No. 99-3903

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

TRACIE PARK,
Plaintiff-Appellee,

v.

THE FOREST SERVICE
OF THE UNITED STATES OF AMERICA,
Defendant-Appellant, and

WELDON WILHOIT,
in his official capacity as the Superintendent
of the Missouri State Highway Patrol,
Defendant,

and OREGON COUNTY.
Defendant.

__________________________

ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
__________________________

BRIEF FOR THE APPELLANT
__________________________

 

DAVID W. OGDEN
Acting Assistant Attorney General

STEPHEN L. HILL, Jr.
United States Attorney

MICHAEL JAY SINGER
(202) 514-5432
HOWARD S. SCHER
(202) 514-4814
Attorneys, Appellate Staff
Civil Division, Room 9116
Department of Justice
601 D Street,N.W.
Washington, D.C.20530-0001



SUMMARY OF THE CASE

This is an appeal from an injunction prohibiting the Forest Service from establishing checkpoints -including purely informational and emergency checkpoints - in connection with "Rainbow Family" gatherings in the National ForestSystem unless the Forest Service (1) first obtains a search warrant or (2) establishes the checkpoint on a public road or highway used by the motoring public in general. The district court, because it misunderstood Fourth Amendment law in important respects, entered a nationwide injunction notwithstanding the fact that plaintiff sued solely on her own behalf and focused on a single Forest Service checkpoint that occurred in 1996. This appeal challenges only the scope of the district court's injunction.

We request 20 minutes of oral argument. This is a case of first impression at the court of appeals level, and we believe oral argument would be helpful to the Court in exploring the issues, the facts, and the ramifications of the district court's decision on the Forest Service's duty to protect both the users of the National Forest System and the natural resources in the national forests.


TABLE OF CONTENTS

920 Page

SUMMARY OF THE CASE i

PRELIMINARY STATEMENT 1

STATEMENT OF THE ISSUES 2

STATEMENT OF THE CASE 3

A. Constitutional and Statutory Provisions Involved 3

B. Facts and Decisions Below 4

SUMMARY OF ARGUMENT 14

ARGUMENT 19

I. THE DISTRICT COURT'S INJUNCTION MUST BE
VACATED BECAUSE IT DOES NOT COMPLY
WITH THE REQUIREMENTS OF RULE 65(d),
FED. R. CIV. P. 19

Standard of Review 19

II. ASSUMING THE INJUNCTION WERE DEEMED TO
COMPLY WITH RULE 65(d), FED. R. CIV. P., THE
INJUNCTION MUST BE VACATED BECAUSE IT
IS OVERBROAD 27

Standard of Review 27

A. The Injunction Is Overbroad Because It Enjoins
Checkpoints That Are Constitutional 28

B. The District Court Also Erred In Issuing A
Nationwide Injunction With Respect To Its
Holding That The 1996 Checkpoint Was
An Unconstitutional General Law Enforcement
Checkpoint 34

III. ULTIMATELY, PARK LACKED STANDING
TO SEEK INJUNCTIVE RELIEF WITH RESPECT
TO GENERAL LAW ENFORCEMENT CHECKPOINTS 39

Standard of Review 39

CONCLUSION 43

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

ADDENDUM

Judgment (June 11, 1999) 1A

Order & Injunction (June 11, 1999) 2A

Order denying Rule 59(e) motion (August 16, 1999) 27A

Forest Service Handbook, National Policy for Checkpoints,
Amendment No. 5309.11-98-2 (effective September 30, 1998) 30A

TABLE OF AUTHORITIES

Cases:

Ameron, Inc. v. United States Army Corps of Eng'rs, 787 F.2d 875 modified on other grounds, 809 F.2d 979 (3d Cir. 1986), cert. dismissed, 488 U.S. 918 (1988) 35

B.H. Bunn Co. v. AAA Replacement Parts Co.,451 F.2d 1254 (5th Cir. 1971) 24

Beck v. Missouri State High Sch. Activities Ass'n, 18 F.3d 604 (8th Cir. 1994) 42

Black v. Arthur, 18 F. Supp.2d 1127 (D. Or.1998), appeal pending, Nos. 98-36044 & 98-36046(9th Cir.) 4

Bowen v. Kendrick, 487 U.S. 589 (1988) 40

Brouhard v. Lee, 125 F.2d 656 (8th Cir. 1997) 3, 27, 29, 30, 39, 40

Califano v. Yamasaki, 442 U.S. 682 (1979) 3, 35, 36

Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665 (8th Cir. 1987) 2, 19, 20, 21, 25

Chandler v. Miller, 520 U.S. 305 (1997) 29

Chicago & North Western Trans. Co. v. Railway Labor Exec. Association, 908 F.2d 144 (7th Cir. 1990) 23

Citizens to Preserve Overton Park v. Volpe,410 U.S. 402 (1971) 42

City of Los Angeles v. Lyons, 461 U.S. 95(1983) 3, 18, 35, 39-40, 42

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384(1990) 27

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406(1977) 35, 36

Delaware v. Prouse, 440 U.S. 648 (1979) 25, 29, 30

Fonar Corp. v. Deccaid Services, Inc., 983F.2d 427 (2d Cir. 1993) 22-23

Galberth v. United States, 590 A.2d 990 (D.C.Ct. App. 1991) 11, 25

Granny Goose Foods, Inc. v. Teamsters, 415U.S. 423 (1974) 2, 20, 21

Koon v. United States, 518 U.S. 81 (1996) 27, 34

Lever Brothers Co. v. United States, 981 F.2d1330 (D.C. Cir. 1993) 35

Lewis v. Continental Bank Corp., 494 U.S. 472(1990) 42

Maxwell v. City of New York, 102 F.3d 664 (2dCir. 1996) 32

Meis v. Gunter, 906 F.2d 364 (8th Cir. 1990) 40

Meltzer v. Board of Public Instruction of Orange County, Florida, 480 F.2d 552 (5th Cir. 1973) 24

Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) 3, 10, 11, 16, 27, 29-31, 33

Mitchell v. Seaboard System Railroad, 883 F.2d451 (6th Cir. 1989) 24

Modern Computer Systems, Inc. v. Modern Banking Systems, Inc., 871 F.2d 734 (8th Cir. 1989) 27

North Dakota v. Everson, 474 N.W.2d 695 (N.D.1991) 32

Norwood v. Bain, 143 F.3d 843 (4th Cir. 1998), aff'd, 166 F.3d
243 (4th Cir.), cert. denied, 119 S. Ct. 2342 (1999) 31

O'Shea v. Littleton, 414 U.S. 488 (1974) 39

Schmidt v. Lessard, 414 U.S. 473 (1974) 2, 19, 21, 22-23

Seattle-First National Bank v. Manges, 900F.2d 795 (5th Cir. 1990) 23

Shankle v. Texas City, 885 F. Supp. 996 (S.D. Tex. 1995) 9, 11, 30, 41

State v. Swift, 207 S.E.2d 459 (Ga. 1974) 32-33

United States v. Articles of Drug, 825 F.2d1238 (1987) 2, 22, 27, 40

United States v. Galindo-Gonzales, 142 F.3d1217 (10th Cir. 1998) 27, 29

United States v. Johnson, 159 F.3d 892 (4thCir. 1998) 4

United States v. Linick, ____ F.3d ____, 1999WL 1011865 (9th Cir. 1999) 4

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) 3, 10, 29, 31-32, 33

United States v. McFayden , 865 F.2d 1306 (D.C. Cir. 1989) 25, 27, 30, 32

United States v. Rainbow Family, 695 F. Supp.294 (E.D. Tex. 1988) 4

United States v. Soto-Camacho, 58 F.3d 408 (9th Cir. 1995) 30

United States v. Zeigler, 831 F. Supp. 771(N.D. Cal. 1993) 32

United States Department of Defense v. Meinhold, 510 U.S. 393 (1993) 35

United Transp. Union v. State Bar, 401 U.S.576 (1971) 40

Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) 35

Constitution:

United States Constitution:

Article III 42
First Amendment 6, 10
Fourth Amendment passim

Statutes:

28 U.S.C. 1291 2

28 U.S.C. 1331 1

28 U.S.C. 1343 2

28 U.S.C. 2107(b) 2

Rules:

Eighth Circuit Rule 30A(b)(3) 2

Federal Rules of Appellate Procedure, Rule 4(a)(1)(B) 2

Federal Rules of Civil Procedure:

Rule 59(e) 2, 12, 13, 22
Rule 65(d) passim



IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
__________________________

No. 99-3903
__________________________

TRACIE PARK,

Plaintiff-Appellee,

v.

THE FOREST SERVICE OF THE UNITED STATES OF AMERICA,

Defendant-Appellant,

and

WELDON WILHOIT, in his official capacity
as the Superintendent of the Missouri State Highway Patrol,

Defendant,

and

OREGON COUNTY.

Defendant.
__________________________

ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
__________________________

BRIEF FOR THE APPELLANT
__________________________

PRELIMINARY STATEMENT

The decision appealed from was rendered by Senior Judge Russell G. Clark. Plaintiff invoked the jurisdiction of the district court under 28 U.S.C. 1331 and 1343. App. 13 ¦ 3. 1/ The district court's "Order & Injunction" granting an injunction against the Forest Service was entered June 11, 1999.
_____________________________

1/ In this brief, "App. "refers to the government's Appendix filed pursuant to Rule 30A(b)(3) of the Eighth Circuit Rules; "Op." refers to the district court's Order &Injunction filed June 11, 1999; "Add." refers to the Addendum attached to this brief.

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App. 60. The district court's judgment was also entered June 11, 1999. App. 59. The district court's order denying the Forest Service's motion pursuant to Rule 59(e), Fed. R. Civ. P., to alter or amend the judgment was entered August 16, 1999. App. 92. The notice of appeal (App. 94), which was filed on October 12, 1999, was timely under 28 U.S.C. 2107(b) and Rule 4(a)(1)(B), Fed. R. App. P. This Court has jurisdiction under 28 U.S.C. 1291.

STATEMENT OF THE ISSUES

1. Whether the district court's injunction must be vacated because it fails to comply with the requirements of Rule 65(d), Fed. R. Civ. P.
Schmidt v. Lessard, 414 U.S. 473 (1974);
Granny Goose Foods, Inc. v. Teamsters,415 U.S. 423 (1974);
Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665 (8thCir. 1987);
United States v. Articles of Drug, 825 F.2d 1238 (1987);
Rule 65(d),Fed. R. Civ. P.

2. Whether the injunction must be vacated because it is overbroad.
Califano v. Yamasaki, 442 U.S. 682(1979);
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990);
United States v. Martinez-Fuerte, 428 U.S.543 (1976);
Brouhard v. Lee, 125 F.3d 656 (8th Cir. 1997);
Fourth Amendment, United States Constitution.
3. Whether plaintiff lacked standing to seek injunctive relief.
City of Los Angeles v. Lyons, 461 U.S.95 (1983);
Shankle v. Texas City, 885 F. Supp.996 (S.D. Tex. 1995).

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STATEMENT OF THE CASE

A. Constitutional and Statutory Provisions Involved.

1. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

2. Rule 65(d), Fed. R. Civ. P., in pertinent part provides:

Every order granting an injunction * * * shall set forth the reasons for the issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained * **.

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B. Facts and Decisions Below.

1. a. Plaintiff Tracie Park is a member of the Rainbow Family. The Rainbow Family "is an unincorporated, loosely-structured group of individuals that regularly gathers in undeveloped sites in National Forests to pray for peace, discuss environmental and other contemporary political and social issues, and [to] exchange, develop, express, and demonstrate their ideas and views." Black v. Arthur, 18 F. Supp.2d 1127, 1130 (D. Or. 1998), appeal pending, Nos. 98-36044 & 98-36046 (9th Cir.). Since 1972, "[a]nnual gatherings have occurred in different National Forests on and around July 4. These gatherings draw more than 20,000 participants and last for a month or more. Smaller regional gatherings take place throughout the year in National Forests across the country." Ibid. See also App. 63-64 (Op. 3-4); App. 47 (Thorsen Declaration ¦ 5); United States v. Linick, ___ F.3d ___, 1999 WL 1011865 (9th Cir. 1999); United States v. Johnson, 159 F.3d 892, 893 (4th Cir. 1998); and United States v. Rainbow Family, 695 F. Supp.294, 298 (E.D. Tex. 1988).

b. The district court found as follows. 2/ In 1996, the Rainbow Family held its annual gathering in the Mark Twain National Forest. The site of the gathering was approximately two and one-half miles down an ordinarily lightly traveled gravel road from the nearest paved road. Forest Service law enforcement personnel, assisted by members of the Missouri State Highway Patrol (MSHP), established a checkpoint on the gravel road approximately one mile from the Rainbow Family gathering. The checkpoint was maintained from June 23, 1996, through July 7th or 8th, extending from daylight hours to the early hours of the morning. App. 64-65; Op. 5-6.
________________________________

2/ For purposes of this appeal, we do not dispute these findings of fact.

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The checkpoint was conducted with no written plan for its operation. After the checkpoint became operational, the Forest Service received a copy of the MSHP policy on sobriety checkpoints. The checkpoint failed to conform to the requirements of the Missouri policy because, for example, there were no signs to warn approaching motorists that a checkpoint was ahead. The hours of operation of the checkpoint were determined by the Forest Service Law Enforcement shift supervisors without any written policy or guidance. Although one of the stated purposes of the checkpoint was to provide the public with information about health and safety issues at the gathering, the checkpoint utilized radar to detect speeders, involved sobriety tests and related interrogation, and included requests for driver's licenses, registration, and proof of insurance. The checkpoint also involved plain-view inspections of vehicle interiors, vehicle equipment inspections, drug interdiction, and detecting violations of law in general. App. 64-66, 72-72a, 79-80; Op. 5-7,13-14, and 21-22.

Tracie Park went through the checkpoint twice, both times as a passenger. On the first occasion, while the driver was asked to produce his driver's license, registration, and proof of insurance, other officers shone flashlights into the car, and one officer stated that the purpose of the checkpoint was a routine check for drivers who were driving while intoxicated (DWI). On the second occasion, the driver was asked for his license, and the car was checked for properly working headlights, turn signals, tail lights, and license plate lights. App. 65-66; Op. 6-7.

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2. a. Park brought this action solely on her own behalf. App. 14; Complaint ¦ 5.She sought an injunction to prevent the Forest Service "from continuing to conduct the police roadblocks related to Rainbow Family gatherings which they have established within or in the vicinity of the Mark Twain National Forest in Oregon County or in other Missouri counties within the District * * * without individualized probable cause" (App.24 ¦ B; Complaint at p. 13 ¦ B) or "[without] a warrant approving such roadblock in advance" (App. 45;Suggestions in Support of Plaintiff's Motion for Summary Judgment at 15).See also App. 89; Response to 59(e) Motion at 1 ("without first obtaining a search warrant"). Park alleged that the Forest Service, along with the Superintendent of the MSHP and law enforcement officers from Oregon County, Missouri, impinged on her rights guaranteed by the First and Fourth Amendments to the U.S. Constitution because the checkpoint constituted an unreasonable seizure and its location unfairly targeted the Rainbow Family as it exercised its right to assemble and speak freely. App. 23-27.

b. In September 1997, pursuant to the parties' request and before dispositive motions had been filed, the district stayed proceedings to allow the Forest Service to review its use of checkpoints and to develop a national checkpoint policy. See App. 5; Docket No. 35. Subsequently, the Forest Service promulgated its National Policy on checkpoints which became effective on September 30, 1998. App.50-58. 3/ (Hereinafter, we refer to the national policy as the "1998 Policy" or "Policy"). The _____________________________

3/ See also Add. at p. 30A.

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1998 Policy specifies a number of neutral factors to be considered in determining whether a checkpoint should be established at an event in the National Forest System:(1) "[t]he importance of the interests the checkpoint is intended to serve and the extent to which those interests relate to the Forest Service mission, particularly resource protection and public safety"; (2) "[t]he likelihood that the checkpoint would effectively serve those interests"; and (3) "[t]he extent to which the checkpoint would intrude upon law-abiding motorists, including the delay imposed." App. 52 (Policy ¦ 360). In general, the Policy addresses site selection, the timing and duration of the checkpoint, publicizing the location and purpose, decisions regarding the staffing of the checkpoint and the clothing to be worn by officials staffing the checkpoint, what signs and warning devices should be utilized, what inquiries may be made, what to do at the initial stop, what to do if a secondary stop appears to be necessary, and when a driver and/or occupants may be required to exit the vehicle. App. 53-56; Policy ¦362.1(1)-(11). More specifically, before a checkpoint can be established, local Forest Service personnel must first submit a "written request * * * along with a checkpoint plan" to "a Supervisory Law Enforcement Officer or a Supervisory Special Agent." App. 53; Policy¦ 362.1(1). The plan "must address" (1) the reasons for establishing the checkpoint, (2) the location, (3) the approximate time and duration,(4) the personnel to be assigned to the checkpoint, (5) in the case of a" compliance

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checkpoint" - for example, a sobriety or driver's license checkpoint - the specific inquiries or demands that will be made of the driver and/or occupants, and (6) in the case of a informational checkpoint, the information to be provided. App. 53; Policy ¦ 362.1(1)(a)-(f). Moreover, the checkpoint cannot be established unless and until the requester receives "[w]ritten authorization" from a "Supervisory Law Enforcement officer or Supervisory Special Agent" (App.54; Policy ¦ 362.1(6)). Pursuant to the written authorization, officials staffing the checkpoint must "stop all vehicles" (App. 52; Policy ¦ 361(5)), unless" the checkpoint supervisor has expressly approved another non-discriminatory method (such as stopping every second or fifth vehicle" (ibid.). Furthermore, with respect to the initial stop, the written authorization must specify "the specific inquiries or demands that are to be made of the driver and/or occupants of the vehicle" in a compliance checkpoint or "the information that is to be provided" at an informational checkpoint. App. 54; Policy ¦ 362.1(6)(a)-(b). With respect to a secondary stop, the Policy informs checkpoint officials under what circumstances such stops may be made and directs officials to "[k]eep careful records" of such stops. App. 55;Policy ¦ 10. See also App. 55-56; Policy ¦ 11 (detailing when drivers and/or occupants may be required to exit the vehicle).

c. Thereafter, the parties filed dispositive motions, and on June 11, 1999, the district court granted Park's motion for summary judgment, denied the Forest Service's motion to dismiss and, in the alternative, for summary judgment, and dismissed Park's claims against the MSHP and Oregon County. See App. 60. See also Add. 2A. The district court first found that Park had standing vis-a-vis the Forest Service to maintain her Fourth Amendment challenge to the 1996 checkpoint. App. 66-68; Op. 7-9. The court dismissed her Fourth Amendment claims against the MSHP and Oregon County for lack of standing. App. 68-69; Op. 9-10.

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On the merits, the district court determined that vehicle stops at checkpoints are "seizures" under the Fourth Amendment, and therefore must be "reasonable" to be constitutional. App. 71 (Op. 12), citing United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976), and Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990). The court stated that the reasonableness of checkpoints "turns on factors such as the location and method of operation of the checkpoint." App. 71 (Op. 12), citing Martinez-Fuerte, 428 U.S. at 565-66.

The district court noted that, according to the record, the purpose of the checkpoint was variously described as a "safety" checkpoint, a DWI checkpoint, a way to stop speeders and drinkers, a place to check for safety violations, a check for driver's licenses, registrations, and proof of insurance, a means to deter criminal conduct and enhance traffic safety, an opportunity to catch local drug dealers, and an opportunity to inform Rainbow Family attendees of National Forest regulations, parking information, and other information. App. 64-66, 72-73, 79-80; Op.5-7, 13-14, 21-22. The court then analyzed the constitutionality of the checkpoint as if it were (1) a sobriety checkpoint (App. 72a-74; Op. 14-16), (2) a general deterrence checkpoint(App. 75-77; Op. 17-19), and (3) a driver's license checkpoint (App. 77-79;Op. 19-21), 4/ and determined that the 1996 checkpoint was unconstitutional in all three respects.

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As a sobriety checkpoint, the checkpoint failed under the Sitz requirements because, according to the district court, it was not set upon a publicly traveled road and was not adequately effective in removing intoxicated drivers from the road. App. 72a-74; Op. 14-16. As a general law enforcement checkpoint, the checkpoint was unconstitutional because "the intrusion upon the law-abiding citizens attempting to enter the Rainbow Family gathering is too great to justify a checkpoint erected to have some kind of 'deterring effect' upon attendees." App. 76 (Op. 18), citing Shankle v. Texas City, 885 F. Supp. 996 (S.D. Tex. 1995), and Galberth v. United States, 590 A.2d 990, 998 (D.C. Ct. App. 1991). And, as a driver's license checkpoint, the checkpoint was unconstitutional because it was not established on a public street or highway, but on a gravel road in the forest that was traveled almost exclusively by attendees of the Rainbow Family gathering. App. 77-78; Op. 19-20. In the district court's view, the location of the checkpoint meant that the checkpoint specifically targeted the Rainbow Family and that, as a result, the checkpoint lacked the neutrality necessary for constitutionality. App. 79; Op. 21 ("the location was chosen to specifically target the Rainbow Family" and "[b]y its placement * * * ensures that it is not random," thus undermining "the inherent neutrality" of checkpoints) (emphasis in original).
____________________________

4/ By a "driver's license checkpoint," we mean a checkpoint for drivers' licenses as well as registration and other documentation pertaining to the privilege of driving.

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The district court also "[found] that the1996 checkpoint was set up for the purpose of generally deterring criminal activity." App. 79; Op. 21. The court determined that the other purposes articulated by various officials were 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." App. 80; Op. 22. Finally, the district court determined that the 1998 Policy did not moot the case because the Policy did not preclude the Forest Service from establishing future checkpoints that "targeted" Rainbow Family gatherings. App. 67-68; Op. at 8-9. 5/

d. As to relief, the district court stated as follows: "ORDERED that Plaintiff's Motion for Summary Judgment is granted" (App. 82; Op. 24) and(2) "ORDERED that the Forest Service * * * is enjoined from establishing any roadblocks or checkpoints that violate the contents of this Order" (App. 83; Op. 25) (uppercase in original in both quotations). See also Judgment (Add. 1A; App. 59). The court otherwise did not specify what conduct it was prohibiting.

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3. On June 25, 1999, the Forest Service filed a motion to alter or amend judgment, under Rule 59(e), Fed. R. Civ. P., requesting the district court to clarify the scope of the injunction. App. 84. The Forest Service noted that the only checkpoint challenged was the 1996 checkpoint in the Mark Twain National Forest and that, accordingly, the court should clarify the injunction's "breadth" and whether the court intended to hold that any checkpoint operated in connection with a Rainbow Family gathering was prohibited unless a warrant was obtained or whether the injunction was limited to the 1996 checkpoint and the Forest Service's conduct there. The Forest Service pointed out that even Park had taken the position that not all checkpoints at Rainbow Family gatherings - for example, informational checkpoints - would be constitutionally objectionable. App. 86. In addition, the Forest Service argued that, under Rule 65(d), an injunction must (a) set forth the reasons for issuance, (b) be specific in its terms, and (c) describe in reasonable detail, and not reference the complaint or other documents, the act or acts to been joined. The court's order did not comply with those requirements, the government argued (see App. 86), because the order's operative language did no more than (1) grant plaintiff's motion for summary judgment (see App. 82; Op. 24) and (2) prohibit the Forest Service "from establishing roadblocks or checkpoints that violate the contents of this Order" (App. 83; Op. 25).
________________________

5/ By a "driver's license checkpoint," we mean a checkpoint for drivers' licenses as well as registration and other documentation pertaining to the privilege of driving.

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The district court denied the Rule 59(e) motion, and stated that it "did intend 'breadth.'" App. 92; August 16Order at 1. It also stated as follows:

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." App. 93 (Order of August 16, 1999, at 2).

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SUMMARY OF ARGUMENT

There are three reasons why the district court's injunction should be vacated. First, it fails to comply with the requirements of Rule 65(d), Fed. R. Civ. P. Second, the injunction is overbroad. It enjoins checkpoints that are constitutional, and is a nationwide injunction where there is no basis for such scope. Third, and perhaps most fundamentally, Park lacked standing to seek injunctive relief.

1. a. The district court's injunction must be vacated because it does not comply with Rule 65(d), Fed. R. Civ. P. There are only two operative components of the injunction: the first component simply grants the plaintiff's motion for summary judgment, and the second merely enjoins the Forest Service "from establishing any roadblocks or checkpoints that violate the contents of this Order." Neither component complies with Rule 65(d)'s requirement to specify in detail the acts that are prohibited. In addition, the injunction is so vague as to what checkpoints are allowed that the Forest Service cannot conduct any checkpoints without risking contempt. This, too, violates Rule 65(d).

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b. Even reference to the findings and conclusions contained in the body of the district court's "Order & Injunction" does not remove the Rule 65(d) problem. Nowhere does the "Order & Injunction" state precisely what acts are prohibited. In any event, Park herself stated that the litigation involves only generalized law enforcement roadblocks, and the district court concurred. No other checkpoints were at issue. Pursuant to Rule 65(d), therefore, the district court's injunction should not have enjoined more than that specific conduct.

c. Nor does the court's August 16 Order cure the deficiency. Although the district court stated that the injunction prohibited the Forest Service from conducting general law enforcement checkpoints, the court's order does not specify the acts that are prohibited and certainly does not limit the injunction to prohibiting checkpoints established for general law enforcement purposes. It therefore does not cure all of the Rule 65(d) deficiencies in the injunction.

2. a. Even if the district court's order complied with Rule 65(d), it would have to be vacated because it is overbroad. The injunction is based on two legal conclusions: one, that the Fourth Amendment prohibits general law enforcement checkpoints; and, two, that the Fourth Amendment prohibits checkpoints that target specific groups or events because such targeting undermines the neutrality of the checkpoint. We do not dispute the correctness of the first conclusion. However, the second conclusion simply does not comport with Fourth Amendment law.

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Nothing in the Fourth Amendment requires law enforcement officials to locate checkpoints blindly, without reference to the problems to which the checkpoints are directed. Thus, under Fourth Amendment case law, the neutrality of a checkpoint has not been determined by its location but, rather, by the lack of discretion afforded agents at a checkpoint. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (checkpoint had been operated in a neutral fashion because officers were required to stop every approaching vehicle and had no discretion to do otherwise). Sitz also found neutrality buttressed by the fact that standardized procedures for establishing and conducting checkpoints had been employed. That the neutrality of a checkpoint is determined by the lack of discretion afforded checkpoint officers, not the location of the checkpoint (as the district court erroneously ruled), is further buttressed by the fact that courts have routinely upheld the constitutionality of checkpoints that have targeted particular events, groups, or neighborhoods. Nor does the Forest Service establish checkpoints to target gatherings only because the Rainbow Family is the sponsor. Thus, the district court's conclusion that the "targeting" of a Rainbow Family gathering was per se unconstitutional is incorrect. As a result, the district court's injunction, to the extent it prohibits checkpoints in connection with Rainbow Family gatherings, is per se an abuse of discretion and must be vacated.

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b. As the previous discussion demonstrates, the district court erred in ruling that a checkpoint that targets a specific group or event is per se unconstitutional. Once that error is uncovered, it leaves standing only the conclusion that the 1996 checkpoint was unconstitutional because it was established for general law enforcement purposes. With respect to that ruling, however, Park did not need a nationwide injunction to obtain complete relief.

Ordinarily, it is inappropriate to issue a nationwide injunction at the behest of a single plaintiff. Here, Park contended that she has attended, and plans to attend in the future, annual and regional Rainbow Family gatherings across the country. That contention alone, however, is not enough to have warranted nationwide relief. Rather, nationwide relief might have been appropriate had the district court found some indication that the Forest Service had employed general law enforcement checkpoints nationwide or that it planned to implement such checkpoints in the future. But, the district court made no such finding. Moreover, the 1998 Policy buttresses the fact that there is no likelihood that the Forest Service will establish general law enforcement checkpoints in the future. The Policy, which was promulgated two years after the 1996 checkpoint at issue here and brought to the district court's attention prior to its ruling in this case, establishes a detailed process for approving checkpoints, and pursuant to that process, the likelihood that a checkpoint for general law

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enforcement purposes would be approved is nil. Accordingly, the district court's nationwide injunction was an abuse of discretion and must be vacated for that reason.

3. Once it is understood that the district court erred in ruling that a checkpoint that targets a specific group or event is per se unconstitutional, only the holding that 1996 checkpoint was unconstitutional as a general law enforcement checkpoint remains. However, with respect to general law enforcement checkpoints, Park did not (and could not) demonstrate that there is a likelihood that the Forest Service will establish such checkpoints in the future. Therefore, Park had no standing to seek injunctive relief with respect to such checkpoints (she had standing to seek only declaratory relief as to the1996 checkpoint), and the district court lacked subject matter jurisdiction to grant such relief. See City of Los Angeles v. Lyons, 461 U.S. 95(1983).

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ARGUMENT


I. THE DISTRICT COURT'S INJUNCTION MUST BE VACATED BECAUSE IT DOES NOT COMPLY WITH THE REQUIREMENTS OF RULE 65(d), FED. R.CIV. P.

Standard of Review. Whether an injunction complies with Rule 65(d), Fed. R. Civ. P., is reviewed de novo. See, e.g., Schmidt v. Lessard, 414 U.S. 473 (1974); Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665 (8th Cir. 1987).

A. The district court's injunction does not comply with Rule 65(d), Fed. R. Civ. P., and therefore must be vacated for that reason alone. Rule 65(d), in pertinent part, provides as follows:

Every order granting an injunction * * * shall set forth the reasons for the issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained * * *.

Here, the district court's injunctive order did not describe at all - let alone describe in reasonable detail- the act or acts sought to be restrained.

-19-

The district court's injunctive order has two critical components. First, it "ORDERED that Plaintiff's Motion for Summary Judgment is granted * * *." App. 82, Op. 24 (upper case in original). See also Judgment, Add. 1A (App. 59). Second, it "ORDERED that the Forest Service of the United States of America is enjoined from establishing any roadblocks or checkpoints that violate the contents of this Order." App. 83; Op. 25 (upper case in original). See also Judgment (Add. 1A; App. 59). Neither of these aspects of the order complies with Rule 65(d)'s requirement for specificity and detail. Indeed, the district court's injunction is the archetype of precisely what Rule 65(d) seeks to avoid. See, e.g., Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 444 (1974)("[O]ne basic principle built into Rule 65 is that those against whom an injunction is issued should receive fair and precisely drawn notice of what the injunction actually prohibits."); Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824F.2d 665, 669 (8th Cir. 1987) (same).

In addition, the injunction is so vague that it is not clear what checkpoints are allowed. For example, the injunction appears to prohibit 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. See discussion, infra, Point I(B) (discussing fact that Park has acknowledged that only general law enforcement checkpoints - and not informational, emergency, or other checkpoints - are at issue); and Point II(A) (informational and emergency checkpoints, as well as sobriety and driver's license checkpoints, are constitutional even if erected in connection with a specific event or a gathering of a particular group, such as the Rainbow Family). The injunction thus fails to comply with Rule 65(d) in this respect as well. See, e.g., Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d at 669.

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Calvin Klein Cosmetics Corp., 824 F.2d 665, is particularly instructive. In Calvin Klein, the Court stated inter alia that "Rule 65(d)'s specificity requirement is designed" for three principal reasons: (1) " to prevent uncertainty and confusion on the part of those to whom the injunction is directed"; (2) "to avoid the possible founding of contempt citations on an order that is too vague to be understood"; and (3) "to ascertain that the appellate court knows precisely what it is reviewing." 824 F.2d at 669(citing Granny Goose Foods, Inc., 415 U.S. at 444; and Schmidt v. Lessard, 414 U.S. 473, 476-477 (1974)). The Court determined that a district court injunction prohibiting the defendant from engaging in conduct that was described only in the most general terms violated Rule 65(d) because it required the defendant "to guess at what kind of conduct would be deemed [a violation of the injunction]" (824F.2d at 669). 6/ In the instant case, the injunction does not even use general terms to describe the acts prohibited; rather, it merely grants plaintiff's summary judgment motion and prohibits the Forest Service from "establishing any roadblocks or checkpoints that violate the contents of this Order." App. 59 (Judgment) and App. 82, 83 (Op.24, 25). A fortiori, the injunction here does not comply with Rule 65(d).
__________________________

6/ And the Forest Service's concession here regarding the unconstitutionality of general law enforcement checkpoints (see n.7,supra) provides additional support for this statement.

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Moreover, in United States v. Articles of Drug, 825 F.2d 1238, 1247 (8th Cir. 1987), the district court stated that the defendants are enjoined from "selling or marketing in any way products described in [the complaint] and * * * from employing marketing techniques to sell drug products identical or similar to those described in [the complaint]." 825 F.2d at 1247. This Court ruled that the injunction fell short of the requirements of Rule 65(d) because, in merely referring to the complaint, the district court failed to identify the specific drug products and failed to specify the prohibited marketing techniques. Ibid. The Court therefore vacated the injunction with directions to the district court "to revise the injunction so that the specific acts which are prohibited are clearly defined within the order as required by Fed. R. Civ. P. 65(d)." Ibid.

Schmidt v. Lessard, 414 U.S. 473 (1974), and Fonar Corp. v. Deccaid Services, Inc., 983 F.2d 427 (2d Cir. 1993), are also instructive. In Lessard, the district court entered an injunction that, similar to the injunction at issue here, stated that "[i]t is Ordered and Adjudged that judgment be and hereby is entered in accordance with the Opinion heretofore entered * * *." Id. at 474 (internal quotation marks omitted). The Supreme Court held that the "order here falls far short of satisfying * * * Rule65(d)."
In Fonar, the district court entered an order requiring defendants to "strictly adhere to the prohibitions of [the court's] Order of November 1, 1991, as modified in paragraph 14 of the accompanying Findings of Fact and Conclusions of Law regarding Contempt." 983 F.2d at 430 (internal quotation marks omitted). The court of appeals held that the injunction did not comply with Rule 65(d). The court emphasized that Rule65(d) "is satisfied only if the enjoined party can ascertain from the four

-22-

corners of the order precisely what acts are forbidden." Ibid. See also, e.g., Chicago & North Western Trans. Co. v. Railway Labor Exec. Ass'n, 908 F.2d 144, 149 (7th Cir. 1990) (district court judgment that grants injunction and "refers the reader to the accompanying opinion" does not comport with Rule 65(d)); Seattle-First Nat'l Bank v. Manges, 900 F.2d 795, 799-800 (5th Cir. 1990) (district court grant of preliminary injunction that incorporated magistrate's findings and recommendation without further elaboration does not comport with Rule65(d)); Mitchell v. Seaboard System Railroad, 883 F.2d 451, 454 (6thCir. 1989) (reference in injunction to "the opinions expressed herein" does not comport with Rule 65(d)); Meltzer v. Bd. of Public Instruction of Orange County, Florida,480 F.2d 552, 554 (5th Cir. 1973) (reference in injunction to previous orders and opinions does not comport with Rule 65(d)); B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1269(5th Cir. 1971) (injunction's broad reference back to findings of fact to define its proscription insufficient to meet the specificity requirement of Rule 65(d)).

-23-

B. Even reference to the findings and conclusions contained in the body of the district court's "Order & Injunction" does not remove the Rule 65(d)problem. Nowhere in the body of the district court's "Order & Injunction" does the court specify what conduct is prohibited. Moreover, Park herself stated that "this litigation involve[s] generalized law enforcement roadblocks" (App. 90; Response to59(e) Motion at 2), and the district court concurred. See App. 79; Op. 21 ("the Court finds that the 1996 checkpoint was set up for the purpose of generally deterring criminal activity"); and App. 80; Op. 22 ("the checkpoint 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"). Consequently, as Park herself has acknowledged, no other checkpoints were at issue. Pursuant to Rule 65(d), therefore, the district court's injunction should have enjoined the Forest Service only as to that specific conduct. See, e.g., Calvin Klein, 824 F.2d at 669. But the injunction did not because it did not specify in any way what conduct it was prohibiting. Hence, the injunction violated Rule 65(d).

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C. Nor does the court's August 16 Order, denying the Forest Service's Rule 59(e) motion (App. 92), cure the deficiency. Although the district court stated that the injunction prohibited "the Forest Service [from] ever us[ing] a checkpoint, no matter its location, as an opportunity to 'generally deter criminal activity'" (App. 92; August16 Order at 2), the Court's order does not otherwise specify what acts are prohibited as Rule 65(d) requires. For example, the injunction still appears to enjoin the Forest Service from establishing checkpoints on National Forest System roads for purely informational purposes (such as to notify members of the public of extreme fire danger or of other risks to public health and safety) or for emergencies (such as the apprehension of potentially dangerous suspects or fugitives). As previously stated, such checkpoints were not at issue in this case and, therefore, should not have fallen within the scope of the injunction. See App. 90; Response to Rule 59(e) Motion at 2 (Park acknowledges that "this litigation involved generalized law enforcement roadblocks" and not "other types of checkpoints"). Yet, the August 16 Order did not limit the injunction to prohibiting

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general law enforcement checkpoints and thus left intact the Rule 65(d)deficiencies of the injunction. Nor did the August 16 Order clarify whether the injunction is a nationwide injunction or limited to the Mark Twain National Forest. Consequently, the August 16 Order still leaves the Forest Service in the position of facing contempt for establishing checkpoints anywhere in the National Forest System in connection to Rainbow Family gatherings, including informational and emergency checkpoints and properly conducted sobriety and driver's license checkpoints.

In sum, the district court's injunction does not comply with Rule 65(d) and, therefore, must be vacated.

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II. ASSUMING THE INJUNCTION WERE DEEMED TO COMPLYWITH RULE 65(d), FED. R. CIV. P., THE INJUNCTION MUST BE VACATED BECAUSE ITIS OVERBROAD.

Standard of Review. Whether the district court's injunction is overbroad is normally reviewed under an abuse of discretion standard. See, e.g., United States v. Articles of Drug, 825 F.2d 1238, 1248 (8thCir. 1987). However, a district court by definition abuses its discretion when it makes an error of law. See Koon v. United States, 518 U.S. 81, 100 (1996); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); Modern Computer Systems, Inc. v. Modern Banking Systems, Inc., 871 F2d 734, 737(8th Cir. 1989) (en banc).

-27-

A. The Injunction Is Overbroad Because It Enjoins Checkpoints That Are Constitutional.

1. The district court's injunction is based on two legal conclusions: one, that the Fourth Amendment prohibits general law enforcement checkpoints; and, two, that the Fourth Amendment prohibits checkpoints that target specific groups or events because such targeting undermines the neutrality of the checkpoint. As we stated previously (see n.7, supra), we do not dispute the first conclusion. However, the second conclusion simply does not comport with Fourth Amendment law.
Nothing in the Fourth Amendment requires law enforcement officials to locate checkpoints blindly, without reference to the problems to which the checkpoints are directed. Thus, under Fourth Amendment case law, the neutrality of a checkpoint has not been determined by its location but, rather, by the discretion - or, actually, the lack thereof - afforded agents at a checkpoint. Nor does the Forest Service use its checkpoint policy to target gatherings only because the Rainbow Family sponsors them. The 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.

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2. In Michigan Dep't of State Police v. Sitz, 496 U.S.444 (1990), the Supreme Court sustained the constitutionality of a sobriety checkpoint stop - in the absence of reasonable individualized suspicion or a warrant -because (1) prevention of drunken driving and insuring that motorists are properly licensed to drive (and that other related documentation is in order) are important governmental purposes, (2) the intrusion on the motoring public is minimal, and (3) the checkpoint was conducted in a neutral manner. See 496 U.S. at 450-455. See also Brouhard v. Lee, 125 F.3d at 659; United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10thCir. 1998). Sitz determined that the checkpoint had been operated in a neutral fashion because officers were required to "stop every approaching vehicle" (496U.S. at 453) and had no discretion to do otherwise. See also Brouhard v. Lee, 125 F.3d at 658

-29-

(constitutionality of checkpoint sustained where "[e]very car was to be stopped"); United States v. McFayden, 865 F.2d at 1309 (same, where "officers were told to stop every car in both directions"); United States v. Soto-Camacho, 58 F.3d 408, 411(9th Cir. 1995) (same, where "Border Patrol agent stops all vehicles").

Sitz also found neutrality buttressed by the fact that standardized procedures for establishing and conducting checkpoints had been employed. 496 U.S. at 447, 453. See also Brouhard v. Lee, 125 F.3d at 657, 660; and Shankle v. Texas City, 885 F. Supp. 996, 1004, 1005 (S.D. Tex. 1995). "The important point * ** is that the stops be made in some systematic fashion, prescribed in advance by superiors." United States v. McFayden, 865 F.2d at 1311(internal quotation marks and citation omitted).

-30-

That the neutrality of a checkpoint is determined by the lack of discretion afforded checkpoint officers, not the location of the checkpoint (as the district court erroneously ruled), is further buttressed by the fact that courts have routinely upheld the constitutionality of checkpoints that have targeted particular events, groups, or neighborhoods. For example, 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), upheld a checkpoint stop which targeted a discrete public gathering. In that case, law enforcement officials learned that members of two rival motorcycle gangs planned to engage in an armed confrontation at a charity motorcycle rally held for the benefit of the American Red Cross at the Spartanburg, South Carolina, fairgrounds. 143F.3d at 845. A checkpoint was established at an entrance to the fairgrounds where only persons entering the fairgrounds on motorcycles were stopped, had their licenses examined, were videotaped, and some had their saddlebags and unworn clothing searched for weapons. Id. at 846. Under the Sitz balancing analysis, "the initial stop for brief questioning and observation was 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. The gravity of the public interest in Spartanburg -i.e., the prevention of an expected armed confrontation at a charity event - far outweighed the brief intrusion on the attendees' privacy rights.

Moreover, in Martinez-Fuerte, the Supreme Court, in an immigration enforcement context, upheld a checkpoint targeted specifically to intercept persons of Mexican ancestry.428 U.S. at 553. The Court noted:

the choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol. * * * We think the decision to locate a checkpoint at San Clemente was reasonable. The location meets the criteria prescribed by the Border Patrol to assure effectiveness * * *, and the evidence supports the view that the needs of law enforcement are furthered by this location.

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Martinez-Fuerte, 428 U.S. at 562n.15 (citation omitted); see also id. at 559n.13 ("[t]he choice of checkpoint locations must be left largely to the discretion of Border Patrol officials").

Further, courts have upheld checkpoints against Fourth Amendment challenges when the checkpoints were established in connection with particular neighborhoods, United States v. McFayden, 865 F.2d at 1310-1312 (vehicle inspection checkpoint properly targeted at neighborhood where drug sales created traffic congestion), and Maxwell v. City of New York, 102 F.3d 664, 668 (2d Cir. 1996) (similar); and in connection with particular locations or events, United States v. Zeigler, 831 F. Supp. 771 (N.D. Cal. 1993) (Army Reserve base),North Dakota v. Everson, 474 N.W.2d 695 (N.D. 1991) (a motorcycle rally); and State v. Swift, 207 S.E.2d 459 (Ga. 1974) (a rock concert).

3. Nor does the Forest Service erect checkpoints to target gatherings only when the Rainbow Family is the sponsor of the gathering. On the contrary, the record demonstrates that, while the Forest Service inter alia does target large group gatherings for checkpoints, it does so 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. See App. 48(Thorsen Declaration ¦ 7).

-32-

The 1998 Policy (App. 52-58), moreover, reinforces this point. The Policy specifies that only neutral factors (that comport with Fourth Amendment case law) may be considered in determining whether a checkpoint should be established in the National Forest System. See discussion, supra, at pp. 7-9;and App. 52 (Policy ¦ 360)). It is not surprising, therefore, that large group gatherings, such as those of the Rainbow Family, will cause the Forest Service to consider and, therefore, often erect checkpoints given that large groups have an obvious impact on National Forest resources and also raise obvious public safety concerns - two primary interests of the Forest Service in its superintendence of the National Forest System. See App. 47; Thorsen Declaration ¦ 5 (Rainbow Family gatherings "rang[e] in size from between 15,000 and 25,000 attendees" at national gatherings and "attract up to 5,000 persons" at regional gatherings). But, the fact that a checkpoint is erected in connection with a Rainbow Family gathering is not because the Rainbow Family sponsors the gathering but rather because the gathering - which happens to be a Rainbow Family event -affects important interests "relate[d] to the Forest Service's mission"(App. 52; Policy ¦ 360(1)). And, the record supports this point.

In sum, the district court's conclusion that the "targeting" of a Rainbow Family gathering was per se unconstitutional is incorrect. As a result, the district court's injunction, enjoining all checkpoints in connection with Rainbow Family gatherings, is per se an abuse of discretion, Koon v. United States, 518 U.S. at 100, and must be vacated at least to that extent.

-33-


B. The District Court Also Erred In Issuing A Nationwide Injunction With Respect To Its Holding That The 1996 Checkpoint Was An Unconstitutional General Law Enforcement Checkpoint.

As the discussion in Point II(A) demonstrates, the district court erred in ruling that a checkpoint that targets a specific group or event is per se unconstitutional. Once that error is uncovered, it 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 (see n.7, supra). And, with respect to that ruling, Park did not need a nationwide injunction to obtain complete relief.

1. Ordinarily, it is inappropriate to issue a nationwide injunction at the behest of a single plaintiff. See, e.g., United States Dep't of Defense v. Meinhold, 510 U.S. 393 (1993) (stay of nationwide injunction granted incase where single individual sued solely on his own behalf) ; Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (it is a fundamental principle that an injunction "should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs"); and Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) ("a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation") (internal quotation marks omitted). In the instant case, Park contended that she has attended, and plans to attend in the

-34-

future, annual and regional Rainbow Family gatherings across the country. See, e.g., App. 14, 22-23(Complaint ¦¦ 5, 17). That contention, however, is not enough to have warranted nationwide relief. A nationwide injunction might have been appropriate if the district court had found some indication that the Forest Service had employed general law enforcement checkpoints nationwide or that it planned to implement such checkpoints in the future. See, e.g., Califano v. Yamasaki, 442 U.S. at 702("the scope of injunctive relief is dictated by the extent of the violation"); and Dayton Bd. of Educ. v. Brinkman, supra, 433 U.S. at 420. But the district court did not so find. Its only finding was with respect to the 1996 checkpoint in the Mark Twain National Forest.

Moreover, in light of the 1998 Policy (App. 50-58), the district court could not have found a likelihood that the Forest Service would establish general law enforcement checkpoints in the future. As previously discussed(at pp. 7-9, supra), the 1998 Policy does not allow a checkpoint to be established unless local Forest Service personnel seeking to conduct a checkpoint first submit a written request "along with a checkpoint plan" for approval by a supervisory official. App. 53; Policy 362.1(1). The plan submitted by the requester "must address" (1) the reasons for establishing the checkpoint, (2) the location, (3) the approximate time and duration, (4) the personnel to be assigned, (5) in the case of a "compliance checkpoint"- for example, a sobriety or driver's license checkpoint -the specific inquiries or demands that will be made of the driver and/or occupants, and (6) in the case of a informational checkpoint, the information to be provided. App. 53; Policy ¦ 362.1(1)(a)-(f). Moreover, the checkpoint cannot be established unless and until written approval is provided by the supervisory official. App.54; Policy ¦ 362.1(6). Furthermore, with respect to an initial stop, the approval must specify the specific inquiries or demands that are to be made of the driver and/or occupants of the vehicle in a compliance checkpoint and the information to be provided at an informational checkpoint. App. 54; Policy ¦ 362.1(6)(a)-(b). The Policy also specifies when a secondary stop may be made and the extent to which checkpoint officers may require the driver and/or occupants to exit the vehicle. App. 55-56; Policy ¦¦ 10-11. Thus, 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.
2. A nationwide injunction might also have been appropriate had Park been able to prove that the Forest Service erects checkpoints to target gatherings only when the Rainbow Family is the sponsor of the gathering. But such proof is not possible, as we demonstrated, supra, at pp. 33-34.

In sum, the district court did not find that the Forest Service had been employing general law enforcement checkpoints nationally, and in light of the 1998 Policy, the court could not have found that such checkpoints would be employed in the future. Moreover, the district court did not find, and could not have found, that the Forest Service's checkpoint policy targets gatherings solely because the Rainbow Family sponsors them. Accordingly, a nationwide injunction was an abuse of discretion and must be vacated.

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III. ULTIMATELY, PARK LACKED STANDING TO SEEK INJUNCTIVE RELIEF WITH RESPECT TO GENERAL LAW ENFORCEMENT CHECKPOINTS.

Standard of Review. Whether an individual has standing to seek injunctive relief is a matter of law and, therefore, is reviewed de novo. See City of Los Angeles v. Lyons, 461 U.S. 95(1983); Brouhard v. Lee, 125 F.3d at 661.

A. Ultimately, as we have now demonstrated, only the district court's holding that the 1996 checkpoint was unconstitutional as a general law enforcement checkpoint remains. However, in order to have standing to seek injunctive relief with respect to such a checkpoint, Park was required to demonstrate either a continuing harm from such checkpoints or the likelihood that the Forest Service would establish such checkpoints in the future. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983). She did neither.

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B. In Lyons, the Court stated that "'[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief * * *if unaccompanied by any continuing, present adverse effects.'" 461 U.S. at102 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-496 (1974)). The Court emphasized that "Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury [from the same conduct]" (461 U.S. at 105), and determined that Lyons had not demonstrated that he would likely suffer such future injury. Hence, the Court held, Lyons had no standing to seek injunctive relief because his claim "that he will again experience injury as the result of [the challenged] practice" was "speculative" (461 U.S. at 109). See also 461 U.S. at 111 (Lyons "[wa]s no more entitled to an injunction than any other citizen"). See also United Transp. Union v. State Bar, 401 U.S. 576, 584 (1971) ("[a]n injunction can issue only after the plaintiff has established that the conduct sought to be enjoined is illegal and that the defendant, if not enjoined, will engage in such conduct"); Bowen v. Kendrick, 487 U.S. 589, 621 (1988) (despite incidents of impermissible conduct in the past, on remand lower court must direct its inquiry to "the manner in which the statute is presently being administered"); Meis v. Gunter, 906 F.2d 364, 367 (8th Cir. 1990)

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(in the absence of present or continuing harm to inmate or definitive showing that future harm is imminent, claims for injunctive relief do not raise a justiciable issue and may only be raised in the future when the harm is threatened or imminent); United States v. Articles of Drug, 825 F.2d at 1248 ("[a] district court may issue an injunction if it concludes that the injunction is necessary to prevent future violations"); ibid. ("future violations" must be "likely to occur" (citation omitted)). See also Brouhard v. Lee, 125 F.3d at 661 (motorists had no standing to complain of certain conduct in their

challenge to constitutionality of a sobriety checkpoint because motorists had not themselves been the victims of that conduct).

Shankle v. Texas City, 885 F. Supp. 996(S.D. Tex. 1995), is also instructive. In Shankle, the district court determined that a checkpoint established for general law enforcement purposes was unconstitutional.885 F. Supp. at 1002-1005. Nevertheless, the district court held that it would enter only declaratory relief, not injunctive relief, because there was "no immediate indication that further identical roadblocks are planned by Defendants, and in light of this ruling, the Court would candidly expect no more." 885 F. Supp. at1005.

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As in Shankle, there was no reason for the district court here to believe - especially given its ruling -that the Forest Service would establish general law enforcement checkpoints in the future. In addition, once the 1998 Policy was promulgated, it was absolutely clear that the Forest Service would not establish such checkpoints in the future. In this connection, the Forest Service is entitled to the presumption that its checkpoints will conform to the 1998 Policy. See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415(1971). Therefore, in the absence of the likelihood of future harm, Park lacked standing to seek injunctive relief. (She had standing to seek only declaratory relief with respect to the 1996 checkpoint at issue.)As a result, the district court lacked subject matter jurisdiction to grant injunctive relief, and the injunction should be vacated. 7/
___________________________________

7/ "To sustain * * *jurisdiction * * * it is not enough that a dispute was very much alive when suit was filed * * *." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)."Th[e] case-or-controversy requirement [imposed by Article III] subsists through all stages of federal judicial proceedings, trial and appellate." Ibid. Thus, even if a plaintiff has standing at the time she files her complaint, at every successive stage she "must continue to have a 'personal stake in the outcome' of the lawsuit" in order to have standing to proceed with the litigation. Id. at 478 (quoting City of Los Angeles v. Lyons, 461 U.S. at 101). See also Beck v. Missouri State High Sch. Activities Ass'n, 18F.3d 604, 605 (8th Cir. 1994).

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CONCLUSION

For the foregoing reasons, the district court's injunction should be vacated.

Respectfully submitted,

DAVID W. OGDEN
Acting Assistant Attorney General

STEPHEN L. HILL, Jr.
United States Attorney

MICHAEL JAY SINGER
(202) 514-5432
HOWARD S. SCHER
(202) 514-4814
Attorneys, Appellate Staff
Civil Division, Room9116
Department of Justice
601 D Street, N.W.
Washington, D.C.20530-0001

NOVEMBER 1999

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of November, I served the foregoing Brief for the Appellant (plus diskette) and the accompanying Appellant's Appendix by causing two copies of the Brief and one copy of the Appendix to be sent by Federal Express, for overnight deliv-ery, to:

Steven Douglas Bonney
215 West 18th Street
Kansas City, Missouri 64108

Fred L. Slough
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, Missouri 64111
Attorneys for Plaintiff-Appellee

Andrea Spillars
Assistant Attorney General
514 East High St.
Jefferson City, Missouri 65101
Attorney for Defendant Weldon Wilhoit

Ray Lee Caskey
Oregon County Prosecuting Attorney
South Side Court Square
Oregon County, Room 10
Alton, Missouri 65606
Attorney for Defendant Oregon County

I also certify that I filed the Brief and Appendix by causing an original and ten copies of the Brief (plus diskette) and three copies of the Appendix to be sent by Federal Express, for overnight delivery, to the Clerk, United States Court of Appeals for the Eighth Circuit.

_____________________________________
HOWARD S. SCHER
Attorney for the Appellants


CERTIFICATE OF COMPLIANCE

I certify that this brief is proportionately spaced, using CG Times font, 14 point type. Based on a word count under Corel WordPerfect 7, this brief contains 10,565 words, including the cover, the caption, the summary of the case, certificate of compliance, and certificate of service.
I also certify that the computer diskette that I am providing has been scanned for viruses under McAfee VirusScan, version3.1.0, and has been found to be virus-free.

_____________________________________
HOWARD S. SCHER
Attorney for the Appellant

 

 

 

 

 

 

 

 

ADDENDUM

 

 

Table of Contents

Judgment (June 11, 1999) 1A

Order & Injunction (June 11, 1999) 2A

Order denying Rule 59(e) motion (August 16, 1999) 27A

Forest Service Handbook, National Policy for Checkpoints,
Amendment No. 5309.11-98-2 (effective September 30, 1998) 30A