STEPHEN DOUGLAS BONNEY
215 West 18th Street
Kansas City, MO 64108
(816) 221-2868
FRED SLOUGH
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, MO 64111
(816) 531-2224
Attorneys for Plaintiff-Appellee
STATEMENT OF ADDITIONAL FACTS --- pg. 1
SUMMARY OF ARGUMENT --- pg. 4
ARGUMENT --- pg. 8
I. THE DISTRICT COURT'S INJUNCTION COMPLIED WITH RULE 65(D), FED. R. CIV. P. --- pg. 8
A. The June 11, 1999 Order and Injunction. --- pg. 8
B. The August 16, 1999 Order. --- pg. 13
C. Possible Modification of the Injunction. --- pg. 15
II. THE INJUNCTION IS NOT OVERBROAD. --- pg. 17
A. The Checkpoints Enjoined by the District Court are Unconstitutional. --- pg. 17
B. The Injunction's Nationwide Scope Does Not Make It Overbroad. --- pg. 31
III. PARK HAS STANDING. --- pg. 35
CONCLUSION --- pg. 36
CASES: PAGE
Atlantic Richfield Co. v.Oil, Chem. & Atomic Workers Int'l
Union,
447 F.2d 945 (7th Cir. 1971) --- pg. 33
B.H. Bunn Co.v. AAA Replacement Parts Co., 451 F.2d 1254
(5th Cir. 1971) --- pg. 10
Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302
(1949) --- pg. 23
Brouhard v. Lee, 125 F.3d 656 (8th Cir. 1997) --- pg. 18
Calvin Klein Cosmetics v. Parfums de Coeur, Ltd., 824 F.2d
665 (8th Cir. 1987) --- pgs. 9,11-12
Chicago & N.W. Transportation Co. v. Ry. Labor Executives
Ass'n,
908 F.2d 144 (7th Cir. 1990) --- pg. 10
City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660
(1983) --- pg. 36
Daniels v. Woodbury County, 742 F.2d 1128 (8th Cir. 1984)
--- pg. 15
Drywall Tapers, Local 1974 v. Local 530, Operative Plasterers,
889 F.2d 389(2nd Cir. 1989), cert. denied, 494 U.S. 1030 (1990)
--- pg. 9
First Fed. Sav. & Loan of Council Bluffs v. First Fed.
Sav. & Loan of Lincoln, 929 F.2d 382 (8th Cir.1991) ---
pg. 33
FonarCorp. v. Deccaid Services, Inc., 983 F.2d 427 (2nd
Cir. 1993) --- pg. 11
Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804 (1959) ---
pg. 23
Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587 (1944)
--- pg. 15
Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996),
cert. denied sub nom., Maxwell v. Bratton, 522 U.S. 813
(1997) --- pgs. 27, 28
Metzler v. Bd. of Public Instruction, 480 F.2d 552 (5th
Cir. 1973) --- pg. 11
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110
S.Ct. 2481 (1990) passim
Mitchell v. Seaboard System R.R., 883 F.2d 451 (6th Cir. 1989)
--- pg. 11, 15
Norwood v.Bain, 143 F.3d 843 (4th Cir. 1998), aff'd, 166 F.3d
243 (4th Cir.) (en banc) (per curiam), cert.
denied, 119 S.Ct. 2342 (1999) --- pgs. 19, 26-27, 29
Seattle-First Nat'l Bank v. Manges, 900 F.2d 795(5th Cir.
1990) --- pg. 11
Schmidt v. Lessard, 414 U.S. 473 (1974) --- pg. 12
Shankle v. Texas City, 885 F. Supp. 996 (S.D. Tex. 1995)
--- pg. 28
x5040 Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506 (1965)
--- pg. 25
Stark v. Perpich, 590 F. Supp. 1057 (D. Minn. 1984) ---
pg. 22
State v. Everson, 474 N.W.2d 695 (N.D. 1991) --- pgs. 22,28
State v. Swift, 207 S.E.2d 459 (Ga. 1974) --- pg. 29
x5040 United States v. Apker, 705 F.2d 293 (8th Cir.),modified
in part on other grounds sub nom, United States v. Fitzgerald,
724 F.2d 633 (8th Cir. 1983) (en banc), cert. denied,
466 U.S. 950 (1984) .--- pg. 25
United States v. Articles of Drug, 825 F.2d 1238(8th Cir.
1987) --- pgs. 11-12, 17
United States v. Kaun, 827 F.2d 1144 (7th Cir. 1987) ---
pg. 17
United States v. Martinez-Fuerte, 428 U.S.543, 96 S.Ct.
3074 (1976) --- pgs. 18, 21
United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989)
--- pgs. 21, 27,28
x5040 United States v. United States District Court, 407
U.S. 297, 317, 92 S.Ct. 2125, 2136-37 (1972) --- pgs. 24, 25
x5040 United States v. W.T. Grant Co., 345 U.S. 629, 73
S.Ct. 894 (1953) --- pg. 33
United States v.. Ziegler, 831 F. Supp. 771 (N.D. Cal.
1995) --- pgs. 22, 28
Wabun-Inini v. Sessions, 900 F.2d 1234 (8th Cir. 1990)
--- pgs. 25
Washington v. Central Contractors Ass'n, 453 F.2d 383 (9th
Cir.1971) --- pgs. 15
Rule 65(d), Fed. R. Civ.P. --- pgs. 4, 8-12, 15
60 Fed. Reg. 45258(Aug. 30, 1995) --- pgs. 20, 32
techniques that Midwest may not employ"). In contrast to these cases, the June 11, 1999 Order and Injunction clearly told the Forest Service that it could not target roadblocks at Rainbow Family gatherings absent a warrant, and the district court specifically addressed in detail sobriety and license checkpoints in the course of its opinion. The injunction in this case did not require the kind of precise definition needed in the trademark and other cases relied on by the Forest Service.Because "the degree of particularity required of an injunction depends on the subject matter involved," Calvin Klein Cosmetics v. Parfums de Coeur, Ltd., 824 F.2d at 669,the injunction here was particular enough to satisfy the requirements of Rule 65(d).
* * * As the Court stated in its previous Order, no matter what the purpose of the 1996 checkpoint, it was unconstitutional. That 1996 checkpoint was set up in such a location as to specifically target Rainbow Family members. That robs a checkpoint of the very premise under which courts have found them legitimate: neutrality. On the other hand, this Court does not intend to give free rein to any group of people to gather and disobey laws. The Forest Service is free -- as it always has been -- to enforce this nation's laws on an individualized basis. However, any future checkpoint or roadblock set up in connection with Rainbow Family gatherings must be applied to all citizens equally. That means that the Forest Service may not choose some remote location for its checkpoint, traveled mostly only by those attending the gathering. Logically then, the location of a checkpoint must be on a public highway used by all types of citizens. Nor may the Forest Service ever use a checkpoint, no matter its location, as an opportunity to "generally deter criminal activity."
Appellant's App. at 92; Aug. 16 Order at 2 (emphasis in original).
-17-
insurance papers; (2) apprehending drunk drivers; (3) policing speed limits; (4) interdicting illegal drugs or other contraband; (5) questioning drivers and passengers; (6) checking drivers and passengers for wants and warrants; (7) asking drivers for consent to search their vehicles; and (8) conducting plain view searches of vehicles and their occupants."Appellant's App. at 89-90. In addition, the court of appeals should remand the case to the district court for further findings on the necessity for and the terms of an injunction against potential informational checkpoints targeted at Rainbow Family gatherings.In considering the issue of purely informational checkpoints, the district court could consider issues such as whether there is a significant potential for harassment arising from informational checkpoints, whether placing limits on the Forest Service's use and implementation of such checkpoints (such as requiring that resource agents rather than law enforcement officers staff such checkpoints) would be sufficient to eliminate the danger of harassment, and whether the Forest Service could use alternative means of communication that would not require the seizure of every vehicle and person entering the gathering.
concedes that a roadblock established for general law enforcement purposes is unconstitutional. Appellant's Brief at 25, n. 7. The Forest Service argues, instead, that the district court erred in holding that warrantless roadblocks targeted at Rainbow Family gatherings are unconstitutional because they are targeted at a specific group. Specifically, the Forest Service contends that "under Fourth Amendment case law, the neutrality of the checkpoint has not been determined by its location but, rather, by the discretion-- or, actually, the lack thereof -- afforded agents at the checkpoint. "Appellant's Brief at 28. 4/
and overlook potential invasions of privacy." United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 2136-37 (1972). "Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs." Id., 407 U.S. at 314, 92 S.Ct. at 2135.
and questioned motorcyclists, who were the people who might have posed the threat alleged by the anonymous tipster. In contrast,officers at Rainbow Family roadblocks have routinely stopped vehicles entering the gatherings without such a focus.
variety of citizens, and none involved a roadblock established on a remote road and targeted at a specific group of people peacefully exercising established First Amendment rights in a public forum. None of the courts in these cases discussed the First Amendment implications of targeted roadblocks. 12/
Respectfully submitted,
_________(signed)___________
Stephen Douglas Bonney
215 West 18th Street
Kansas City, Missouri 64108
Tel. (816) 221-2868
Fax (816) 421-0255and
Fred L. Slough, Esq.
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, MO 64111
Tel. 531-2224
Fax: 531-2147
ATTORNEYS FOR PLAINTIFF
Michael Jay Singer and Howard S. Scher
Attorneys, Appellate Staff
Civil Division, Room 9116
Department of Justice
601 D Street, N.W.
Washington, D.C. 20530-0001
Attorneys for Defendant-Appellant U.S. Forest Service
(By UPS Next Day Air)Andrea Spillars
Assistant Attorney General
P.O. Box 899
Jefferson City, MO 65102
Atty. for Defendant Weldon Wilhoit
(By regular U.S. mail, postage prepaid)Ray Lee Caskey
Oregon County Prosecuting Attorney
South Side Court Square
P.O. Box 278
Alton, MO 65606
Attorney for Defendant Oregon County, Missouri
(By regular U.S. mail, postage prepaid)
______________________________
Stephen Douglas Bonney
1/ Appellee disagrees with Appellant regarding whether
informational checkpoints were at issue in this case and whether
such checkpoints are constitutional when targeted at Rainbow Family
gatherings. Although Appellee will treat the constitutionality
of such roadblocks and the propriety of the court's injunction
against them in Point II, informational checkpoints were at issue
during the proceedings before the district court. Although often
cited in the Forest Service's opening brief (e.g., Appellant's
Brief at 20, 26), the contrary statement in Plaintiff's Suggestions
in Response to Defendant Forest Service's Motion to Alter or Amend
Judgment (Appellant's App. at 89-90) was simply erroneous.Specifically,
in the Order and Injunction issued on June 11, 1999, the district
court found that "[t]he Forest Service also maintains that
the checkpoint was used as an informational tool: an opportunity
to tell the entering Rainbow Family members about the restrictions
on fireworks and nudity, where to park their vehicles, as well
as to answer any questions attendees might have."Appellant's
App. at 72a, Op. at 14. The district court ultimately found that
the Forest Service's asserted purposes for the 1996 checkpoint
were a subterfuge for harassing attendees of the Rainbow Family
gathering. Appellant's App. at 80, Op. at 22.
2/ Contrary to the Forest Service's claims, this case is
not only about "generalized law enforcement checkpoints."
The case is about checkpoints targeted at a particular group of
people using a public forum for First Amendment activities. The
case also presents sub-issues of whether particular rationales
advanced by the government, such as sobriety, license, and generalized
law enforcement checks, justify such targeted checkpoints or roadblocks.
200 3/ The district court found that the Forest Service
could have achieved its asserted traffic safety goals through
"less intrusive means." Appellant's App. at 79, Op.
at 21. "[T]he availability of such alternatives is relevant
to the reasonableness of the government agents' failure to pursue
them, hence to the reasonableness of the search or seizure conducted."
Norwood v. Bain, 143 F.3d 843, 854 n. 8 (4th Cir. 1998),
aff'd, 166 F.3d 243 (4th Cir.) (en banc) (per curiam), cert. denied,
119 S.Ct. 2342(1999).
4/ The Forest Service also argues that "[t]he result
of this error is that the district court's injunction is an abuse
of discretion because it enjoins too much conduct, i.e., checkpoints
that are constitutional." Appellant's Brief at 28-29. But
the government focuses its argument exclusively on the issue of
whether targeting the Rainbow Family gatherings makes roadblocks
unconstitutional. The district court's order is not so limited.
Although targeting was certainly the primary focus of the district
court's ruling, the court also found that sobriety and document
checkpoints set up very close to the gatherings fail the first
two prongs of Sitz. See Appellant's App. at 72-82, Op. at 13-24.
Because the district court was correct in holding sobriety and
document checkpoints are unnecessary and ineffective when established
in connection with Rainbow Family gatherings, the injunction against
those types of roadblocks was warranted regardless of the merits
of the targeting issue.
5/ Although in the first instance "[t]he choice of checkpoint location is an administrative decision that must be left largely within the discretion of the [government]," United States v. Martinez-Fuerte, 428 U.S. 543, 553, 96 S.Ct. 3074, 3081 (1976), it is an abuse of discretion to target a specific group, especially one exercising First Amendment rights.Where the government has so abused its discretion in the past, it is not entitled to deference in the future, and the courts may enter injunctions required to avoid future similar abuses of discretion.
6/ In United States v. Ziegler, the court specifically mentioned that nothing in the record suggested that "the time or location of the checkpoint was inappropriate or that the checkpoint was otherwise unsafe to motorists." 831 F. Supp. 771, 775 (N.D.Cal. 1993).
7/ Although the stops at the 1996 checkpoint may have been relatively brief, the objective intrusion was great because of the extent of the government's probing (i.e., sobriety questions, document checks, surveillance of the interior of the car by an officer on the passenger side, questioning of passengers, and vehicle equipment checks). The fact that the nature of the checkpoint queries changed over time also heightened the objective intrusion. Furthermore, the excessive duration of this checkpoint, lasting for two weeks and running most of the day and into the wee hours of the morning, also shows that the checkpoint was too objectively intrusive to pass constitutional muster.
8/ In other cases that "reflect a convergence of First and Fourth amendment values," United States v. United States Dist. Court, 407 U.S. 297,313, 92 S.Ct. 2125, 2135 (1972), the Supreme Court has typically insisted upon strict adherence to the Fourth Amendment's dictates. In Stanford v. Texas, for instance, the Court held that "the constitutional requirement that warrants must particularly describe the 'things to be seized' is to be accorded the most scrupulous exactitude when the 'things' are books, and the basis for the seizure is the ideas which they contain." 379 U.S. 476, 485, 85 S.Ct. 506, 511-12 (1965). Although the scrupulous exactitude standard may not apply to seizures involving other First Amendment interests, compare United States v.Apker, 705 F.2d 293, 301 (8th Cir.) (standard applies), modified in part on other grounds sub nom, United States v.Fitzgerald, 724 F.2d 633 (8th Cir. 1983) (en banc), cert. denied, 466 U.S. 950 (1984) with Wabun-Inini v. Sessions, 900 F.2d 1234 (8th Cir. 1990) (standard inapplicable), the intent of that doctrine should be applied by analogy here. Thus, where a roadblock case involves a clear convergence of First and Fourth amendment values, the government should be held to a higher standard than applies to ordinary roadblock cases not involving such a convergence of rights. Specifically, the warrant requirement should apply to roadblocks targeted at Rainbow Family gatherings. "The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power." United States v. United States Dist. Court, 407 U.S. at 313, 92 S.Ct. at 2135.
9/ The district court's finding in Norwood was erroneous because a vague anonymous tip based on multiple hearsay does not satisfy the requirements of Sitz. Absent plaintiff's concession, the Fourth Circuit might have found that this checkpoint failed to satisfy the first prong of Sitz. See Norwood v. Bain, 143 F.3d at 849, n.3.
10/ The holdings of these cases are questionable. See Shankle v. Texas City, 885 F. Supp. 996, 1003-1005 (S.D. Tex. 1995) (roadblock targeting primarily minority neighborhood violated First, Fourth, Fifth, and Fourteenth Amendment rights of persons seized). In McFayden, the D.C. Circuit never adequately explained how a license checkpoint can effectively cure the targeted ill of traffic congestion. If anything, logic would suggest a checkpoint would worsen the problem. In Maxwell, furthermore, in addition to the problems noted by Judge Oakes in dissent,the Second Circuit distorted the Sitz analysis by weighing the factors from the subjective viewpoint of the police: "the checkpoints were reasonably viewed as an effective mechanism" and "the intended level of intrusion was minimal." 102 F.3d at 667 (emphasis added).
11/ In United States v. Ziegler, the court addressed only "whether a search at a sobriety checkpoint violates the fourth amendment to the United States Constitution if motorists are not given advance publicity of the checkpoint." 831 F. Supp.at 772.
12/ Although the plaintiff in Norwood raised a First Amendment claim, he did not appeal the district court's unreported adverse ruling on that issue. 143 F.3d at 847, n. 2.
13/ Other factors indicating that the Forest Service has improper motives for targeting roadblocks at Rainbow Family gatherings include: (1) the fact that the Forest Service offered to remove the 1996 roadblock if attendees would sign a group use permit application; (2) the vagueness of the safety and natural resource concerns that allegedly necessitate the roadblocks; and (3) the long history of contentious relations between the Rainbow Family and Forest Service law enforcement. See Appellee's App. at 2.
14/ Although the Forest Service has allegedly renounced general law enforcement checkpoints, it has never said it would not use sobriety and document checks in connection with Rainbow Family gatherings.