Rainbow Regulation Cases

North Carolina Rainbow Case

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA

UNIITED STATES OF AMERICA vs. DOCKET NO. F1469799 JOHN E. JOHNSON, III UNITED STATES OF AMERICA vs. DOCKET NO. F1789813 WILLIAM V. LeTEMPT UNITED STATES OF AMERICA vs. DOCKET NO. F1790048 JEFFERY O. PIKE UNITED STATES OF AMERICA vs. DOCKET NO. F1469792 DANIEL GALLAGHER FILED OCTOBER 29, 1996

PRELIMINARY AND PARTIAL ANSWER
TO DEFENDANTS' MOTION TO DISMISS

I. The "expressive" nature of the events.

The defendants argue (p.4) that because of past Rainbow Family gatherings and resultant court decisions that this is a First Amendment case that involves activities that "were clearly expressive in nature."

The United States notes that the facts surrounding past Rainbow gatherings do not govern this case, that the current criminal regulation does not require the United States to prove "expressive activities" as essential elements of the offense, and that the nature of the activities of the gathering in this case is sornethingfor the defendants to proffer in order to sustain their constitutional claim.

II. The "demonstrated animus" of the
Forest Service towards the Rainbow Family.

The defendants state (p.6) that the United States Forest Service has a "demonstrated animus toward the Rainbow Family."

This is a mere namecalling by the defendants. It is an assertion that the United States denies, while noting that it is insufficient to serve as the basis for a claim of selective prosecution under United States v, Marcum, 16 F.3d S99, 602 (4th Cir. 1994) and United States v. Richardson 856 F.2d 644, 647 (4th Cir. 1988).

III. The "breathtaking imprecision" of the regulation.

The defendants (p.7-8) quote Secs. 251.55.(h) (3) and 251.60(b) and attribute an excessive discretion and "breathtaking imprecisionn to those provisions.

The United States notes that the defendants have quoted the old, now-repealed version of the regulation. The provisions in effect at the time (June, 1966) of the events of this case did not allow the Forest officers excessive discretion. section 251.55(h) (3) no longer exists, and S 251.60(b) has been qualified with these concluding words: "except that this provision shall not apply to a special use authoritation for a noncommercial group use."

IV. The authority of "any" forest officer.

As if to make a point, the defendants argue (p.7) with emphasis that Sec. 251.52 allows "any" forest officer to issue or revoke permits.

The United States simply points out that regardless of the rank of the forest officer issuing or revoking permits that he must follow the multitude of procedural and due-process requirements, primarily in 0 251.54, that the Forest Service added in order to make the current regulation constitutionally sound.

V. Selective prosecution

The defendants have made various assertions (pp. 8-11) to the effect that the United States has singled them out for selective treatment.

The United States notes that under the rulings of the Fourth Circuit in United States v. Mzrcum, 16 F.3d599, 602 (4th Cir. 1994) and United States v. Richardson, 856 F.2d 644, 647 (4th cir. 1488), the defendants must make an affirmative preliminary showing before the court is required to hold a hearing on this issue. The Fourth Circuit has said that "[a} hearing is not a matter of right . ," Richardson at 647. "The defendant must establish not only that he has been singled out while others similarly situated have not been prosecuted but also that the decision to prosecute was based onimpermissible considerations." Id. (emphasis added).

VI. "Drug use. nudity, and resource damage."

Throughout their motion to dismiss, the defendants quote United States Forest Service officer Wilt Stribling from the government's case file that among the crimes "commonly associated" with a Rainbow gathering are "drug use, nudity, and resource damage." They argue that there is no need for the group-use regulation because there are separate statutes that-

cover these offenses.

The United States answers that Officer Stribling's common associations may be true in fact and in his experience but that he did not intend to limit his law-enforcement duties to those specific crimes, that his common associations only concerned a certain section of his report, and that his statement is not binding on the United States as an expression of its purposes in promulgating and enforcing the group-use regulation.

The group-use permit has purposes apart from general law enforcement, namely, "protecting the environment, protecting public health and safety, and planning the allocation of space and other resources and the assignment of personnel.n These purposes have been stated and explained in the United States' Background of the Case and Controlling citations filed with this court and in the Federal Register citation included therein. It can be seen that citing or arresting offenders for drug use, nudity, and resource damage has nothing to do, for example, with the stated purpose of planning the allocation of space, personnel, and resources.

This the 29th day of October, 1996

Served on defense counsel Sean Deveruex by FAX this date.

MARK CALLOWAY
UNITED STATES ATTORNEY

(signed)
THOMAS R. ASCIK
ASSISTANT UNITED STATES ATTORNEY

CERTIFICATE OF SERVICE I certify that I have this day served a copy of the above motion upon the defendant by preparing a copy of the same, together with a copy of this certificate of service, for mailing to the defendant. Upon the filing of this pleading and certificate with the Court, a "file stamped" copy of such documents will be placed in an envelope, with adequate postage thereon, in an official depository of the United States Postal Service addressed to:

Sean P. Devereux
Attorney at Law
Post Office Box 2868
Asheville, NC 28802

being the address of counsel of record for the defendant, The pleading and this certificate will also be sent by facsimile to defendant at 704/251-2760. In the event these documents are not served upon the defendant in the mannerand on the date described herein, the United States will immediately notify the Court and the defendant of the factually correct method of service of these documents.

October 29, 1996

(signed)
LYNNE W. CROUT
Paralegal Assistant