Ocala Injunction, 10 Years Ago

Ten years ago today, we went to the Federal Court in Jacksonville, Florida and won a Preliminary Injunction against 'Rainbow Roadblocks' in Ocala National Forest.

I had been there a week before, Friday-the-13th, cranking out the 'pro se' civil complaint on the old Powerbook 180 in a cafe around the corner, and getting it filed with a motion for a Temporary Restraining Order (TRO) -- asking the judge to act immediately to stop ongoing abuses at the Ocala gathering. Instead he converted it into a Motion for Preliminary Injunction, so the Defendants (Forest Service & Sheriffs) could appear, and set the Hearing a week later. The hippies in the woods had to take another week of roadblock casualties, but the case was live, the game was On.

So on February 20, 1998 we were back in Jacksonville, a small entourage of 3 plaintiffs (myself, Doug "Farmboy" O'Brien, and Arjay Sutton Before-the-Fall), along with Whistler Dave from Gainesville. Farmboy had found a couple 4th Amendment lawyers from Orlando, and they would represent him; Arjay & I stayed 'pro se'. We met them in court... we brought the necessary facts & constitutional claims, they brought the required Memorandum of Law.

The Feds were there too... Asst. U.S. Attorney Reginald Luster, an Afro-yuppie sellout, had headed up the "U.S. v. Rainbow II" lawsuit at Osceola N.F. in '96, had all the lingo from those filings. Some high-end LEO's were on-hand (names in old notes) to assert that the roadblocks were legal and warranted for law enforcement purposes -- to check for weapons, drunk drivers, drugs, and of course, to enforce the 'Group Use' permit requirement. (?!) Luster baited me on the stand, asked about marijuana use at the gathering, and if I smoked any there... I objected to these questions, the Judge said to answer them, so I said 'No', and told him that lots of people smoke weed everywhere.

But our hard testimony was on the times, places, and circumstances of our stops, and of the roadblocks & gauntlets generally, showing a clear pattern and intent in police conduct, and we were ready to refute Fed allegations. Judge Schlesinger was not pleased with the systematic targeting and 4th Amendment violations, repeated stops going in and leaving camps, and searches of passengers. When he commenced his findings and they started going our way, I broke down in tears, for the sake of all those Kidz the pigs had stepped on.

The Judge GRANTED a Prelimary Injunction -- drawing a hard line between reasonable traffic enforcement and draconian rights violations against 1st Amendment exercise. Our legal strategy drew precisely this line in the sand, a really important principle in constitutional law, and we held it. This was also significant in meeting a high burden of proof to get such relief at the outset, including a "likelihood of prevailing on the merits" in the civil claims overall... in short, the Judge said we would probably win the whole case as it played out.

In truth, it was the best one we'd ever have -- more good facts, stronger legal arguments, building on clear dicta against targeting of public assemblies in the National Forests. It definitely backed off the Feds for a couple years in Florida, and gave us something to wave at cops in AZ, Cumberland, PA, & other gatherings. The Lake & Marion County Sheriffs pulled out of the roadblocks immediately, then out of the case completely on a Stipulated Permanent Injunction in October '99 -- leaving the Forest Service isolated in defense, just as planned.

The Feds actually caved in too, agreed to a Settlement, then suddenly broke their word, reversed their filings and re-opened the case on orders from higher-up. When they then moved for Summary Judgment, in fact this was an ideal procedural set-up for us to Win: It allowed affidavits & visual evidence (in lieu of live witnesses at trial), and our documentation was deep and ready for the record. By Feb. 2000, we actually had 'em where we wanted 'em... too bad it couldn't last...

The resonance of these events ten years later, and the point of this story: What it took back then to put up a strong fight for rights, and what it still takes today.

Just getting these civil claims into court built on two years of research and documentation on the harassles in Florida in '96-'98, finding scared victims and pulling in solid statements, sneaking off-site by night to protect the evidence, being prepared and changing the winds by having the facts.

The payoff in getting them was the ability to use them, and thereby to protect people from more abuse. The Ocala '99 regional was a beautiful gathering, and the cops mostly stayed away. Then pushing the case through procedural challenges, discovery, a '2nd Amended Complaint', settlement negotiations, and guvmint chicaneries, it took over two more years to set up the decisive phase on the issues, winning every battle on the way.

In short, it took lots of focused legal work, perseverence in-process, and some actual cooperation & guts among concerned folks -- stuff that ain't been happening much lately.

How that case fell apart also rings darkly down the years: It did not fail on its merits, or even because of a bad judge... it was a heavy breach of faith on the backside.

With a good final ruling in reach, the Florida Roadblock suit got sucked down in the highjacking of the Ocala Defense Fund -- which I founded in 1997 and chartered in 1998. When it got a $42,000 stock donation in 1999, Arjay Sutton & Barry Sacharow illegally incorporated the 'Association', defrauded the fiscal agent, took the money, hired the attorney in the case (Larry Walters), who then dumped it: When the Feds gave notice of their Summary Judgment Motion, on 1 Feb. 2000 he filed a voluntary dismissal and pulled co-plaintiffs out of the case; I would not quit and was left to carry it alone.

I kept the Preliminary Injunction alive through the Ocala gathering weeks later, and tried to get legal help in Florida for the complex filings in response. I got a Stay to seek counsel, but the ACLU in Gainesville wasted my time, and the Chapter office in Miami was useless. I talked to lots of Florida lawyers, few got it, too bad I had no access to the funds I HAD RAISED to Pay One. So procedural time ran out... I scrambled but could not complete the filings, and the default Judgment showed up in mid-July 2000: It cited the Preliminary Injunction in full and dismissed claims without prejudice, inviting a return to court if the Forest Service does this stuff again. Suddenly the war was lost.

In short, all it took to screw up everything was a money-grab & fame-game by a few honky hippies, misusing trust and selling out stakeholders -- stuff that might be happening again lately.

Seeing the drift of discourses in this forum and around, the ripple effects of those events are still with us, in the pointless sacrifice of strong legal positions, and ensuing retreats in fear.

Recent posts on events at Ocala '08 show cumulative effects of bad ideas, divisions, and the war of attrition for years. After my case went down, I.C. Malcolm Jowers re-imposed roadblocks at Ocala '01, and launched the 'mass citation' tactics that have dogged gatherings since. ODF was re-named "FARF" (Free Assembly Resource Fund)... the same guys stupidly got into organizing the event, then got stepped on. The next year in 2002 Sacharow signed a Group Use Permit -- a high-profile capitulation at a critical juncture in 'Rainbow' case law, nationwide. Ocala has been a 'permitted' event ever since, declining in local participation & support, suffering chaos & vulnerability as a result.

Other discussions dwell on conference calls with USDA Undersecretary Mark Rey and LEI honchos sidled up to him, seeking 'accomodations' for the gatherings. All at once, folks are walking into "agent" roles for the Rainbow Family, vesting it as a legal entity under regulation, and talking to Federal Cops about administrative policies they should have no thumbs in. Politically, it is a victims' plea in the backwash of crippling police actions, negotiating from a position of weakness (never wise), and not reaching core legal issues. At best, we get 'discretionary' relief from a lame-duck appointee, while the 'Group Use' regulatory scheme and 'Incident' regime are left intact, and in fact strengthened.

Hopes for humane solutions with the Feds are true and worthy, but they can't be heedless of ongoing legal struggles, or compromise their hard-fought principles.

As negotiations proceed with Fed Honchos in DC, look at the incentives in the situation, examine what may be driving them to make apparent policy concessions now. The goodwill of gatherers has certainly opened doors, and a few USFS officials have responded in kind. Our gullibility is also a factor, since the permit signature is expendable if they can get high holies & their lawyers to answer "Rainbow Family" mail and vest in a 'process' for Group compliance.

But these discussions occur in a broader context, the bigger picture of Rainbow 'Incidents' & responses over the last few years. In this light, some recent and continuing legal cases seem to be a real force in Fed tactics -- and their motivation to avert future claims.

So they are taking little steps to relieve certain harms narrowly, at least temporarily, and moot potential challenges. It's because we've mounted key litigations that have beat them and backed them off, and now have legal arguments in play in pending cases that they cannot answer:

~ They did not expect 9 Appeals from the Cranberry Tribunals in West Virginia '05, challenging 'Group Use' convictions -- now poised to prevail on core issues and take down the 'Johnson Test' as-applied to unaffiliated individuals. The Government brief is incredibly weak, can't win on the record, and the court has stalled on a ruling for 16 months since the last filings.

~ Nor did they count on the 6th Amendment civil suit to open the Firehouse Court in Colorado '06 (Mayo v. Krogstel)... or the show of legal strength in the late-July defense wins in Denver, the well-articulated 'religious use' appeal of a permit conviction (U.S. v. Sowka), or the due process & jurisdictional challenge they dropped like a hot potato (U.S. v. Hansen).

~ And last winter they tried to soothe and divide us, to avert a new civil action in Arkansas '07, but it happened anyway: Tony Nenninger (aka 'Goodwater'), past 'Group Use' defendant/appellant from Missouri, Goin' South with a lawsuit against USFS policies & harassment targeting the gatherings, invoking the stringent protections of the Religious Freedom Restoration Act.

These cases are the far rumblings behind the talk in DC, ominous to the Guvmint because they are starting to get it right, honing legal positions that are going to win, in some court somewhere. This accords with the history of such big issues in civil rights law -- e.g., it took the NAACP and then-lawyer Thurgood Marshall many years to set up the right case to integrate schools, enduring many losses on the way. Then "Brown v. Board of Education" made the breakthrough, and changed it all.

It serves the Feds to make a grand show of "accommodations", in order to avert imminent defeat and defuse the controversy. At the same time, by small symbolic concessions, they are enticing and vesting the "Rainbow Family" in official dealings and deals, enacting the legal 'Group' that does not exist!

Herein lies the danger of these negotiations, undermining the core premise of 'consensual' gathering, and the court cases seeking to protect the personal right of assembly.

Ironically, these legal efforts have created key leverage for policy change, but they are largely ignored and unsupported by 'Rainbow' fans, seers, & high-guys. This apathy is distinct to hippie culture, and understandable in this light: No population has such heartfelt distaste for legalese hogwash, or wants to run faster from adversarial frays in court. Elders let the Kidz take the heavy cop heat, and do nothing for their defenses. The few able legal workers function in isolation from 'constituents', who don't want to think about Babylon's dirt and doings.

And these are the most difficult civil rights cases to mount and sustain -- in remote venues, with scant funds & no local support, lawyers of unknown mettle to be found, witnesses scattered, difficult logistics, and proceedings dragged out for months & years. Very few victims have stood up and stuck it out, and the best of them (or their lawyers) still made mistakes... me too.

These obstacles, on top of the complex legal issues, make it hard to go to court and win a 'Rainbow' case... but not impossible. Assisting many cases and launching some, I respect all the factors that must come together, and the timely work that must get done, just to be in the game with a chance. Winning makes a big difference, helps lots of people, even if only for awhile, yet even just getting there with good evidence and arguments can make a real dent.

Much is now at stake in the 'Nenninger' case in Arkansas. When other claimants foundered trying to mount a concerted action going in, the tenacious Goodwater went to court alone with a pile of papers in late June. He was not quite prepared on a few points, and did not win a TRO as hoped, but he got a major civil rights lawsuit underway, with serious facts & issues on the table.

In fact this case could be THE Legal Fight some folks anticipated one day, the Big Kahuna Case for the Right to Gather: It gets to the heart of the permit issue, upholds the sacred circle, engages public health & resource issues, and confronts decades of targeted policies and official harassment as a conspiracy to violate the civil rights of Rainbow Gathering participants.

The scope is ambitious, and all so true -- but as usual this endeavor has met with the disregard and neglect of compatriots. The Feds, on the other hand, take it quite seriously and have turned big guns on this case; if it surmounts the early motions for dismissal & summary judgment, it will reach a new decision point: To be sustainable, it has to grow, with added co-plaintiffs and funds for local counsel. This case could get started as a solo mission with no money, but it wasn't meant to stay that way.

Where this goes, once again, is the need for cooperation on legal & policy matters affecting the gatherings -- hard to come by of late. It presupposes a mutual will to find bigger solutions and reconcile tactics, but there are obstacles of distance, communication, patronage, and trust:

Only handfuls of folks are involved at all in 'Rainbow' politics & law, with few players really active in official moves -- much divided in views and at-odds in methods. A cogent example: At the Cranberry trials in WVa '05, it was much harder helping defendants put up 1st Amendment fights after somebody else's lawyer told them all to take a plea deal and pay the fine.

If supposed allies are working at cross-purposes -- increasingly so in the last few years, tangibly impacting mutual interests -- there is cause for confusion and concern.

<> "Boy Scouts v. Dale" -- the right of a Group to define its expressive 'soapbox', warranting protection under USFS regulations... hence, the 'peace path' of negotiation, seeking 'accommodation' for the Rainbow creed: This has broad appeal, hopeful and naive, and deep risks... as issues are suffused in schmooze and the 'Rainbow Family' is officially vested as the Group party it never was.

<> "Chicago v. Morales" -- the right of Individuals to associate on public land, without being profiled and targeted as a 'gang' or 'group'... hence, the 'war path' of litigation, to defend those so accused and mount decisive policy challenges: With a narrow following, a few able crew track cases and help some... limited in means, isolation from rights allies, need for local lawyers, and hostile courts.

Both sides claim 1st Amendment grounds, but their premises and outcomes are mutually exclusive. We can't have it both ways, somebody's gotta be wrong, something's gotta give.

In the strategic big picture, the challenge is to turn divergent views to advantage, to muster conflicted retreating cadres into a multi-prong offensive, to stop Fed repression and policy fraud. Freedom of assembly is at stake; this is the historic 'Rainbow' mission in American civics... it's that big.

At this juncture, the players cannot afford to dally in bad politics, or make bad law... it cuts both ways: foolhardy negotiations can fall into phony fixes and the 'treaty-chief' trap... weak court cases without help or resources can lose the legal high ground.

But folks have to be willing to THINK strategically -- to look at this extraordinary situation as a whole, to assess the real problems and means at-hand -- and be prepared for accountabilities:

This means putting pet theories & tactics on the line, discerning what's accurate and relinquishing what doesn't work -- with reason above rhetoric, and solutions above personal importance. Headstrong personalities must clash and come to grips with what needs to be done, take responsibility for mistakes and coalesce to correct them... then find ways to sustain co-work and resources in mutual support.

Build on collateral benefits both ways: The record of gatherers' good faith with officials is meaningful in good legal arguments... and politicos can't ignore the substance of the legal work, or its necessity; indeed the ability to mount a legal fight is a political force in itself, changing the winds.

No more obtuse disregard for facts, rehashed bad ideas, or yelling over logic -- because more mistakes now will be very costly, to the Gatherings, the Constitution, the Universe, and Everything.

If postures and divisions persist, the necessary cooperations could well fail of neglect... self-defeat is a very possible outcome. At the same time, there is a chance to forge complementarity out of conflict, to turn diversity into synergy and strength -- if folks have the heart, guts, and brains to even try.

Defending basic rights, finding this balance is blameless... there is no victim's virtue in losing, nor kharmic flaw in playing to win. If our actions for justice are guided by a greater consensus, this seems the Higher Way, melding the grace of conciliation with the gumption for a fight.