ALL BLUE TEXT IS A HYPERLINK TO PERTINENT INFORMATION
Implications of NTSB Recommendations
on Biker Rights Advocacy.
Constitutional Court Challenge, the End Game.
M-a-d-d Ray Henke, Attorney at Law
Member, B.O.L.T. of California
Website:
http://www.motorcyclists-against-dumb-drivers.com
The Implications on Biker Advocacy of NTSB's
Specific Helmet Law Recommendations to the States.
Constitutional Court Challenge May be The Only Remaining Viable Road to Freedom.
It is Certainly the Only Freedom Road with An End Game.
http://pub42.bravenet.com/forum/3562429698/fetch/859646/
To all those still absorbing the significance of the NTSB helmet law recommendations,
please consider the implications, and how biker rights advocacy nationwide must
change now to gear up to challenge the helmet laws in the courts.
This may be the only long term solution to obtain freedom, particular now given the
NTSB recommendations, and it is certainly the only
solution with an "end game."
I think that many have begun to accurately sense the seriousness of the NTSB's
specific
recommendations to the states, to enact helmet laws or change their helmet laws to require
universal use of headgear compliant with FMVSS 218, as reflected in the posts following
Bruce's announcement of the recommendations below.
There are a number of serious ramifications of the NTSB recommendations.
One is that this will make it much more difficult for our good biker rights
legislative lobbyists to resist newly proposed helmet legislation in the free states
specifically identified in the recommendations, and it will create another very
substantial hurdle to overturning current state
helmet legislation in lid states.
I am in the process of preparing two Freedom of Information Act requests for all
documents, memoranda and other writings in the possession or control of NTSB and
NHTSA to attempt to determine whether the NTSB's entry into motorcycle safety last
September, the farcical NTSB agenda for the September 12, 2006 "Motorcycle Safety"
Forum, the absurd hearings in which NTSB chose the "experts" who would testify at
the outset of the hearings and thus define the "science" upon which all that followed
would be measured, and now these resulting state by state recommendations to enact
uniform state laws to requiring the use of FMVSS 218 compliant helmets, was all
contrived as an end-run to get around the prohibition that has heretofore restrained
NHTSA from lobbying the states for helmet laws.
If, as I suspect, the NTSB's entry into motorcycle safety last year, leading to
these
specific recommendations to the states, was intended to get around the prohibition on
lobbying, or otherwise a violation of the prohibition, I suspect this might contribute to the
efforts, such as those recommended by Bruce below, to have Rosenker impeached.
It is conceivable that this lead to the withdrawal of the recommendations.
But this is probably overoptimistic on my part.
And I'm concerned that the likelihood is that much of the damage has already been done.
It's what trial lawyers call "unringing the bell." It can't be done.
Once we have these types of highly specific recommendations made
by a federal government agency with jurisdiction over "safety,"
recommendations that most legislators unfortunately will consider "reliable,"
you can bet it will be urged with substantial effect by helmet proponent
legislators and insurance and medical lobbyists in
every state.
I discussed this with
Richard Quigley last evening, and then
Quig called me back at 4:30 this morning.
I've got to stop here to tell you:
Quig worked through the night on this while literally on his death bed.
He will not live more than another few more days.
And I would hope that folks take note that this is the level of commitment that
Quig has brought to the cause of freedom for the past 15 years, freedom
for you now, not for him, and right through to his dying breath.
This is also the type of commitment that is going to be essential right
now, from bikers nationwide, if bikers want to ever
ride free again.
What Quig and I discussed was that now more than at any time before,
the writing is on the wall for all biker advocates to see clearly.
The only way we will ever find enduring freedom will be through challenging
the constitutionality of these proposed helmet laws
in the courts.
First I suggest that to underestimate the implications of the NTSB
recommendations
will be a serious mistake by our bikers rights advocates both in free states and in lid states.
There has been a very tight balance in the weight brought to the helmet battle by our good
brothers in ABATE, MRF and the other state MROs on the one hand, and the insurance
industry and the medical lobby on the other, with the federal government taking the sideline.
Now, the federal government has weighed in, and weighed in
powerfully, with these very specific recommendations, pointing the finger
specifically at the states which the NTSB insists must change their laws to
achieve uniform universal FMVSS 218 helmet laws.
In many lid states even before the NTSB recommendations many biker right advocates
have expressed disillusion that the likelihood of overturning the helmet laws is dim.
In free states, it has been a constant battle, year to
year, tooth and nail to retain freedom of choice.
Many on this Forum have expressed their frustration with this
endless helmet law legislative battle with no end ever in sight.
Indeed, there could never be any end in sight, as it has never been
suggested that the insurance industry or medical lobbyists, or the
helmet proponent legislators would ever give up.
I am not suggesting that the good biker advocates who have devoted
their endless good energy to the battle have done so in vain.
They have preserved our freedom where freedom could be preserved, fought for
freedom where they believed that freedom could be obtained, and maintained freedom,
to the extent that we have enjoyed it, only by their good and strong commitment.
I am also not suggesting that the legislative fight be abandoned, indeed, I would hope
that their commitment may be redoubled, because that will be what it will take to hold
out hope that freedom might be maintained in some states even with this new weight
brought to bare on the legislatures by the NTSB recommendations.
What I want to urge is that biker rights advocates in every state must now gear up
to fight this fight on a new front of court challenge too, because it is the only front that
has the prospect ultimately seize freedom as a matter of constitutional principle,
unassailable by insurance industry money, medical lobbyists, politically motivated
government bureaucrats and paternalistic
politicians.
The constitutional challenge is a long and difficult road.
But it has an "end game," unlike the legislative helmet law wars, and now it may be
the only game in town that holds out any realistic prospect that we will ever
ultimately gain enduring freedom from state government oppression.
I say it is a long road, but it needn't be such a long road as the road it has
been in California, by which nail after nail has been hammered into the helmet law,
the last of which we expect to bring to trial in April 2008.
This coffin for the California helmet law has been built entirely on constitutional
principle, each plank fashioned by biker rights advocates, each nail
hammered home by our California Courts of Appeals.
And this helmet law that has been serially unraveled in California is
precisely the same law that the NTSB is urging that all states now adopt.
That's right.
And the constitutional infirmity of the California helmet law
indeed derives specifically from its incorporation
of FMVSS 218.
I will set forth the history of the court challenges and the California Court of
Appeals
decisions which have rendered the California helmet law unenforceable, and which
we expect as soon as April of next year will result in freedom for California riders.
This odyssey of constitutional challenge after constitutional challenge,
whittling the helmet law down to a piece of legislation that is only enforced
illegally now by the California Highway Patrol, in violation of the achieved
constitutional decisions and a federal injunction effectively tying the
California Highway Patrol's hands, was an odyssey that began in 1993.
But it needn't be such a lengthy road for biker advocates
willing to carry the constitution into the courts of
other states.
True enough, the constitutional challenge in every other state but California
will call on the state courts to determine the constitutionality of the state helmet
law as an "issue of first impression," meaning an issue that has yet to be
determined by the appellate courts of the state.
But soon enough, if BOLT of California has its way in the litigation set for trial in April,
on the same evidentiary record that resulted in Judge Barton's Superior Court decision
that the California helmet law was unconstitutional as applied, and assuming that the
California Court of Appeals will again side with us on the constitutional arguments, as the
United States Court of Appeals for the Ninth Circuit has also, biker advocates in other states
will soon have the
ability to use our work to overcome the helmet laws of every other state.
When state courts "face issues of first impression," meaning issues that the
appellate courts of the particular state have yet to decide, they always look
to how the courts of other states have resolved the issues.
In cases of first impression, indeed, it is expected that the lawyers will brief the
judges on how the other states which have faced the issues have decided them.
Already, any lawyer urging the constitutional challenge in any state that already
has or hereafter adopts the kind of helmet statute recommended by NTSB will be able
to cite to the heretofore achieved California Court of Appeals constitutional decisions
which have already rendered the California helmet law unenforceable.
Yes, the law is still enforced in California, but now is enforced illegally, in violation
of our Court of Appeals constitutional decisions, as has also explicitly recognized by
the United States Court of Appeals for the Ninth Circuit, and more recently by the
Judge Barton, of the California Superior Court for the County of Santa Cruz, in
his highly reasoned opinion finding the California helmet law unconstitutional
"as applied" by the California Highway Patrol.
But the final nail in the coffin of the same law NTSB now
recommends has yet to be achieved.
And we need the help of bikers rights advocates nationwide in order
to assure that we can put on the very best trial in April 2008.
The case seeks declaratory relief and a statewide injunction against the
CHP based on the same evidence of the CHP's illegal policies and enforcement
practices that Quig presented in the case which led Judge Barton to
declare the California helmet law unconstitutional as applied.
That decision can't be cited in other California courts or in the courts of other
states because it is trial court decision, not a published court of appeals decision.
As will be described below, the Attorney General strategically
chose not to appeal Judge Barton's constitutional decision.
And Quig couldn't appeal a decision that went in his favor, obviously.
For that reason, the pending declaratory relief and injunction proceeding was filed.
Either way that case turns out, it will go up on appeal.
The Attorney General can't let stand a decision that declares the helmet law
unconstitutional and enjoins the CHP from further enforcement of the law.
And if the trial court rules in favor of the CHP, now the BOLT member plaintiffs
will have opportunity take the case up to the California appellate courts.
And that is the decision which we hope biker advocates in other states will be able
to use to much more quickly move to the same result without having to go through
the 15 year battle that Quig and the other BOLT
members have fought here.
I need to insert this pitch here, before demonstrating the legitimacy of the
constitutional challenge, so that bikers rights advocates nationwide will know
that they are empowered right now to significantly aid in assuring that a good
constitutional decision, finally unraveling the California helmet law is obtained in
the injunction/declaratory relief case so that advocates in other states will then be able
to use this case law to challenge these same NTSB recommended laws nationwide.
BOLT of California is an organization with very highly
committed members, but we are very few in number.
Our members have laid the foundation for these Court challenges by obtaining
hundreds of helmet tickets and fighting them in the Courts. Quig, is one who
you know, and Steve Bianco, the truck driver, responsible for obtaining the
controlling California law, Bianco v. CHP, without the aid of a lawyer, is another.
The others are less well known nationally, but well known here in California.
But we do not have a war chest.
The attorney currently handling the injunction/declaratory
relief case hasn't been paid in months.
So we need outside help in terms of funding this "last nail"
in the coffin of the California helmet law.
ABATE of California has set up a fund for those concerned with freedom nationally
to contribute specifically to pay the attorneys fees and trial costs in this specific litigation.
I would urge all those who read this to send a check, and then go to your state and
local MRO chapter and urge that the hat be passed around NOW with members asked
to dig deep into their pockets, for all of the reasons set forth above and below.
The address of the ABATE of California fund set up specifically
to fund this pending injunction/declaratory relief action is:
Judicial Fund, c/o Abate of California,
10240 Seventh Avenue, Hesperia, CA 92345.
All donations received will go directly to pay for this
specific litigation, and for no other purpose.
Now, what I would need to do is to sell you on the idea that constitutional
challenges
to helmet laws such as have been recommended by NTSB are valid, and can be used
effectively both to render helmet laws unenforceable,
and ultimately to void them.
Again, please accept that
California has precisely the law
that NTSB is recommending for all the states.
It is an unnecessarily convoluted statute, but it requires that all
California bikers wear helmets compliant with FMVSS 218.
The legal challenge in California began with Buhl v. Hannigan, 16 Cal. App. 4th
1620, 20 Cal. Rptr. 2d 740 (1993) in which it was contended that the California
helmet statute was unconstitutionally vague as written, inter alia, because it required
bikers to comply with this FMVSS 218 technical helmet performance standard that no
reasonably intelligent person could possibly understand, and required law enforcement
to apply the same FMVSS 218 standard which it was alleged no
law enforcement office could possibly understand.
Constitutional "due process" requires that laws be comprehensible to the
ordinarily intelligent
person, so that folks can in good faith conform their behavior to comply with the law.
Due process also requires that laws not be "vague" to avoid
arbitrary and discriminatory police enforcement practices.
Vague laws violate both the due process clauses of the state constitutions
and the due process clause of the United States
Constitution.
Consider the following quick summary of why vague laws violate due process.
This is an excerpt from a United States Supreme Court opinion,
in Grayned v. City of Rockford, 408 U.S. 104, 108
(1971).
"It is a basic principle of due process that an enactment is void
for vagueness if its prohibitions are not clearly defined.
Vague laws offend several important values.
First, because we assume that man is free to steer between lawful and unlawful
conduct, we insist that laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly.
Vague laws may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis with the attendant
dangers of arbitrary and discriminatory
application."
The California Court of Appeals in the Buhl v. Hannigan case,
supra, agreed that
to
require the helmet "consumer," meaning the biker, or for that matter, the law
enforcement officer, to understand and apply FMVSS 218 in determining whether
the use of any particular helmet complied with the law was "absurd."
This is the first nail in the coffin of any law that requires the
motorcyclist to wear a helmet compliant with FMVSS 218.
The Court of Appeals didn't void the law as unconstitutionally vague as written,
rather it reinterpreted the law to require that bikers wear helmets "certified" as
compliant with FMVSS 218, meaning helmets with "DOT" stickers on the back,
importantly, making plain in the opinion that the "fabrication" of any helmet was not
a matter that the biker should be required to consider, nor that law enforcement
may be permitted to consider in determining to write
a helmet citation.
The California Court of Appeals decision in Buhl, supra, in relevant part reads:
"Appellants contend the helmet law is void for vagueness under the
federal and state constitutions in that it 'prescribes a standard which
cannot be understood by persons of ordinary intelligence.
They assert that neither motorcyclists nor police officers
can tell whether a particular helmet complies.
Their first claim in this respect is that the law is too specific:
The incorporated federal safety standards are so technical one must
be a physicist or an engineer testing the product in a laboratory to
ascertain whether a particular helmet complies.
But underlying this argument is the proposition that the statute requires
the consumer or enforcement officer to decide if the helmet is properly
fabricated, and such a reading of section 27803 is absurd.
When sections 27802 and 27803 are harmonized, as they must be
(citation omitted), it is clear the law requires only that the consumer wear
a helmet bearing a certification of compliance."
This reinterpretation of the statute to require only that the biker wear a
helmet with
a DOT sticker, and that law enforcement was prohibited to consider helmet
fabrication was the first step on the road to defeat the California helmet law.
It was then followed then by Bianco v. CHP, 24 Cal.
App. 4th 1113, 29 Cal. Rptr 2d711 (1994).
Again reinterpreting the California helmet law so as not to be void for vagueness,
the Courts of Appeals in Bianco, supra, held that if the headgear is labeled with the
"DOT" symbol, a legal presumption is raised that the helmet complies with FMVSS 218,
and the Court held that the presumption of compliance can only be rebutted if
(1) the helmet has been recalled by the manufacturer for noncompliance with
FMVSS 218, or if there has been determination by NHTSA or other qualified
independent laboratory that the helmet does not comply with FMVSS 218;
AND (2) it is shown that the motorcyclist had "actual knowledge" that the
manufacturer recalled the helmet or that there had been determination of the
helmet's noncompliance by NHTSA or an independent
laboratory.
Please note that the Bianco case now inserts the essential "scienter"
element into its
interpretation of the helmet law, as necessary to conform it to constitutional principles.
Specifically, if any piece of headgear, no matter how it might be fabricated or
"look," has the letters "DOT" on the back, law enforcement can't legally write a helmet
ticket unless the officer knows the helmet has been recalled or that NHTSA had tested
that model helmet and determined that it fails to comply with FMVSS 218, AND,
where the police officer determines that biker had "actual knowledge" of the recall
or that NHTSA had determined his headgear to be
noncompliant.
Well, the Bianco decision should have led the CHP to just give up right
there, because even if the CHP could educate its officers to recognize helmets
which had been recalled or determined by NHTSA to be noncompliant with
FMVSS 218, they sure as hell had to figure that they could never get a biker to
acknowledge that he was aware of any recall or NHTSA determination that his helmet
was noncompliant simply because the fact is that bikers just have no information one
way or another about manufacturer recalls or what helmet models NHTSA tests or
what the test results might be on any particular helmet.
Right?
The CHP was stuck, legally, but unfortunately that didn't deter them.
The CHP just adopted the policy of enforcing the law illegally.
CHP didn't change its old policy manuals, calling on their officers to
issue tickets to bikers who failed to wear "DOT approved helmets."
And the CHP officers and all municipal police and Sheriffs officers, who take
their lead on traffic related policy from the CHP, just kept on writing tickets to
every biker riding with a helmet which they figured didn't look like it was
"DOT approved" on the basis of its fabrication.
This evidence of the CHPs policy manuals and illegal helmet ticketing
practices was accumulated, again by Quig, some other BOLT members, and
Steve Bianco, the San Diego truck driver who without a lawyer obtained the
Bianco v. CHP controlling California Court of Appeals decision.
Bianco conceived the idea to seek federal injunctive relief to prevent
the CHP from continuing with its illegal enforcement practices.
He obtained a lawyer to help with the case.
Ultimately Easyriders made an offer to the lawyer to fund the case if its name was
used in the case caption, and what resulted was the United States Ninth Circuit Court
of Appeals decision in Easyriders v. Hannigan, 97 F. 3d 1485 (9th Cir. 1996).
An extensive record was made in the federal district court of the illegal ticketing
practices of the California Highway Patrol, in violation of the Bianco v. CHP decision.
The legal argument in the Easyriders case was grounded on
the 4th and 14th Amendments to the U.S. Constitution.
The issuance of traffic tickets is in the nature of an arrest, even though the driver or rider
may avoid being taken into custody by signing the ticket, agreeing to appear in court.
Under the 4th Amendment, made applicable to the states by the 14th Amendment,
in order to make an arrest the officer must have "probable cause" to
believe that the crime has been committed.
Having been provided the abundant evidence that the CHP had flaunted the requisites
of the California helmet law as interpreted to meet the constitutional due process
requisites, in Buhl and Bianco decisions, the Ninth
Circuit Court of Appeals observed:
"Having reviewed the record, the district court concluded that 'the CHP has a
clear
official policy of allowing officers to stop motorcyclists and issue citations for
substandard helmets based on the officer's subjective opinion of whether the
helmet would, if tested, conform to federal safety standards.'
In addition the district court found that 'the CHP has a clear official policy of allowing
officers to cite for allegedly substandard helmets regardless of whether the officer has
reason to believe that there has been a determination of noncompliance with
[Standard 218] or that the motorcyclist has knowledge that the helmet
has been determined not to comply with [Standard
218].”
It was indeed, based on this factual record, that the United States Court of
Appeals
in Easyriders upheld the aspect of the federal district court's injunction prohibiting
the CHP from issuing helmet citations, inter alia, unless the officer has "probable cause"
to believe that the motorcyclist has "actual knowledge" that his model helmet had been
determined by NHTSA to be noncompliant
with FMVSS 218.
Now, this federal court injunction against the CHP's illegal enforcement
practices
again should have shut the CHP down in terms of its ticketing riders for helmet violations.
It did work to some extent, and between the Bianco decision and Easyriders
decision California riders, whether they realize it or not, have generally obtained the
right "to wear the helmet of their choice" as long as some kind of sticker with the letters
"DOT" is affixed and they don't pretend to knowledge that their helmet
model has been determined noncompliant by NHTSA.
This isn't true uniformly, as we see CHP officers and local police
agencies sometimes still ignore the law and issue tickets to California rider's
for use of a novelty helmet, most recently in Freemont and Glendale California,
see, e.g.,http://pub42.bravenet.com/forum/3562429698/fetch/840649/3
But the right of bikers to "wear the helmet of their choice" was never the BOLT objective.
The objective was and remains to obtain total freedom from the helmet law,
meaning the right to ride with or without any helmet
at all.
Because it became difficult to obtain helmet tickets in California what BOLT
members did was then use little "Tiny Weeny Beenie" helmets.
Steve Bianco crafted a little four inch wide piece of the top of a helmet onto which he
scratched the letters "DOT," and then, lo and behold, source unknown, the BOLT
membership received in the mail headgear bearing the manufacturer's DOT certification
of compliance, from the "Ill Eagle Helmet Company" -- a Chinese helmet manufacturer --
helmets that the CHP disparages as "baseball caps with DOT embroidered on the back."
Well, the Court of Appeals in Buhl stated that law enforcement isn't permitted to
consider helmet fabrication, so the fact that the CHP thinks, incompetently,
that these helmets look like fabric baseball caps, is a matter of legal
inconsequence under the established California law.
These Ill Eagle helmets have never been tested by NHTSA to
competently determine if they meet FMVSS 218 standards.
So obviously no one who rides with an Ill Eagle helmet could have
"actual knowledge" of a nonexistent NHTSA determination of noncompliance.
And yet, as expected, the CHP proceeded illegally to write hundreds of
tickets to BOLT members for riding with these
helmets.
A dozen of these tickets were obtained by Quig and brought before the California
Superior Court for the County of Santa Cruz in the Quigley v. CHP case which is
the case that many bikers rights advocates are most knowledgeable about.
In that case, Quig put on the evidence of the CHP policy manuals,
still framed in terms of "DOT approved helmets," instructing the CHP
to ticket bikers who fail to wear "approved" helmets.
He put on the evidence of the CHP training, again to cite
bikers for failure to wear "DOT approved" helmets.
He interrogated the CHP officers, eliciting their testimony that they
figured they could tell by looking at the fabrication of Quig's
"baseball cap" helmets that they weren't "DOT approved."
And this testimony and documentary evidence proved abundantly the fact that it remains
a matter of CHP policy and practice to illegally enforce the law, leading to Judge Barton's
landmark decision that the California
helmet law is unconstitutional "as applied."
It was on August 16, 1996 that upon this same factual record of illegal CHP
policies and practices ticketing riders with novelty helmets, in violation of the California
law in Buhl and Bianco, and in violation of the 4th and 14th Amendments of the
United States Constitution, that the United States Court of Appeals affirmed the federal
District Court's injunction in Easyriders, prohibiting the CHP from issuing further citations,
inter alia, without probable cause to believe that the motorcyclist is aware of a
NHTSA determination that his helmet is noncompliant with FMVSS 218.
And then it was ten years later to the day, on August 16, 2006, that the honorable
Judge Barton filed his opinion after evidentiary trial citing the identical unchanged
policies, and pattern and practice of CHP illegal helmet law enforcement, now not
only in violation of the Buhl and Bianco California Court of Appeals decisions,
but also clearly in violation of the Easyriders
injunction.
Now, what this cowardly California Attorney General did to avoid the wide
ranging implications of the Quig v. CHP decision that the helmet law was
unconstitutional as applied, was to refrain from taking an appeal.
This prevented the Court of Appeals from considering the extensive
evidentiary record made by Quig in the Superior Court, and hence prevented
a published California Court of Appeals decision voiding the California helmet
law as unconstitutional throughout the State of California.
Obviously, if the AG's office figured that it could overturn
Judge Barton's decision on appeal, it would have taken the appeal.
By refraining from taking the appeal, the AG's office avoided a published California
Court of Appeals decision based on this substantial record of the CHP's illegal
enforcement practices in violation of Buhl, Bianco
and the Easyriders injunction.
The next step for BOLT was to file the civil declaratory relief and injunction
case
against the CHP, which is the case currently pending and set for trial in April.
In the complaint, Quig and a number of other BOLT members, who will carry on the
litigation after Quig passes away, are named as plaintiffs, and the factual allegations
are simply the same facts of the CHP's illegal enforcement policies and practices
abundantly demonstrated by the evidence adduced in the Quigley v. CHP case.
If the case is successful, as we expect, it will spell the end to the California helmet law.
The Attorney General filed a demurrer to the complaint, urging that the
facts alleged in the complaint were insufficient as a matter of law to
justify the injunctive and declaratory relief requested.
The California Superior Court Judge in the case overruled the AG's demurrer.
The AG then petitioned the California Court of Appeals for a writ of mandamus,
urging that the Superior Court erred in overruling the demurrer.
The California Court of Appeals denied the petition.
So the case is on the trial track, and now all the BOLT members must do now is duplicate
the evidence that was adduced in the Quig v. CHP case, establishing the facts alleged
in the complaint, and the Court should have no
option but to find in our favor.
The Attorney General will not have the option to undermine the effect of the
ruling in the injunction/declaratory relief case, because if the Court declares
that the helmet law is unconstitutional as applied, and issues the injunction
against the CHP, the CHP will be bound by it statewide, and will be put to the
choice either to abandon enforcement of the helmet law or take an appeal.
Furthermore, if we lose in the Superior Court, we can take the case up to the
Court of Appeal, and to the California Supreme Court if necessary, where
we feel confident that the constitutional principles upon which the
case is grounded must be upheld.
Now, what I would hope that the foregoing will persuade bikers reading this
nationwide
is first that the statutes that NTSB is urging that all states adopt, requiring bikers to wear
helmets compliant with FMVSS 218, are susceptible to successful constitutional challenge.
This is the lesson of the California Courts of Appeals decisions in Buhl and Bianco,
and the United States Court of Appeals for the Ninth Circuit in Easyriders.
It is also the conclusion of the Honorable California Superior Court Judge Barton,
in his decision holding that the California helmet law is unconstitutional as applied.
And based on these previous decisions, we suggest that we will obtain
the final nail in the coffin of the California helmet law with the pending
injunction/declaratory relief case set for trial in April.
Indeed, we continue to amass more and more
evidence for presentation in the upcoming case.
For example, on Quig's request, I recently filed a Freedom of Information Act Request,
in which I have asked for all documents in the California DMV's possession or control
upon which it based the language in the DMV "Motorcycle Rider Handbook" inter alia,
advising bikers that they must wear "approved" helmets, and all documents
evidencing any input from the California Highway Patrol in arriving at that language.
This is the informational booklet that the DMV provides to
motorcyclists to prepare to obtain their motorcycle licenses.
It is the information that the State of California expects motorcyclists to use to assure
that they comply with the California helmet law, and yet it is all so absurdly false.
There is no such thing as an "approved" helmet, so no biker in the state could possibly
comply with the law as represented in the DMV Motorcycle Rider Handbook.
More to the constitutional point, if the California Department of Motor Vehicles
doesn't understand the California helmet law clearly neither can the
"ordinarily intelligent motorcyclist" be expected to understand it, hence more evidence
that the California helmet law is incomprehensible, and unconstitutionally vague.
In the injunction and declaratory relief case, we will also have the opportunity to present
not only the evidence of the CHP's illegal ticketing of Quig but the CHP's illegal ticketing
of the several other BOLT members who are parties to that litigation.
A record will be made this time even stronger than the one that Attorney General's
office figured it would avoid by failing to take Judge Barton's decision that the helmet
law was unconstitutional as applied up to the Court
of Appeals.
The second lesson that bikers nationwide should take from the foregoing is that,
while
these laws recommended by NTSB are clearly susceptible to successful constitutional
challenge, the road to finally defeating these helmet laws can be a long and tough one.
The Buhl decision that law enforcement couldn't consider helmet fabrication was
obtained in 1993; the Bianco decision, adding the scienter element, that the biker
must have "actual knowledge" that his headgear had been determined by NHTSA
to by noncompliant with FMVSS 218 was decided in 1994, the Easyriders decision
finding that the CHP was issuing helmet tickets illegally and enjoining the CHP from
issuing further tickets without probable cause to believe that the biker knew that
NHTSA had found the helmet noncompliant was issued in 1996.
The Barton decision, finding that the CHP had continued to issue helmet
tickets in violation of California law of Bianco, and in violation of the federal
injunction issued in Easyriders, holding that the law was unconstitutional as
applied, wasn't then decided until 2006.
And now the injunction/declaratory relief case won't
be tried until April 2008.
Returning full circle though, the biker advocates who now take up the
constitutional challenge in the other states will have the benefit of
what we have accomplished in California.
Again, on issues of first impression, that is where the
state courts have not yet decided a legal issue,
the courts of appeals commonly look to the decisions
of other states which have considered the issues.
Already, biker advocates in other states will have the benefit of
the reasoned California Court of Appeals opinions in Buhl and Bianco.
But to have the full benefit of our work here in California, bikers advocates will
benefit most by the final nail in the coffin of the California helmet law which
will only be achieved by the pending declaratory relief/injunction case.
These cases make plain that helmet laws fashioned as the NTSB now urges
on the states cannot constitutionally be enforced to require that bikers wear
helmets compliant with the technical standards of FMVSS 218.
Any law so phrased is unconstitutionally vague on its face, and as much as
the courts may attempt to reinterpret them to meet constitutional requisites, the
laws cannot be constitutionally applied consistent
with due process.
Now, please hear this: The attorney currently working on the
injunction/declaratory relief case hasn't been paid in months.
BOLT of California is a very small group of bikers, and
there are even fewer in Nevada and the Carolinas.
What bikers nationwide must consider is whether it will be in their long term
interest to assure that BOLT is successful in placing the last nail in the coffin of the
California helmet law, particularly given that if they don't already have a law similar to the
California law that they may soon have one given the NTSB's recommendations.
You may also wish to consider that the biker legislative efforts in the states to
overturn helmet laws and to resist newly enacted helmet laws similar to that in
California may well become much more difficult following the NTSB recommendations.
You may come to the conclusion that the only reasonable prospect that you
will ever obtain the right to ride free now will be through court challenges.
These are matters that you should be raising with your state and
local MRO chapters and with the individual biker members.
I will tell you what I think, and now I am just speaking as a lawyer,
not as someone who is affiliated with a group for the moment,
and that is that you couldn't do anything more productive now to
further your long term opportunities to obtain freedom in any
state than to contribute to the trial war chest for the pending
California inunction/declaratory relief action.
ABATE of California has created a fund to receive checks to pay for the litigation.
You can send your check to the ABATE of California fund set up
for the purpose specifically to help fund this
particular litigation.
Again, the address of the ABATE of California fund is:
Judicial Fund c/o Abate of California,
10240 Seventh Avenue, Hesperia, CA 92345
You can be assured that ALL of the money collected by the fund will be
used to pay the attorneys fees and trial costs in
this specific litigation.
Ray Henke
Bikers of Lesser Tolerance, BOLT of California
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