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
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old, now-repealed version of the regulation.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
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
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
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
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.
UNITED STATES ATTORNEY
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
October 29, 1996
LYNNE W. CROUT