Case No. 97-2049M
MOTIONS TO DISMISS
BRIAN MICHAELS
Attorney at Law
259 East 5th
Eugene, OR 97401
( 541 ) 687-0578
(FAX) 686-2137
ATTORNEY FOR THE DEFENDANT
IN THE UNITED STATES DISTRECT COURT
DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff, CASE NO. 97-2049M
v. MOTIONS TO DISMISS
BRIAN MICHAELS, (Hearing Scheduled
Defendant, August 7, 1997)
____________________________________
Defendant herein Moves the Court for an Order Dismissing the citation against him as an enforcement of an Unconstitutional Regulation. In advance of his Motion, Defendant has attached Five (5) Exhibits: Ex 1 is the special Use Application delivered on or about June 18 to the Gathering Site by Dave Johnson, Deputy Incident Commander, with instructions that if it was not filled out and signed by Friday at 5:00 PM the matter would then fell into the hands of Law Enforcement; Ex 2 is that portion of the Federal Resister delivered along with the special Use Application by Mr. Johnson Ex 3 is copy of the signed Permit exactly as them wee provided to Brian Michaels upon request Ex is the draft Operating Plan; Ex 5 is e the Notice Provided by the Forest Service after the Friday 5:O0 PM deadline (distributed on hot pink paper).Additionally, Defendant has subpoenaed several witnesses to establish facts outlined below along with other additional facts.
Motion 1
Elective Enforcement In Personam
In order to Cite this particular Defendant, Mr. Russ Arthur, supervising small team of armed Law Enforcement personnel approached the front gate/Welcome Home center of the event and waited two and one--half hours until this body was found and brought out of the gathering site to appear before the. There were threats end advances made by Mr. Arthur to go into the Gathering Site area and search The entire camp for me. He was persuaded that since I and just arrived at the gathering lees. than 24 hours ago, that I was merely fires taking it in, and it would be easier and safer to allow - other individuals attending the event to locate me, which they did. There were dozens of people to cite during that two and one half hour period, many of whom were in fact asking to be cited in my stead, but Mr. Arthur was adamant that I be one of the five persons s cited.
Mr. Arthur was specially assigned to this Gathering in Oregon from North Carolina where he is normally stationed. In November, 1996 I represented one of five individuals likewise cited under shone same regulations in the Federal Court of North Carolina in Asheville. My client was the only one of the five defendants who had the charges dismissed - Judgment of Acquittal. I was made co-counsel with the other local counsel for the remainder of the trial CFR the remaining four Defendant . When the defendants were found guilty by the court, the sentence was $50 apiece of one day's community service with the Forest Service in the woods. when the Forest Service told the court they would not accept these individuals for community service work due to liability 1 problems, the Court told the Government that if these individuals showed up for work and were turned away the Court would consider their sentence served.
It is because of the quality of work done in North Carolina, and the embarrassment those proceedings caused the Forest Service and their Enforcement of these Regulations requiring a signature that this author believes he was singled out so dramatically. There is no other way Mr. Author or ADAMS, their law enforcement personnel would even know m. in order to single ADAMS, out. This is in violation of the First Amendment Protection of redress of grievances, and therefor a unconstitutionally impermissible basis by which to selectively enforce these Regulations.
Motion II
Selective Enforcement
As can readily be seen by reading Exhibit 2, the Forest Service has been in litigation with the Rainbow Family over their Special Use Regulations on no leas than two occasions, and they have lost each time. One can also readily discern from reading Pages 45273-45275 and 45286-45287, that the Forest Service is fully aware of the nature of the Rainbow Gatherings as having a political structure (or absence of a political structure as it were) which does not lend itself to designation of Representative capacity for the purpose of signing a permit, or any other document, on behalf of the whole.
These facts as lawn to the Forest service represent the drafting of a regulation {mended to impose restrictions upon the Rainbow Gatherings' First Amendment rights by devising a trigger for Law Enforcement action without injury to any legitimate government interest . It is the opinion of this author that the intent of the Forest service to inhibit and restrict the First Amendment rights of thin group is at least due in part to the litigation and the results thereof between these two parties. A factual basis for this Motion is laid out as follows:
1) While speaking to this author and the assistant to this author, both Lt. McLain of the Oregon State political Police and Undersheriff McLain of Crook County (brothers) expressed the opinion that the Forest Service inforomation provided to Law Enforcement was inflammatory end wholly Inaccurate. That the description of the people, the ovens, and the problems they should expect were nothing at all what they encountered. They each went so CFR a. to state they would like to go to the site of next year's Gathering in order to accurately report to local law enforcement agencies what to expect, so they would not fall victim to the same prejudice these officers felt victimized by. Similar remarks were likewise made by the Chief of Prineville Police (although he did not express a desire to go to next year's Gathering).
2) Similarly inflammatory reports wore made to the press by Ms. Rose Davis and other members of the Forest Service regarding the coming of these people and their Gathering and the wave of criminal activity; that accompanies them. similar rumors have been spread by members of the Forest Service in many previous years.
3 ) Mr. Russ Arthur, of Forest Service Law Enforcement eras brought in from North Carolina in order to oversee the enforcement of the signature requirement of the Regulations. The signature requirement only. Not any other government interest was intended to trigger law enforcement activity other than the signature .
4) When Mr. Dave Johnson delivered Exhibits 1 & 2, he announced that if those was no signature on the Application, than Law Enforcement well take over. There was no other issue in the continuing negotiations with the Forest Service concerning site location, preparation, water safety, general safety, etc. that would have triggered Law Enforcement
5 The Forest Service has knowingly and deliberately placed those attending this event in a classical Hobson's choice. On the one had, if they do not sign the Permit Law Enforcement will come crashing down on the entire event (See Ex s and subject Each and every individual to criminal sanctions, and perhaps worse governmental intrusions, merely for attending this forum. On the other had, because they" each by than presence have chosen to express their First Amendment rights in a manner and content void of governmental organization or process, to sign on behalf of the group - to hold ones' self out to the Forest Service as an appointed representative -would be to commit fraud, and enter into contract under false pretenses. What 18 a person to do? In the second paragraph of the right column on Page 45274 the Forest Service discusses the requirement of a group to designate an agent or representative. The language i. clearly and concisely addressed to one group and one group only.
It is the opinion of this author that the facts above demonstrate a continuing animosity toward this First Amendment activity on the part of the Forest Service due in part to the litigation (redress of grievances), and in part to the content, politics and nature of the activity; itself Each of which constitutes an unconstitutional basis for subjecting this assembly to governmental scrutiny and regulatory demands, and thereby selecting this activity for law Enforcement action.
MOTION 3
Signature Requirement is Unconstitutional as unnecessary Burden
and as a Sham for Law Enforcement Action
This Motion hereby incorporates the facts as outlined in Motion 1, and adds the following:
Reading pages 45286-45287, the Comment and Response sections and 45273-45275, the arguments provided by the Forest Service in is own Responses as to the necessity of having a group designate representative are a sham and were not at all mot by the facts of the Permit signature the. year - 1997.
The Permit was signed by a on. Alita Girrard (the spelling is uncertain because the Forest Service refused to provide to those attending the Rainbow Gathering a copy of the signed Permit with the signature and name of the signatory - see Ex 3). Ms. Girrard signed the Application and the Permit after being told by the Forest Service (Mr. Arthur) the National Guard would be called out to shut the Gathering down. Ma. Girrard signed the Application on her way out of the Gathering to Portland. She signed the Permit itself while in Portland. There is no way the Forest Service can claims the used to have a designated representative with whom to address problems, concerns, emergencies, etc can be. met by someone who is not on site, not in the area , and who has little knowledge if any of the many details involved in operating a group assembly of this size.
Additionally, the Forest Service had her sign a document on behalf of the whole group when they were in full knowledge that she was not designated by that group to sign on their behalf. The Forest Service is fully aware that the group has no process for designating individuals in representative capacity, and is fully aware that if there were any process by consensus it exists only on the land from July 1 - 7 during council. There is even much dispute within the group as to whether that consensus by so few members has any authority for designation or other purposes at all. For example, there is that very difference of opinion between this author and defendant Adams This author is adamant that there is no such authoritative body because there is nothing from which that body may derive such authority. Defendant A dams is equally adamant that there is such authority and it is derived from the body's own consensus. In any event, that body had not yet met to consense or not, and the Forest Service W.. fully aware of that at the time they accepted her signature. So what' s all this in Ex. 2 about their need to require a group to designate a representative?
The Representative capacity referenced on the bottom of the right column of Page 45274, and again toward the bottom of the left column on Page 45287, concerning the Rainbow case of 1988, wee a capacity appointed by the court in that case and for that case only. These representatives were not designated from inside the group s process, and in harm's more challenged as such by individuals the were made party to that cause The situation referenced in the same paragraph regarding Rainbow 1987 in North Carolina was specifically delineated as signed under duress ' by the signatories, and once again wee ordered by the Court.
A regulation designed to secure legitimate governmental interests may not intrude upon the content or politics of a group in order to a-cure those interests unless those interests can not be met by any other means. To hold otherwise would cease this particular First Amendment activity from continuing despite its twenty-seven successful years. the opinion of the Forest Service as to the relative solidarity of this group as expressed in the second paragraph from the bottom in the middle column of Page 45274 i. A perfect demonstration of the government's attitude toward the political structure, philosophy and content of this particular First Amendment activity. Telling a group what will enhance their solidarity is an unconstitutional intrusion into their political practices .
There were eight ( 8 ) years and eight ( 8 ) Gatherings between The old Regulations and the new ones. Eight years of Rainbow gatherings without regulations to enforce provides a unique insight into the legitimate governmental interests and the illegitimate governmental interests. During those eight years this group conducted business with the. Forest Service through the use of an 'Operating Plan' (See Ex. 4). This required no signature and proved satisfactory to all governmental interests, with no serious Law Enforcement threats. In fact, it proved so beneficial that it was used this year - with or with[out] the signed Permit, in the words of Mr. Dave Johnson, Deputy Incident Commander. (sea Ex 4 ) In discussing this very issue with Mr. Johnson, it was his opinion that the resource end of the Forest Service was going to move forward with the Operating Plan whether or not a Permit was signed. They were not interested in the signature portions of the permit, but rather were concerned with the nitty gritty details of health, safety, water, parking, clean up, etc., as contained in the Operating Plan. The signature portion of the Permit was considered to be in the exclusive domain of Law Enforcement.
The first two paragraphs on the right column of Page 45274 discuss designation of representatives and/or agents. The First Paragraph, although misleading in its efforts to cast aspersions upon the 1991 and 1992 Gatherings, it is a non-sequitur when contrasted to this year's signatory, Ms. Girrard. The Forest Service entered into zero discussions, negotiations, emergency resolutions, clean up/follow up analyses, etc. with her before or after she signed the Permit . She was leaving the Gathering to go to Portland when she signed the Application. She was not even on site. The second paragraph requires the designation of an agent or representative, neither of which was Ms. Girrard, and the Forest Service was entirely aware of that fact when they had her sign on behalf of the group.
The above facts demonstrate to this author the blatant and deliberate sham the justifications presented by the Forest Service for requiring this First Amendment activity; to designate a signatory. It is merely a tool written into the Regulations to impermissibly intrude upon their politlca1 beliefs and practices by providing a mechanism with which to trigger law enforcement activity against the continuation of this protected activity. What these Court proceedings will reveal is a First Amendment activity whose history is to satisfy all elements of legitimate government interests, but whose political expression includes the absence of any governmental structure and thereby the designation of any representative. Further, there is no governmental interest in obtaining a signature, that the government by its actions and words has proven the lack of any interest in such a signature, and that the signature is a more sham to invoke the power and resources of law enforcement upon this particular absence of political structure and thereby upon this particular First Amendment activity.
RESPECTFULLY SUBMITTED This, 14th Day of July, 1997,
BY: (signed) _________________________
BRIAN MICHAELS