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 PLAINTIFF-APPELLEE
__________________________

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

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

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

Rules

Rule 65(d), Fed. R. Civ.P. --- pgs. 4, 8-12, 15

Regulations

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. Id.

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.

ARGUMENT

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.

"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).

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 gathering.

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 Unconstitutional.

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).

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.

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). 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).

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 analysis.

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 rights.

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 evidence 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, 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 intent.

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.

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"). 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). 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 wide 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.

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. 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 It Overbroad.

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. 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.


CONCLUSION

For these reasons, the district court's Order and Injunction should be affirmed.

Respectfully submitted,

_________(signed)___________
Stephen Douglas Bonney
215 West 18th Street
Kansas City, Missouri 64108
Tel. (816) 221-2868
Fax (816) 421-0255

and

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

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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.