulation, as it is written, calls for a determination based on the totality of evidence of whether or not it is reasonably apparent that people are using it as a living accommodation.

That is lawyer speak for this is ambiguous but also it is open to

discretionary enforcement.

With respect to whether you can write new rules in response to

a protest, that could be problematic. They have tried that in some

other jurisdictions in response to the Occupy protest, I believe in

Nashville, and the courts found that to be problematic.

Mr. ISSA. We are talking about not for this particular group of

protests but for the future, for those that will come for issues not

yet at the forefront.

Mr. ZICK. If you are talking about that and if you write and enforce the law in content neutral terms, to use your language, Mr.

Chairman, it would pass the First Amendment smell test.

Mr. ISSA. Let me couch it in a final question for me for today for

each of you. Would that be helpful, in a post-protest period—I am

not talking about this week or next week when everyone would

view it related to a particular group—would this be helpful? I will

start with the Park Service and come the other way. Would this

be helpful for you to have predictability and certainty for the future? Mr. Jarvis.

Mr. JARVIS. I think first and foremost we would have to evaluate

whatever language you would be proposing so we completely understand its implications and how we would be tasked with enforcing

it on the ground and whether or not it would be subject to challenge within the courts which creates additional burden.

Mr. ISSA. Forget all that. It is not your job. From the standpoint

of if you were told that one of the elements for discretion was not

somebody saying I am here in a vigil, that would not exempt in any

way, shape or form their overnight camping. If we clarified that,

and we will assume the men and women in black robes will look

at it and approve it, would that make your job better long in the

future, your successors need to, in fact, bring uniformity and clarity

particularly as to the First Amendment?

Mr. JARVIS. I am not going to pass judgment.

Mr. ISSA. The gentleman takes a pass on that.
60

Mr. Zick.

Mr. ZICK. I think given that the touchstone of First Amendment

analysis is content neutrality, predictability would be beneficial. I

would be concerned about the impact on First Amendment rights.

It makes no difference here that I disagree with the CCNV case.

It is the law of the land, but in terms of writing something that

is clear on its face and neutrally applied, yes, that would be a plus.

Mr. ISSA. I look forward to seeing your involvement if we get to

that point.

Dr. Akhter.

Dr. AKHTER. I believe, Mr. Chairman, we have adequate laws,

rules and regulations in the District of Columbia that allow me to

do my job in a respectful manner.

Mr. ISSA. Chief, would this be good for you if you knew what to

expect on Federal lands adjacent or within the District of Columbia?

Chief LANIER. For law enforcement purposes, predictability and

very clearly written laws are always really important, especially

when you are in depositions, and predictability for planning purposes, especially in our jurisdiction, things are always moving, at

least we try and keep them moving.

Mr. ISSA. Mr. Quander? You get the last one on behalf of yourself, the Mayor and the Council.

Mr. QUANDER. Predictability and clarity are always extremely

beneficial.

Mr. ISSA. Thank you.

Mr. Chairman, thanks for the indulgence in my last round.

Mr. GOWDY. I thank the gentleman from California.

The Chair would now recognize the gentleman from Maryland,

the ranking member of the full committee, Mr. Cummings.

Mr. CUMMINGS. Thank you very much.

As I sat through this entire hearing, I must tell you that I wish

we had as much concern about the people who have lost their

houses, the Americans who have suffered some $7 to $11 trillion

worth of losses. It baffles me, it truly does, that we have now had

over 118 hearings, 342 witnesses in this committee and when we

ask for one of the bankers to come tell us why they were robo-signing, violating the law, we cannot get them. The chairman does not

want them to come in to explain to us why it is that they have illegally put people out of their houses, offenses they have already admitted to.

I guess people who are protesting and are part of Occupy look

at a hearing like this and say, this is why they are protesting. This

is why because they see their government, particularly a committee

that is supposed to be standing up for them not addressing the

issues that go to the center of their lives. It is a damned shame

because I listened to you, Mr. Jarvis, and I get what you are doing.

Some people would try to call it selective prosecution.

You are a practical man, you are a law enforcement officer, you

have been trained. You do not want to incite a situation, you do

not want it to get worse, so you try to contain it and try to work

with people because you understand these people are human

beings. They are human beings and they have come because they

are concerned about what their government is not doing.
61

I am hoping that maybe a tiny bit of the energy we have put into

this hearing we will put into addressing the very things that the

Occupy movement is all about and the things they are concerned

about. Maybe then we will not have to have these hearings, then

we will not have to worry about whether there will be another Occupy.

As I sit here I am saying to myself, I understand. I get it. I think

about police officers and I watch these ladies and gentlemen of the

Capital Police. They do it to perfection. I have seen situations

where things could have gotten completely out of hand, but they

find a way to try to resolve the issues so people can still have their

rights fulfilled, do their protests and whatever.

I am just hoping that just maybe some of the message will come

through to us that maybe we ought to have a hearing and bring

in some of the guys and ladies who may have been the cause of the

problems that our people are going through or the cause of some

of those people sitting in those very camps who have been thrown

out of their houses.

With that, Mr. Chairman, I yield back.

Mr. GOWDY. I thank the gentleman from Maryland.

The Chair would now recognize the gentlelady from the District

of Columbia, Ms. Holmes Norton.

Ms. NORTON. Thank you, Mr. Chairman.

Chief Lanier, would you say the Occupy movement was predictable?

Chief LANIER. Yes. We were not the first Occupy camp, so yes,

we knew that Occupy was coming.

Ms. NORTON. Not here in the District of Columbia. When the

first Occupy protest broke out in New York, could that have been

predicted?

Chief LANIER. No.

Ms. NORTON. I ask that question only because above all, law enforcement needs to have ample discretion. The best way to get

slapped down is to get an ironclad rule written into law that then

goes up to the courts and up to the Supreme Court. I speak to you

as a First Amendment lawyer who has been there and done that.

It would hurt you as much as it would hurt the occupiers and I do

not think we want more tests of that kind, we want more compliance and certainly no escalation of violence.

Mr. Jarvis, it would appear that the responses of the occupiers

have affected the kind of enforcement that the Park Service has

deemed to be necessary. Here is a question I would have asked the

occupiers if there had been a witness but you are the next best

thing, so I am going to have to ask you.

What steps have the occupiers taken to police themselves and to

respond to the concerns that you have raised or that the police or

others have raised?

Mr. JARVIS. Over the period of months I have been working with

them, they have executed a number of things voluntarily in terms

of site cleanup, the areas in which they are distributed in McPherson. One comment was made earlier that the National Park Service

is providing the port-a-potties. That is not true. The occupiers are

providing both the services and the cleaning of those port-a-potties,

so they have brought a great deal of organization to the site.
62

I think the relationship we have on the ground is significantly

different than when they first arrived. I walked through the camp

myself last week with U.S. Park Police. We were greeted friendly

and were able to talk directly to many of the demonstrators. They

thanked us for the work that we were doing there.

Ms. NORTON. I certainly want to go on record to thank the Occupy movement for being responsive to the police and to remind

them that as they have head from the rostrum, and perhaps even

from the table, there are some who would not be as friendly to

First Amendment rights and the more we can call their bluff, it

seems to me, by cooperation and with the non-violence exemplified

by the icon of successful nonviolence, Dr. Martin Luther King, the

better off we would be.

I have to ask Mr. Zick about this notion of the Nation’s Capital

as a special place. During the Arab spring, you could not get to the

floor but people were competing to egg on all of the demonstrators

of the Arab spring, egg on, even if they brought a revolution, egg

on even if they brought down a government that had been friendly

to the United States of America, to the floor we all came on both

sides of the aisle and of course, there was a revolution. Many of

them said they had looked to demonstrations in this country and

were very grateful for the response we have had in this country.

The place they look to is not Oakland or Portland or my good

friend, and he is a good friend, will forgive me, not even Charleston. The place they look to I daresay is the Nation’s Capital. Therefore, while I agree with the chairman about how the Supreme

Court will look at the First Amendment for what it is, if I may say

so, to confer a set of preferred rights. That is how important First

Amendment rights have been in our country. If you look at the

five-four split on the Court, isn’t it interesting that there are not

many splits when it comes to the First Amendment.

I would like to ask your expert opinion, given the place where

we are and its visibility to the world what the effect of suppression

of the Occupy movement in the Nation’s Capital would have been

had the Park Police acted in ways other than how they have chosen

to act?

Mr. ZICK. I think suppression anywhere would be problematic,

but I take your point. This is a special place not in the sense that

it confers special rights. I think that is an important point to keep

in mind, but the context is critical. The places we are talking

about, the National Mall, Lafayette Square Park. This was a point

made by Justices Marshall and Brennan in the CCNV case, those

are unique places not only because your right to petition the Federal Government applies here in the District and not elsewhere,

that is a special right, but even with respect to speech and assembly rights, those are iconic, sacred, inscribed places in our history

and I think that would send a very bad signal to the public at large

and maybe to the world at large with respect to our respect for

First Amendment rights that we tell the world are exceptional.

Ms. NORTON. Thank you very much.

Mr. GOWDY. I thank the gentlelady from the District of Columbia.

Dr. Akhter, briefly, are you familiar with any civil liability exposure the District may have?
63

Dr. AKHTER. No, Mr. Chairman, I am not aware at this time.

Mr. GOWDY. Have you been immunized by the Federal Government for any civil lawsuits that may take place as a result of anything that may happen?

Dr. AKHTER. Mr. Chairman, I am not aware I have been immunized by the D.C. Government as a government employee.

Mr. GOWDY. I was not referring to your own personal immunity.

I hope you do not need any. I hope I do not need any either. My

concern, I guess, Professor Zick, you correct me if I am wrong, it

has been a long time, evidence of the violation of a rule or regulation can be evidence per se or evidence of negligence in a civil suit,

right?

Mr. ZICK. Yes, sir.

Mr. GOWDY. I guess I will finish where I started. I do not understand the sense or the use of having a rule or regulation if it is

not going to be enforced. It strikes me that the process we go

through in this country is if you do not like a law or a rule, you

change it. If you do not feel you can change it, we have a long, rich

history of civil disobedience in this country. The most famous epistle on civil disobedience was written where, Professor Zick?

Mr. ZICK. I am sorry?

Mr. GOWDY. See if you would agree with me. The most heinous

letter with respect to civil disobedience was written where?

Mr. ZICK. In Birmingham jail?

Mr. GOWDY. Jail, right? Not Birmingham, but the jail.

My point is this. If you do not like the law, change it, but to ask

Mr. Jarvis, Chief Lanier, the Capital Hill Police who all have very

difficult jobs to also have to decide which laws to enforce and which

ones not to. Mr. Cummings and others have spoken very eloquently

about the frustration with a multi-tiered society with respect to

fairness. We have exactly the same issues if we have a multi-tiered

society with respect to which laws we are going to enforce and

which ones we are not.

My advice is either enforce the rule or regulation as written or

change it but selecting it in some States and not others will undermine respect for rule of the law.

With that, on behalf of all of us, we want to thank all of the witnesses for you accommodation toward one another, for your respect

and expertise with respect to your interactions with us on the

panel.

With that, we are adjourned.

[Whereupon, at 11:40 a.m., the subcommittee was adjourned.]

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