In the years before the federal deadline for action on this arrived, the California legislature showed little enthusiasm for a so-called "Smoke a Joint, Lose Your License" (SJLL) law. In 1992 they passed a compromise bill that would have opted out of the federal restriction, while imposing license suspensions at the state level for drug convictions which actually were vehicle related. That was not mean-spirited enough for now-Governor Wilson, though, who vetoed it. The following year, as the federal deadline loomed nearer, certain legislators from both parties sheepishly offered SJLL bills, figuring that since Wilson would apparently not back down and sign an opt-out resolution even it it were passed, they'd follow their standard political practice: always roll over when money is at stake. But the legislature as a whole rejected cowardice as the preferred option and let the subject drop for that session.

In 1994, the deadline was upon them and, expecting another Wilson stonewall of an opt-out resolution, enough Democrats knuckled under to pass SJLL legislation with a one-year sunset provision. The rationalization was that after Kathleen Brown was elected Governor in November, the intended resolution could be passed the next year, so this betrayal of principle would grind up only one year's crop of unfortunates. At the time, CalNORML's Dale Gieringer observed, "It's a shame that the worst and meanest law-and-order demagogues like Gov. Wilson stand tough for what they want, while liberals are willing to sell out their principles."

So that was signed into law in 1994 and duly expired again in December 1995. The federal law required that something be back on the books by October 1, 1996, and since Gov. Kathy hadn't materialized, our ever-morally-accommodating legislature passed at the last moment, another SJLL Sunset Special -- this one for six months (to expire March 1, 1997).

Come February of this year, the Feds caught wind of the scam and said California would have to see to it that provisions of Federal law were met continuously or we'd be out about 90 million bucks. Under the California Constitution, for a newly-passed law to take effect before the end of the year, it must have been passed as an emergency measure, requiring a 2/3 majority of each house. Both an opt-out resolution (SB 131, Kopp) and a replay of SJLL 'til 1999 (AB 74, Bowler) were offered up, but neither one mustered a 2/3 majority during February. So last year's SJLL law died on March first, and convictions recorded since then have not been subject to its provisions.

So what's next? That's the $92 million question. There was talk at the beginning of the month that if the state could act by the end of March, everyone would be happy to pretend that it had happened on time, but because of the Constitutional provision, that would still have required the 2/3 vote for either the extension or the resolution. Since that time, SB 131 (not to be referred to as the "Kopp-out resolution") has passed the Senate 23 - 14, and is awaiting action by the Assembly Transportation and Appropriations Committees. AB 74 (which may be considered the "Bowler Roller-Over Bill), having already passed in the Assembly, is scheduled for hearing by the Senate Criminal Procedures Committee on (appropriately enough) April first. Nerves are raw on this issue; between on the one hand zealots who lose their perspective when they sense an opportunity to cause grief and on the other hand the more sober legislators who are getting very tired of having Wilson jack them around with his grandstanding, it seemed unlikely that either measure could clear both houses with enough votes to take effect in time to even look as though California were complying with the Federal mandate this year.

But CLMP's mole reports that the Senate's top man is cutting a back-room deal with Gov. Wilson, by which both bills will be passed, on the agreement that Wilson will sign both in such a way that Bowler's AB 74 will go into effect immediately, persecuting its batch of victims until its sunset in 1999 -- after which Kopp's SB 131 will remain in effect, getting the Feds off our case for eternity.

This is supposed to be some kind of victory for the side of the angels in that AB 74 is amended to provide that the arresting officer in these cases will have to remember to inform his arrestee of the suspension provision of the law; and also, the courts will be empowered to consider a defendant's need to drive to work in assessing whether "compelling circumstances" warrant waiving the suspension. For perspective, note that more than 30 states have now opted out. Politics has been called "the art of the possible," but stuff like the history of this law sure clarifies why it has been called a lot of other things, too.

Of course, certain statistical data about these stops could provide strong clues about the impartiality of the stops and legitimacy of the searches -- if only those numbers were available. Things like the sex, age, and ethnicity of the drivers, the fraction of speeding, weaving, or seat belt tickets issued during these operations which are successfully contested in court, the fraction of non-consensual searches which come up dry, and so on. In fact, it seems as though that sort of information would be essential to the managers of the program in order for them to determine whether they are spending their resources cost-effectively. Unfortunately though, they insist they don't note down any such data, and in fact have no numerical information at all beyond what the Press Democrat's intrepid reporter squeezed out of a reluctant CHP bureaucracy last fall when looking into Operation North Coast...

Perhaps the following has something to do with the Department's apparently nonchalant attitude toward the collection of relevant statistics:

An extensive article in the Raleigh News and Observer last summer describes the practices of "(a) select North Carolina Highway Patrol team, assigned to intercept illegal drugs on Interstates 95 and 85." They found that this team "charged black male drivers at nearly twice the rate of other troopers working the same roads," and that "(i)n most cases the drivers were charged with minor traffic violations and no drugs were found."

Particularly in view of the apparent racial profiling involved, the ACLU of North Carolina and the newspaper investigated the operation, and in doing so observed "(t)he Highway Patrol says it doesn't have any written drug interdiction training materials...A Federal Highway Administration memo helps explain why. Training details can sink a drug case in court, said the 1994 memo, whose cover was labeled 'should be stored in locking file cabinet or desk drawer.' 'Well-defended cases include discovery and review of training materials provided arresting or seizing officers,' the memo said. 'Materials...can be damaging to criminal cases, particularly in suppression of evidence hearings.'"

The reasoning here would be that if you intend to use methods that probably won't pass Constitutional muster, you should by all means avoid leaving a paper trail -- either a prospective one (by writing down what you intend to do wrong) or a retrospective one (by keeping records from which a sharp investigator could deduce what you had actually done wrong).

But relief may be on the way. Congressman John Conyers (D-IL), alarmed at such abuses surfacing in several states, has introduced HR 118, the "Traffic Stops Statistics Act of 1997." It would require the Attorney General to "acquire data about all stops for routine traffic violations..." including number of individuals stopped and their ethnicity and approximate age, the offense alleged to have led to the stop, whether a search ensued and if so, the rationale for the search and the results of it, and whether any warning, citation or arrest resulted. The AG would then publish an annual summary of these data.

Sounds reasonable to us.

People are shocked when I tell them when their problems have no practical remedy through the courts, but this is very often the case. With all the hype about sue-happy plaintiffs victimizing business and government, the sad truth is that it is extremely difficult to effectively resolve many situations through the court system. With regulation virtually non-existent and "law-and-order" inspired laws giving free reign to enforcement agencies, lawsuits represent one of the few remaining checks on the abuse of power in this country. For this reason, it has been heavily targeted.

The anti-lawsuit hype has created a backlash against plaintiffs -- reflected in an increase in defense verdicts over the past decade -- and has at the same time created an unreasonable expectation. The largely misunderstood McDonald's coffee case verdict (which was severely limited by the courts) has a large number of people believing that they simply need a good lawyer to turn their gripes into gold.

The inability of progressive forces to organize, let alone expand, their base has led to an ill-advised switch in emphasis of tactics. Unions sue rather than strike. Environmental organizations sue rather than mobilize. While there have been some successes, there have also been serious failures, such as the Christic Institute's premature lawsuit against Iran/Contra figures which resulted in the virtual destruction of the Christic Institute and did nothing to deter further Constitutional violations.

Contrary to popular belief, the propaganda/educational value of lawsuits is almost non-existent, and certainly if this is the only purpose for involving the courts, the value is far outweighed by the energy and resources expended.

The moral: Lawsuits are no substitute for organizing. Throughout this country's history, real progressive changes in system and law have mostly come about as the result of pressure from popular organizations.

Not only that, but lawsuits are strictly limited by the laws that are passed. And laws that are passed in a context absent strong public pressure rarely fail to benefit prevailing power. Over the past couple of decades, numerous laws have been passed, based upon the myth of the "litigation explosion," that severely limit the possibility of effective redress of many grievances. The check on police power in particular has been extremely weakened, because the rise in violent crime has all but silenced the calls for reason and compassion in law enforcement. The results have been bad news for civil plaintiffs and criminal defendants.

There is virtually no such thing as an illegal car search anymore. Defenses to criminal charges have been limited. Rules of discovery completely favor the criminal prosecution. The continuing war on the poor has resulted in the Fraud Early Detection System, which all but eliminates the Fourth Amendment for those poor enough to require welfare assistance.

While Proposition 215 passed by a large margin, Proposition 213 also passed, which basically eliminates the recovery of any damages resulting from car crashes other than out-of-pocket costs for people too poor to afford automobile liability insurance, even when there is absolutely no contributory negligence. At least one of the cases in my office involves such a person who actually voted for the proposition. She would not have, had someone explained the proposition to her.

When considering a lawsuit against a public entity, you must remember that the basic principle is that "you may not sue the King without his permission." The rules governing such suits are very limiting. Every suit requires a theory of damages, which are often hard to measure. A public entity may not be held liable for punitive damages. This means that public entities, under civil tort law, may act with complete disregard for your rights and not face serious financial consequences. Unless you can convince a jury that the breach of your constitutional rights is worth a great deal of money, you could shell out ten to twenty thousand dollars for a five thousand dollar verdict. Unfortunately, to most people, First Amendment or Fourth Amendment rights are an abstraction until they have lost them. It is a rare juror who will impose a large verdict in such cases.

This is not to discourage lawsuits against public entities or private organizations that violate fundamental rights. Important advances can be and have been made. The jury remains one of the last controls on the system by ordinary people. But more effort must be made to pass laws that provide more favorable conditions for successful lawsuits and criminal defenses.

While it's true that a great deal of valuable Constitutional rulings have been overturned or ignored, the words and thoughts of all great activists from Joe Hill to Judi Bari should be remembered. "Don't mourn. Organize."

Nobody seems to have turned to the next page to read the Exceptions to the Exemption, most of which applied. For example: a) have significant adverse effects on public health or safety; b) have adverse effects on geographic characteristics such as park, recreation or refuge lands, wilderness areas...; c) have highly controversial environmental effects; d) establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects; e) be directly related to other actions with individually insignificant but cumulatively significant environmental effects; f) have adverse effects on endangered species, or have adverse effects on designated Critical Habitat for these species. As the Federal Judge presiding over this case noted, "If an operation 'may' fall within one of these exceptions to the categorical exclusions, 'environmental documents MUST be prepared.'"

Judge Smith was highly offended at the roughshod approach the government took in this instance. ((We are limited to suing the California Bureau of Land Management (CA BLM) because they did the actual planning of this particular operation even though we showed that its original conception was in the White House.)) She remarked that the "federal defendants contend that because BLM found that Operation Greensweep was planned and implemented in accordance with the BLM's internal marijuana eradication guidelines, NEPA's 'reasoned explanation' requirement was satisfied. This argument suggests that a federal agency can avoid NEPA merely by adopting and following its own internal guidelines. No authority supports this position."

Judge Smith has since ordered both sides (Us, the plantiffs, and Them, the defendants) to negotiate a settlement agreement and get back to her. Because we have had irreconciliable differences regarding major issues, the Judge offered her services as a mediator, which we readily accepted.

So, on the morning of March 20, four of us, Sharon Duggan, an environmental lawyer locally famous for her pro bono work, Ron Sinoway, ED Denson, and myself, headed into city canyons to the law offices of Heller, Ehrman, White and McAuliffe. There we shot to the 31st floor of an Ivory Tower in moments and were escorted to a conference room with a view -- a glass wall looking out to the Bay framed on one side by Coit Tower and on the other by the B of A building. We hunkered down there for five hours with Jonathan Leo, an environmental lawyer who's been with this lawsuit since 1990, and Heather Leal, a young woman we met a few years ago interning at the firm, who's now a full-fledged lawyer and an incredible researcher. By the time we left for the Courthouse, we had discussed every issue forwards, backwards, and sideways. We understood each other, what needed to be presented, and how to pose it. I found every person in that group to be intelligent, articulate, idealistic, completely focused, and committed.

(We want reviewable accountability of NEPA compliance in the future. The government acts helpless to provide this. The Judge seems to say that law enforcement is hard to nail down and we should learn to accept this. We continue to prevail with our beliefs.)

Judge Smith first took the plaintiffs (Us) into Chambers, where we heard her gist of the situation and we clarified our position and the need for implementation of our demands. Next we cooled our heels (occupying the time with more discussion) in the empty Courtroom while the defendant (government lawyers and the head of CA BLM law enforcement) went to the Judge's Chambers. When they finally came back out, the Judge summed up what could reasonably be provided to us -- not enough.

We then went into an open discussion with the Judge observing/listening and sometimes joining in. I still feel we are a long way from what we want, but we've got a process in motion and will proveed with it as far as we can, opening up and educating whatever Ivory Tower-types with whom we come into contact about the realities of Life On The Ground.

This lawsuit is a result of law enforcement actions and incidents which occurred mainly on the Round Valley Indian Reservation in Mendocino County, during and after the April 14, 1995 shooting deaths of three men, two Native Americans and one police officer. A multi-agency manhunt swept the valley, creating many violations in their quest to apprehend Bear Lincoln, the man accused of shooting the police officer. Bear Lincoln turned himself in after four months in hiding, saying he had feared for his life and that he now wanted to tell what really happened the night his friend Leonard Acorn Peters was shot and killed by police officer Bob Davis, who a few minutes later also died from a gun shot. Bear Lincoln is presently in the Mendocino County Jail at 951 Low Gap Road, Ukiah, CA 95482, awaiting trial which is scheduled to begin on April 15, 1997. For more detailed information, check out the Albion Monitor's web site and do a search on Round Valley or Bear Lincoln.

The problems with law enforcement and the Round Valley community have not been resolved. The most common complaints are lack of timely response, and unequal protection and enforcement of laws.

UPCOMING EVENTS: The Second Annual Candlelight Vigil Memorial for Leonard Acorn Peters will begin at 7:30 p.m. at Henderson and Little Valley Roads in Round Valley, on Saturday, April 12. On Sunday, April 13, there will be a community gathering sponsored by the Round Valley Indians for Justice and others, at the Buffalo Room in Round Valley. It's a potluck, starting at 2:00 p.m. Bring something if you can. Craft booths are welcome. Speakers, drumming and singing are planned. An update on the Bear Lincoln trial, scheduled to begin on April 15 in Ukiah, will be included. For more information or directions, call Cindi Pickett at 707/983-8033.