/\_Eerie Ruling- Pigs Ducks & Horses
[ The "Allegheny 2" found Guilty of Gathering ]
[ without a Permit -- The Ruling in Erie PA, ]
[ Reflections from Down on the Animus Farm ]
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On Wed. 22 October '97 -- after two days of testimony
in the Federal District court in Erie, PA -- Magistrate Judge
Susan Paradise Baxter rendered her decision in the joined cases
of "U.S. v. Baxter & MacCrimmon [Greenfeather]", on charges that
Bill & Joseff had violated the 'Group Use' permit requirement
at the August '96 gathering in Allegheny National Forest.
{36 CFR §261.10(k)}
The course of the trial is easiest to understand back end first,
in light of the final ruling and the criteria that defined it.
Presented here is a close paraphrase of what the judge said
(from copious notes of the proceedings), and a few interpretive
'Short Comments' with animal noises at the end:
* * * * * * * * * * * * * * * * * * * * * *
ALLEGHENY RULING (Wed. 22 October, approx. 5 PM):
<< On the two citations against Mr. Baxter and Mr. MacCrimmon, it is not
my job to decide whether rules and regulations make sense, or whether
intentions are good on one side or more good on the other.
My job is to apply the law, but not where this would violate rights
guaranteed by the Constitution.
<< It is clear that the Federal Register rulemaking had 'You Folks' in
mind, by virtue of the original language of the rule publication, and the
agency's responses to public comments.
It is also no secret that Rainbows understood what this regulation meant,
and shared widely a belief that it violated their First Amendment rights
and should not apply to their gatherings.
<< This is not a game, and the matter has come to this court from both
sides as a test of whether the permit requirement for 'noncommercial group
use' on National Forest lands should stand.
<< At issue here are four key questions:
1. WAS THE RULE ENFORCED PROPERLY?
2. WAS THE REGULATION VIOLATED AT THE AUGUST 96 ALLEGHENY GATHERING?
3. DID MR. BAXTER AND MR. MacCRIMMON PERSONALLY VIOLATE THIS REGULATION?
4. DOES THE RULE VIOLATE CONSTITUTIONAL RIGHTS OF FREE ASSEMBLY AND SPEECH?
<< On these questions, this is what I find:
1. Yes, the rule was enforced correctly by the Forest Service...
2. Yes, the regulation was violated in that a group of
more than 75 persons occupied National Forest lands
without a 'special use authorization'.
3. Yes, Mr. Baxter & Mr. MacCrimmon were part of the "75";
there was a "Group Use", with various "group activities",
and all who were there were in violation.
4. No, there is no showing that the permit requirement infringed free
assembly, or limited First Amendment speech or religious exercise.
<< Any regulation affecting expressive activities must meet certain
standards, and the Supreme Court has made these standards clear:
<< It is recognized that the National Forests are a traditional forum
for such expressive activities, and no regulation may single out one kind
or another. This regulation applies to all groups using National Forest
lands, and is therefore content-neutral.
<< In the Constitutional view, this regulation is scrutinized in an
intermediate way, on three tests --
* The government has a 'substantial interest' in regulating use of
the National Forests, and it is valid in this rule...
* It is 'narrowly tailored' in its criteria and discretions; this is
a matter of the regulation itself, not its enforcement.
* It allows ample 'alternative channels' for communication and assembly...
<< On these grounds, expressive rights are not violated.
<< Therefore, the Court finds Defendants Baxter and MacCrimmon GUILTY of
violating 36 CFR §261.10(k) [formerly '(j)'].
<< For the sentence, this provision authorizes penalties of fine up to
$5000 and 6 months imprisonment.
<< I find that each of the Defendants shall pay a fine of $50.
<< Court is adjourned. >>
* * * * * * * * * * * * * * * * * * * * * *
// SHORT COMMENTS //
(A Fable of Pigs, Ducks, & Horses)
Don't blame the Judge. She was pretty fair and congenial throughout
the proceedings, and she dealt with what was before the court, within the
scope of arguments presented and the constraints of her job as Magistrate.
Of course, any similarity to language in Federal Register rule publications
is purely coincidental.
The U.S. Attorney was methodical and aggressive in presenting the
Government's case. All the Forest Service personnel involved in the
Allegheny busts were there, well-prepared as witnesses. The prosecution
took up 11 hours of testimony, droningly meticulous in getting chosen facts
into the record.
The defense barely filled 2-1/2 hours... two outside witnesses
(hastily called in by the defendants) took the stand with minutes of
preparation and marginal testimony. Then Greenfeather went on, & his
lawyer didn't bring up his Congressional Medal of Honor. Overall the
attorneys did some astute cross-examination, and made some strong points in
the record -- but important things were left out.
Of the four key questions set forth by the judge, no one quibbled
about the first two; #3 & #4 were the meat-&-potatoes of the case, and they
went together:
The prosecution asserted that Baxter & Greenfeather had acted 'de
facto' as "Leaders of the Rainbow Family", and that the Forest Service had
rightfully designated them as ones who could be made responsible for
signing a permit. This hinged (predictably) on the premise that the
Rainbow Family is an unincorporated association or 'Group', with various
publications, phone numbers, Web pages, and Councils -- and the ability to
delegate its 'Members' as representatives in order to comply. The
Prosecutor summed it up in closing arguments exactly as I had predicted,
verbatim:
"If it walks like a duck and talks like a duck, it's a duck."
The Defense countered throughout that there are no Rainbow Leaders,
that Bill & Joseff had participated in the gathering as Individuals -- not
as functionaries of any group -- marked only by their willingness to help
others & cooperate with officials, and being elder males.
The main line of defense was that the rule had been selectively enforced
against these defendants, who were simply exercising their First Amendment
rights among many others, and could not assume singular leadership and
liability by signing a permit.
They argued that Forest Service enforcement procedures for designating
'Leaders' in a gathering were not part of the regulation, and further that
the permit itself was a trap: USFS Officers told Baxter & Greenfeather
verbally AND in writing that they would not be held personally liable if
they signed, but in fact the "Terms and Conditions" of the permit made them
explicitly liable for the gathering as a whole.
The Prosecution parried: All this doesn't matter... the 'Group Use'
regulation applies to all "participants and spectators", and the Defendants
were certainly one or the other. The Forest Service COULD HAVE cited
Everybody, they COULD HAVE brought in the State Police or the National
Guard, but they were just trying to be nice guys. (Oink.)
Here's The Rub: Participants in a gathering CANNOT sign a permit
because it is a free assembly of unrelated folks, who just choose to go and
contribute as they will. However if the "Rainbow Family" is tagged as a
"Group" or organized entity before the law, it is able to delegate
representatives, and CANNOT SAY that it cannot sign.
Defense attornies made no objections to Government testimony where
such a Group was alleged to exist. (This is not a fact for a witness to
state, it is a conclusion of law.) Moreover when a defense attorney also
blithely uses the term "Rainbow Family Members" (just like in the North
Carolina trial!), he buys into this legal fiction created by the
bureaucrats, and undermines the Free Assembly claim.
In short, the Defense failed to disprove the 'Group' allegation by the
government, and therefore could not show (1) that gatherings as free
assemblies are inherently restrained by the permit requirement, or (2) that
First Amendment expression unique to the gathering is affected in turn.
This was hard to watch... Defense attorneys had been briefed
carefully in advance on these issues, and the elements needed in a
Constitutional case that could define the Right to Gather... but it didn't
sink in. They left ambiguous fragments of this logic and supporting facts
in the record, not enough to shift the burden of proof or compel acquittal.
As for relying heavily on the 'selective enforcement' argument, an ACLU
memo last year had warned that this was not a strong strategy, but they did
it anyway.
It only goes to show...
You can lead a horse to water,
You can splash it on his hindquarters and dump it on his head,
You can hose it in one ear and watch it fly out the other side,
But you can't make a lawyer think.
Steamin',
-- scottie
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