IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
THE FOREST SERVICE OF THE UNITED STATES OF AMERICA,
WELDON WILHOIT, in his official capacity
as the Superintendent of the Missouri State Highway Patrol,
ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
BRIEF FOR PLAINTIFF-APPELLEE
STEPHEN DOUGLAS BONNEY
215 West 18th Street
Kansas City, MO 64108
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, MO 64111
Attorneys for Plaintiff-Appellee
TABLE OF CONTENTS
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
TABLE OF AUTHORITIES
Atlantic Richfield Co. v.Oil, Chem. & Atomic Workers Int'l
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
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) ---
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) ---
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) ---
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) ---
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
STATEMENT OF ADDITIONAL FACTS
Because the Forest Service does not dispute the district
court's factual findings for purposes of this appeal (Appellant's
Brief at 4, n. 2), Park will not restate all of the facts set
forth in Appellant's brief but will simply set forth additional
relevant facts that Appellant omitted:
Plaintiff Tracy Park, a veteran of many Rainbow Family
gatherings, attended every summer gathering from 1986 through
1997 and also attended numerous regional gatherings during that
time. Park Depo. at 9, Appellee's App. at 26. Plaintiff plans
to attend other Rainbow Family gatherings in the future. Park
Depo. at 49, Appellee's App. at 27.
At many of the summer and regional gatherings plaintiff
has attended, law enforcement officers employed by the Forest
Service and other federal, state, and local agencies have established
roadblocks or checkpoints in close proximity to the sites of the
gatherings. Appellee's App. 10-15, 17-24. For example, on September
2, 1995,between the hours of 11 a.m. and 2 p.m., the Forest Service
maintained a roadblock on an unimproved forest road near the site
of the Ozark Regional Gathering, which was being held in the Mark
Twain National Forest in Crawford County, Missouri at that time.
Park Affidavit, Appellee's App. at 25; Forest Service Interrogatory
Answer 4, Appellee's App. at 28. The roadblocks established in
connection with the 1995 Ozark Regional Gathering and the 1996
national Rainbow Family gathering were the only roadblocks set
up by the Forest Service in the Mark Twain National Forest in
the agency's institutional memory. Forest Service Interrogatory
Answer 4 Appellee's App. at 28.
The Forest Service's use of checkpoints targeted at Rainbow
Family gatherings is"'disruptive, dangerous and much resented
by gathering participants.'" Appellant's App. at 81; Op.
at 23, quoting from Newbre Declaration (Appellee's App. at 10).
The relationship between the Rainbow Family and the Forest
Service is sometimes contentious, particularly regarding the issue
of the Forest Service's insistence that the Rainbow Family obtain
a special use permit for its larger gatherings. Appellant's App.
at 63, Op. at 4. At the 1996 Rainbow Family gathering, "a
schism developed within the Forest Service between the divisions
of resource protection and law enforcement on how to approach
the problems induced by the Rainbow Family gathering." Appellant's
App. at 80; Op. at 22. "Frictions between the two divisions
centered around the contested checkpoint." Appellant's App.
at 81; Op. at 23. Resource management personnel tried "to
work with the Rainbow Family in order to minimize the impact on
the environment that any large group gathering produces . . .
[and] negotiated with the Rainbows concerning the removal of the
roadblock." Id. Law enforcement was hostile and intransigent.
Regarding the 1996 gathering, District Ranger Warren DuBois
reported: "At times there were so many LE vehicles that it
became a traffic jam. A number of arrests were made as a result
of the check point but an equal amount of arrests were being made
with the use of radar and enforcement of the speed limit."
Appellant's App. at 65, Op. at 6, quoting from DuBois Memo (Appellee's
App. at 8). At earlier Rainbow Family gatherings in Vermont and
Colorado, the Forest Service obtained -- without using roadblocks
-- greater law enforcement results than those achieved at the
1996 gathering. Id. at 81, quoting from DuBois Memo (Appellee's
App. at 8).
During the 1996 gathering, Special Agent Kim Thorsen called
an attorney in the Department of Agriculture's Office of General
Counsel, described the multi-purpose roadblock in effect during
the 1996 gathering, and asked whether the roadblock was constitutional.
The attorney told Thorsen that"[t]he checkpoint at the 1996
annual Rainbow Family gathering is not unconstitutional[.]"
See Thorsen Report, Appellee's App. at 5.
Since the 1996 Rainbow Family gathering in the Mark Twain
National Forest,the Forest Service has continued to target roadblocks
at Rainbow Family gatherings, both small and large. Addison Affidavit,
pp. 4-8, Appellee's App. at 20-24. In February 1999, for instance,
after the adoption of its new roadblock policy, the Forest Service
implemented roadblocks at a regional gathering in the Ocala National
Forest, Florida. Id., p. 7, ¦ 31, Appellee's App. at 23.
These roadblocks and other contemporaneous law enforcement practices
appeared designed to harass the attendees of the Ocala gathering.
Id. at pp. 7-8, ¦¦ 33-35, Appellee's App. at 23-24.
SUMMARY OF ARGUMENT
1. The district court's June 11, 1999 Order and Injunction
plainly and specifically apprises the Forest Service that it can
neither (1) target roadblocks at Rainbow Family gatherings without
a warrant nor (2) ever use roadblocks in connection with Rainbow
Family gatherings for general law enforcement purposes. Because
the terms of the injunction were straightforward and did not necessitate
the kind of detailed definitions needed in more complex cases,
the injunction here satisfied the requirements of Rule 65(d),
Fed. R. Civ. P.
Contrary to the Forest Service's implications, furthermore,
the June 11 Order and Injunction did not violate Rule 65(d)'s
prohibition against injunctions "by reference to the complaint
or other document." Here, the injunction was properly set
forth within the four corners of the June 11 Order and Injunction.
Rule 65(d) requires nothing more.
In any event, the district court's August 16, 1999 Order
removed any possible doubt about the terms of the injunction and
made matters crystal clear. Although the Forest Service asserts
that the status of informational and emergency checkpoints remains
unclear under the terms of the August 16 Order, a fair reading
of that Order shows that only warrantless roadblocks targeted
at Rainbow Family gatherings are enjoined. Thus,warrantless informational
checkpoints so targeted would be enjoined whereas emergency checkpoints
(targeted at apprehending a fleeing felon for instance) would
not be so targeted and thus would not be enjoined.
2. The Forest Service argues that the district court's
injunction was overbroad because it enjoins roadblocks that are
constitutional. But this argument rests on the faulty premise
that the Fourth Amendment permits the government to target warrantless
roadblocks at a particular group of people peacefully exercising
protected First Amendment rights. The district court properly
enjoined all warrantless Forest Service roadblocks established
so near Rainbow Family gatherings as to effectively stop only
attendees of such gatherings. The district court correctly held
that roadblocks so targeted at a specific group are, by definition,
not neutrally located. Thus, such roadblocks are materially different
from constitutional roadblocks like the one at issue in Michigan
Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481
(1990), which was established on a regular public roadway and
was not targeted at any specific group.
The constitutional doubts about targeted roadblocks are
heightened where, as here, the targeted group was peacefully exercising
established First Amendment rights in a public forum. Where First
and Fourth Amendment rights converge in this way, the constitution
requires that the reasonableness of the roadblock be established
with clear certainty. The mechanism for this assurance of reasonableness
is found in the traditional requirement that the government must
obtain a warrant before effecting a search or seizure. Here, the
convergence of First and Fourth Amendment rights requires that
the Forest Service obtain a warrant before establishing roadblocks
targeted at Rainbow Family gatherings.
Regardless of the merits of the issue of targeting roadblocks
at specific groups, however, the district court properly enjoined
the types of roadblocks that it specifically found the Forest
Service had used unconstitutionally in the past. In particular,
the district court found that sobriety checkpoints, document checkpoints
(for license, registration and insurance papers), and general
law enforcement checkpoints were unconstitutional as applied to
Rainbow Family gatherings. The Forest Service now concedes that
general law enforcement checkpoints are unconstitutional. And
it does not dispute the district court's holding that sobriety
and document checkpoints are unnecessary and ineffective when
setup in connection with Rainbow Family gatherings.
Contrary to the Forest Service's contention, furthermore,
the national scope of the injunction was absolutely necessary
to provide Park with complete relief from the Forest Service's
unconstitutional roadblocks. Park plans to continue attending
Rainbow Family gatherings throughout the nation, and the Forest
Service continues to target unconstitutional roadblocks at Rainbow
Family gatherings. Although the Forest Service asserts that its
new 1998 roadblock policy will prevent future general law enforcement
roadblocks,the Forest Service has not abandoned its policy of
targeting any other types of roadblocks at Rainbow Family gatherings.Because
such targeted roadblocks are unconstitutional, unnecessary, and
ineffective, the nationwide injunction is proper even if the Forest
Service's new policy will eliminate general law enforcement roadblocks.
3. Finally, because Park plans to attend future Rainbow
Family gatherings and because the Forest Service continues to
target roadblocks at such gatherings, Park has standing to seek
and obtain injunctive relief. There is nothing "conjectural"
or "hypothetical" about the future harm Park is likely
to suffer in the absence of an injunction.
I. THE DISTRICT COURT'S INJUNCTION COMPLIED WITH
RULE 65(d), FED. R. CIV. P.
A. The June 11, 1999 Order and Injunction.
Appellant argues that "the district court's injunction
does not comply with Rule 65(d) . . . [because it] did not describe
at all -- let alone describe in reasonable detail -- the act or
acts sought to be restrained." Appellant's Brief at 19. Specifically,
Appellant contends that it is unclear whether the district court's
injunction prohibits "purely informational and emergency
checkpoints erected in connection with large gatherings sponsored
by the Rainbow Family even though such checkpoints were not at
issue in this case and would be constitutional." Appellant's
Brief at 20. 1/
"Rule 65(d)'s specificity requirement is designed
to prevent uncertainty and confusion on the part of those to whom
the injunction is directed, to avoid the possible founding of
contempt citations on an order that is too vague to be understood,
and to ascertain that the appellate court knows precisely what
it is reviewing." Calvin Klein Cosmetics v. Parfums de
Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987). However, "the
degree of particularity required of an injunction depends on the
subject matter involved[.]" Id. Furthermore, an injunction's
compliance with the dictates of Rule 65(d) is to be judged based
on "the four corners of the order[.]" Drywall Tapers,
Local 1974 v. Local 530, Operative Plasterers, 889 F.2d 389,
395 (2nd Cir. 1989), cert. denied, 494 U.S. 1030(1990).
In this case, the four corners of the district court's
June 11, 1999 Order and Injunction adequately apprised the Forest
Service that roadblocks targeted at Rainbow Family gatherings
without a warrant are enjoined on a nationwide basis. In the Order
and Injunction, the district court specifically detailed the constitutional
infirmities of targeting roadblocks at a specific group of people
using a public forum for protected First Amendment activities
and of using sobriety and license checkpoints under the circumstances
in which they were used in connection with Rainbow Family gatherings.
See Appellant's App. at 72a-74, Op. at 14-16 (discussing unconstitutionality
of sobriety checkpoints as implemented against Rainbow Family
gatherings); Appellant's App. at 75-77, Op. at 17-19 (discussing
unconstitutionality of general law enforcement checkpoints as
implemented against Rainbow Family gatherings); Appellant's App.
at 77-79, Op. at 19-21 (discussing unconstitutionality of license,
registration and insurance checkpoints as implemented against
Rainbow Family gatherings). Thus, viewed objectively, the June
11, 1999 Order and Injunction complied with the specificity and
reasonable detail requirements of Rule 65(d). 2/
Although the "ORDERED" language at the end of
the district court's June 11 Order and Injunction refers back
to the body of the opinion and does not contain a laundry list
of the specific types of roadblocks that the court enjoined, that
omission is not fatal to the injunction. Injunctive orders that
refer to an earlier part of the same opinion satisfy the requirements
of Rule 65(d).See Chicago & N.W. Transportation Co. v.
Ry.Labor Executives Ass'n, 908 F.2d 144, 150 (7th Cir. 1990)
(injunction set out in "spare but sufficient detail"
in course of district court's memorandum opinion satisfied Rule
65(d) even though order section merely stated that "we grant
[C & NW's]motion for a permanent injunction"); B.H.
Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1269
(5th Cir. 1971) (reference to findings of fact satisfied Rule
65(d), but injunction set aside because it appeared "to enjoin
perfectly legal acts"). The key is that the four corners
of the Order and Injunction adequately apprised the Forest Service
that it could not target roadblocks at Rainbow Family gatherings
without a warrant.
Several of the cases cited by the Forest Service are inapposite
because they dealt with orders that referred to some other document
and thus violated Rule 65(d)'s prohibition against injunctions
"by reference to the complaint or other document." See
Fonar Corp. v. Deccaid Services, Inc.,983 F.2d 427, 430
(2nd Cir. 1993) (injunction referred to prior "Order of November
1, 1991"); Seattle-First Nat'l Bank v. Manges, 900
F.2d 795, 800 (5th Cir. 1990) ("The September 21, 1989 order
adopted the magistrate's findings and recommendation and without
further elaboration granted the preliminary injunction and ordered
that the TRO remain in effect") (emphasis added); Mitchell
v. Seaboard System R.R., 883 F.2d 451, 454 (6th Cir. 1989)
("language 'in keeping with the opinions expressed herein'
refers to another 'document'"); United States v. Articles
of Drug, 825 F.2d 1238 (8th Cir. 1987) (injunction referred
to "products described in CV 84-0-206," which was apparently
the complaint); Metzler v. Bd. of Public Instruction, 480
F.2d 552, 554 (5th Cir. 1973) (May 24, 1972 injunction order referred
to "this court's order of December 4, 1970").
In attacking the injunction on the grounds of vagueness,
the Forest Service further relies on Calvin Klein Cosmetics
v. Parfums de Coeur, Ltd., but that case is distinguishable
from this case. In Calvin Klein Cosmetics, the Eighth Circuit
held that the injunction failed to comply with Rule 65(d) because
it required the defendant "to guess at what kind of conduct
would be deemed trademark infringement." 824 F.2d at 669.
Thus, the real problem in Calvin Klein Cosmetics was the
district court's failure to adequately define what promotional
materials were "likely to confuse, deceive, or mislead the
public[.]"Id. at 667. See also Schmidt v. Lessard,
414 U.S. 473, 476 (1974) (defendants "simply told not to
enforce 'the present Wisconsin scheme' against those in appellee's
class"); United States v. Articles of Drug, 825 F.2d
at 1247 ("The injunction fails to identify the specific drug
products that Midwest is prohibited from selling or marketing
and fails to specify the marketing
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).
B. The August 16, 1999 Order.
Even assuming for the sake of argument that the district
court's June 11 Order and Injunction was defective in some way,
the district court, in its August 16 Order, made the scope of
the injunction crystal clear:
* * * 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).
This Order clearly states that the Forest Service is barred
from (1) targeting Rainbow Family gatherings for any warrantless
roadblocks or checkpoints established on remote forest roads near
the gathering site and (2) using a checkpoint, regardless of location,
for general criminal deterrence in connection with a Rainbow Family
The Forest Service complains that the August 16 Order is
vague because it allegedly does not specify whether it enjoins
checkpoints "for purely informational purposes . . . or for
emergencies (such as the apprehension of potentially dangerous
suspects or fugitives)" and because it did not "clarify
whether the injunction is a nationwide injunction or limited to
the Mark Twain National Forest." Appellant's Brief at 26.
Although these issues seem more properly placed in the
overbreadth argument, a fair reading of the district court's Order
shows that all warrantless roadblocks targeted specifically at
Rainbow Family gatherings and placed on remote roads near the
gatherings are enjoined. Since the gatherings occur throughout
the United States, this means the injunction is national in scope.
In addition, since the injunction prohibits all warrantless checkpoints
targeted at Rainbow Family gatherings, it would prohibit warrantless
informational checkpoints targeted at such gatherings. If the
Forest Service sets up informational checkpoints targeted at the
public generally rather than at the Rainbow Family
specifically, a fair reading of the injunction indicates that
such informational checkpoints would not be enjoined. Since emergency
checkpoints would be targeted at the fleeing felon (for instance)
rather than at the Rainbow Family gathering, a fair reading of
the injunction indicates that such emergency checkpoints would
not be enjoined.
C. Possible Modification of the Injunction. If the
court of appeals determines that the district court's injunction
falls short of the requirements of Rule 65(d), the court of appeals
would have three options. First, the court of appeals could remand
the case so that the district court could fashion an injunction
that complies with Rule 65(d). This is the usual remedy because,
in the first instance, it is generally the function of the district
court "to mould each decree to the necessities of the particular
case." Hecht Co. v. Bowles, 321 U.S. 321, 329, 64
S.Ct. 587, 592 (1944). See also Daniels v. Woodbury County,
742 F.2d 1128, 1134 (8th Cir. 1984) (remanding case "for
further findings and for the entry of a more specific injunction").
Second, the court of appeals could remand the case with specific
instructions regarding the terms of the injunction that the district
court should enter. See Mitchell v. Seaboard System R.R.,
883 F.2d at 454. Third, the court of appeals could simply reform
the injunction without remand. See Washington v. Central Contractors
Ass'n, 453 F.2d 383 (9th Cir.1971).
If modification is deemed necessary, Appellee urges the
court of appeals to provide specific guidance for modifying the
injunction and to remand for further findings on the issue of
the necessity for injunctive relief in connection with potential
informational checkpoints. As noted in Plaintiff's Suggestions
in Response to Defendant Forest Service's Motion to Alter or Amend
Judgment, any modified injunction should prohibit the Forest Service
"from establishing roadblocks or checkpoints targeted at
Rainbow Family gatherings for generalized law enforcement purposes
without first obtaining a search warrant in accordance with the
Fourth Amendment. Among other things, the injunction should specifically
prohibit the use of warrantless roadblocks targeted at the Rainbow
Family for [any of the following] purposes [ ]: (1) checking drivers'
licenses, registration, and
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.
II. THE INJUNCTION IS NOT OVERBROAD.
Standard of Review. In Part II.A of its brief, the Forest
Service argues that the district court's injunction is premised
on an error of law. Appellant's Brief at 28-34. The courts of
appeal reviews alleged errors of law de novo. United
States v. Kaun, 827 F.2d 1144, 1148 (7th Cir. 1987). In Part
II.B of its brief, however, the Forest Service argues that the
district court's injunction is overbroad because, among other
things, it is national in scope. Appellant's Brief at 34-38. That
argument is reviewed under an abuse of discretion standard. United
States v. Articles of Drug, 825 F.2d at 1248.
A. The Checkpoints Enjoined by the District Court are
To be constitutional under the Fourth Amendment, warrantless
roadblocks or checkpoints must be reasonable. In an early roadblock
case, the Supreme Court judged the reasonableness of fixed immigration
checkpoints by balancing "the substantiality of the public
interest" advanced by the checkpoint against "the overall
degree of interference with legitimate traffic" and by looking
at other factors, such as the reasonableness of "the location
and method of operation of the checkpoint[.]" United States
v. Martinez-Fuerte, 428 U.S. 543, 556-559, 96 S.Ct. 3074,
3082-3084 (1976). In Michigan Dept. of State Police v. Sitz,
the Supreme Court further refined the balancing test applicable
to warrantless roadblocks so that courts must weigh the importance
of the governmental interest at stake, "the extent to which
this system [of roadblocks] can reasonably be said to advance
that interest, and the degree of intrusion upon individual motorists
[.]"496 U.S. at 455, 110 S.Ct. at 2488. See also , 125 F.3d
656, 659 (8th Cir. 1997) ("[C]heckpoints are reasonable under
the Fourth Amendment if, on balance, they maintain a proper equipoise
between: (1) the gravity of the public concern; (2) the degree
to which the public interest is advanced; and (3) the severity
of interference with individual liberty").
In this case, the district court examined the Forest Service's
roadblock at the 1996 Rainbow Family gathering as if it had been
established as (1) a sobriety checkpoint, (2) a document checkpoint
for license, registration, and insurance papers, and (3) a general
law enforcement checkpoint. Appellant's App. at 72-79, Op. at
13-21. Applying the Sitz balancing analysis to each of
those purposes, the district court found the warrantless roadblock
employed during the 1996 Rainbow Family gathering unconstitutional.
Id. The district court also held the 1996 roadblock unconstitutional
because "it was a subterfuge to allow law enforcement officers
to question attendees, do plain view searches, and basically attempt
to muster up whatever charges they could find to press against
Rainbow Family members." Appellant's App. at 80, Op. at 22.
In discussing the 1996 roadblock as a sobriety checkpoint,
the district court found that the roadblock was not effective
enough to pass muster under the second prong of the Sitz
analysis. Appellant's App. at 73, Op. at 15. Moreover, the district
court questioned whether stopping cars that "were on a gravel
road with a posted speed limit of 20 m.p.h. and were within a
mile of their eventual destination" was significantly related
to the general problem of alcohol-related traffic accidents. Id.
This also raises the question of whether alcohol-related accidents
on gravel roads are the kind of grave public concern that would
justify a warrantless roadblock, which would go to the first prong
of the Sitz balancing past (the importance of the public
concern served by the checkpoint). 3/
Similarly, the district court found that document checkpoints
are unconstitutional. Although the district court's opinion concentrated
on the problem of targeting a particular group for a document
check, Appellant's App. at 77-80,Op. at 19-22, its observations
about sobriety checkpoints (the low gravity of the problem and
the ineffectiveness of such checkpoints when set up on remote
forest roads) apply equally to document checkpoints. The district
court noted, for instance, that the Forest Service has admitted
that "'it is not necessary or appropriate to search cars
entering the Gathering or to verify the driver's car registration,
insurance, and license.'" Appellant's App. at 80, Op.
at 22 (emphasis supplied by court), quoting from 60 Fed. Reg.
45258, 45265-66 (Aug. 30, 1995). Thus, the district court correctly
held that document checks targeted at Rainbow Family gatherings
are unnecessary and ineffective and thus unconstitutional under
a Sitz analysis.
The Forest Service does not discuss the district court's
determination that -- regardless of the targeting issue --the
sobriety and document checkpoints were unconstitutional under
Sitz, and it
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/
Contrary to the Forest Service's argument, however, the
absence of unfettered discretion on the part of those staffing
a roadblock is not the only judicially recognized indicator of
"neutrality," which is really just another word for
"reasonableness." In Martinez-Fuerte, for example, the
Supreme Court looked to both "the location and the
method of operation of the checkpoint." 428 U.S. at 565,
96 S.Ct. at 3086 (emphasis added). 5/ Furthermore, other
courts addressing roadblocks have considered the reasonableness
of the location in the constitutional equation. See, e.g., United
States v. McFayden,865 F.2d 1306, 1313 (D.C. Cir. 1989); Stark
v. Perpich, 590 F. Supp. 1057, 1061 (D. Minn. 1984) (roadblock
sites must "be chosen without regard to any racial, ethnic,
or economic characteristics of the surrounding population or neighborhood,
or of the population using the roadway"); State v. Everson,
474 N.W.2d 695, 701 (N.D. 1991). 6/
The location of a roadblock is relevant to all three prongs
of the Sitz balancing test. As the district court noted,
a sobriety or document checkpoint set up very close to the site
of a Rainbow Family gathering is insufficiently related to the
public safety concerns that motivated courts to uphold such checkpoints
when established on well-traveled roads and highways used by a
broad cross-section of the motoring public. Furthermore, as the
district court also found, such targeted roadblocks are in fact
ineffective in advancing the public interest. Thus, the Rainbow
Family roadblocks fail the first and second prongs of the Sitz
Perhaps most significantly, however, the location of the
checkpoints in this case fails the third prong of the Sitz
analysis: the extent to which the checkpoint intrudes on the liberty
interests of law-abiding motorists. As the district court noted,
the Forest Service's use of checkpoints targeted at Rainbow Family
gatherings is "'disruptive, dangerous and much resented by
gathering participants.'" Appellant's App. at 81; Op.at 23,
quoting from Newbre Declaration (Appellee's App. at 10). The serious
intrusions on law-abiding Rainbow Family gathering attendees are
compounded by the Forest Service's practices of operating the
roadblocks for days on end and of stopping the same attendees
multiple times during a gathering. With these factors and its
subterfuge finding in mind, the district court found that the
government's asserted interests in establishing roadblocks in
close proximity to Rainbow Family gatherings were "not substantial
enough to outweigh the liberty interests of Park and other Rainbow
Family attendees." Appellant's App. at 82; Op. at 24.
As the district court noted by quoting from Justice Jackson's
dissent in Brinegar v. United States, "[u]ncontrolled
search and seizure is one of the first and most effective weapons
in the arsenal of every arbitrary government." 338 U.S. 160,
180,69 S.Ct. 1302, 1313 (1949). The destructive of power of this
weapon is all the more potent when it is used against citizens
who are trying to lawfully exercise their protected First Amendment
The First and Fourth Amendments "are indeed closely
related, safeguarding not only privacy . . . but 'conscience and
human dignity and freedom of expression as well.'" Frank
v.Maryland, 359 U.S. 360, 376, 79 S.Ct. 804, 814 (1959) (Douglas,
J., dissenting).In fact, the Forest Service's actions at issue
in this case demonstrate"[t]he historical judgment, which
the Fourth Amendment accepts, . . . that unreviewed executive
discretion may yield too readily to pressures to obtain incriminating
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.
Roadblocks targeted at Rainbow Family gatherings strike
fear into the hearts of attendees, interfere with the quiet enjoyment
of friends and nature, and generally cast a pall over the gatherings.
Newbre Declaration, 7/ Appellee's App. at 10. These objective
and subjective intrusions upon personal liberty tip the Sitz
balance against such warrantless roadblocks.
But, more fundamentally, targeting roadblocks at any person
or group peacefully exercising established First Amendment rights
raises issues far different from the issues raised in run-of-the-mill
roadblock cases. In cases such as this one, the Sitz analysis
is not necessarily an effective model. When the government targets
a roadblock at a group of people peacefully exercising their First
Amendment rights, the overlap between the First and Fourth Amendment
interests at stake makes a warrantless roadblock inherently suspect
and calls for judicial oversight of the government's actions and
Fortunately, the draftsmen of the Bill of Rights foresaw
this need for a judicial check on the government's power of search
and seizure and provided it in the Fourth Amendment's warrant
requirement. Plaintiff asks nothing more than that the government
obtain a warrant before it targets roadblocks at groups of people
peacefully exercising their First Amendment rights in a public
forum. This is the hallmark of reasonableness and will adequately
insure that the government does not wield its powers of search
and seizure indiscriminately against unpopular groups. Requiring
a warrant in such circumstances will also not unduly burden legitimate
governmental concerns or law enforcement aims. If a roadblock
is truly necessary to serve grave public interests, a warrant
will no doubt be issued.
Moreover, the cases that Appellant suggests "have
routinely upheld the constitutionality of checkpoints that have
targeted particular events, groups, or neighborhoods," Appellant's
Brief at 31, are distinguishable from the facts of this case.
In 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), for instance, organizers planned to hold
"a charity motorcycle rally . . . for the benefit of the
American Red Cross .. . on September 11, 1994, at the Spartanburg,
South Carolina fairgrounds."Id. at 845. At a planning meeting
in May 1994, a police captain learned that"organizers expected
at 3500 participants, possibly including members of two rival
motorcycle gangs, the 'Hell's Angels' and the 'Pagans.'"
Id. In July, Carl McKinney, a reserve officer, told the captain
that "an unidentified friend at work had told McKinney that
an unidentified person had reported to McKinney's friend that
a confrontation at the Rally between the Hell's Angel and Pagan
gangs was planned." Id. at 846. Based on this anonymous,
multiple hearsay tip, the police decided to erect a roadblock
at the gate of the fairgrounds and to stop all incoming motorcycles
for a license check, videotaping of the riders, and a search of
motorcycle saddlebags, compartments, and unworn clothing. Id.
The district court upheld the roadblock as "reasonable in
view of the gravity of the public interest and the minimal intrusion
upon protected liberty interests such a seizure entailed."
Id. at 849. Despite the razor thin support for the roadblock,
the appellant conceded on appeal that the roadblock was proper
under Sitz. Id. 9/
Among other things, Norwood is distinguishable because
it involved the possibility of an armed conflict whereas the Forest
Service has never indicated that it has received any equivalent
tips regarding violence at Rainbow Family gatherings. Furthermore,
the police in Norwood only stopped
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.
Likewise, the neighborhood checkpoint cases are distinguishable
because, in those cases, the authorities established the roadblocks
in order to alleviate specific problems. See United States
v. McFayden, 865 F.2d at 1312 ("the roadblocks were established
to deal with identified problems of traffic congestion");
and 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) (roadblock established in response to a series of drive-by
shootings in a"narcotics-ridden area"). 10/ Such
problems have no relation to anything connected with the Rainbow
Family gatherings. In fact, the Forest Service has never adequately
explained either what problems connected with the Rainbow Family
gatherings necessitate roadblocks or how such roadblocks will
alleviate those problems.
United States v. Ziegler is distinguishable because
it involved a checkpoint on a military base, and on several occasions
the court deferred to the Commanding General's security concerns
and "findings and authority." 831 F. Supp. 771, 773
& n.2 (N.D. Cal. 1995). 11/ State v. Everson
is distinguishable because the roadblock there was set up on a
busy U.S. Highway in North Dakota, over 175 miles from the site
of the motorcycle rally in Sturgis, South Dakota. 474 N.W.2d at
696. Thus, the Everson roadblock was not targeted at attendees
of the Sturgis rally in the same way that the Forest Service targets
its roadblocks at the attendees of Rainbow Family gatherings.
Finally, the "Fourth Amendment Analysis,"Appellant's
Brief at 33, n. 15, in State v. Swift, 207 S.E.2d 459 (Ga.
1974), consisted of citations to Am.Jur.2d and cases that did
not involve the application of any type of balancing test. Thus,
Swift provides little or no support for the government's
position. At bottom, all of the Forest Service's authorities involved
road blocks set up on busy streets and highways traveled by a
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/
The Forest Service indicates that it targets large group
gatherings "because the size of the group raises concerns
about (a) public health and safety and (b) potential damage to
natural resources, and not because the Rainbow Family sponsors
the gathering." Appellant's Brief at 33. First, the district
court found that the 1996 roadblock was established as a subterfuge
to harass Rainbow Family attendees with generalized law enforcement
inquiries. Appellant's App. at 80, Op. at 22. That ruling contradicts
the Forest Service's current self-serving claims of a benign motive
for targeting roadblocks at Rainbow Family gatherings. 13/
If any question about motive remains, the issue must the resolved
at trial because it involves a disputed issue of material fact.
Second, the Thorsen Declaration (Appellant's App. at 48) offers
nothing more than vague platitudes to describe the alleged public
interests that support the need for roadblocks in connection with
Rainbow Family gatherings. The Forest Service never explains precisely
what these "public health and safety" and "potential
damage to natural resources" problems are, nor does it explain
how roadblocks would effectively alleviate them. Given the past
history of Forest Service abuses in establishing roadblocks in
connection with Rainbow Family gatherings, it was incumbent upon
the Forest Service to explain these matters to the district court
in away that would satisfy the Sitz balancing test. By
failing to adequately explain those problems and the way in which
roadblocks could effectively remedy them, the Forest Service left
the district court no alternative but to enjoin warrantless roadblocks
targeted at Rainbow Family gatherings.The district court did not
abuse its discretion in formulating the injunction.
B. The Injunction's Nationwide Scope Does Not Make
The Forest Service argues that "Park did not need
a nationwide injunction to obtain complete relief." Appellant's
Brief at 35. The premise of this argument is that "the district
court erred in ruling that a checkpoint that targets a specific
group or event is per se unconstitutional . . . [which] leaves
standing only the district court's conclusion that the 1996 checkpoint
was unconstitutional because it 'was set up for the purpose of
generally deterring criminal activity' (App. 79; Op. 21) -- a
conclusion that we do not dispute[.]" Appellant's Brief at
34-35. That premise is wrong for two reasons. First, as shown
in the previous section of this brief, roadblocks that target
Rainbow Family gatherings are unconstitutional. Second, even assuming
for the sake of argument that such targeted roadblocks might,
under some circumstances,be constitutional, the remaining holding
of the district court is far broader than mere general law enforcement
checkpoints. As shown previously (supra, at 18-20) the district
court also held that sobriety and document checkpoints in connection
with Rainbow Family gatherings failed to satisfy the first and
second prongs of the Sitz analysis and were thus unconstitutional
independent of the targeting analysis.
At the very least, it was within the district court's sound
discretion to enjoin the types of checkpoints it specifically
found unconstitutional regardless of targeting: sobriety, document,
and general law enforcement checkpoints. 14/ The district
court found that sobriety checkpoints set up near Rainbow Family
gatherings were not directed at a grave public problem and were
ineffective. The district court also found, and the Forest Service
admitted in its notice of rulemaking, that document checks in
connection with Rainbow Family gatherings "are not necessary
or appropriate." Appellant's App. at 80; Op. at 22, quoting
from 60 Fed. Reg. 45258,45265-66 (Aug. 30, 1995) (emphasis added
by court). Although the district court did not make any precise
findings about Forest Service roadblocks in connection with Rainbow
Family gatherings other than the 1996 national gathering, the
court had before it evidence that the Forest Service has for many
years used similar document and sobriety checkpoints in conjunction
with Rainbow Family gatherings, both large and small, both before
and after the 1996 gathering, and both before and after the adoption
of the Forest Service's 1998 roadblock policy. Appellee's App.
at 10-15& 17-24. Given this background, the district court
did not abuse its discretion when it enjoined such checkpoints.
The Forest Service argues that an injunction was unnecessary
because, through its adoption of the 1998 roadblock policy, it
has forsworn general law enforcement checkpoints, which it concedes
are unconstitutional. Appellant's Brief at 36-38. Specifically,
the Forest Service contends that "the requirement that the
requester state the reasons for establishing the checkpoint and
the requirement that approval must first be given, including approval
of the specific inquiries or demands that may be made of drivers
or occupants at the initial stop, ensure that no general law enforcement
checkpoints will be approved." Id. at 37-38.
"A voluntary cessation of wrongful conduct may eliminate
the need for injunctive relief but does not defeat a court's power
to act." Atlantic Richfield Co. v. Oil, Chem. & Atomic
Workers Int'l Union, 447 F.2d 945, 947 (7th Cir. 1971). This
is essentially a mootness argument, as to which the defendant
bears a heavy burden to "demonstrate that 'there is no reasonable
expectation that the wrong will be repeated.'"United States
v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894,897 (1953).
This question must be left "to the informed discretion of
the district Court in the first instance." First Fed.
Sav. & Loan of Council Bluffs v. First Fed. Sav. & Loan
of Lincoln, 929 F.2d 382, 385 (8th Cir. 1991). Here, the district
court considered and rejected this mootness argument because the
new policy does not prohibit all roadblocks targeted at Rainbow
Family gatherings. Appellant's App. at 67-68; Op. at 8-9. This
ruling was correct.
Even considering only general law enforcement roadblocks,
the policy does not expressly prohibit such checkpoints. Furthermore,
the evidence before the district court suggested that general
law enforcement checkpoints could recur given the poor relations
between Rainbow Family gatherers and Forest Service law enforcement,
the schism between the law enforcement and resource branches of
the Forest Service with regard to the Rainbow Family, and the
Forest Service's past history of using such unconstitutional checkpoints.
But most important in this regard is the fact that, when Special
Agent Kim Thorsen called an attorney in the Department of Agriculture's
Office of General Counsel and described the multi purpose roadblock
in effect during the 1996 gathering, the attorney told Thorsen
that "[t]he checkpoint at the 1996 annual Rainbow Family
gathering is not unconstitutional[.]" See Thorsen Report,
Appellee's App. at 5. This shows that the mere requirement that
a higher level official will approve future roadblocks will not
necessarily prevent a recurrence of past problems. Even a Department
lawyer approved of the unconstitutional multipurpose roadblock
at the 1996 gathering. Thus, the district court did not abuse
its discretion when it enjoined general law enforcement checkpoints
in connection with Rainbow Family gatherings.
Finally, a nationwide injunction was absolutely necessary
to provide Park with complete relief. She has long attended national
and regional Rainbow Family gatherings throughout the country
and intends to attend such gatherings in the future. Park Depo.
49-50, Appellee's App. at 27.The Forest Service has for years
established roadblocks near Rainbow Family gatherings small and
large in national forests nationwide. And with the possible exception
of general law enforcement checkpoints, the Forest Service has
not backed away from using roadblocks near Rainbow Family gatherings
in the future. In fact, in February 1999, after the adoption of
the new roadblock policy, the Forest Service implemented roadblocks
at a regional gathering in the Ocala National Forest, Florida.
Addison Affidavit, p. 7, ¦ 31, Appellee's App. at 23. For
these reasons, a nationwide injunction was necessary, and thus
the district court did not abuse its discretion.
III. PARK HAS STANDING.
The Forest Service argues that Park lacks standing to seek
injunctive relief because she cannot "demonstrate either
a continuing harm from such checkpoints or the likelihood that
the Forest Service would establish such checkpoints in the future."
Appellant's Brief at 39. Once again, however, this argument rests
on the faulty premise that "only the district court's holding
that the 1996 checkpoint was unconstitutional as a general law
enforcement checkpoint remains."Id.
Park has standing to seek injunctive relief because the
Forest Service continues to target unconstitutional roadblocks
at Rainbow Family gatherings and because Park plans to attend
such gatherings in the future.Scott Addison Affidavit, p. 7, ¦
31, Appellee's App. at 23; Park Depo. at 49, Appellee's App. at
27. There is nothing "'conjectural' or 'hypothetical'"
about the likelihood of ongoing harm. City of Los Angeles v.
Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983). Because,
in the absence of an injunction, Park will likely encounter another
unconstitutional roadblock at one of the future Rainbow Family
gatherings she attends, Park has standing. Because a nationwide
injunction was necessary to give Park complete relief, it is immaterial
that she did not sue as a class representative.
For these reasons, the district court's Order and Injunction
should be affirmed.
Stephen Douglas Bonney
215 West 18th Street
Kansas City, Missouri 64108
Tel. (816) 221-2868
Fax (816) 421-0255
Fred L. Slough, Esq.
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, MO 64111
ATTORNEYS FOR PLAINTIFF
Certificate of Service
I certify that, on December 27,1999, I served two copies
of the foregoing Brief of Appellee (plus one diskette) and one
copy of Appellee's App. on:
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)
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)
I also certify that I filed an original and ten copies
of the Brief (plus diskette) and three copies of the App. by sending
them UPS Next Day Air to the Clerk, United States Court of Appeals
for the Eighth Circuit on December 21, 1999.
Stephen Douglas Bonney
Attorney for Appellee
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but excluding the cover, table of contents, table of authorities,
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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.
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.
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