Constitutional rights exist even in our forests

By Jay Diaz and Lia Ernst

The ACLU of Vermont has received a significant number of complaints about law enforcement actions at the Rainbow Family of Living Light gathering in Mount Tabor.

The Rainbow Family is a loosely knit, leaderless group of people from all over the country who, since 1972, annually gather in a national forest to celebrate nature, find community, and call for peace. The gathering, which culminated over the July 4th weekend, was expected to attract 10,000 or more people.

We’ve received complaints that police have taken heavy-handed and at times unlawful law enforcement actions that include checkpoint-like stops where people are being stopped for minor traffic violations and then — absent any reasonable suspicion of drug activity — held for up to an hour while a drug dog is brought in to sniff for odors of drugs. We’ve also been told that people are pressured to consent to searches of their person, vehicle, or belongings; that they are subjected to abusive and prolonged questioning by state, local and federal law enforcement; and that citations under federal law for “petty federal offenses on public federal lands” are being issued.

The U.S. Forest Service has known about the planned gathering for some time; this is not some flash mob that caught law enforcement by surprise. As in other years, the Rainbow Family’s conduct is subject to a Forest Service “Final Operating Plan” detailing the Family’s obligations to provide for participants’ health and safety, protect and rehabilitate the land and its flora and fauna, and respect the rights and privacy of members of the surrounding community. The Forest Service annually allocates a half-million dollars specifically for law enforcement at the yearly gathering; USFS “veterans” of these gatherings have been flown in from other states.

This year’s allegations of violations of constitutional rights seem to repeat a pattern that routinely occurs when the Rainbow Gathering comes to town. In the 1990s, a Rainbow Family participant obtained a nationwide injunction against unconstitutional Forest Service checkpoints or roadblocks; the Eighth U.S. Circuit Court of Appeals vacated that injunction, finding that the plaintiff had not established a likelihood that Forest Service law enforcement would continue to harass the Family in the future. The court concluded its ruling, however, by expressing its “hope … that [the plaintiff] will not have to resort to legal action again to be free from future violations of her constitutional rights, and that the administrators of the Forest Service will ensure that the inappropriate conduct of 1996 is not repeated.”

Based on the calls we have received already this year, and calls that other ACLU affiliates have fielded during past gatherings, it would appear that hope remains unfulfilled.

“This is no different than how we have managed these events in the past,” said Forest Service special agent — and this year’s “incident commander” — Bill Mickle.

That’s exactly the problem.

The ACLU of Vermont has sent a letter to relevant law enforcement officials calling for an end to the targeting of Rainbow Gathering attendees or anyone else based on the exercise of their rights of assembly and free expression. Vermont has recently taken a step forward by adopting a policy that will help end profiling based on race, ethnicity, and national origin. Our local and federal police should also end any profiling of individuals based upon their exercise of constitutional rights. The right to be free from this type of policing is fundamental to the rule of law.

The ACLU of Vermont will keep a watchful eye on developments as the Rainbow Family gathering continues. We hope attendees are allowed to exercise their rights of free expression and assembly without unnecessary disruption or an unreasonable police response.

Jay Diaz and Lia Ernst are staff attorneys/public advocates with the American Civil Liberties Union (ACLU) of Vermont.

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