The genesis and court record of the first ‘Rainbow Roadblock’ lawsuit –
filed in the U.S. District Court in Kansas City (July 1996):
Park v. Forest Service, 205 F.3d 1034 (8th Cir. 2000)
[W. Dist. MO, Case No. 96-3288-CV-S-RGC]
CONTEXT: THE ‘REGS’…
After over two years of resistance politics in DC and stormy debates everywhere, the ‘Noncommercial Group Use’ permit regulations were finally enacted by the Forest Service on 9/29/1995.
The Shawnee regional gathering in southern Illinois went by with no permit hassle that October… the war began at the Florida regional in February 1996:
USFS lawyers filed a huge civil suit against “The Rainbow Family, et al.” in Osceola N.F. – as they had in Texas 1988, upon the same legal fallacy. The Defendant ‘Group’ did not exist; they were again suing a phantom of their official imaginations, and now alleging ‘Rainbow’ to be a ‘defendant class’ subject to nationwide injunction. Fortunately this time nobody showed up in court in that name… no heavy ruling could proceed, and the lawsuit fizzled. But clearly the Heat was ON.
The July 1996 Rainbow Gathering in Missouri was to be the first big annual event under ‘The Regs’. Aggressive enforcement was anticipated (and in fact was planned by USFS-LEI heavy honchos, it was later learned in discovery). Tensions rose in-prep, rolling into June – but the game suddenly changed when a wayward hippie wizard wandered into the USFS Eastern Region HQ in Milwaukee and signed a permit for the Gathering, approved on 6/20/96. The named holder:
“Divine Composting and Composing Church of the Sacred Rainbow I-Magi-Nation”
It was instantly dubbed the “Holy Shit Permit” ← {This page has the story & docs.}
Of course gatherers and legal wonks were shocked. This saga unfolded in strange ways over ensuing days – in debates, resentments, consensi, prayers & presentments.
The Fed Cops were flummoxed too… they had expected the gathering to defy the permit, and counted on this to justify proactive enforcement on-site. When this pretext was removed, their tactics shifted.
CRISIS: ROADBLOCKS!…
We had seen them before, but never on this scale: Intensive interagency roadblocks were deployed on the gathering by USFS Law Enforcement, along with Oregon County Sheriffs and the Missouri Highway Patrol. They set up a mile from Main Gate on the only road to the site, targeting inbound travelers with stops & searches, many citations & some arrests through late-June and early July.
With the influx of gatherers before July 1, and controversies raging already over the signed permit AND heavy harassment, there was plenty to talk about right away on-site.
Over a couple days opinionated pissed-off people converged in loose circles under the ‘Liberty Tree’’ with news & debate, on both topics in turn. To his credit, the gent who had signed the Holy Shit Permit showed up and told his story accountably. He too was incensed at USFS police conduct and “Guns in the Church”, violating the spirit and agreed terms of his quirky deal for peace on the land.
When discussions came around to the roadblocks, there was broad concurrence that a lawsuit was needed, with crucial caveats: It could not implicate the putative “Rainbow Family” as a legal party, nor proceed as a ‘class action’ to that effect. In light of the recent narrow escape in Florida – where the Government tried but failed to certify ‘Rainbows’ as a ‘class’ for sweeping enforcement purposes – such an approach would be perilous, a foolhardy trap.
So, all the contentious cadres agreed that only an individual Plaintiff could safely sue on personal claims of civil rights violations targeting gathering attendees. Tracey Park (aka ‘Zoe Love’), an edgy redhead activist then from St. Louis, volunteered to stand in those shoes. It was understood that this legal action had to be prepared and launched after the gathering… that path remained to be forged.
CAHOOTS: MAKING A CASE…
PCU•Free Assembly Project was instrumental in the legal response that was set in motion. We had pulled in research on the pattern of abuses on prior gatherings, and tested this legal theory:
Roadblocks and related targeted enforcement tactics on 1st Amendment events are unconstitutional.
It was a new line in the sand… only the Gatherings had faced this issue, compounded by systematic 4th Amendment violations. I raised this defense on a roadblock ticket from the Shawnee regional in Fall ‘95; the Hardin County Court dismissed the case immediately.
If a judge takes up such an issue and you win, it’s pretty good… if he dumps the charge to avoid that issue, it might be really good. That’s how law doesn’t work sometimes.
I took this news straight to St. Louis in February ‘96, on a junket to help Ozarks folks prepare for the summer gathering – got to know Tracie & others in that scene. They formed the “Peaceable Assembly Project” to focalize info and efforts there. Then I took it back to Chicago, networked with attorneys and refined the theory – so the legal analysis & alliances were in-place when the crisis came to Mark Twain N.F. in June. I went to the woods with an early notebook computer & printer – so when Tracie stepped up as the solo Plaintiff, I worked with her on-site to draft an Affidavit on the facts & harms, then drove her to an attorney I found in West Plains, MO to get things rolling.
• Zoe_Affidavit-96707dr
That’s how it started, a lesson in readiness: It took research & leadwork, connecting people, bringing the tools, and acting fast before we dispersed – or it might never have happened.
I got back to Chicago pretty beat on July 10, but got right to work. The first lawyer decided this case was too big and backed out, so new representation was needed. Attorneys Reed Lee (Chicago) and Dave Garner (St. Louis) helped out, networking through National Lawyers Guild channels, and found two experienced litigators to take the case – Fred Slough & Douglas Bonney (Kansas City).
We collaborated in crafting the Complaint, and this new civil action for declaratory and injunctive relief was filed in the U.S. District Court (Western Missouri) on 23 July 1996. The lawsuit was formally announced at a St.Louis press conference the following afternoon, Wednesday 7/24.
This post went out to stakeholders in on-line forums the next day, 7/25… GAME ON:
• Injunction in MO-sa.96725^.pdf
Plaintiff Tracie Park put out these reports the following week:
• Arrests at MO_zoe-96802.pdf
• Lawsuit_Rbw Rdblks_zoe-96803.pdf
U.S. DISTRICT COURT RECORD: KEY CASEDOCS ––
For reference, the full final Docket of the District Court case, July ‘96 – June ‘00…
key filings linked below are numbered in accord (routine procedures omitted):
CIVIL DOCKET, Case #: 6:96−cv−03288−RGC … DktRpt_Park-v-FS.pdf
Related correspondence, Exhibits & Discovery documents are archived in hard-copy files…
for researchers, useful items are listed with some download links on this sub-page:
Park v. FS – pcu•FAP File Documents ( …/courtstorms/mo96-park/filedocs/ )
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Starting the case – the Civil Complaint, alleging police actions to harass, impede, and chill participants in expressive assembly, systematically violating rights under the First, Fourth & Fourteenth Amendments. The Defendant agencies filed the requisite Answers over the next 2 months:
06/ OregonCo_Answer-27au96.pdf
08/ Mills|MoSP_Answer-28au96.pdf
12/ DeftFS_Answer-23se96.pdf
The early phase of the case was absorbed in Discovery and Interrogatory proceedings for nearly a year, until the parties came forward with a “Joint Motion to Stay Action Pending Review of the Use of Checkpoints by The National Forest Service and Development of a National Checkpoint Policy”, with a ‘moratorium’ on such roadblocks avowed by the Forest Service. The Court promptly granted that Motion on 9/24/97, and the case stalled.
34/ Park_JtMnStay-18se97.pdf
Subsequently in Sept. 1998 the Forest Service enacted a new ‘National Checkpoint Policy’ by amendments to the USFS Law Enforcement Handbook. This created new powers to conduct such roadblocks unilaterally, no longer reliant upon State & local authorities – with vague minimal standards and no public notice or Congressional review of this major policy change.
66.D-1/ FSH_CkptAmdts-30se98.pdf
Plaintiff’s attorneys received no timely notice of this policy enactment, but were informed that the Forest Service had persisted with roadblocks on regional gatherings in Florida (Feb.’97-’98), Mississippi (March’98), and Kentucky (May’98), in breach of the ‘moratorium’. The truce was over… on 1/8/99 they moved for Summary Judgment, with a decisive memorandum and factual exhibits filed in support: “Suggestions by Plaintiff Tracie Park in Support of Motion for Summary Judgment”.
55/ PltfMemo_SummJgmt-8ja99.pdf
**[Exhibit Links included on ‘File Documents’ list]
In late February 1999 the Defendants consorted in a tactical counter-strike, with separate motions and briefs for Summary Judgment against the Plaintiff, to dismiss all claims:
Dkt # 58-61 – Oregon County (2/23/99) … Dkt # 63-64 – Wilhoit/MO State Patrol (2/26/99) … Dkt # 66 – Forest Service (served 2/26/99, entered 3/4/99).
The Forest Service filed with leave of the Court to exceed page limits (~ 80 pp.): “MOTION by Defendant Forest Service to Dismiss for Lack of Subject Matter Jurisdiction , or in the Alternative for Summary Judgment”.
66/ FS_MoDism-26fe99.pdf
This skewed proceedings and put Plaintiff’s attorneys under pressure to answer the Defendants’ arguments in turn. On 4/23/99 they filed responses in opposition to all three… their Reply to the Forest Service refuted core allegations and case cites, asserting the lack of legal precedents justifying roadblocks that target First Amendment exercise (selected Exhibits included).
74/ PltfReply_MoDism-99423.pdf
74-1/ PltfReply_Exh1-Txopin.99414.pdf
74-7/ PltfReply_Exh7-scaAff.99423.pdf
Upon this record, the U.S. Distict Court in Kansas City issued a Judgment on 6/11/99, addressing the dispositive motions of all parties in a paradoxical ruling: Claims against the MO State Patrol and Oregon Co. Sheriffs were dismissed, where Ms. Park had suffered no direct harms due to actions by those officers or agencies, and therefore lacked legal standing to sue them.
However Plaintiff’s Motion for Summary Judgment against the Forest Service was GRANTED, mainly on Fourth Amendment grounds: The Court held the Feds responsible for these policies, found such roadblocks unconstitutional, and “ORDERED that the Forest Service of the United States of America is enjoined from establishing any roadblocks or checkpoints that violate the contents of this Order.”
81/ MOrdblk_Judgment-11jn99.pdf
But it still wasn’t over: On 6/28/99 the Feds filed a ‘Motion to Alter or Amend Judgment’, and the State a ‘Motion to Clarify Final Judgment, Order & Injunction’ – which Plaintiff’s attorneys had to answer in opposition [Dkt # 85-88]. The Court’s stern responsive ruling amplified the constitutional grounds for the Injunction Order, and confirmed that it did intend ‘breadth’ in applying it.
91/ MOrdblk_ClarifnORDER-16au99.pdf
EIGHTH CIRCUIT APPEAL: BRIEFS & RULING ––
The Forest Service appealed the District judgment to the 8th Circuit Court of Appeals.
After the briefs were filed, oral arguments were heard in St. Louis on 1/10/2000.
PCU•FAP put out this press release on the appellate hearing and issues at stake:
“Constitutional Crossroads in St. Louis…” (10 Jan. 2000)
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On appeal the Government challenged the individual plaintiff’s standing for injunctive relief, alleging that her complaint did not establish a likelihood that she would be subjected to such violations in the future. This position stood narrowly on the premise of legal standing based on ‘personal harms’, and the contents of the original Complaint. It disregarded evidence showing the ongoing pattern of such misconduct toward the Gatherings, before and after this case was filed in July 1996.
The 8th Circuit panel bought it, bungled the facts and vacated the District Court’s Injunction — even acknowledging proof of prior and continuing ‘Rainbow Roadblocks’ around the country, yet asserting that this did not suffice for permanent injunctive relief. (?!)
However the Appellate ruling still upheld the District Court’s findings of ‘declaratory law’ that such actions are unconstitutional… disingenuously, it concludes (pg. 9):
“…It is possible that Ms. Park would have standing to seek injunctive relief in an action commenced today, if these more recent checkpoints establish a pattern of wrongdoing by the Forest Service. It is our hope, however, that Ms. Park will not have to resort to legal action again to be free from future violations of her constitutional rights, and that the administrators of the Forest Service will ensure that the inappropriate conduct of 1996 is not repeated.”
• USFS/Appellant’s Brief (11/19/99) MOrbApp_FS-Brief.19no99.pdf
• Park/Appellee’s Brief (12/22/99) MOrbApp_Pltf-Brief.22de99.pdf
• USFS Reply Brief (12/30/99) MOrbApp_FS-ReplyBrf.30de99.pdf
• RULING, 8th Circuit Court of Appeals (3/3/2000):
8thCir_ParkRuling-mr00.pdf Published: 8thCir_Park-205_F.3d_1034.pdf
AFTERMATH: Thereafter USFS-LEI roadblocks on gatherings resumed with a vengeance, escalating targeted tactics and prosecutions from 2001-on, throughout the second Bush administration.
AFTERTHOUGHT: The Park case went forward knowing its challenge in light of a crucial doctrine of civil rights law – heeding situations where violations are recurrent, but don’t get to court or find judicial protection.
The ‘Rainbow Roadblocks’ are a classic case, affecting travelers of few means in remote places for transient events, year after year – “capable of repetition yet evading review”.
First Amendment law requires strict scrutiny on such violations targeting speech, and deference to personal standing under this doctrine. The 8th Circuit stepped on these legal mandates.