PCU_//\_Free Assembly Project _____
St.Louis MO • www.Free-Assembly.org
_//\________________________________an Association of Volunteers__/
12 August 2016 / :: PUBLIC INFO RELEASE :: /
re: U.S. v. DeMars Case 5:15-mj-00130-DW
U.S. District Court of South Dakota (Western Division)
Val Wins in Court, Mostly —
““““““““““““““““““`
— the DeMars defense prevails on the big half of his case…
the unauthorized waterline charge was dismissed at trial,
but he had to pay the parking ticket, as a Federal Court
devises to duck the big issues, again.
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I.) The long-awaited ‘U.S. v. DeMars” trial took place in Rapid City, SD on August 4 — nearly 14 months after the Defendant got 2 citations at the council going into the 2015 Rainbow Gathering in Black Hills N.F. The days leading up to the trial were harrowing on the backside, with final preparations hampered by time, distance, and uncertainties:
— The pre-trial Motion to Dismiss still got no ruling from the Court, and the prospect of averting trial dimmed… the Defense had to gear up to appear. Val had to get there cross-country from Vermont, and was mostly out of contact en route. Possible defense witnesses were few and far away, and with the floating trial date, no advance arrangements were made. We had worked with the Federal [public] Defender and assisted research from the beginning… in the closing days he was sent final rounds of good rulings and briefs to support key arguments to be made, but tactical suggestions for trial were speculative: Government witnesses were not disclosed in advance, it was unknown what the Judge would call for or allow, and the busy attorney had no time to talk or work out plans.
On August 2 the Court denied a Defense motion to transport a witness to trial; on August 3 a ruling was finally issued on the May 25 Motion to Dismiss (Doc. 23, 30):
Order Denying Defendant’s Motion to Dismiss Violation Notices (Doc. 45)
The ruling butchered the defense claims, stonewalling the arguments and alleging deficient proofs. It got filed less than 24 hours before trial, allowing no time for the Defense to assess the Court’s positions, either to move for reconsideration or prepare counterpoints for oral argument.
II.) The DeMars trial convened the next day at 9:30 AM, first dealing with old business — a few routine procedural matters left unresolved, and then the Government’s Motion in Limine to strike and disallow the ‘Public Authority’ defense under Rule 12.3 (Doc. 28, 29; filed 6/6/2016). The Court heard arguments from both sides and then ruled, denying that Motion — a good thing:
It meant that the Judge would not foreclose this kind of defense, based on affirmed actions in the public interest and plausible belief that they were authorized by responsible officials. It upheld a core logic in this case, supporting the health and safety of public assembly, and bodes well for others.
Then trial proceeded to prosecution: The Government brought in bigger guns from the U.S. Attorney’s office, and presented 4 witnesses — Jessica Lucas, USFS Hydrologist (by video); Ruth Esperance, District Ranger; Jeff Summers, the citing LEO; and Travis Lunders, Special Agent.
They all presented testimony and were cross-examined by the Defense; it took all morning and half the afternoon. The Feds went all-out for a conviction on the waterline construction charge, to bolster those enforcement powers & prerogatives in disregard of the First Amendment impacts.
When the Prosecution rested, the Defense moved to dismiss the waterline citation under Rule 29… again both sides argued, and the Judge ruled, GRANTING that Motion — a very good thing:
Judge Wollman found the restrictions excessive and vague as to what kind of permit was required, and reasonable doubt that a violation occurred. An LEO video showed them questioning another guy, who affirmed that he had helped tap the spring, not just Val… it was withheld by the Government, but brought in by the Defense to prove that they went after DeMars as the Rainbow “water guy”. The Judge told the Feds that they had failed to make a case… they were flummoxed at the acquittal.
Then DeMars’ attorney moved to dismiss the second citation for blocking the roadway, and the Judge denied it. After a recess, trial resumed at 3:15 PM, and Val took the stand in defense.
The serious issues around the waterline were now resolved and off the table, so it was all about how his tarp was planted and his vehicle was parked by the “road”, just a remote dirt 2-track to a dead-end. It was always passable, DeMars got no notice of a problem or opportunity to comply; the location on the ticket named a Forest Road that does not exist. But there was a guyiine for the tarp spanning the trail overhead — LEO photos showed it, the Defendant admitted it: He was guilty as hell.
Before sentencing, the Judge asked DeMars for his take on all this. He decried the huge budgets squandered by LEO’s to harass the Rainbow Gatherings, the climate of fear, and the recurrent abuses of civil rights and impacts on poor young people year after year, and he said it had to stop.
She responded that such feelings were understandable, but this case was not about all that.
(Actually, it WAS.)
The Court imposed a fine of $100 + $25 costs; Val paid up and left.
Game Over.
III.) The partial victory was big but not complete__::
It was important to hold this common ground for the Gatherings, the ability to bear water, to serve those assembled, to support speech, to protect public lands, health & safety. Maybe the Court was moved by these ideas, or influenced by past Operating Plans authorizing water systems routinely, but the 1st Amendment and Public Authority claims were not decisive in this case:
DeMars won on the facts, on his good-faith actions in accord with NEPA standards, on the tests of his first defense — that he “…did not violate the stated prohibitions as-charged; he was cited upon altered enforcement thresholds not supporting any significant or compelling government interest.”
The Court did not assert 1st Amendment scrutiny or dicta, but it was significant to hold law enforcement accountable to fair policy and the public interest, at all.
The partial loss was petty but not trivial__::
The last 22 minutes brought the trial to an anti-climax… the brouhaha about a rope over a road was laughable but not very funny. The Judge found DeMars guilty on this ticket, threw the Feds a bone — and refused to address why all the cops were THERE, stepping on the Rainbows and the council site, issuing many stupid citations in the tactics of targeted enforcement.
Retaliatory police actions against speech ARE unconstitutional, and such motives in recurrent civil rights violations ARE relevant in criminal defenses. However this Court deemed such evidence “inadmissible”, and neglected its obligation to apply 1st Amendment tests.
And it ignored the deployment of Incident Command against peaceable assembly under ‘Emergency’ pretexts, and the unlawful delegation of civilian authorities for the exercise of police powers.
IV.) Overall, this case demonstrates the difficulty of civil rights defenses arising from the Rainbow Gatherings. Citizens who travel for expressive purposes are vulnerable to abuse, and disadvantaged in remote courts, with the burdens of return appearances and lack of logistical support in the region.
Then it’s real hard to find legal help on limited means; for most victims, it’s impossible. Of the few willing local lawyers who may come forward, they have likely never seen cases like this, and know nothing of the issues of the Gatherings, or the legacy of ‘Rainbow Law’. So every year in a new place, new lawyers must be arduously found and diligently informed, and there are always disappointments.
Last year during the SD Gathering, we went to court in Rapid City to assist on the mandatory appearances, and made allies of the Federal Defenders. When DeMars chose to fight his tickets, we were lucky to get able representation from that office — but his attorney had to be informed as well, and we provided most of the formative investigation and legal analysis for the defense.
In theory, if we can bring in the facts & documents that they could never even find, the lawyers can do the ‘Law’ — reading legal precedents & authorities, and applying them in support — the fun part of the job they are trained for. That is how these cases are made feasible at all; sometimes it actually works.
In this case, the attorney agreed to the ambitious scope of the defenses, built upon years of hard experience, but critical research was not done, and key arguments were inadequately supported:
•• Federal court ruings on unconsitutional roadblocks & targeted enforcement against the Gatherings were provided for judicial notice in South Dakota, but not presented as planned… witness affidavits on the history of harassment were prepared to go in with the Motion to Dismiss, but not used… civil rights authorities making such facts admissible in criminal defense were not cited or applied… violations of 1st Amendment rights were alleged, but the appropriate standard of review was not asserted… and no arguments were developed on the Incident Command claim, related disclosures withheld and redacted in discovery, or the proof of ‘unlawful delegation of authority’.
In effect, the heavy half of the defense was abandoned.
Of course there were problems in the rulings and conduct of the Court, and appealable errors were made, but there will be no appeal: The Defendant was acquitted on the big charge for the simplest reasons, convicted on the little one for the stupidest… no constitutional issues here, everybody’s a winner, go away and live to fight another day, in another jurisdiction.
Val was right when he told the Judge: This stuff has to stop.
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Respects,
_scottie addison__
Coordinator
St Louis, MO
REFS & LINKS___/
• Background on the SD’15 Gathering…
“DeMars Defense” section includes downloadable case docs:
Rainbow 2015: Black Hills, South Dakota
• Prior Public Info posts on this case:
“DeMars Defense in So.Dakota” (6/10/2016)
“DeMars Trial Set: Rapid City, August 4” (7/29/2016)
• Key case filings:
‘Amended Memorandum re: Motion to Dismiss’ (Doc. 30)
Trial Minutes, 4 Aug. 2016 (Doc. 48)