PCU_//\_Free Assembly Project _____
St.Louis MO • www.Free-Assembly.org
_//\________________________________an Association of Volunteers__/
10 June 2016 / :: PUBLIC INFO RELEASE :: /
DeMars Defense in South Dakota —
— cited for setting up a waterline at the 2015 Rainbow Gathering,
Val stands up for serving the health & safety of peaceful assembly,
‘walking the talk’, and First Amendment infrastructure as protected speech.
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[]] Prosecuting Public Service__
Amidst all the back-side contentions leading into the 2015 Gathering in the Black Hills, it was business-as-usual for USFS law enforcement: Immediately upon announcements of the Spring Council location, Incident Command LEO’s deployed in-force and commenced familiar tactics of targeted enforcement on attendees — road stops & searches, invasive patrols, intimidation, and as many petty prosecutions as they could drum up.
Val DeMars got 2 citations in those early sweeps: He had set up a temporary waterline to provide safe water for the Council encampment — in the legacy of his contributions to the Gatherings for 30 years. He had communicated with the District Ranger in advance, but on June 16 the LEO”s came in to cite him for an unauthorized construction on NFS land. 36 CFR 261.10(a).
They also tacked on a ‘parking ticket’ for his vehicle close to a dirt 2-track “road” (§261.12(d)), just more pretextual hassles — but the ‘Water-Bust’ has serious implications: There is a long history of LEO’s going after alleged ‘leaders’ and key people providing essential medical, supply, communications, and water services for the Rainbow Gatherings — a cynical tactic to deter such efforts and disable these operations, putting the safety and sustenance of those assembled at-risk.
Val had also gone through this before, including a ‘Group Use’ citation in Montana 2000, targeting him for his water system, hitting him with a stiff fine and prison term. This time there would be a serious defense, to bring the issues into federal court and stop such practices against peaceful assembly.
[]] Slow-Motion Defense__
The case got started last August, with able representation from the Federal Public Defender’s office in Rapid City, and close research & tactical support from PCU•Free Assembly Project.
For various reasons it has kept a low profile to date — getting through slow early procedures and sensitive discovery, avoiding public fanfare that might raise red flags and induce Government lawyers to drop a hot constitutional case and duck the issues, as they often do.
The plan was to quietly prepare an aggressive pre-trial Motion to Dismiss, to make a record on the recurrent abuses of civil rights and citizen welfare inflicted on the Gatherings for years, and compel judicial review. With patient tenacity over these months, the team finally pulled it off:
On 5/25/2016 the Defendant filed a Motion to Dismiss with an innovative Memorandum of Law, including a new “public authority” defense, and arguments on contributive speech, targeting 1st Amendment infrastucture, and unlawful delegation of authority to Incident Command.
The Memo set forth four defenses, with supporting analysis & exhibits —
1. Defendant’s conduct did not violate the stated prohibitions as-charged;
he was cited upon altered enforcement thresholds not supporting any
significant or compelling government interest.
36 C.F.R. §§ 261.10(a), 261.12(d).
2. Defendant’s actions contributing to the health and safety of the
assembly were essential to his personal expression as a participant
and were performed in good faith with public authority.
FED. R. CR. P. 12.3; 36 CFR 251.55(d); Amendments I, IX.
3. Defendant DeMars was cited in the course of systematic targeted
enforcement against Rainbow Gathering participants, including such
retaliatory tactics to disable necessary services and infrastructure for
those assembled, to the detriment of public health and safety.
42 U.S.C. § 1983; Amendments I, IV, V, XIV.
4. Defendant was targeted by USFS law enforcement under the applied
policy powers of an “Incident Command” regime, enacted for the Rainbow
Gathering by an unlawful delegation of authority in Black Hills N.F.
5 U.S.C. § 706.
Now the case is speeding up and heating up: The Government has already filed its Response opposing dismissal, and the Defense must enter a Reply by 6/22. The Magistrate will then rule on the Motion to Dismiss… if Denied, the case will proceed to trial in Rapid City — previously set for 7/27/2016, but likely to be set back, with other maneuvers and delays already in play.
[]] A Case for Rights___
This quiet First Amendment defense is now public business, now that the issues have been brought into a public court record, engaging crucial public interests. This may be an important case for the Gatherings and all citizens… how it will unfold from this point is of course unpredictable, but worthy of public scrutiny by the scope and logic of its claims, and its gumption in advancing them.
For transparency, see the DeMars Defense page on our website… these current documents are available for free viewing and download, identified by docket number —
23_DefMoDismiss-25my16.pdf — DeMars’ Motion to Dismiss Citations
24_DefMemo_Dismiss-25my16.pdf — Memorandum of Law supporting Dismissal
25_DeMarsAff-25my16.pdf — Defendant’s Affidavit on the facts
28_GovMoLimine-6jn16.pdf — Govt opposes ‘Public Authority’ defense…
29_GovMemo_Limine-6jn16.pdf …Motion in Limine + Memo in support
30_AmdMemo_Dismiss-7jn16.pdf * — Deft’s Amended Memo re: Motion to Dismiss (23)
31_GovResp_MoDism-8jn16.pdf — US Response opposing Motion to Dismiss (23)
32_DefResp_MoLim-8jn16.pdf — Defendant’s Response to Gov Motion in Limine (28)
* The Amended Memorandum (30) is definitive in the record, corrects errors and focuses the claims in defense — read this version in lieu of the original Memo (24), much clearer for fast reference.
Note that the individual document links may change later, and further items will be added to present the record fully as the case unfolds. Use the DeMars Defense page link to monitor developments in this case over the coming months, and share it with concerned rights advocates, scholars & lawyers.
Broader public awareness and discussions are encouraged.
Respects,
_scottie addison__
Coordinator
St Louis, MO