Friday, October 16, 2009

Reply to Government's Response to Motion to remove the restriction to enter Glacier National Park

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Defendant Javier Bautista, through counsel, submits this reply brief in support of his motion to amend the conditions of his release on bond. The Justice Court erred when it imposed a condition of release stating "Defendant shall not enter Glacier National Park except to make Court appearances or for purposes of employment." Neither the record of hearing, nor the government's response brief, identifies a single legitimate basis to impose such a restriction on the Defendant. (1)

It is undisputed that a condition of release satisfies due process only if it is the least restrictive condition that will (a) reasonably assure the appearance of the Defendant and (b) assure safety of any other person and the community. 18 U.S.C. g 31a2(c)(1)@).The govemment admits that barring the Defendant from Glacier National Park does nothing to assure the Defendant's appearance at future court proceedings.( Response Brief at 3.) Therefore, the only basis to impose this condition would be if it were the least restrictive condition necessary for "the safety of any other person and the community." Id. The govemment fails to establish that the Defendant poses any risk whatsoever to the community, much less that preventing him from entering Glacier National Park is the least restrictive condition that will assure the safety of the community.

In the first instance, it is clear that the Justice Court itself did not find the Defendant to pose a risk of harm to the community. The Justice Court's conditions of release would allow the Defendant to enter Glacier National Park "for purposes of employment." If the Justice Court believed that Defendant posed a risk of harm to the community, it is difficult to comprehend why an exception would be made to allow the Defendant to enter the Park for purposes of employment. Whatever the Justice Court's basis for this condition, it was not related to any belief that the Defendant posed a danger to the community.

Nevertheless the government attempts to support this condition of release by making brand new allegations regarding Defendant's "historically problematic presence in and around the Park" that were never presented at Defendant's Initial Appearance and played no role in the Justice Court's decision-making. (2) (see Response Brief at 2.) Even assuming, arguendo, that the government's characterizations were true, which they are not, these allegations completely fail to establish that the Defendant poses a danger to anyone.

Incredibly, the govemment points to a written complaint that the Defendant filed against a law enforcement officer in Glacier National Park as reason to believe that he is a danger to the community. (Response Brief at 4.) This written complaint, which was filed through proper channels, states that the officer in question harassed Mr. Bautista by interrogating him for hours - without probable cause - on suspicion of an alleged theft. Mr. Bautista also complains that once the authorities abandoned these charges the officer continued to ask irrelevant ques tions for hours while he *fished" for something else to charge the Defendant with. The result of this harassment is the present action for "misappropriation" of a park pass that was allegedly intended for U.S. Citizens and green card holders.'

The Defendant raises sound grievances that should be investigated and addressed by the authorities. The government cannot support its baseless speculation that this complaint is "indicative of Defendant's perception of unjust persecution" and "could result in escalation of Defendant's unlawful behaviors or provocation of law enforcement." ( Response Brief at 4.) Indeed, it would eviscerate the concept of due process if the filing of a written complaint against law enforcement automatically rendered suspicion that one was a danger to the community. There is no factual or legal basis to restrict Defendant's movements based on such unfounded conjecture.

The Defendant's written complaint is attached to this brief. (See Exhibit A attached.) Notwithstanding the govemment's characterization of this complaint, it represents nothing more than the airing of a legitimate grievance regarding a potential abuse of authority. The complaint explains in clear and neutral terms why Mr. Bautista feels that his rights were violated, and nothing in this complaint could possibly be taken to constitute "provocation" of law enforcement.

Similarly, none of the remaining incidents referenced in the government's response brief involve any specific or generalized risk of harm to anyone in the community. (See Response Brief at 2-3.) While the government may believe that Mr. Bautista poses a problem due to his "transient status," ( Response Brief at 3), this is not a legitimate basis to impose restrictions on his travel to Glacier National Park. The Ninth Circuit has rejected attempts to impose restrictions on transient individuals based on the characteristic of their homelessness (3). See, e .g., Jones v. City of Los Angeles, 444F .3d I118 at 84. ("the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.").

Moreover, the government has failed to state any basis for why the restriction on Defendant's movements should be related to travel into Glacier National Park. There appears to be no particular basis to restrict Defendant from entering the Park. Indeed, Defendant is an expert camper who is traveling with full camping gear and equipment. If Defendant were allowed to pursue his longstanding dream of camping in Glacier National Park, the alleged problem of transience within the city limits would be resolved as well.

In light of all of these facts, the Court should exercise its discretion under 18 U.S.C.$ 3142(c)(3)o amend the conditions of release and eliminate the restriction on movements in to Glacier National Park.

Finally, the govemment opposes advancing the hearing date in this matter simply because "it is policy to hear matters that originated in Glacier National Park at sessions held in the Park." Response Brief at 4.) However, the government fails to explain why the interests of justice cannot be served by holding Defendant's arraignment in a different location. The Defendant wishes to quickly address and dispose of this matter, and requests that his arraignment date be
advanced to the earliest date that the Court's schedule permits.


(1) - There can be no question that the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent." Zadvydasv , Davis,533U .S. 678( 2001).

(2) - As discussed below, the government's allegations are insufficient to establish that Defendant poses a risk of danger to the community. However, before the Court can give any weight to any of these allegations,t he govemment must prove each and every one of these allegations and the nature of the risk allegedly posed by the Defendant. It may not support its arguments by making unsubstantiated accusations in a response brief.

(3) - Defendant is not homeless but is transient. Before embarking on his trip to Montana Respondent resided with his friend in Los Angeles, California. This is his only stable address and hence it is his address of record. However, Respondent has resided in the State of Montana for many months, and must remain here until the conclusion of these proceedings and pending immigration proceedings in Helena, Montana. The Justice of the Peace was fully aware of these circumstances when he released Defendant on bond.


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