There is important constitutional helmet law litigation, originally brought by Richard Quigley that requires your support for it to succeed. It is set for trial in May 2008 in the same California courthouse where Quigley obtained the judicial opinion that the California helmet law was unconstitutionally vague as applied. The present litigation, if successful, will build on that victory now to defeat the California helmet law on the same constitutional due process grounds. We anticipate, furthermore, that the appellate decision resulting from the case will also assist freedom fighters across the nation to defeat their helmet laws.
The purpose of this correspondence is to request your help to properly fund the trial. We urge you to pass the hat, dig deep, and send your checks to: “Judicial Fund” c/o Abate of California, 10240 Seventh Avenue, Hesperia, CA 92345.
True to the tradition of the small but great state of Delaware, the first state to ratify the United States Constitution, the three Delaware ABATE Chapters have announced that they will be the first to stand to defend the constitution, specifically by doing their part to assure that this important constitutional litigation prevails. These three small Delaware ABATE Chapters have made an $8,000 contribution to this Judicial Fund set up as the war chest for the Quigley litigation. The contribution represents $8.00 from each Delaware ABATE member. In announcing the donation, Delaware ABATE State Legislative Coordinator, Gary K. (Hildy) Hilderbrand stated:
“We are releasing this announcement as a challenge to all SMROs in every state in the nation to match what our little State has done. ABATE of Delaware is proud to represent the State that started this nation, and first on board with the desperately needed funds to maintain our freedom.”
We are writing to urge all SMROs across this nation to come together, and follow Delaware's lead, to assure that this important constitutional litigation prevails. We also want you to know that the success we achieve will not just free California bikers from the shackles of our oppressive helmet law; it will set the precedent that we hope will assure that every other state can obtain or preserve freedom.
The legislative helmet wars have entered an entirely new battlefield on which SMROs now face not only the insurance industry and medical lobbyists but the federal government now wearing the face of the National Transportation Safety Board. The September 2007 NTSB recommendations and the reinvigorated helmet law proponent activity nationwide should cause rights advocates in every state to consider whether it will be realistic to expect with any certainty that freedom can be achieved against these even greater powers lining up against us, and indeed, whether the SMROs in the free and semi-free states will be able to hold on to their freedom.
The NTSB has made a specific recommendation to every state, and that is to adopt or amend the state helmet laws to require that ALL riders wear helmets conforming to the federal motorcycle helmet performance standard set forth in FMVSS 218. This already has happened in Nebraska and North Carolina.
The importance of the Quigley California litigation is in part derived from the fact that the California helmet law is precisely the law that the NTSB has recommended. It is a law requiring all California motorcyclists and their passengers to wear helmets compliant with FMVSS 218.
The present litigation is the culmination of 17 years of concerted work by Richard Quigley and California freedom fighters like Steve Bianco, the truck driver responsible for the constitutional appellate law which has set the CHP up for this fall. Steve Bianco is also one of the four remaining plaintiffs in the Quigley litigation who will carry this litigation forward now following Quig's passing.
If successful, our victory will hammer the final constitutional nail into the coffin of the California helmet law. It is 17 years of work which we also hope may be able to shortcut the road to freedom for those who will fight for it in the courts of our sister states. Indeed, it is our greatest hope that our victory will serve as important constitutional precedent for freedom fighters to obtain the same result in every state in which a helmet law presently requires use of FMVSS 218 compliant helmets, and every other state in which such a law is subsequently enacted pursuant to the NTSB's recommendations.
Thank you for your consideration in the above regard.
In freedom and brotherhood,
–Tony “Pan” Sanfelipo
Founder, ABATE of WisconsinBikernet.com
BOLT National Director
Sturgis Freedom Fighters Hall of Fame, 2002
Mike Osborn
ABATE of California, Judicial Fund Chairperson
Keith R. Ball
President
Bikernet.com
Gary Hilderbrand
Legislative Coordinator
Delaware ABATE
Mark and Molly Infield
Full Throttle Magazine
For you to have a satisfactory explanation as to why this California litigation will benefit your efforts to obtain or preserve freedom in your state requires a discussion of the constitutional principles we are working to vindicate, as well as a few highlights from the history of the California litigation. With that foundation we hope that you will appreciate that this is the same long road that the freedom fighters would be required to ride out in other states if we fail to achieve the landmark victory here.
First the overview: We would hope that after our present case is decided in the California Court of Appeals that freedom fighters in other states will be able to use our result as precedent to persuade your courts to find your helmet laws unconstitutionally vague “as written.” That is the quickest way to knock out a helmet law. In the absence of our victory in the California litigation, however, your Courts might determine to “reinterpret” the law to conform to constitutional requisites, just as the California courts did 17 years ago. What our present litigation will establish is that the law can't be reinterpreted to meet constitutional principles without rendering the law as a practical matter incapable of being constitutionally enforced.
Yes, the result in this case will be California case law, not the case law of your state. But wherever a trial court or appellate court in any state considers an “issue of first impression,” meaning an issue which has not yet been decided by the higher courts of the state, the courts will consider the case law of the other states which have faced and decided the issues. And on this pivotal issue whether an FMVSS 218 based helmet law can be successfully reinterpreted to meet constitutional requisites, the result in the present California case will be a resounding “No,” and it will be the only case providing precedent.
For those who would like to understand more fully why this California litigation is important for the freedom cause in every state in our Union, we will provide the briefest possible discussion below, while still attempting to do justice to the constitutional principles and just the few main cases which have led us now to rise above our helmet law's coffin with our hammer and the last nail poised to put the law where it belongs – firmly planted six feet under. At the same time we would hope to provide you some appreciation for our long battle that we would hope will shortcut yours.
In California, we started, as you will, with the attempt to void our helmet law on the grounds that the legislation was unconstitutionally vague “as written.” The appellate courts chose instead to reinterpret the helmet law to cure the facial constitutional defect. What our work of the past 17 years has successfully accomplished is to lay the legal and evidentiary framework now to demonstrate that it is not an option to reinterpret the law, because it can only yield a law which cannot be “enforced” constitutionally.
The initial case brought to challenge the constitutionality of the California helmet law was Buhl v. Hannigan. The main premise of the argument made in Buhl would be the same that would apply in any state in which a helmet statute incorporating FVMSS 218 was enacted. Stated simply, the argument was that neither the bikers nor the cops can possibly understand or apply the technical helmet performance protocol set forth in FMVSS 218; the bikers are thus deprived of the opportunity to conform to this law that they can't understand; and the cops are left to make entirely subjective decisions whether any particular helmets would comply, lending to law enforcement which is entirely arbitrary and potentially discriminatory. This is the definition of an unconstitutionally vague law, prohibited by the due process clause of the United States Constitution.
As set forth by the United States Supreme Court:
“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.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1971).
In Buhl, our California Court of Appeals immediately recognized that it would be “absurd” to posit that the consumer, meaning the biker, or the law enforcement officer, would be able to understand or apply FMVSS 218. It was specifically the holding of the Buhl court that neither the bikers nor the cops could possibly assess whether a helmet meets the federal performance standard based upon examination of a helmet's “fabrication.” However, the Buhl Court took it upon itself to “reinterpret” the California helmet law so as not to be facially vague by redefining the legislature's reference to FMVSS 218 to mean only that the helmet bear the manufacturer's “DOT” certification of compliance.
With the CHP's hands first tied in Buhl to preclude officer assessment of helmet fabrication as a basis for issuing a ticket, the hands of law enforcement were next tied with even greater restrictions in Bianco v. CHP, again on the same constitutional due process grounds. The Court in Bianco held that the presence of a manufacturer's “DOT” certification will create the “presumption” that the helmet meets FMVSS 218 specifications, a presumption which can be rebutted only if: (1) the helmet model was recalled by the manufacturer for the helmet's failure to comply with FMVSS 218 or if NHTSA or one of its contracting independent laboratories has determined that the helmet is noncompliant with FMVSS 218; AND (2) the biker has “actual knowledge” of the recall or determination of noncompliance.
It is important to recognize that these decisions reinterpreting the California helmet law to meet due process requisites were not arbitrary. They were the only means available to the California courts or any other court to attempt to reconcile a legislature's adoption of a helmet law incorporating FMVSS 218 to avoid the conclusion that the law is incapable of being understood, and hence unconstitutionally vague as written. This is because the only ones with the equipment and the engineers to test motorcycle helmets are the manufacturers, NHTSA and NHTSA's contracting independent laboratories.
What is equally important to recognize is that once reinterpreted – in the only way that an FMVSS 218 based law could be reinterpreted – the law was rendered so impossible to apply that the CHP could not enforce the law legally. Quigley was fond of wearing a fabric trucker's cap with the manufacturer's “DOT” certification of compliance embroidered on the back. This was clearly legal under the California law set forth in Bianco, the manufacturer never having recalled the helmet and NHTSA having never tested it to determine if it complied with FMVSS 218. Others manufactured and certified their own helmets. Still others wore teeny weenie beanie helmets. One of the Plaintiffs in the current litigation wore sunglasses with the letters DOT scratched into the frame. Recall that Buhl holds that helmet “fabrication” cannot be considered by the law enforcement officer in determining to cite a biker, and the “DOT” label gives rise to the presumption that the helmet complies with FMVSS 218.
Instead of recognizing the fact that the California appellate courts reinterpretation of the helmet law rendered the law's enforcement impossible, the CHP chose to violate the law set forth in Buhl and Bianco. The CHP did not alter its policy or the practice of its officers, who just kept on writing helmet tickets based upon their unqualified fabrication conclusions.
The evidence of the CHP's unaltered and now illegal helmet law enforcement practices was first brought to the attention of the United States District Court in Easyriders v. Hannigan: consultation by Richard Quigley and Steve Bianco with attorney of record, Skip Raring. The District Court wrote scathing factual findings indicting the CHP's helmet law enforcement practices, which were adopted by the United States Court of Appeals for the Ninth Circuit as the basis for its affirming that portion of the District Court's decision to issue an injunction against further illegal CHP helmet law enforcement.
Based now on the 4th and 14th Amendments to the United States Constitution, the United States Court of Appeals affirmed the District Court's injunction requiring the CHP to cease and desist issuing helmet citations unless the CHP officer has “probable cause” to believe that the biker has “actual knowledge” that his helmet has been “recalled” by the manufacturer or “determined by NHTSA to be noncompliant with FMVSS 218.”
But again, instead of laying down their citation books, the CHP once more chose continue with their illegal enforcement practices, now not only in violation of the California law of Buhl and Bianco, but now also in violation of the Easyriders federal injunction.
Ten years to the day following the decision in Easyriders Richard Quigley obtained his decision from the California Superior Court that the California helmet law was unconstitutionally vague “as applied.” And that is the application of the due process clause, recognizing the unconstitutionality of our CHP's circumvention of the essential constitutional limits on its authority to enforce the law that we expect will finally lay our helmet law to rest.
Unfortunately, the California Attorney General was less concerned with upholding the United States and California Constitutions than he was with preserving the CHP's ability to continue to illegally enforce our helmet law. The Attorney General declined to appeal the Quigley decision. The effect was that it was left intact, but only as it applied to Quig. It was thus deprived of its deserved force of precedent both here in California and nationally. The reason for that is that attorneys are prohibited to cite to opinions of trial courts; indeed, they are permitted only to cite to the published appellate court opinions.
The present injunction/declaratory relief action awaiting trial in the Santa Cruz Superior Court seeks to vindicate the same constitutional principles urged by Richard Quigley, and which resulted in the previous judicial determination that the helmet law is unconstitutionally vague “as applied.”
It will be based upon the same evidence that Quigley presented in his case. The evidence will be that the CHP has a policy and practice to cite bikers based upon the officer's incompetent assessments of qualities of helmet fabrication, most of the tickets also issued on the legally indefensible grounds that the helmets were “not DOT approved.”
Quig will testify by video deposition, obtained prior to his death. The case will involve, in addition, the testimony of the other four plaintiffs, Steve Bianco, Steve “Red” Barron, Don Blanscet and Pat Holmes, who will carry the litigation forward in Quig's absence, as well as the testimony of many other bikers who have been issued illegal helmet tickets.
The case will be bolstered by CHP internal documents evidencing the CHP's policies contravening the clear dictates of Buhl, Bianco and Easyriders. It is our intention to demonstrate again that the CHP's policy and practice is to illegally enforce the law. This time, however, the Attorney General will not be able to avoid the result simply by failing to appeal it.
The previous Quigley v. CHP was a case involving a number of helmet citations which were consolidated for the trial contesting their constitutional validity. The result, while accompanied by the wonderful judicial opinion that the helmet law was unconstitutionally vague, resulted only in the dismissal of the Quigley citations. This was a decision that the Attorney General could afford to let stand as a trial court ruling.
The present case, however, was conceived by Quig to preclude the Attorney General from avoiding its implications simply by choosing not to appeal it. It is a case which we hope will result in both a declaration from the trial court that the California helmet law is unconstitutionally vague as applied, and an injunction that would finally require the CHP either to entirely revamp its enforcement policies or cease and desist further enforcing the law altogether.
Whether the Court rules in our favor or against us in the trial court, one thing is certain this time, and that is that we will be able to present our record of the CHP's illegal enforcement policies and practices to the California Court of Appeals, where we are confident that the Judges will uphold the constitutional principles upon which our case is based. And we are also confident that the appellate courts will have no option but to void our helmet law, once and for all, based upon the recognition that it cannot be interpreted to conform to constitutional requisites and, as a practical matter, remain capable of being applied by law enforcement in a manner consistent with the constitutionally essential guarantees of due process.
With this result established, now to make full circle, we would hope that as the courts of other states consider the first constitutional challenges by your freedom fighters, asserting that helmet laws such as those proposed by NTSB are unconstitutional “as written,” that you may also cite to the new Quigley v. CHP decision for the proposition that these helmet laws cannot be reinterpreted with the expectation that they will be capable of constitutional enforcement. This is also why we would urge to you that our success in this litigation will aid you, specifically to save you the 17 years of hard work it has taken our freedom fighters to lay the constitutional and evidentiary foundation to place the “as applied” nail in our helmet law's coffin.
We ask you to stand with us at this historic moment at which our long fought efforts to advance the constitutional indictment of FMVSS 218 based helmet laws will be tested. This landmark case deserves to receive the most forceful trial presentation, and that can only be accomplished if we have a well funded war chest.
We ask you to consider the challenge of the three tiny Delaware ABATE Chapters to dig deep to help fund this litigation which they hope, as we do, will benefit all freedom fighters across the United States.
In Freedom,
–Ray Henke, Esq.
