JOHN JOHNSON, and
RUSSEL ARTHUR, an individual, and in
his official capacity as Special
Agent Law Enforcement Officer of the
Forest Service of the United States
Department of Agriculture;
JOHN CARPENTER, an individual, and in his
official capacity as Special Agent
Law Enforcement Officer of the Forest
Service of the United States
Department of Agriculture;
FOREST SERVICE of the United States
Department of Agriculture,
1. Plaintiffs herein appear before this Court seeking Declaratory Relief in one or more of the following particulars:
a. The signature Requirement of the Forest Service Regulations governing Recreational Use of Forest Service lands by groups of 75 persons or more is an unnecessary intrusion into the First Amendment activity of those groups, and therefor an unconstitutional intrusion by the body into the content of the First Amendment activity;
b. In particular, the requirement mentioned above is designed to trigger law enforcement activity to invade the peace dignity of First Amendment Activities on Forest Service lands;
c. In particular, the requirement mentioned above has been used to actively target one specific First Amendment activity annually on Forest Service lands for over twenty years - the Rainbow Family Gathering.
2. The First and Fourth Amendments to the United States Constitution provide the underlying basis in law for this Court's declaration.
3. Additionally, this cause seeks damages for violations of the First and Fourth Amendments to the United States Constitution; and seeks damages for the pendant State claims of Malicious Prosecution and Intentional Infliction of Emotional Distress.
4. This action is brought under the Federal Tort Claims Act, the First and Fourth Amendments to the United States Constitution, and This Court has subject matter jurisdiction by way of Sections 702 and 703 of Title 5 of the United States Code, under Sections 1331 and 1343(a)(3) and 1346 (b) of Title 28 of the United States Code.
5. Venue is properly placed in this the Eastern Division of the District of Oregon because the events comprising Plaintiffs' Complaint occurred in the Ochoco National Forest in Eastern Oregon.
6. Plaintiff Barry Adams has been a well known outspoken active participant of Rainbow Family Gatherings since their inception, continues to do so presently, and fully intends to continue doing so into the future. He attended the 1997 annual Rainbow Gathering in the Ochoco National Forest of Eastern Oregon, and was cited by a team of Forest Service Law Enforcement Officers headed by Mr. Russ Arthur for violating 36 CFR 261.10(k) - gathering on Forest Service Land with more than 74 other persons and without any one of those persons attending having signed a Permit on behalf of the larger group.
7. Plaintiff Carla Newbre has attended Rainbow Gatherings for the past eighteen years. This year, as a resident of Oregon, she participated in early efforts with the regional Forest Service Administrative and Resource personnel in order to insure a safe and healthy event. She continued to communicate with these persons and with members of the Incident Creation Team as well as members of the Incident Command Team, until she received a citation for illegal occupancy of National Forest lands. Ms. Newbre was also part of a group of who contacted local businesses and social service agencies in Prineville, Oregon. During one of these visits Ms. Newbre individuals along with Ms. Alexis Black and Ms. Susan Bernstein, visited the Forest Service Command Post and was introduced to Defendant Carpenter. It was the following day that Ms. Newbre was issued the Citation by Defendant Arthur as head of the Law Enforcement Team. Ms. Newbre fully intends to continue attending and participating in the First Amendment activity commonly known as Rainbow Gatherings.
8. Plaintiff Susan Bernstein has been involved in helping the annual Rainbow Family Gatherings occur for more than a decade. She was attending the Welcome Home Center at the 1997 Ochoco Forest Rainbow Gathering and was part of a team meeting with local resident civic, religious, and business groups to facilitate a more friendly environment when the Law Enforcement Team headed by Mr. Russ Arthur selected her to be one of the five individuals cited under 36 CFR 261.10(k). She was then cited to appear in court by that very Law Enforcement team. Ms. Bernstein fully intends to continue attending and participating in the First Amendment activity commonly known as Rainbow Gatherings.
9. Plaintiff John Johnson has attended Rainbow Gatherings across this nation for over twenty five years, and has over the past become active in resolving problems arising between attendees, as well as conferring with local and federal law enforcement personnel on issues arising during this First Amendment activity. His work in this area with this event is highlighted by Mr. Johnson's instrumental role in capturing an individual wanted by federal authorities for sex crimes against children, and his continued work with the United States expanding their investigation. In this capacity, Mr. Johnson has become known to Federal law enforcement and was likewise participating in this capacity at the 1997 Rainbow Gathering. For his work in helping to keep the peace, resolve disputes, and liaison with law enforcement personnel, Defendants rewarded Mr. Johnson by singling him out to be the recipient of a criminal citation. Mr. Johnson was not actually cited only because he was out of the area picking up his girlfriend arriving from out of town. Mr. Johnson fully intends to continue attending this First Amendment activity in the future and continue in his voluntary capacity.
10. Plaintiff Alexis Black has attended these events off and on for twenty years. She attended the 1997 Rainbow Gathering and was an active participant in early efforts with regional administrative and resource personnel as well as in the communications with local business, civil and community rganizations in order to establish an honest rapport and open communications. For this, Ms. Black was rewarded by Defendants with a criminal citation. Ms. Black's son was involved in the earlier stages of discussions with Forest Service personnel, and soon thereafter suddenly passed away. Long before Ms. Black was cited, the Forest Service was aware of her loss. It was because of this loss Defendants were persuaded to Cite another person, and that person was Plaintiff Barry Adams. Ms. Black fully intends to continue attending this First Amendment activity known as Rainbow Gatherings, and to continue participating in any manner she sees fit.
11. Plaintiff Brian Michaels is an attorney who has been attending Rainbow Family Gatherings for approximately twenty years, and was cited by Mr. Russ Arthur and a Law Enforcement team at the same time and for the same reasons as Mr. Adams. Mr. Michaels has only been an attorney for the last several years, and in that capacity represented in November, 1996, among other instances, one of five individuals similarly cited by the Forest Service for attending a local Rainbow family event in North Carolina June, 1996. It is the intention of Mr. Michaels to continue attending Rainbow Gatherings, and will likely continue to represent individuals whose rights to attend these Gatherings are threatened by Court action; and he intends to continue doing so well into the future.
12. Each of the Plaintiffs personally believe the reason for the signature requirement being placed in the Forest Service regulations was not to advance any legitimate government interest, but rather to advance the Forest Service's political interest in triggering excessive law enforcement activity around the Rainbow Gatherings and potentially any other group whose structure does not suit the desire of Forest Service Law Enforcement. It is for this reason that these Plaintiffs seek Declaratory and injunctive relief to prevent the further abuse of First Amendment activities by Forest Service Law Enforcement under color of this Regulation. Each Plaintiff fully believes that if not restrained, Law Enforcement will so continue to operate under color of this regulation.
13. Defendant Russel Arthur is a Law Enforcement Officer with the United States Forest Service, normally operating out of North Carolina. Mr. Arthur was specially assigned to Oregon to oversee the law enforcement activity in and around the 1997 Oregon Rainbow Gathering. Mr. Arthur was previously involved with supervising law enforcement activities over the 1987 Annual Rainbow Gathering in North Carolina as well as local Rainbow family gatherings in North Carolina including that event resulting in the Federal Court action which brought Mr. Michaels to North Carolina November, 1996. Over those many years Mr. Arthur has retained a law enforcement interest in the Rainbow Gatherings, the Forest Service regulations regarding recreational use of Forest Service lands, and the legal actions involving the imposition of those regulations upon the Rainbow Gatherings. It can safely be said that Mr. Arthur's professional and personal attitude toward the Rainbow Gatherings' continued existence is less than favorable or supportive.
14. Defendant Carpenter is a Special Agent of Forest Service Law Enforcement assigned to Rainbow Gatherings for the first time this year, and his assignment was to help head up the Law Enforcement Incident Command Team, and in part directed to specifically enforce the Signature Requirement of the Permit process, through citing and arrest.
15. Defendant Forest Service of the United States Department of Agriculture (USFS) is a federal administrative agency within the meaning of Section 701(b) Title 5 United States Code. It is charged by statute and by administrative regulations promulgated by the secretary of Agriculture pursuant to Section 551 Title 16 United States Code with the administration, governance, regulation and operation of the National Forest Service System including all portions of the Ochoco National Forest. Within this context, USFS has established a Law Enforcement branch which conducts ordinary and extraordinary law enforcement activities. Unless restrained, Law Enforcement will continue to maintain an excessive and oppressive presence at Rainbow Gatherings, under the color of this Regulation, thereby continuing to arrest individuals, chill the rights of those not arrested, and otherwise threaten and intimidate participation in a First Amendment activity.
DECLARATORY AND INJUNCTIVE RELIEF AGAINST ENFORCEMENT OF 36 CFR 251.54(h)(1)(vii) SIGNATURE REQUIREMENT
16. Plaintiffs reallege Paragraphs 1 through 15 as fully incorporated herein.
17. Unless this provision is Declared unconstitutional, either on its face or as applied, Defendants will continue to conduct excessive Law Enforcement activity in a manner designed to impair, chill, and otherwise intimidate participation in this First Amendment activity. Against repeated violations of First Amendment rights Plaintiffs have no adequate remedy at law.
VIOLATION OF CIVIL RIGHTS 42 USC 1983 et seq
18. Plaintiffs herein reallege and incorporate Paragraphs 1 through 17.
19. Defendants violated and impaired the First Amendment rights of Plaintiffs in one or more of the following particulars:
a) By chilling and impairing their First Amendment rights of religious freedom, freedom of expression, freedom of speech, and freedom of association through unconstitutional use of Law Enforcement presence, activity, and intrusion.
b) The same as 15(a) above with the added proviso that Law Enforcement presence and activity was excessive and unconstitutionally directed at Plaintiffs specifically because they were attendees/participants in this particular First Amendment activity and not for any legitimate Law Enforcement/governmental concerns.
c) Plaintiffs' exercise of their First Amendment right of redress of grievances was impaired by 15(a) and (b) in that the First Amendment activity known as Rainbow Family Gatherings was singled out by Defendants for law enforcement activity in part because of the participation and ultimate success of several litigations Involving Defendants, Forest Service Group Use Regulations and the First Amendment activity known as Rainbow Family Gatherings.
d) Plaintiff Brian Michaels was specifically singled out for criminal prosecution for his participation as attorney on behalf of individuals attending the First Amendment activity known as Rainbow Gatherings, and thereby alleges specific violations of his right to freedom of speech, freedom of association, freedom to petition the government for redress of grievances, and Equal Access to Justice Act.
e) Plaintiffs Carla Newbre, Alexis Black, Susan Bernstien, and John Johnson were specifically singled out for criminal prosecution for their participation and communication with Forest Service Personnel in regard to the First Amendment activity known as the 1997 Rainbow Gathering, and for their active participation in the local community and civic outreach in Prineville, Oregon, and thereby alleges specific violations of their First Amendment Rights of Speech and Association as basis for Unlawful selective enforcement.
DAMAGES FOR MALICIOUS PROSECUTION
20. Plaintiffs herein allege and incorporate Paragraphs 1 through 19.
21. On or about June 20, 1997 Defendants did without proper lawful authority intentionally and maliciously institute criminal proceedings against each Plaintiff for violation of 36 CFR 261.10(k), Illegally Occupying National Forest Lands without Special Use Permit authorization. These proceedings were initiated to persecute and hinder this particular First Amendment activity, without Constitutional authority, and known to Defendants to be a tool unlawfully used against these Plaintiffs, without any requisite legitimate governmental interest.
22. Plaintiffs were each Cited to appear in Federal Court (thereby placing them in harm's way of Court imposed Conditions of Release and further criminal proceedings), thus chilling not only their First Amendment rights but their very security to be safe from unlawful searches and seizures of their respective persons.
23. The charges were eventually dismissed with prejudice but not until a Motion to Dismiss was prepared and filed on behalf of some Defendants. A copy of this Motion is attached hereto as Ex 1. (Plaintiff Michaels' Motion is attached because it includes the claims of other Defendants in their respective Motion to Dismiss, plus the singular claim of Mr. Michaels.) A copy of Mr. Adams' Motion is also included at Ex. 2. Mr. Adams appeared in the criminal cause as his own co-counsel with Mr. Michaels as his attorney co-counsel.
24. Plaintiffs' exercise of their First Amendment right to petition the government for redress of grievances was impaired by 15(a) and (b) above in that the First Amendment activity known as Rainbow Family Gatherings was singled out by Defendants for law enforcement activity in part because of the participation and ultimate success of several litigations involving Defendants' Forest Service Group Use Regulations and the First Amendment activity known as Rainbow Family Gatherings.
25. Plaintiff Brian Michaels was specifically singled out for criminal prosecution for his participation as attorney on behalf of individuals attending the First Amendment activity known as Rainbow Gatherings, and thereby alleges specific violations of his right of redress of grievances as the basis for Malicious Prosecution.
26. Plaintiffs Carla Newbre, Susan Bernstien, and Alexis Black were specifically singled out for criminal prosecution for their participation and communication with Forest Service Personnel in regard to the First Amendment activity known as the 1997 Rainbow Gathering and for their active participation in the local community and civic outreach in Prineville, Oregon, and thereby alleges specific violations of their First Amendment Rights of Speech and Association as basis for their claim of Malicious Prosecution.
27. Plaintiff John Johnson was specifically singled out for prosecution because of his active participation and communication with law enforcement over the years, including 1997, and thereby alleges specific violations of his First Amendment Rights of Speech and Association as basis for his claim of Malicious Prosecution.
DAMAGES FOR INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS
28. Plaintiffs herein allege and incorporate Paragraphs 1 through 27.
29. Defendants did knowingly cite Plaintiffs to appear in Federal Court for purposes intended to disrupt their First Amendment activities and not to achieve otherwise legitimate governmental ends.
30. Citing a citizen to appear in a Federal Courthouse under threat of criminal penalties is behavior outside that tolerated by the norms of society, and was the direct cause of extreme emotional distress for each Plaintiff from the day they were cited until the day the criminal citation was dismissed.
31. In addition, Plaintiff Adams was attending this year's Gathering with a child less than one year old, exacerbating the emotional distress upon him due to the responsibility for his child and her mother. Not only were Defendants aware of Mr. Adams recent addition to his family due to previous conversations and other interactions they had with him, but he was holding Kasha Rose when they cited him.
32. In addition, Mr. Michaels attended the event with two fourteen year old girls, one being the daughter of the woman with whom he then was residing. Neither the mother nor the two girls had ever attended a Rainbow Gathering before, thereby exacerbating the emotional distress experienced by Mr. Michaels due to the responsibility he had for these three individuals. Mr. Michaels had the previous day gone with friendly intentions to the Incident Command Post and introduced all three members of this clan to various members of the Incident Command team including both Mr. Carpenter and Mr. Arthur.
33. In addition, Ms. Newbre attended this First Amendment activity with her two dogs, each of whom has been a long time faithful companion. One of the two dogs, who has been with Ms. Newbre longer, is deaf and requires special care and attention due to increasing medical problems and old age. Additionally, Ms. Newbre is employed through a contract with the City of Eugene Police Department, and the threat of criminal prosecution was especially traumatic as it could very well have impacted upon her livelihood. These facts exacerbated the emotional distress borne by Ms. Newbre. Defendants were aware of these facets of Ms. Newbre's life prior to selecting her for prosecution.
34. In addition, Ms. Bernstien's two minor sons were living with her at the event when she was singled out for prosecution, depending upon Ms. Bernstein for required parental guidance and attention. This situation exacerbated the emotional distress experienced by Ms. Bernstein. As a result of Defendants' familiar nature with Ms. Bernstein's person, they were aware her children were with her and required her attention and parenting.
35. In addition, Ms. Black had recently suffered the sudden loss of her son, whom the Forest Service had met and was aware of his passing. To compound such a tragedy with the threat of criminal prosecution constitutes knowingly acting outside the bounds of acceptable social behavior.
PRAYER FOR RELIEF:
Plaintiffs herein pray this Court for the following relief against each Defendant:
A) Declaratory Judgment that Forest Service Regulation 36 CFR 251.54(h)(1)(vii) is Unconstitutional, and enforcement of any of the signature requirements contained in 36 CFR related to recreational use of Forest Service lands be Enjoined whenever there exists a less restrictive means.
B) $100,000 for each Plaintiff for violation of civil rights.
C) $100,000 for each Plaintiff for Malicious Prosecution;a) an additional $50,000 for Plaintiffs Newbre, Black, Johnson Bernstein, and Michaels as special damages for Malicious Prosecution;
D) $100,000 for each Plaintiff for Intentional Infliction of Emotional Distress;
E) an additional $100,000 for each Defendant as Punitive Damages against efendant Arthur;
F) attorney fees;
G) any and all other damages or relief this Court may find equitable and just.
This 18th Day of December, 1997,
259 East Fifth Avenue
Eugene, Or 97401
Phone (541) 687-0578
Fax (541) 686-2137
Attorney For Plaintiffs