UNITED STATES OF AMERICA v. WILLIAM BAXTER NO. 96-29 ME JOSEPH T. MacCRIMMON NO. 96-30 ME
Proceedings held before the HONORABLE
SUSAN PARADISE BAXTER, U.S. Magistrate
Judge, in Courtroom B. U.S. Courthouse,
Erie, Pennsylvania, on Wednesday,
APPEARANCES
JOHN J. TRUCILLA, Assistant United States
Attorney, appearing on behalf of the GovernmentKHADIJA DIGGS, Assistant Federal Public Defender appearing on behalf of William Baxter.
STEPHEN MISKO, Esquire, appearing on behalf of Joseph MacCrimmon.
Ronald J. Bench, RMR - Official Court Reporter
were taking place, including on the 29th, the date of the citation. Whether they be simply discussions among other members, having the main circle, having a full drum circle, having council, these activities were going on at this National Forest Rainbow meeting. In fact, this was designated as a northeast or New England Rainbow Family.
referred to the fact that national would be mad at him if he did sign. I'm calling upon the court's recollection. There was references to the national gatherings, again, the regional gatherings.
circle. There's council. All right. This suggests to you, forget what is being said, it's the substance of it that dictates. You know, it's the old adage, your Honor, if it walks like a duck, talks like a duck, you can call it a camel, but it's a duck. You can call it whatever you want, whatever you feel it's convenient to do, in this particular case it was convenient for MacCrimmon and Baxter to say, look, we're not signing the permit, we don't want to sign it, we are individuals, we are not part of a group. But that flies in the face of the facts that I've just demonstrated to you.
for a citation. All right. Pursuant to the policy of the training tape, which again has been emphasized and will be emphasized in the argument, this training tape provides policy, provides a guidance for the law enforcement personnel to follow. And, in fact, Officer Burd testified in substance this was complied with. Okay. He recognized he may not have called the local District Attorney's office. Or he testified he didn't handcuff anybody or arrest anybody.
said she never met him before, she didn't know who he was, she didn't know anything about Bill Baxter or this Rainbow meeting until he provided her with the information. And the information was that there was going to be a Rainbow meeting, not a tree meeting, not a bus meeting, not a car meeting, not a building meeting, a Rainbow meeting. Okay. And he informed her that this meeting was going to take place on approximately August 24th and run through September 3rd. And he designated to her the approximate number of people he anticipated. And he referenced other matters.
Bill Baxter, as Bill Baxter's voice.
throughout the course of this particular gathering. Yes, the law enforcement personnel, specifically forest personnel, went and found MacCrimmon and Baxter on various occasions. I won't go through each specific date, but at least it occurred on the 24th and went through the 29th of August, 1996. And those contacts dealt with the subject matter of the special use permit.
MacCrimmon and Baxter, they had knowledge of its requirements, they simply refused to sign it. For whatever reason, they didn't sign it. They did not comply with the language of 261.1 (j), now (k).
Crippa to ask these two individuals out of the main gathering site. He was aware, as even corroborated by Mr. MacCrimmon, that there were members in the group that just didn't like the presence of officers carrying guns. He was sensitive to that, in fact, he never went into the gathering site. He chose to do it this way to cause the least amount of hostility and disturbance. In the least restrictive way. He could have sought a temporary restraining order on the civil end, your Honor, he could have summoned the state police, went in and executed massive arrests, he chose to pursue it this way. And call upon his discretion, of which he is entitled to as a law enforcement officer.
Constitutional argument at this time, I would ask some direction from the court?
and inference, based not only on their previous knowledge, but their discussions, they arguably were talking about this particular regulation with personnel. That they were understanding of the requirements and that noncompliance would result in citation. Whether it was them or anyone else.
16
and MacCrimmon to comply, they simply chose not to, that is a violation and that is why we're here.
convenient when the government wants to use a video, it's also convenient when they don't comply with the criteria of the video to go back to the C.F.R. and say leadership is not required, the C.F.R. just says you have to be a participant.
were singled out within the first 10 to 15 minutes. Mr. MacCrimmon is a nice guy, he's a cooperative guy, you heard his testimony, the reason he came forward is because there was somebody who had a short fuse and he figured I can save the Forest Service personnel from any embarrassment or entanglement with this person if I come forward and ask them what they want. At that point he was designated a leader from then on. You heard the testimony, they sought him out every time he was down at the camp, he had a bad hip, he was there, he wasn't going back. He was there, they sought him out.
he was personally responsible because he responded to a memo, because he was a cooperative individual, is wrong. In fact, the memo further supports the fact that it wasn't his decision. Take it under consideration by our council process, this matter is on their mind in our council's.
never went into the campsite. He counted some cars and figured there was an average of three people per car. He never went in and observed what Mr. MacCrimmon was doing at the campsite. He never observed what Mr. Baxter was doing at the campsite, he had no idea what these people were doing. His assessment was based on August 22nd when there were less than 75 people, when these two gentlemen were courteous enough to come forward and talk to him. I have a real problem with that because he did not do a thorough investigation. Had he done a thorough investigation, we may have had a different result. If in fact there were other people that came on August 29th, came to the officer on August 29th and asked to be cited, he said I didn't really know what their role or function was or something to that effect, I'll rely on the court's memory in that regard.
disadvantage, they don't have this C.F.R. to look at, well, we had 75 or more people, we got to get a special use permit and so on and so forth. They don't have the same ability to go in and see this training video that the law enforcement people are exposed to. If they had an opportunity, if there had been some type of public notice as to this video, maybe this would change the circumstances in that regard, but there wasn't. Because the C.F.R. is vague, it doesn't address this issue, that's why we have to rely on the video itself.
freedom. Mr. MacCrimmon and Mr. Baxter feel that they don't have to seek a permit to go and be able to express their religious beliefs or speak on whatever topics they want to speak to or assemble with other people they want to assemble with. There's no difference than if 100 people, strangers walked into the park and Forest Service personnel comes up to them and goes this is a group, there are 75 people, you got to get yourself a permit. Mr. MacCrimmon said that he had no idea who was going to show up at these gatherings. These people show up and, of course, we have this gap filler of a video, we got designated leader, go to people like these two, we select them, we cite them, we say from now on you guys better sign these applications, you better sign these permits. Because if you don't, we're going to cite you, we're going to arrest you if you don't disperse, we can do that if we want to. Mr. MacCrimmon objects, Mr. Baxter objects that they have to go through the process, they have gone on public lands of the United States and have to seek a permit to be able to express their religious views, the right to assemble and do anything they want to do, it's not proper.
And it's just an arbitrary, capricious, unilateral actions by the United States Forest Service to --
information to contact this person for directions does not create a level of responsibility for the information being there beyond being attributable to that person. There hasn't even been any information presented that Bill Baxter in fact caused that information to be on the Internet.
clear in the testimony that the exhibit presented as 6A, I believe, the internal operating site plan was something that this gathering had in fact adhered to.
make this regulation effect Rainbow gatherings and that's why we're here. We're not here because the government is concerned about maintaining the integrity of the National Public land. Because it was clear that that was done.
of leader or organizer. Wasn't merely the subjective interpretation of Burd, it was subjective interpretation based on objective criteria. Objective criteria were not only the newspaper article where Baxter was quoted, it was the Web site page where it was advertised. Baxter's legal knowledge of the permit requirement and its elements. It was MacCrimmon's coming forward and saying may I help. It was MacCrimmon's access to his legal file and his demonstration of his legal requirements of the particular aspects of this noncommercial group use. It was MacCrimmon's response to Schultz memo. These were the objective criteria Burd could go on. He was in contact with officers that provided him that information and he had an objective basis to determine that at the very least in his interpretation they were leaders or organizers. But at the very least they met the statute because they were spectators or participants. It's encompassed within that concept, your Honor. And he testified, yes, he could have cited others and I submit he took the least restrictive way of enforcement based on his testimony that he said he wanted them to come out. He didn't summon the state troopers or the National Guard or make this civil disturbance of any kind and that logistically he only cited the two based on those reasons. And safety of others, that was within his discretion. So, yes, he certainly could have cited others. And he didn't.
the North Carolina case. And the particular caption of that case, your Honor, Johnson is the lead defendant, the caption bears U.S. v. Johnson, et al. Your Honor, in that case, June, 1996, agents of the United States Forest Service observed a gathering in a camp area in the National Forest, they counted 79 persons and on that same date they cited these four. And in that particular case, and that was upheld by the magistrate judge, your Honor.
Rainbow Web site. They call their gathering the Rainbow gathering. They don't use the name Christian. Did you ever hear it in the testimony in the case as you sat here. The answer is no. Only in argument by Attorney Misko did you have the similarity made between Rainbow and using another name. I suggest to you that based on my argument, your Honor, as they use the Rainbow name, it suggests an organization or a group. And I used the examples, they don't call them as a wall group or bus group, they pick Rainbow as their name. And they have acronyms that apply to it. It was Northeast Rainbow Family meeting. Bill Baxter identified himself to Ellen Kranick as a member of the Rainbow group. So there was an objective set of facts to lead the officers, in particular Burd, to issue a citation for this group.
advanced language pursue to the language of organizer or archeological dig, they could harm it.
you can't meet and take an oath of Boy Scouting, go over here and take it.
of them who did not obtain the permit required, violated the regulation.
(Signed) 8-24-99
Ronald J. Bench Date