STEPHEN DOUGLAS BONNEY
215 West 18th Street
Kansas City, MO 64108
(816) 221-2868
FRED SLOUGH
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, MO 64111
(816) 531-2224
Attorneys for Plaintiff-Appellee
STATEMENT OF ADDITIONAL FACTS --- pg. 1
SUMMARY OF ARGUMENT --- pg. 4
ARGUMENT --- pg. 8
I. THE DISTRICT COURT'S INJUNCTION COMPLIED WITH RULE 65(D), FED. R. CIV. P. --- pg. 8
A. The June 11, 1999 Order and Injunction. --- pg. 8
B. The August 16, 1999 Order. --- pg. 13
C. Possible Modification of the Injunction. --- pg. 15
II. THE INJUNCTION IS NOT OVERBROAD. --- pg. 17
A. The Checkpoints Enjoined by the District Court are Unconstitutional. --- pg. 17
B. The Injunction's Nationwide Scope Does Not Make It Overbroad. --- pg. 31
III. PARK HAS STANDING. --- pg. 35
CONCLUSION --- pg. 36
CASES: PAGE
Atlantic Richfield Co. v.Oil, Chem. & Atomic Workers Int'l
Union,
447 F.2d 945 (7th Cir. 1971) --- pg. 33
B.H. Bunn Co.v. AAA Replacement Parts Co., 451 F.2d 1254
(5th Cir. 1971) --- pg. 10
Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302
(1949) --- pg. 23
Brouhard v. Lee, 125 F.3d 656 (8th Cir. 1997) --- pg. 18
Calvin Klein Cosmetics v. Parfums de Coeur, Ltd., 824 F.2d
665 (8th Cir. 1987) --- pgs. 9,11-12
Chicago & N.W. Transportation Co. v. Ry. Labor Executives
Ass'n,
908 F.2d 144 (7th Cir. 1990) --- pg. 10
City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660
(1983) --- pg. 36
Daniels v. Woodbury County, 742 F.2d 1128 (8th Cir. 1984)
--- pg. 15
Drywall Tapers, Local 1974 v. Local 530, Operative Plasterers,
889 F.2d 389(2nd Cir. 1989), cert. denied, 494 U.S. 1030 (1990)
--- pg. 9
First Fed. Sav. & Loan of Council Bluffs v. First Fed.
Sav. & Loan of Lincoln, 929 F.2d 382 (8th Cir.1991) ---
pg. 33
FonarCorp. v. Deccaid Services, Inc., 983 F.2d 427 (2nd
Cir. 1993) --- pg. 11
Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804 (1959) ---
pg. 23
Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587 (1944)
--- pg. 15
Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996),
cert. denied sub nom., Maxwell v. Bratton, 522 U.S. 813
(1997) --- pgs. 27, 28
Metzler v. Bd. of Public Instruction, 480 F.2d 552 (5th
Cir. 1973) --- pg. 11
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110
S.Ct. 2481 (1990) passim
Mitchell v. Seaboard System R.R., 883 F.2d 451 (6th Cir. 1989)
--- pg. 11, 15
Norwood v.Bain, 143 F.3d 843 (4th Cir. 1998), aff'd, 166 F.3d
243 (4th Cir.) (en banc) (per curiam), cert.
denied, 119 S.Ct. 2342 (1999) --- pgs. 19, 26-27, 29
Seattle-First Nat'l Bank v. Manges, 900 F.2d 795(5th Cir.
1990) --- pg. 11
Schmidt v. Lessard, 414 U.S. 473 (1974) --- pg. 12
Shankle v. Texas City, 885 F. Supp. 996 (S.D. Tex. 1995)
--- pg. 28
x5040 Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506 (1965)
--- pg. 25
Stark v. Perpich, 590 F. Supp. 1057 (D. Minn. 1984) ---
pg. 22
State v. Everson, 474 N.W.2d 695 (N.D. 1991) --- pgs. 22,28
State v. Swift, 207 S.E.2d 459 (Ga. 1974) --- pg. 29
x5040 United States v. Apker, 705 F.2d 293 (8th Cir.),modified
in part on other grounds sub nom, United States v. Fitzgerald,
724 F.2d 633 (8th Cir. 1983) (en banc), cert. denied,
466 U.S. 950 (1984) .--- pg. 25
United States v. Articles of Drug, 825 F.2d 1238(8th Cir.
1987) --- pgs. 11-12, 17
United States v. Kaun, 827 F.2d 1144 (7th Cir. 1987) ---
pg. 17
United States v. Martinez-Fuerte, 428 U.S.543, 96 S.Ct.
3074 (1976) --- pgs. 18, 21
United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989)
--- pgs. 21, 27,28
x5040 United States v. United States District Court, 407
U.S. 297, 317, 92 S.Ct. 2125, 2136-37 (1972) --- pgs. 24, 25
x5040 United States v. W.T. Grant Co., 345 U.S. 629, 73
S.Ct. 894 (1953) --- pg. 33
United States v.. Ziegler, 831 F. Supp. 771 (N.D. Cal.
1995) --- pgs. 22, 28
Wabun-Inini v. Sessions, 900 F.2d 1234 (8th Cir. 1990)
--- pgs. 25
Washington v. Central Contractors Ass'n, 453 F.2d 383 (9th
Cir.1971) --- pgs. 15
Rule 65(d), Fed. R. Civ.P. --- pgs. 4, 8-12, 15
60 Fed. Reg. 45258(Aug. 30, 1995) --- pgs. 20, 32
Appellant's App. at 92; Aug. 16 Order at 2 (emphasis in original).
Respectfully submitted,
_________(signed)___________
Stephen Douglas Bonney
215 West 18th Street
Kansas City, Missouri 64108
Tel. (816) 221-2868
Fax (816) 421-0255and
Fred L. Slough, Esq.
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, MO 64111
Tel. 531-2224
Fax: 531-2147
ATTORNEYS FOR PLAINTIFF
200
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)
Andrea Spillars
Assistant Attorney General
P.O. Box 899
Jefferson City, MO 65102
Atty. for Defendant Weldon Wilhoit
(By regular U.S. mail, postage prepaid)
Ray Lee Caskey
Oregon County Prosecuting Attorney
South Side Court Square
P.O. Box 278
Alton, MO 65606
Attorney for Defendant Oregon County, Missouri
(By regular U.S. mail, postage prepaid)
200
200 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.
480 _________________________
Stephen Douglas Bonney
Attorney for Appellee
CERTIFICATE OF COMPLIANCE
I certify that this brief was created using Lotus WordPro Release
9 and that it is proportionately spaced using Times New Roman
font, 14 point type. Based on a word count, this brief contains
8787 words, including all headings,footnotes, and quotations,
but excluding the cover, table of contents, table of authorities,
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, version 3.1.0,
and has been found to be virus- free.
______________________________
Stephen Douglas Bonney
FOOTNOTES
1/ Appellee disagrees with Appellant regarding whether
informational checkpoints were at issue in this case and whether
such checkpoints are constitutional when targeted at Rainbow Family
gatherings. Although Appellee will treat the constitutionality
of such roadblocks and the propriety of the court's injunction
against them in Point II, informational checkpoints were at issue
during the proceedings before the district court. Although often
cited in the Forest Service's opening brief (e.g., Appellant's
Brief at 20, 26), the contrary statement in Plaintiff's Suggestions
in Response to Defendant Forest Service's Motion to Alter or Amend
Judgment (Appellant's App. at 89-90) was simply erroneous.Specifically,
in the Order and Injunction issued on June 11, 1999, the district
court found that "[t]he Forest Service also maintains that
the checkpoint was used as an informational tool: an opportunity
to tell the entering Rainbow Family members about the restrictions
on fireworks and nudity, where to park their vehicles, as well
as to answer any questions attendees might have."Appellant's
App. at 72a, Op. at 14. The district court ultimately found that
the Forest Service's asserted purposes for the 1996 checkpoint
were a subterfuge for harassing attendees of the Rainbow Family
gathering. Appellant's App. at 80, Op. at 22.
2/ Contrary to the Forest Service's claims, this case is
not only about "generalized law enforcement checkpoints."
The case is about checkpoints targeted at a particular group of
people using a public forum for First Amendment activities. The
case also presents sub-issues of whether particular rationales
advanced by the government, such as sobriety, license, and generalized
law enforcement checks, justify such targeted checkpoints or roadblocks.
200 3/ The district court found that the Forest Service
could have achieved its asserted traffic safety goals through
"less intrusive means." Appellant's App. at 79, Op.
at 21. "[T]he availability of such alternatives is relevant
to the reasonableness of the government agents' failure to pursue
them, hence to the reasonableness of the search or seizure conducted."
Norwood v. Bain, 143 F.3d 843, 854 n. 8 (4th Cir. 1998),
aff'd, 166 F.3d 243 (4th Cir.) (en banc) (per curiam), cert. denied,
119 S.Ct. 2342(1999).
4/ The Forest Service also argues that "[t]he result
of this error is that the district court's injunction is an abuse
of discretion because it enjoins too much conduct, i.e., checkpoints
that are constitutional." Appellant's Brief at 28-29. But
the government focuses its argument exclusively on the issue of
whether targeting the Rainbow Family gatherings makes roadblocks
unconstitutional. The district court's order is not so limited.
Although targeting was certainly the primary focus of the district
court's ruling, the court also found that sobriety and document
checkpoints set up very close to the gatherings fail the first
two prongs of Sitz. See Appellant's App. at 72-82, Op. at 13-24.
Because the district court was correct in holding sobriety and
document checkpoints are unnecessary and ineffective when established
in connection with Rainbow Family gatherings, the injunction against
those types of roadblocks was warranted regardless of the merits
of the targeting issue.
5/ Although in the first instance "[t]he choice of checkpoint location is an administrative decision that must be left largely within the discretion of the [government]," United States v. Martinez-Fuerte, 428 U.S. 543, 553, 96 S.Ct. 3074, 3081 (1976), it is an abuse of discretion to target a specific group, especially one exercising First Amendment rights.Where the government has so abused its discretion in the past, it is not entitled to deference in the future, and the courts may enter injunctions required to avoid future similar abuses of discretion.
6/ In United States v. Ziegler, the court specifically mentioned that nothing in the record suggested that "the time or location of the checkpoint was inappropriate or that the checkpoint was otherwise unsafe to motorists." 831 F. Supp. 771, 775 (N.D.Cal. 1993).
7/ Although the stops at the 1996 checkpoint may have been relatively brief, the objective intrusion was great because of the extent of the government's probing (i.e., sobriety questions, document checks, surveillance of the interior of the car by an officer on the passenger side, questioning of passengers, and vehicle equipment checks). The fact that the nature of the checkpoint queries changed over time also heightened the objective intrusion. Furthermore, the excessive duration of this checkpoint, lasting for two weeks and running most of the day and into the wee hours of the morning, also shows that the checkpoint was too objectively intrusive to pass constitutional muster.
8/ In other cases that "reflect a convergence of First and Fourth amendment values," United States v. United States Dist. Court, 407 U.S. 297,313, 92 S.Ct. 2125, 2135 (1972), the Supreme Court has typically insisted upon strict adherence to the Fourth Amendment's dictates. In Stanford v. Texas, for instance, the Court held that "the constitutional requirement that warrants must particularly describe the 'things to be seized' is to be accorded the most scrupulous exactitude when the 'things' are books, and the basis for the seizure is the ideas which they contain." 379 U.S. 476, 485, 85 S.Ct. 506, 511-12 (1965). Although the scrupulous exactitude standard may not apply to seizures involving other First Amendment interests, compare United States v.Apker, 705 F.2d 293, 301 (8th Cir.) (standard applies), modified in part on other grounds sub nom, United States v.Fitzgerald, 724 F.2d 633 (8th Cir. 1983) (en banc), cert. denied, 466 U.S. 950 (1984) with Wabun-Inini v. Sessions, 900 F.2d 1234 (8th Cir. 1990) (standard inapplicable), the intent of that doctrine should be applied by analogy here. Thus, where a roadblock case involves a clear convergence of First and Fourth amendment values, the government should be held to a higher standard than applies to ordinary roadblock cases not involving such a convergence of rights. Specifically, the warrant requirement should apply to roadblocks targeted at Rainbow Family gatherings. "The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power." United States v. United States Dist. Court, 407 U.S. at 313, 92 S.Ct. at 2135.
9/ The district court's finding in Norwood was erroneous because a vague anonymous tip based on multiple hearsay does not satisfy the requirements of Sitz. Absent plaintiff's concession, the Fourth Circuit might have found that this checkpoint failed to satisfy the first prong of Sitz. See Norwood v. Bain, 143 F.3d at 849, n.3.
10/ The holdings of these cases are questionable. See Shankle v. Texas City, 885 F. Supp. 996, 1003-1005 (S.D. Tex. 1995) (roadblock targeting primarily minority neighborhood violated First, Fourth, Fifth, and Fourteenth Amendment rights of persons seized). In McFayden, the D.C. Circuit never adequately explained how a license checkpoint can effectively cure the targeted ill of traffic congestion. If anything, logic would suggest a checkpoint would worsen the problem. In Maxwell, furthermore, in addition to the problems noted by Judge Oakes in dissent,the Second Circuit distorted the Sitz analysis by weighing the factors from the subjective viewpoint of the police: "the checkpoints were reasonably viewed as an effective mechanism" and "the intended level of intrusion was minimal." 102 F.3d at 667 (emphasis added).
11/ In United States v. Ziegler, the court addressed only "whether a search at a sobriety checkpoint violates the fourth amendment to the United States Constitution if motorists are not given advance publicity of the checkpoint." 831 F. Supp.at 772.
12/ Although the plaintiff in Norwood raised a First Amendment claim, he did not appeal the district court's unreported adverse ruling on that issue. 143 F.3d at 847, n. 2.
13/ Other factors indicating that the Forest Service has improper motives for targeting roadblocks at Rainbow Family gatherings include: (1) the fact that the Forest Service offered to remove the 1996 roadblock if attendees would sign a group use permit application; (2) the vagueness of the safety and natural resource concerns that allegedly necessitate the roadblocks; and (3) the long history of contentious relations between the Rainbow Family and Forest Service law enforcement. See Appellee's App. at 2.
14/ Although the Forest Service has allegedly renounced general law enforcement checkpoints, it has never said it would not use sobriety and document checks in connection with Rainbow Family gatherings.