We request 20 minutes of oral argument. This is a case
of first impression at the court of appeals level, and we believe
oral argument would be helpful to the Court in exploring the issues,
the facts, and the ramifications of the district court's decision
on the Forest Service's duty to protect both the users of the
National Forest System and the natural resources in the national
forests.
TABLE OF CONTENTS
920 Page
SUMMARY OF THE CASE i
PRELIMINARY STATEMENT 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 3
A. Constitutional and Statutory Provisions Involved 3
B. Facts and Decisions Below 4
SUMMARY OF ARGUMENT 14
ARGUMENT 19
I. THE DISTRICT COURT'S INJUNCTION MUST BE
VACATED BECAUSE IT DOES NOT COMPLY
WITH THE REQUIREMENTS OF RULE 65(d),
FED. R. CIV. P. 19
Standard of Review 19
II. ASSUMING THE INJUNCTION WERE DEEMED TO
COMPLY WITH RULE 65(d), FED. R. CIV. P., THE
INJUNCTION MUST BE VACATED BECAUSE IT
IS OVERBROAD 27
Standard of Review 27
A. The Injunction Is Overbroad Because It Enjoins
Checkpoints That Are Constitutional 28
B. The District Court Also Erred In Issuing A
Nationwide Injunction With Respect To Its
Holding That The 1996 Checkpoint Was
An Unconstitutional General Law Enforcement
Checkpoint 34
III. ULTIMATELY, PARK LACKED STANDING
TO SEEK INJUNCTIVE RELIEF WITH RESPECT
TO GENERAL LAW ENFORCEMENT CHECKPOINTS 39
Standard of Review 39
CONCLUSION 43
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
ADDENDUM
Judgment (June 11, 1999) 1A
Order & Injunction (June 11, 1999) 2A
Order denying Rule 59(e) motion (August 16, 1999) 27A
Forest Service Handbook, National Policy for Checkpoints,
Amendment No. 5309.11-98-2 (effective September 30, 1998) 30A
TABLE OF AUTHORITIES
Cases:
Ameron, Inc. v. United States Army Corps of Eng'rs,
787 F.2d 875 modified on other grounds, 809 F.2d 979 (3d Cir.
1986), cert. dismissed, 488 U.S. 918 (1988) 35
B.H. Bunn Co. v. AAA Replacement Parts Co.,451 F.2d
1254 (5th Cir. 1971) 24
Beck v. Missouri State High Sch. Activities Ass'n, 18
F.3d 604 (8th Cir. 1994) 42
Black v. Arthur, 18 F. Supp.2d 1127 (D. Or.1998), appeal
pending, Nos. 98-36044 & 98-36046(9th Cir.) 4
Bowen v. Kendrick, 487 U.S. 589 (1988) 40
Brouhard v. Lee, 125 F.2d 656 (8th Cir. 1997) 3, 27,
29, 30, 39, 40
Califano v. Yamasaki, 442 U.S. 682 (1979) 3, 35, 36
Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd.,
824 F.2d 665 (8th Cir. 1987) 2, 19, 20, 21, 25
Chandler v. Miller, 520 U.S. 305 (1997) 29
Chicago & North Western Trans. Co. v. Railway Labor
Exec. Association, 908 F.2d 144 (7th Cir. 1990) 23
Citizens to Preserve Overton Park v. Volpe,410 U.S.
402 (1971) 42
City of Los Angeles v. Lyons, 461 U.S. 95(1983) 3, 18,
35, 39-40, 42
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384(1990)
27
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406(1977)
35, 36
Delaware v. Prouse, 440 U.S. 648 (1979) 25, 29, 30
Fonar Corp. v. Deccaid Services, Inc., 983F.2d 427 (2d
Cir. 1993) 22-23
Galberth v. United States, 590 A.2d 990 (D.C.Ct. App.
1991) 11, 25
Granny Goose Foods, Inc. v. Teamsters, 415U.S. 423 (1974)
2, 20, 21
Koon v. United States, 518 U.S. 81 (1996) 27, 34
Lever Brothers Co. v. United States, 981 F.2d1330 (D.C.
Cir. 1993) 35
Lewis v. Continental Bank Corp., 494 U.S. 472(1990)
42
Maxwell v. City of New York, 102 F.3d 664 (2dCir. 1996)
32
Meis v. Gunter, 906 F.2d 364 (8th Cir. 1990) 40
Meltzer v. Board of Public Instruction of Orange County,
Florida, 480 F.2d 552 (5th Cir. 1973) 24
Michigan Department of State Police v. Sitz, 496 U.S.
444 (1990) 3, 10, 11, 16, 27, 29-31, 33
Mitchell v. Seaboard System Railroad, 883 F.2d451 (6th
Cir. 1989) 24
Modern Computer Systems, Inc. v. Modern Banking Systems,
Inc., 871 F.2d 734 (8th Cir. 1989) 27
North Dakota v. Everson, 474 N.W.2d 695 (N.D.1991) 32
Norwood v. Bain, 143 F.3d 843 (4th Cir. 1998), aff'd,
166 F.3d
243 (4th Cir.), cert. denied, 119 S. Ct. 2342 (1999) 31
O'Shea v. Littleton, 414 U.S. 488 (1974) 39
Schmidt v. Lessard, 414 U.S. 473 (1974) 2, 19, 21, 22-23
Seattle-First National Bank v. Manges, 900F.2d 795 (5th
Cir. 1990) 23
Shankle v. Texas City, 885 F. Supp. 996 (S.D. Tex. 1995)
9, 11, 30, 41
State v. Swift, 207 S.E.2d 459 (Ga. 1974) 32-33
United States v. Articles of Drug, 825 F.2d1238 (1987)
2, 22, 27, 40
United States v. Galindo-Gonzales, 142 F.3d1217 (10th
Cir. 1998) 27, 29
United States v. Johnson, 159 F.3d 892 (4thCir. 1998)
4
United States v. Linick, ____ F.3d ____, 1999WL 1011865
(9th Cir. 1999) 4
United States v. Martinez-Fuerte, 428 U.S. 543 (1976)
3, 10, 29, 31-32, 33
United States v. McFayden , 865 F.2d 1306 (D.C. Cir.
1989) 25, 27, 30, 32
United States v. Rainbow Family, 695 F. Supp.294 (E.D.
Tex. 1988) 4
United States v. Soto-Camacho, 58 F.3d 408 (9th Cir.
1995) 30
United States v. Zeigler, 831 F. Supp. 771(N.D. Cal.
1993) 32
United States Department of Defense v. Meinhold, 510
U.S. 393 (1993) 35
United Transp. Union v. State Bar, 401 U.S.576 (1971)
40
Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) 35
Constitution:
United States Constitution:
Article III 42
First Amendment 6, 10
Fourth Amendment passim
Statutes:
28 U.S.C. 1291 2
28 U.S.C. 1331 1
28 U.S.C. 1343 2
28 U.S.C. 2107(b) 2
Rules:
Eighth Circuit Rule 30A(b)(3) 2
Federal Rules of Appellate Procedure, Rule 4(a)(1)(B) 2
Federal Rules of Civil Procedure:
Rule 59(e) 2, 12, 13, 22
Rule 65(d) passim
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
__________________________
No. 99-3903
__________________________
TRACIE PARK,
Plaintiff-Appellee,
v.
THE FOREST SERVICE OF THE UNITED STATES OF AMERICA,
Defendant-Appellant,
and
WELDON WILHOIT, in his official capacity
as the Superintendent of the Missouri State Highway Patrol,
Defendant,
and
OREGON COUNTY.
Defendant.
__________________________
ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
__________________________
BRIEF FOR THE APPELLANT
__________________________
PRELIMINARY STATEMENT
The decision appealed from was rendered by Senior Judge
Russell G. Clark. Plaintiff invoked the jurisdiction of the district
court under 28 U.S.C. 1331 and 1343. App. 13 ¦ 3. 1/
The district court's "Order & Injunction" granting
an injunction against the Forest Service was entered June 11,
1999.
_____________________________
1/ In this brief, "App. "refers to the government's
Appendix filed pursuant to Rule 30A(b)(3) of the Eighth Circuit
Rules; "Op." refers to the district court's Order &Injunction
filed June 11, 1999; "Add." refers to the Addendum attached
to this brief.
-1-
App. 60. The district court's judgment was also entered June 11,
1999. App. 59. The district court's order denying the Forest Service's
motion pursuant to Rule 59(e), Fed. R. Civ. P., to alter or amend
the judgment was entered August 16, 1999. App. 92. The notice
of appeal (App. 94), which was filed on October 12, 1999, was
timely under 28 U.S.C. 2107(b) and Rule 4(a)(1)(B), Fed. R. App.
P. This Court has jurisdiction under 28 U.S.C. 1291.
STATEMENT OF THE ISSUES
1. Whether the district court's injunction must be vacated
because it fails to comply with the requirements of Rule 65(d),
Fed. R. Civ. P.
Schmidt v. Lessard, 414 U.S. 473 (1974);
Granny Goose Foods, Inc. v. Teamsters,415 U.S. 423 (1974);
Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd.,
824 F.2d 665 (8thCir. 1987);
United States v. Articles of Drug, 825 F.2d 1238 (1987);
Rule 65(d),Fed. R. Civ. P.
2. Whether the injunction must be vacated because it is
overbroad.
Califano v. Yamasaki, 442 U.S. 682(1979);
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990);
United States v. Martinez-Fuerte, 428 U.S.543 (1976);
Brouhard v. Lee, 125 F.3d 656 (8th Cir. 1997);
Fourth Amendment, United States Constitution.
3. Whether plaintiff lacked standing to seek injunctive relief.
City of Los Angeles v. Lyons, 461 U.S.95 (1983);
Shankle v. Texas City, 885 F. Supp.996 (S.D. Tex. 1995).
-2-
STATEMENT OF THE CASE
A. Constitutional and Statutory Provisions Involved.
1. The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
2. Rule 65(d), Fed. R. Civ. P., in pertinent part provides:
Every order granting an injunction * * * shall set forth
the reasons for the issuance; shall be specific in terms; shall
describe in reasonable detail, and not by reference to the complaint
or other document, the act or acts sought to be restrained *
**.
-3-
B. Facts and Decisions Below.
1. a. Plaintiff Tracie Park is a member of the Rainbow
Family. The Rainbow Family "is an unincorporated, loosely-structured
group of individuals that regularly gathers in undeveloped sites
in National Forests to pray for peace, discuss environmental and
other contemporary political and social issues, and [to] exchange,
develop, express, and demonstrate their ideas and views."
Black v. Arthur, 18 F. Supp.2d 1127, 1130 (D. Or. 1998),
appeal pending, Nos. 98-36044 & 98-36046 (9th Cir.). Since
1972, "[a]nnual gatherings have occurred in different National
Forests on and around July 4. These gatherings draw more than
20,000 participants and last for a month or more. Smaller regional
gatherings take place throughout the year in National Forests
across the country." Ibid. See also App. 63-64 (Op.
3-4); App. 47 (Thorsen Declaration ¦ 5); United States
v. Linick, ___ F.3d ___, 1999 WL 1011865 (9th Cir. 1999);
United States v. Johnson, 159 F.3d 892, 893 (4th Cir. 1998);
and United States v. Rainbow Family, 695 F. Supp.294, 298
(E.D. Tex. 1988).
b. The district court found as follows. 2/ In 1996,
the Rainbow Family held its annual gathering in the Mark Twain
National Forest. The site of the gathering was approximately two
and one-half miles down an ordinarily lightly traveled gravel
road from the nearest paved road. Forest Service law enforcement
personnel, assisted by members of the Missouri State Highway Patrol
(MSHP), established a checkpoint on the gravel road approximately
one mile from the Rainbow Family gathering. The checkpoint was
maintained from June 23, 1996, through July 7th or 8th, extending
from daylight hours to the early hours of the morning. App. 64-65;
Op. 5-6.
________________________________
2/ For purposes of this appeal, we do not dispute these
findings of fact.
-4-
The checkpoint was conducted with no written plan for its
operation. After the checkpoint became operational, the Forest
Service received a copy of the MSHP policy on sobriety checkpoints.
The checkpoint failed to conform to the requirements of the Missouri
policy because, for example, there were no signs to warn approaching
motorists that a checkpoint was ahead. The hours of operation
of the checkpoint were determined by the Forest Service Law Enforcement
shift supervisors without any written policy or guidance. Although
one of the stated purposes of the checkpoint was to provide the
public with information about health and safety issues at the
gathering, the checkpoint utilized radar to detect speeders, involved
sobriety tests and related interrogation, and included requests
for driver's licenses, registration, and proof of insurance. The
checkpoint also involved plain-view inspections of vehicle interiors,
vehicle equipment inspections, drug interdiction, and detecting
violations of law in general. App. 64-66, 72-72a, 79-80; Op. 5-7,13-14,
and 21-22.
Tracie Park went through the checkpoint twice, both times
as a passenger. On the first occasion, while the driver was asked
to produce his driver's license, registration, and proof of insurance,
other officers shone flashlights into the car, and one officer
stated that the purpose of the checkpoint was a routine check
for drivers who were driving while intoxicated (DWI). On the second
occasion, the driver was asked for his license, and the car was
checked for properly working headlights, turn signals, tail lights,
and license plate lights. App. 65-66; Op. 6-7.
-5-
2. a. Park brought this action solely on her own behalf.
App. 14; Complaint ¦ 5.She sought an injunction to prevent
the Forest Service "from continuing to conduct the police
roadblocks related to Rainbow Family gatherings which they have
established within or in the vicinity of the Mark Twain National
Forest in Oregon County or in other Missouri counties within the
District * * * without individualized probable cause" (App.24
¦ B; Complaint at p. 13 ¦ B) or "[without]
a warrant approving such roadblock in advance" (App. 45;Suggestions
in Support of Plaintiff's Motion for Summary Judgment at 15).See
also App. 89; Response to 59(e) Motion at 1 ("without first
obtaining a search warrant"). Park alleged that the Forest
Service, along with the Superintendent of the MSHP and law enforcement
officers from Oregon County, Missouri, impinged on her rights
guaranteed by the First and Fourth Amendments to the U.S. Constitution
because the checkpoint constituted an unreasonable seizure and
its location unfairly targeted the Rainbow Family as it exercised
its right to assemble and speak freely. App. 23-27.
b. In September 1997, pursuant to the parties' request
and before dispositive motions had been filed, the district stayed
proceedings to allow the Forest Service to review its use of checkpoints
and to develop a national checkpoint policy. See App. 5; Docket
No. 35. Subsequently, the Forest Service promulgated its National
Policy on checkpoints which became effective on September 30,
1998. App.50-58. 3/ (Hereinafter, we refer to the national
policy as the "1998 Policy" or "Policy").
The _____________________________
3/ See also Add. at p. 30A.
-6-
1998 Policy specifies a number of neutral factors to be considered
in determining whether a checkpoint should be established at an
event in the National Forest System:(1) "[t]he importance
of the interests the checkpoint is intended to serve and the extent
to which those interests relate to the Forest Service mission,
particularly resource protection and public safety"; (2)
"[t]he likelihood that the checkpoint would effectively serve
those interests"; and (3) "[t]he extent to which the
checkpoint would intrude upon law-abiding motorists, including
the delay imposed." App. 52 (Policy ¦ 360). In general,
the Policy addresses site selection, the timing and duration of
the checkpoint, publicizing the location and purpose, decisions
regarding the staffing of the checkpoint and the clothing to be
worn by officials staffing the checkpoint, what signs and warning
devices should be utilized, what inquiries may be made, what to
do at the initial stop, what to do if a secondary stop appears
to be necessary, and when a driver and/or occupants may be required
to exit the vehicle. App. 53-56; Policy ¦362.1(1)-(11).
More specifically, before a checkpoint can be established, local
Forest Service personnel must first submit a "written request
* * * along with a checkpoint plan" to "a Supervisory
Law Enforcement Officer or a Supervisory Special Agent."
App. 53; Policy¦ 362.1(1). The plan "must address"
(1) the reasons for establishing the checkpoint, (2) the location,
(3) the approximate time and duration,(4) the personnel to be
assigned to the checkpoint, (5) in the case of a" compliance
-7-
checkpoint" - for example, a sobriety or driver's license
checkpoint - the specific inquiries or demands that will be made
of the driver and/or occupants, and (6) in the case of a informational
checkpoint, the information to be provided. App. 53; Policy ¦
362.1(1)(a)-(f). Moreover, the checkpoint cannot be established
unless and until the requester receives "[w]ritten authorization"
from a "Supervisory Law Enforcement officer or Supervisory
Special Agent" (App.54; Policy ¦ 362.1(6)). Pursuant
to the written authorization, officials staffing the checkpoint
must "stop all vehicles" (App. 52; Policy ¦ 361(5)),
unless" the checkpoint supervisor has expressly approved
another non-discriminatory method (such as stopping every second
or fifth vehicle" (ibid.). Furthermore, with respect to the
initial stop, the written authorization must specify "the
specific inquiries or demands that are to be made of the driver
and/or occupants of the vehicle" in a compliance checkpoint
or "the information that is to be provided" at an informational
checkpoint. App. 54; Policy ¦ 362.1(6)(a)-(b). With respect
to a secondary stop, the Policy informs checkpoint officials under
what circumstances such stops may be made and directs officials
to "[k]eep careful records" of such stops. App. 55;Policy
¦ 10. See also App. 55-56; Policy ¦ 11 (detailing
when drivers and/or occupants may be required to exit the vehicle).
c. Thereafter, the parties filed dispositive motions, and
on June 11, 1999, the district court granted Park's motion for
summary judgment, denied the Forest Service's motion to dismiss
and, in the alternative, for summary judgment, and dismissed Park's
claims against the MSHP and Oregon County. See App. 60. See also
Add. 2A. The district court first found that Park had standing
vis-a-vis the Forest Service to maintain her Fourth Amendment
challenge to the 1996 checkpoint. App. 66-68; Op. 7-9. The court
dismissed her Fourth Amendment claims against the MSHP and Oregon
County for lack of standing. App. 68-69; Op. 9-10.
-8-
On the merits, the district court determined that vehicle
stops at checkpoints are "seizures" under the Fourth
Amendment, and therefore must be "reasonable" to be
constitutional. App. 71 (Op. 12), citing United States v. Martinez-Fuerte,
428 U.S. 543, 556 (1976), and Michigan Dep't of State Police
v. Sitz, 496 U.S. 444 (1990). The court stated that the reasonableness
of checkpoints "turns on factors such as the location and
method of operation of the checkpoint." App. 71 (Op. 12),
citing Martinez-Fuerte, 428 U.S. at 565-66.
The district court noted that, according to the record,
the purpose of the checkpoint was variously described as a "safety"
checkpoint, a DWI checkpoint, a way to stop speeders and drinkers,
a place to check for safety violations, a check for driver's licenses,
registrations, and proof of insurance, a means to deter criminal
conduct and enhance traffic safety, an opportunity to catch local
drug dealers, and an opportunity to inform Rainbow Family attendees
of National Forest regulations, parking information, and other
information. App. 64-66, 72-73, 79-80; Op.5-7, 13-14, 21-22. The
court then analyzed the constitutionality of the checkpoint as
if it were (1) a sobriety checkpoint (App. 72a-74; Op. 14-16),
(2) a general deterrence checkpoint(App. 75-77; Op. 17-19), and
(3) a driver's license checkpoint (App. 77-79;Op. 19-21), 4/
and determined that the 1996 checkpoint was unconstitutional in
all three respects.
-9-
As a sobriety checkpoint, the checkpoint failed under the
Sitz requirements because, according to the district court,
it was not set upon a publicly traveled road and was not adequately
effective in removing intoxicated drivers from the road. App.
72a-74; Op. 14-16. As a general law enforcement checkpoint, the
checkpoint was unconstitutional because "the intrusion upon
the law-abiding citizens attempting to enter the Rainbow Family
gathering is too great to justify a checkpoint erected to have
some kind of 'deterring effect' upon attendees." App. 76
(Op. 18), citing Shankle v. Texas City, 885 F. Supp. 996
(S.D. Tex. 1995), and Galberth v. United States, 590 A.2d
990, 998 (D.C. Ct. App. 1991). And, as a driver's license checkpoint,
the checkpoint was unconstitutional because it was not established
on a public street or highway, but on a gravel road in the forest
that was traveled almost exclusively by attendees of the Rainbow
Family gathering. App. 77-78; Op. 19-20. In the district court's
view, the location of the checkpoint meant that the checkpoint
specifically targeted the Rainbow Family and that, as a result,
the checkpoint lacked the neutrality necessary for constitutionality.
App. 79; Op. 21 ("the location was chosen to specifically
target the Rainbow Family" and "[b]y its placement *
* * ensures that it is not random," thus undermining "the
inherent neutrality" of checkpoints) (emphasis in original).
____________________________
4/ By a "driver's license checkpoint," we
mean a checkpoint for drivers' licenses as well as registration
and other documentation pertaining to the privilege of driving.
-10-
The district court also "[found] that the1996 checkpoint
was set up for the purpose of generally deterring criminal activity."
App. 79; Op. 21. The court determined that the other purposes
articulated by various officials were a "subterfuge to allow
law enforcement officers to question attendees, do plain view
searches, and basically attempt to muster up whatever charges
they could find to press against Rainbow Family members."
App. 80; Op. 22. Finally, the district court determined that the
1998 Policy did not moot the case because the Policy did not preclude
the Forest Service from establishing future checkpoints that "targeted"
Rainbow Family gatherings. App. 67-68; Op. at 8-9. 5/
d. As to relief, the district court stated as follows:
"ORDERED that Plaintiff's Motion for Summary Judgment is
granted" (App. 82; Op. 24) and(2) "ORDERED that the
Forest Service * * * is enjoined from establishing any roadblocks
or checkpoints that violate the contents of this Order" (App.
83; Op. 25) (uppercase in original in both quotations). See also
Judgment (Add. 1A; App. 59). The court otherwise did not specify
what conduct it was prohibiting.
-11-
3. On June 25, 1999, the Forest Service filed a motion
to alter or amend judgment, under Rule 59(e), Fed. R. Civ. P.,
requesting the district court to clarify the scope of the injunction.
App. 84. The Forest Service noted that the only checkpoint challenged
was the 1996 checkpoint in the Mark Twain National Forest and
that, accordingly, the court should clarify the injunction's "breadth"
and whether the court intended to hold that any checkpoint operated
in connection with a Rainbow Family gathering was prohibited unless
a warrant was obtained or whether the injunction was limited to
the 1996 checkpoint and the Forest Service's conduct there. The
Forest Service pointed out that even Park had taken the position
that not all checkpoints at Rainbow Family gatherings - for example,
informational checkpoints - would be constitutionally objectionable.
App. 86. In addition, the Forest Service argued that, under Rule
65(d), an injunction must (a) set forth the reasons for issuance,
(b) be specific in its terms, and (c) describe in reasonable detail,
and not reference the complaint or other documents, the act or
acts to been joined. The court's order did not comply with those
requirements, the government argued (see App. 86), because the
order's operative language did no more than (1) grant plaintiff's
motion for summary judgment (see App. 82; Op. 24) and (2) prohibit
the Forest Service "from establishing roadblocks or checkpoints
that violate the contents of this Order" (App. 83; Op. 25).
________________________
5/ By a "driver's license checkpoint," we
mean a checkpoint for drivers' licenses as well as registration
and other documentation pertaining to the privilege of driving.
-12-
The district court denied the Rule 59(e) motion, and stated
that it "did intend 'breadth.'" App. 92; August 16Order
at 1. It also stated as follows:
The Forest Service is free - as it always has been - to
enforce this nation's laws on an individualized basis. However,
any future checkpoint or roadblock set up in connection with
Rainbow Family gatherings must be applied to all citizens equally.
That means that the Forest Service may not choose some remote
location for its checkpoint, traveled mostly only by those attending
the gathering. Logically then, the location of a checkpoint must
be on a public highway used by all types of citizens. Nor may
the Forest Service ever use a checkpoint, no matter its location,
as an opportunity to "generally deter criminal activity."
App. 93 (Order of August 16, 1999, at 2).
-13-
SUMMARY OF ARGUMENT
There are three reasons why the district court's injunction
should be vacated. First, it fails to comply with the requirements
of Rule 65(d), Fed. R. Civ. P. Second, the injunction is overbroad.
It enjoins checkpoints that are constitutional, and is a nationwide
injunction where there is no basis for such scope. Third, and
perhaps most fundamentally, Park lacked standing to seek injunctive
relief.
1. a. The district court's injunction must be vacated because
it does not comply with Rule 65(d), Fed. R. Civ. P. There are
only two operative components of the injunction: the first component
simply grants the plaintiff's motion for summary judgment, and
the second merely enjoins the Forest Service "from establishing
any roadblocks or checkpoints that violate the contents of this
Order." Neither component complies with Rule 65(d)'s requirement
to specify in detail the acts that are prohibited. In addition,
the injunction is so vague as to what checkpoints are allowed
that the Forest Service cannot conduct any checkpoints without
risking contempt. This, too, violates Rule 65(d).
-14-
b. Even reference to the findings and conclusions contained
in the body of the district court's "Order & Injunction"
does not remove the Rule 65(d) problem. Nowhere does the "Order
& Injunction" state precisely what acts are prohibited.
In any event, Park herself stated that the litigation involves
only generalized law enforcement roadblocks, and the district
court concurred. No other checkpoints were at issue. Pursuant
to Rule 65(d), therefore, the district court's injunction should
not have enjoined more than that specific conduct.
c. Nor does the court's August 16 Order cure the deficiency.
Although the district court stated that the injunction prohibited
the Forest Service from conducting general law enforcement checkpoints,
the court's order does not specify the acts that are prohibited
and certainly does not limit the injunction to prohibiting checkpoints
established for general law enforcement purposes. It therefore
does not cure all of the Rule 65(d) deficiencies in the injunction.
2. a. Even if the district court's order complied with
Rule 65(d), it would have to be vacated because it is overbroad.
The injunction is based on two legal conclusions: one, that the
Fourth Amendment prohibits general law enforcement checkpoints;
and, two, that the Fourth Amendment prohibits checkpoints that
target specific groups or events because such targeting undermines
the neutrality of the checkpoint. We do not dispute the correctness
of the first conclusion. However, the second conclusion simply
does not comport with Fourth Amendment law.
-15-
Nothing in the Fourth Amendment requires law enforcement
officials to locate checkpoints blindly, without reference to
the problems to which the checkpoints are directed. Thus, under
Fourth Amendment case law, the neutrality of a checkpoint has
not been determined by its location but, rather, by the lack of
discretion afforded agents at a checkpoint. See Michigan Dep't
of State Police v. Sitz, 496 U.S. 444 (1990) (checkpoint had
been operated in a neutral fashion because officers were required
to stop every approaching vehicle and had no discretion to do
otherwise). Sitz also found neutrality buttressed by the fact
that standardized procedures for establishing and conducting checkpoints
had been employed. That the neutrality of a checkpoint is determined
by the lack of discretion afforded checkpoint officers, not the
location of the checkpoint (as the district court erroneously
ruled), is further buttressed by the fact that courts have routinely
upheld the constitutionality of checkpoints that have targeted
particular events, groups, or neighborhoods. Nor does the Forest
Service establish checkpoints to target gatherings only because
the Rainbow Family is the sponsor. Thus, the district court's
conclusion that the "targeting" of a Rainbow Family
gathering was per se unconstitutional is incorrect. As a result,
the district court's injunction, to the extent it prohibits checkpoints
in connection with Rainbow Family gatherings, is per se an abuse
of discretion and must be vacated.
-16-
b. As the previous discussion demonstrates, the district
court erred in ruling that a checkpoint that targets a specific
group or event is per se unconstitutional. Once that error is
uncovered, it leaves standing only the conclusion that the 1996
checkpoint was unconstitutional because it was established for
general law enforcement purposes. With respect to that ruling,
however, Park did not need a nationwide injunction to obtain complete
relief.
Ordinarily, it is inappropriate to issue a nationwide injunction
at the behest of a single plaintiff. Here, Park contended that
she has attended, and plans to attend in the future, annual and
regional Rainbow Family gatherings across the country. That contention
alone, however, is not enough to have warranted nationwide relief.
Rather, nationwide relief might have been appropriate had the
district court found some indication that the Forest Service had
employed general law enforcement checkpoints nationwide or that
it planned to implement such checkpoints in the future. But, the
district court made no such finding. Moreover, the 1998 Policy
buttresses the fact that there is no likelihood that the Forest
Service will establish general law enforcement checkpoints in
the future. The Policy, which was promulgated two years after
the 1996 checkpoint at issue here and brought to the district
court's attention prior to its ruling in this case, establishes
a detailed process for approving checkpoints, and pursuant to
that process, the likelihood that a checkpoint for general law
-17-
enforcement purposes would be approved is nil. Accordingly,
the district court's nationwide injunction was an abuse of discretion
and must be vacated for that reason.
3. Once it is understood that the district court erred
in ruling that a checkpoint that targets a specific group or event
is per se unconstitutional, only the holding that 1996 checkpoint
was unconstitutional as a general law enforcement checkpoint remains.
However, with respect to general law enforcement checkpoints,
Park did not (and could not) demonstrate that there is a likelihood
that the Forest Service will establish such checkpoints in the
future. Therefore, Park had no standing to seek injunctive relief
with respect to such checkpoints (she had standing to seek only
declaratory relief as to the1996 checkpoint), and the district
court lacked subject matter jurisdiction to grant such relief.
See City of Los Angeles v. Lyons, 461 U.S. 95(1983).
-18-
ARGUMENT
I. THE DISTRICT COURT'S INJUNCTION MUST BE VACATED BECAUSE IT
DOES NOT COMPLY WITH THE REQUIREMENTS OF RULE 65(d), FED. R.CIV.
P.
Standard of Review. Whether an injunction complies with
Rule 65(d), Fed. R. Civ. P., is reviewed de novo. See, e.g., Schmidt
v. Lessard, 414 U.S. 473 (1974); Calvin Klein Cosmetics
Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665 (8th Cir. 1987).
A. The district court's injunction does not comply with
Rule 65(d), Fed. R. Civ. P., and therefore must be vacated for
that reason alone. Rule 65(d), in pertinent part, provides as
follows:
Every order granting an injunction * * * shall set forth
the reasons for the issuance; shall be specific in terms; shall
describe in reasonable detail, and not by reference to the complaint
or other document, the act or acts sought to be restrained *
* *.
Here, the district court's injunctive order did not describe
at all - let alone describe in reasonable detail- the act or acts
sought to be restrained.
-19-
The district court's injunctive order has two critical
components. First, it "ORDERED that Plaintiff's Motion for
Summary Judgment is granted * * *." App. 82, Op. 24 (upper
case in original). See also Judgment, Add. 1A (App. 59). Second,
it "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." App. 83; Op. 25
(upper case in original). See also Judgment (Add. 1A; App. 59).
Neither of these aspects of the order complies with Rule 65(d)'s
requirement for specificity and detail. Indeed, the district court's
injunction is the archetype of precisely what Rule 65(d) seeks
to avoid. See, e.g., Granny Goose Foods, Inc. v. Teamsters,
415 U.S. 423, 444 (1974)("[O]ne basic principle built into
Rule 65 is that those against whom an injunction is issued should
receive fair and precisely drawn notice of what the injunction
actually prohibits."); Calvin Klein Cosmetics Corp. v.
Parfums de Coeur, Ltd., 824F.2d 665, 669 (8th Cir. 1987) (same).
In addition, the injunction is so vague that it is not
clear what checkpoints are allowed. For example, the injunction
appears to prohibit purely informational and emergency checkpoints
erected in connection with large gatherings sponsored by the Rainbow
Family even though such checkpoints were not at issue in this
case and would be constitutional. See discussion, infra, Point
I(B) (discussing fact that Park has acknowledged that only general
law enforcement checkpoints - and not informational, emergency,
or other checkpoints - are at issue); and Point II(A) (informational
and emergency checkpoints, as well as sobriety and driver's license
checkpoints, are constitutional even if erected in connection
with a specific event or a gathering of a particular group, such
as the Rainbow Family). The injunction thus fails to comply with
Rule 65(d) in this respect as well. See, e.g., Calvin Klein
Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d at 669.
-20-
Calvin Klein Cosmetics Corp., 824 F.2d 665, is particularly
instructive. In Calvin Klein, the Court stated inter
alia that "Rule 65(d)'s specificity requirement is designed"
for three principal reasons: (1) " to prevent uncertainty
and confusion on the part of those to whom the injunction is directed";
(2) "to avoid the possible founding of contempt citations
on an order that is too vague to be understood"; and (3)
"to ascertain that the appellate court knows precisely what
it is reviewing." 824 F.2d at 669(citing Granny Goose
Foods, Inc., 415 U.S. at 444; and Schmidt v. Lessard,
414 U.S. 473, 476-477 (1974)). The Court determined that a district
court injunction prohibiting the defendant from engaging in conduct
that was described only in the most general terms violated Rule
65(d) because it required the defendant "to guess at what
kind of conduct would be deemed [a violation of the injunction]"
(824F.2d at 669). 6/ In the instant case, the injunction
does not even use general terms to describe the acts prohibited;
rather, it merely grants plaintiff's summary judgment motion and
prohibits the Forest Service from "establishing any roadblocks
or checkpoints that violate the contents of this Order."
App. 59 (Judgment) and App. 82, 83 (Op.24, 25). A fortiori,
the injunction here does not comply with Rule 65(d).
__________________________
6/ And the Forest Service's concession here regarding the unconstitutionality
of general law enforcement checkpoints (see n.7,supra) provides
additional support for this statement.
-21-
Moreover, in United States v. Articles of Drug,
825 F.2d 1238, 1247 (8th Cir. 1987), the district court stated
that the defendants are enjoined from "selling or marketing
in any way products described in [the complaint] and * * * from
employing marketing techniques to sell drug products identical
or similar to those described in [the complaint]." 825 F.2d
at 1247. This Court ruled that the injunction fell short of the
requirements of Rule 65(d) because, in merely referring to the
complaint, the district court failed to identify the specific
drug products and failed to specify the prohibited marketing techniques.
Ibid. The Court therefore vacated the injunction with directions
to the district court "to revise the injunction so that the
specific acts which are prohibited are clearly defined within
the order as required by Fed. R. Civ. P. 65(d)." Ibid.
Schmidt v. Lessard, 414 U.S. 473 (1974), and Fonar
Corp. v. Deccaid Services, Inc., 983 F.2d 427 (2d Cir. 1993),
are also instructive. In Lessard, the district court entered
an injunction that, similar to the injunction at issue here, stated
that "[i]t is Ordered and Adjudged that judgment be and hereby
is entered in accordance with the Opinion heretofore entered *
* *." Id. at 474 (internal quotation marks omitted).
The Supreme Court held that the "order here falls far short
of satisfying * * * Rule65(d)."
In Fonar, the district court entered an order requiring defendants
to "strictly adhere to the prohibitions of [the court's]
Order of November 1, 1991, as modified in paragraph 14 of the
accompanying Findings of Fact and Conclusions of Law regarding
Contempt." 983 F.2d at 430 (internal quotation marks omitted).
The court of appeals held that the injunction did not comply with
Rule 65(d). The court emphasized that Rule65(d) "is satisfied
only if the enjoined party can ascertain from the four
-22-
corners of the order precisely what acts are forbidden."
Ibid. See also, e.g., Chicago & North Western Trans. Co.
v. Railway Labor Exec. Ass'n, 908 F.2d 144, 149 (7th Cir.
1990) (district court judgment that grants injunction and "refers
the reader to the accompanying opinion" does not comport
with Rule 65(d)); Seattle-First Nat'l Bank v. Manges, 900
F.2d 795, 799-800 (5th Cir. 1990) (district court grant of preliminary
injunction that incorporated magistrate's findings and recommendation
without further elaboration does not comport with Rule65(d));
Mitchell v. Seaboard System Railroad, 883 F.2d 451, 454
(6thCir. 1989) (reference in injunction to "the opinions
expressed herein" does not comport with Rule 65(d)); Meltzer
v. Bd. of Public Instruction of Orange County, Florida,480
F.2d 552, 554 (5th Cir. 1973) (reference in injunction to previous
orders and opinions does not comport with Rule 65(d)); B.H.
Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1269(5th
Cir. 1971) (injunction's broad reference back to findings of fact
to define its proscription insufficient to meet the specificity
requirement of Rule 65(d)).
-23-
B. Even reference to the findings and conclusions contained
in the body of the district court's "Order & Injunction"
does not remove the Rule 65(d)problem. Nowhere in the body of
the district court's "Order & Injunction" does the
court specify what conduct is prohibited. Moreover, Park herself
stated that "this litigation involve[s] generalized law enforcement
roadblocks" (App. 90; Response to59(e) Motion at 2), and
the district court concurred. See App. 79; Op. 21 ("the Court
finds that the 1996 checkpoint was set up for the purpose of generally
deterring criminal activity"); and App. 80; Op. 22 ("the
checkpoint was * * * a subterfuge to allow law enforcement officers
to question attendees, do plain view searches, and basically attempt
to muster up whatever charges they could find to press against
Rainbow Family members"). Consequently, as Park herself has
acknowledged, no other checkpoints were at issue. Pursuant to
Rule 65(d), therefore, the district court's injunction should
have enjoined the Forest Service only as to that specific conduct.
See, e.g., Calvin Klein, 824 F.2d at 669. But the injunction did
not because it did not specify in any way what conduct it was
prohibiting. Hence, the injunction violated Rule 65(d).
-24-
C. Nor does the court's August 16 Order, denying the Forest
Service's Rule 59(e) motion (App. 92), cure the deficiency. Although
the district court stated that the injunction prohibited "the
Forest Service [from] ever us[ing] a checkpoint, no matter its
location, as an opportunity to 'generally deter criminal activity'"
(App. 92; August16 Order at 2), the Court's order does not otherwise
specify what acts are prohibited as Rule 65(d) requires. For example,
the injunction still appears to enjoin the Forest Service from
establishing checkpoints on National Forest System roads for purely
informational purposes (such as to notify members of the public
of extreme fire danger or of other risks to public health and
safety) or for emergencies (such as the apprehension of potentially
dangerous suspects or fugitives). As previously stated, such checkpoints
were not at issue in this case and, therefore, should not have
fallen within the scope of the injunction. See App. 90; Response
to Rule 59(e) Motion at 2 (Park acknowledges that "this litigation
involved generalized law enforcement roadblocks" and not
"other types of checkpoints"). Yet, the August 16 Order
did not limit the injunction to prohibiting
-25-
general law enforcement checkpoints and thus left intact the Rule
65(d)deficiencies of the injunction. Nor did the August 16 Order
clarify whether the injunction is a nationwide injunction or limited
to the Mark Twain National Forest. Consequently, the August 16
Order still leaves the Forest Service in the position of facing
contempt for establishing checkpoints anywhere in the National
Forest System in connection to Rainbow Family gatherings, including
informational and emergency checkpoints and properly conducted
sobriety and driver's license checkpoints.
In sum, the district court's injunction does not comply with
Rule 65(d) and, therefore, must be vacated.
-26-
II. ASSUMING THE INJUNCTION WERE DEEMED TO COMPLYWITH RULE
65(d), FED. R. CIV. P., THE INJUNCTION MUST BE VACATED BECAUSE
ITIS OVERBROAD.
Standard of Review. Whether the district court's
injunction is overbroad is normally reviewed under an abuse of
discretion standard. See, e.g., United States v. Articles of
Drug, 825 F.2d 1238, 1248 (8thCir. 1987). However, a district
court by definition abuses its discretion when it makes an error
of law. See Koon v. United States, 518 U.S. 81, 100 (1996);
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990); Modern Computer Systems, Inc. v. Modern Banking Systems,
Inc., 871 F2d 734, 737(8th Cir. 1989) (en banc).
-27-
A. The Injunction Is Overbroad Because It Enjoins Checkpoints
That Are Constitutional.
1. The district court's injunction is based on two legal
conclusions: one, that the Fourth Amendment prohibits general
law enforcement checkpoints; and, two, that the Fourth Amendment
prohibits checkpoints that target specific groups or events because
such targeting undermines the neutrality of the checkpoint. As
we stated previously (see n.7, supra), we do not dispute
the first conclusion. However, the second conclusion simply does
not comport with Fourth Amendment law.
Nothing in the Fourth Amendment requires law enforcement officials
to locate checkpoints blindly, without reference to the problems
to which the checkpoints are directed. Thus, under Fourth Amendment
case law, the neutrality of a checkpoint has not been determined
by its location but, rather, by the discretion - or, actually,
the lack thereof - afforded agents at a checkpoint. Nor does the
Forest Service use its checkpoint policy to target gatherings
only because the Rainbow Family sponsors them. The result of this
error is that the district court's injunction is an abuse of discretion
because it enjoins too much conduct - i.e., checkpoints that are
constitutional.
-28-
2. In Michigan Dep't of State Police v. Sitz, 496
U.S.444 (1990), the Supreme Court sustained the constitutionality
of a sobriety checkpoint stop - in the absence of reasonable individualized
suspicion or a warrant -because (1) prevention of drunken driving
and insuring that motorists are properly licensed to drive (and
that other related documentation is in order) are important governmental
purposes, (2) the intrusion on the motoring public is minimal,
and (3) the checkpoint was conducted in a neutral manner. See
496 U.S. at 450-455. See also Brouhard v. Lee, 125 F.3d
at 659; United States v. Galindo-Gonzales, 142 F.3d 1217,
1221 (10thCir. 1998). Sitz determined that the checkpoint
had been operated in a neutral fashion because officers were required
to "stop every approaching vehicle" (496U.S. at 453)
and had no discretion to do otherwise. See also Brouhard v.
Lee, 125 F.3d at 658
-29-
(constitutionality of checkpoint sustained where "[e]very
car was to be stopped"); United States v. McFayden,
865 F.2d at 1309 (same, where "officers were told to stop
every car in both directions"); United States v. Soto-Camacho,
58 F.3d 408, 411(9th Cir. 1995) (same, where "Border Patrol
agent stops all vehicles").
Sitz also found neutrality buttressed by the fact
that standardized procedures for establishing and conducting checkpoints
had been employed. 496 U.S. at 447, 453. See also Brouhard
v. Lee, 125 F.3d at 657, 660; and Shankle v. Texas City,
885 F. Supp. 996, 1004, 1005 (S.D. Tex. 1995). "The important
point * ** is that the stops be made in some systematic fashion,
prescribed in advance by superiors." United States v.
McFayden, 865 F.2d at 1311(internal quotation marks and citation
omitted).
-30-
That the neutrality of a checkpoint is determined by the
lack of discretion afforded checkpoint officers, not the location
of the checkpoint (as the district court erroneously ruled), is
further buttressed by the fact that courts have routinely upheld
the constitutionality of checkpoints that have targeted particular
events, groups, or neighborhoods. For example, Norwood v. Bain,
143 F.3d 843 (4th Cir. 1998), aff'd, 166 F.3d 243 (4th Cir.) (en
banc) (per curiam),cert. denied, 119 S. Ct. 2342 (1999),
upheld a checkpoint stop which targeted a discrete public gathering.
In that case, law enforcement officials learned that members of
two rival motorcycle gangs planned to engage in an armed confrontation
at a charity motorcycle rally held for the benefit of the American
Red Cross at the Spartanburg, South Carolina, fairgrounds. 143F.3d
at 845. A checkpoint was established at an entrance to the fairgrounds
where only persons entering the fairgrounds on motorcycles were
stopped, had their licenses examined, were videotaped, and some
had their saddlebags and unworn clothing searched for weapons.
Id. at 846. Under the Sitz balancing analysis, "the
initial stop for brief questioning and observation was reasonable
in view of the gravity of the public interest and the minimal
intrusion upon protected liberty interests such a seizure entailed."
Id. at 849. The gravity of the public interest in Spartanburg
-i.e., the prevention of an expected armed confrontation at a
charity event - far outweighed the brief intrusion on the attendees'
privacy rights.
Moreover, in Martinez-Fuerte, the Supreme Court,
in an immigration enforcement context, upheld a checkpoint targeted
specifically to intercept persons of Mexican ancestry.428 U.S.
at 553. The Court noted:
the choice of checkpoint locations is an administrative decision
that must be left largely within the discretion of the Border
Patrol. * * * We think the decision to locate a checkpoint at
San Clemente was reasonable. The location meets the criteria
prescribed by the Border Patrol to assure effectiveness * * *,
and the evidence supports the view that the needs of law enforcement
are furthered by this location.
-31-
Martinez-Fuerte, 428 U.S. at 562n.15 (citation omitted);
see also id. at 559n.13 ("[t]he choice of checkpoint
locations must be left largely to the discretion of Border Patrol
officials").
Further, courts have upheld checkpoints against Fourth
Amendment challenges when the checkpoints were established in
connection with particular neighborhoods, United States v.
McFayden, 865 F.2d at 1310-1312 (vehicle inspection checkpoint
properly targeted at neighborhood where drug sales created traffic
congestion), and Maxwell v. City of New York, 102 F.3d
664, 668 (2d Cir. 1996) (similar); and in connection with particular
locations or events, United States v. Zeigler, 831 F. Supp.
771 (N.D. Cal. 1993) (Army Reserve base),North Dakota v. Everson,
474 N.W.2d 695 (N.D. 1991) (a motorcycle rally); and State
v. Swift, 207 S.E.2d 459 (Ga. 1974) (a rock concert).
3. Nor does the Forest Service erect checkpoints to target
gatherings only when the Rainbow Family is the sponsor of the
gathering. On the contrary, the record demonstrates that, while
the Forest Service inter alia does target large group gatherings
for checkpoints, it does so because the size of the group raises
concerns about (a) public health and safety and (b) potential
damage to natural resources, and not because the Rainbow Family
sponsors the gathering. See App. 48(Thorsen Declaration ¦
7).
-32-
The 1998 Policy (App. 52-58), moreover, reinforces this
point. The Policy specifies that only neutral factors (that comport
with Fourth Amendment case law) may be considered in determining
whether a checkpoint should be established in the National Forest
System. See discussion, supra, at pp. 7-9;and App. 52 (Policy
¦ 360)). It is not surprising, therefore, that large group
gatherings, such as those of the Rainbow Family, will cause the
Forest Service to consider and, therefore, often erect checkpoints
given that large groups have an obvious impact on National Forest
resources and also raise obvious public safety concerns - two
primary interests of the Forest Service in its superintendence
of the National Forest System. See App. 47; Thorsen Declaration
¦ 5 (Rainbow Family gatherings "rang[e] in size from
between 15,000 and 25,000 attendees" at national gatherings
and "attract up to 5,000 persons" at regional gatherings).
But, the fact that a checkpoint is erected in connection with
a Rainbow Family gathering is not because the Rainbow Family sponsors
the gathering but rather because the gathering - which happens
to be a Rainbow Family event -affects important interests "relate[d]
to the Forest Service's mission"(App. 52; Policy ¦
360(1)). And, the record supports this point.
In sum, the district court's conclusion that the "targeting"
of a Rainbow Family gathering was per se unconstitutional is incorrect.
As a result, the district court's injunction, enjoining all checkpoints
in connection with Rainbow Family gatherings, is per se an abuse
of discretion, Koon v. United States, 518 U.S. at 100,
and must be vacated at least to that extent.
-33-
B. The District Court Also Erred In Issuing A Nationwide
Injunction With Respect To Its Holding That The 1996 Checkpoint
Was An Unconstitutional General Law Enforcement Checkpoint.
As the discussion in Point II(A) demonstrates, the district
court erred in ruling that a checkpoint that targets a specific
group or event is per se unconstitutional. Once that error is
uncovered, it leaves standing only the district court's conclusion
that the 1996 checkpoint was unconstitutional because it "was
set up for the purpose of generally deterring criminal activity"
(App. 79; Op. 21) -a conclusion that we do not dispute (see n.7,
supra). And, with respect to that ruling, Park did not need a
nationwide injunction to obtain complete relief.
1. Ordinarily, it is inappropriate to issue a nationwide
injunction at the behest of a single plaintiff. See, e.g., United
States Dep't of Defense v. Meinhold, 510 U.S. 393 (1993) (stay
of nationwide injunction granted incase where single individual
sued solely on his own behalf) ; Califano v. Yamasaki,
442 U.S. 682, 702 (1979) (it is a fundamental principle that an
injunction "should be no more burdensome to the defendant
than necessary to provide complete relief to the plaintiffs");
and Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420
(1977) ("a federal court is required to tailor the scope
of the remedy to fit the nature and extent of the constitutional
violation") (internal quotation marks omitted). In the instant
case, Park contended that she has attended, and plans to attend
in the
-34-
future, annual and regional Rainbow Family gatherings across
the country. See, e.g., App. 14, 22-23(Complaint ¦¦
5, 17). That contention, however, is not enough to have warranted
nationwide relief. A nationwide injunction might have been appropriate
if the district court had found some indication that the Forest
Service had employed general law enforcement checkpoints nationwide
or that it planned to implement such checkpoints in the future.
See, e.g., Califano v. Yamasaki, 442 U.S. at 702("the
scope of injunctive relief is dictated by the extent of the violation");
and Dayton Bd. of Educ. v. Brinkman, supra, 433
U.S. at 420. But the district court did not so find. Its only
finding was with respect to the 1996 checkpoint in the Mark Twain
National Forest.
Moreover, in light of the 1998 Policy (App. 50-58), the
district court could not have found a likelihood that the Forest
Service would establish general law enforcement checkpoints in
the future. As previously discussed(at pp. 7-9, supra), the 1998
Policy does not allow a checkpoint to be established unless local
Forest Service personnel seeking to conduct a checkpoint first
submit a written request "along with a checkpoint plan"
for approval by a supervisory official. App. 53; Policy 362.1(1).
The plan submitted by the requester "must address" (1)
the reasons for establishing the checkpoint, (2) the location,
(3) the approximate time and duration, (4) the personnel to be
assigned, (5) in the case of a "compliance checkpoint"-
for example, a sobriety or driver's license checkpoint -the specific
inquiries or demands that will be made of the driver and/or occupants,
and (6) in the case of a informational checkpoint, the information
to be provided. App. 53; Policy ¦ 362.1(1)(a)-(f). Moreover,
the checkpoint cannot be established unless and until written
approval is provided by the supervisory official. App.54; Policy
¦ 362.1(6). Furthermore, with respect to an initial stop,
the approval must specify the specific inquiries or demands that
are to be made of the driver and/or occupants of the vehicle in
a compliance checkpoint and the information to be provided at
an informational checkpoint. App. 54; Policy ¦ 362.1(6)(a)-(b).
The Policy also specifies when a secondary stop may be made and
the extent to which checkpoint officers may require the driver
and/or occupants to exit the vehicle. App. 55-56; Policy ¦¦
10-11. Thus, the requirement that the requester state the reasons
for establishing the checkpoint and the requirement that approval
must first be given, including approval of the specific inquiries
or demands that may be made of drivers or occupants at the initial
stop, ensure that no general law enforcement checkpoints will
be approved.
2. A nationwide injunction might also have been appropriate had
Park been able to prove that the Forest Service erects checkpoints
to target gatherings only when the Rainbow Family is the sponsor
of the gathering. But such proof is not possible, as we demonstrated,
supra, at pp. 33-34.
In sum, the district court did not find that the Forest Service
had been employing general law enforcement checkpoints nationally,
and in light of the 1998 Policy, the court could not have found
that such checkpoints would be employed in the future. Moreover,
the district court did not find, and could not have found, that
the Forest Service's checkpoint policy targets gatherings solely
because the Rainbow Family sponsors them. Accordingly, a nationwide
injunction was an abuse of discretion and must be vacated.
-38-
III. ULTIMATELY, PARK LACKED STANDING TO SEEK INJUNCTIVE
RELIEF WITH RESPECT TO GENERAL LAW ENFORCEMENT CHECKPOINTS.
Standard of Review. Whether an individual has standing
to seek injunctive relief is a matter of law and, therefore, is
reviewed de novo. See City of Los Angeles v. Lyons, 461
U.S. 95(1983); Brouhard v. Lee, 125 F.3d at 661.
A. Ultimately, as we have now demonstrated, only the district
court's holding that the 1996 checkpoint was unconstitutional
as a general law enforcement checkpoint remains. However, in order
to have standing to seek injunctive relief with respect to such
a checkpoint, Park was required to demonstrate either a continuing
harm from such checkpoints or the likelihood that the Forest Service
would establish such checkpoints in the future. See City of
Los Angeles v. Lyons, 461 U.S. 95 (1983). She did neither.
-39-
B. In Lyons, the Court stated that "'[p]ast
exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief * * *if unaccompanied
by any continuing, present adverse effects.'" 461 U.S. at102
(quoting O'Shea v. Littleton, 414 U.S. 488, 495-496 (1974)).
The Court emphasized that "Lyons' standing to seek the injunction
requested depended on whether he was likely to suffer future injury
[from the same conduct]" (461 U.S. at 105), and determined
that Lyons had not demonstrated that he would likely suffer such
future injury. Hence, the Court held, Lyons had no standing to
seek injunctive relief because his claim "that he will again
experience injury as the result of [the challenged] practice"
was "speculative" (461 U.S. at 109). See also 461 U.S.
at 111 (Lyons "[wa]s no more entitled to an injunction than
any other citizen"). See also United Transp. Union v.
State Bar, 401 U.S. 576, 584 (1971) ("[a]n injunction
can issue only after the plaintiff has established that the conduct
sought to be enjoined is illegal and that the defendant, if not
enjoined, will engage in such conduct"); Bowen v. Kendrick,
487 U.S. 589, 621 (1988) (despite incidents of impermissible conduct
in the past, on remand lower court must direct its inquiry to
"the manner in which the statute is presently being administered");
Meis v. Gunter, 906 F.2d 364, 367 (8th Cir. 1990)
-40-
(in the absence of present or continuing harm to inmate or
definitive showing that future harm is imminent, claims for injunctive
relief do not raise a justiciable issue and may only be raised
in the future when the harm is threatened or imminent); United
States v. Articles of Drug, 825 F.2d at 1248 ("[a] district
court may issue an injunction if it concludes that the injunction
is necessary to prevent future violations"); ibid. ("future
violations" must be "likely to occur" (citation
omitted)). See also Brouhard v. Lee, 125 F.3d at 661 (motorists
had no standing to complain of certain conduct in their
challenge to constitutionality of a sobriety checkpoint because
motorists had not themselves been the victims of that conduct).
Shankle v. Texas City, 885 F. Supp. 996(S.D. Tex.
1995), is also instructive. In Shankle, the district court
determined that a checkpoint established for general law enforcement
purposes was unconstitutional.885 F. Supp. at 1002-1005. Nevertheless,
the district court held that it would enter only declaratory relief,
not injunctive relief, because there was "no immediate indication
that further identical roadblocks are planned by Defendants, and
in light of this ruling, the Court would candidly expect no more."
885 F. Supp. at1005.
-41-
As in Shankle, there was no reason for the district
court here to believe - especially given its ruling -that the
Forest Service would establish general law enforcement checkpoints
in the future. In addition, once the 1998 Policy was promulgated,
it was absolutely clear that the Forest Service would not establish
such checkpoints in the future. In this connection, the Forest
Service is entitled to the presumption that its checkpoints will
conform to the 1998 Policy. See, e.g., Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 415(1971). Therefore,
in the absence of the likelihood of future harm, Park lacked standing
to seek injunctive relief. (She had standing to seek only declaratory
relief with respect to the 1996 checkpoint at issue.)As a result,
the district court lacked subject matter jurisdiction to grant
injunctive relief, and the injunction should be vacated. 7/
___________________________________
7/ "To sustain * * *jurisdiction * * * it is not
enough that a dispute was very much alive when suit was filed
* * *." Lewis v. Continental Bank Corp., 494 U.S. 472, 477
(1990)."Th[e] case-or-controversy requirement [imposed by
Article III] subsists through all stages of federal judicial proceedings,
trial and appellate." Ibid. Thus, even if a plaintiff has
standing at the time she files her complaint, at every successive
stage she "must continue to have a 'personal stake in the
outcome' of the lawsuit" in order to have standing to proceed
with the litigation. Id. at 478 (quoting City of Los Angeles
v. Lyons, 461 U.S. at 101). See also Beck v. Missouri State High
Sch. Activities Ass'n, 18F.3d 604, 605 (8th Cir. 1994).
-42-
CONCLUSION
For the foregoing reasons, the district court's injunction
should be vacated.
Respectfully submitted,
DAVID W. OGDEN
Acting Assistant Attorney General
STEPHEN L. HILL, Jr.
United States Attorney
MICHAEL JAY SINGER
(202) 514-5432
HOWARD S. SCHER
(202) 514-4814
Attorneys, Appellate Staff
Civil Division, Room9116
Department of Justice
601 D Street, N.W.
Washington, D.C.20530-0001
NOVEMBER 1999
CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of November, I served
the foregoing Brief for the Appellant (plus diskette) and the
accompanying Appellant's Appendix by causing two copies of the
Brief and one copy of the Appendix to be sent by Federal Express,
for overnight deliv-ery, to:
Steven Douglas Bonney
215 West 18th Street
Kansas City, Missouri 64108
Fred L. Slough
Slough, Connealy, Irwin & Madden
4051 Broadway, Suite 3
Kansas City, Missouri 64111
Attorneys for Plaintiff-Appellee
Andrea Spillars
Assistant Attorney General
514 East High St.
Jefferson City, Missouri 65101
Attorney for Defendant Weldon Wilhoit
Ray Lee Caskey
Oregon County Prosecuting Attorney
South Side Court Square
Oregon County, Room 10
Alton, Missouri 65606
Attorney for Defendant Oregon County
I also certify that I filed the Brief and Appendix by causing
an original and ten copies of the Brief (plus diskette) and three
copies of the Appendix to be sent by Federal Express, for overnight
delivery, to the Clerk, United States Court of Appeals for the
Eighth Circuit.
_____________________________________
HOWARD S. SCHER
Attorney for the Appellants
CERTIFICATE OF COMPLIANCE
I certify that this brief is proportionately spaced, using
CG Times font, 14 point type. Based on a word count under Corel
WordPerfect 7, this brief contains 10,565 words, including the
cover, the caption, the summary of the case, certificate of compliance,
and certificate of service.
I also certify that the computer diskette that I am providing
has been scanned for viruses under McAfee VirusScan, version3.1.0,
and has been found to be virus-free.
_____________________________________
HOWARD S. SCHER
Attorney for the Appellant
ADDENDUM
Table of Contents
Judgment (June 11, 1999) 1A
Order & Injunction (June 11, 1999) 2A
Order denying Rule 59(e) motion (August 16, 1999) 27A
Forest Service Handbook, National Policy for Checkpoints,
Amendment No. 5309.11-98-2 (effective September 30, 1998) 30A