MMA Meeting Talking Points – February 2011



Welcome, Pledge of Allegiance

Fallen Local Brothers/Riders: MOMENT OF SILENCE

• None

Monthly MMA Membership, Announcements and Events

• May 6 (Mon), @10:00am. Freedom Rally - State Capitol

• May 9-12: NCOM Convention, Silver Legacy, Reno. $45 reg only/$80 w/Banquet

• May 10: NorCal COC Meeting, Reno

• July 9: Redwood Run @ River Bend Ranch

• Nov 23: MMA Toy Run Pre-Party - Sacramento

• Nov 24: MMA Toy Run - Sacramento

• Dec 8: Swap Meet - Dixon Fairgrounds

Next Confederation of Clubs Meeting

• NorCal - Friday, May 10

• Monterey Bay - Sunday, May 12

• Dago - Tuesday, May 14

• Central - Sunday, May 19

• Southern - Wednesday, May 15

• Central Northern

• Far North

Guest Speakers / Handouts

• TBD

Calls to Action

Confederation of Clubs - Topics of discussion

• The "Profiling of Motorcycle Riders" bill - civil rights movement?

• Lane Splitting - California Guidelines and SB350

• Where is NCOM on the national profiling bill?

• Testing the waters: Exhaust Pipes (sb435) and Motorcycle Only Checkpoints (ab1047)

• A big showing at the NCOM Convention in Reno

• Why another rally at the State Capital?

• Can we get all the MRO's into a meeting and discuss things like a 100k ride like they did in Europe?

NCOM News

LEGISLATION WOULD PROHIBIT E15 GAS PENDING FURTHER INVESTIGATION

Congressman Jim Sensenbrenner (R-WI) has introduced H.R. 875, which would require the Environmental Protection Agency to stop the use of gasoline containing 15% ethanol (E15) until its harmful effects are investigated further. 

H.R. 875, introduced on February 28, would repeal the EPA’s waiver decision approving the use of E15 and the authority of the agency to grant further decisions until the EPA seeks an independent scientific analysis of the effects of the E15 blend.

“There have been several tests and warnings highlighting E15’s harmful effects on engines and their components, but they have all been dismissed by the EPA. Therefore, we must force the EPA to stop the use of E15 fuel until the serious safety, durability, performance and environmental concerns have been addressed,” announced Rep. Sensenbrenner.

 

Sensenbrenner has introduced several bills to address the risks associated with E15, and his latest legislation to halt the sale of the 15% alcohol blended fuel until further studies are completed, came less than a week after witnesses from automobile and motorcycle industry and consumer groups testified before the Science, Space and Technology Committee that more testing is needed.

 

“We have a responsibility to ensure that Americans using gas-powered machinery – whether it be cars and boats or chainsaws and lawnmowers – are not put at risk due to faulty fuel that has not been adequately vetted,” Sensenbrenner said.

 

BILL INTRODUCED IN CALIFORNIA TO REGULATE LANE SHARING

No sooner had the California Highway Patrol published guidelines on how to safely maneuver your motorcycle between lanes of slow-moving traffic, than SB 350 was introduced by State Senator Jim Beall (D-San Jose) to codify the rules into law.    

 

California is the only state that allows “lane sharing” or “lane splitting,” precisely because there are no laws against it; though officers have a variety of charges they can levy against a reckless rider such as unsafe lane change or too fast for conditions.

 

Beall’s bill would restrict the practice by prohibiting motorcycles from splitting lanes unless specifically allowed; “…when a highway has been divided into three or more clearly marked lanes for traffic traveling in the same direction, a person operating a motorcycle shall not pass another vehicle in a portion of a lane occupied by that vehicle unless the following conditions are met:

(1) The passing occurs during traffic congestion.

(2) The passing occurs at a safe speed.”

 

Following furious feedback from motorcyclists opposed to over-regulating an act that 87% report doing almost daily during crowded commutes, Sen. Beall soon pulled his proposal and turned it into a two-year bill for future reconsideration.

 

 

DRIVERS CAUSE MOST CRASHES WITH MOTORCYCLES, RESEARCH SHOWS

For motorcycle riders, people in "cages" bear a disproportionate share of the blame for the high number of motorcycle crashes, while car drivers feel careless motorcyclists careening in and out of traffic are putting their own lives at risk.

 

So who's mostly to blame when four-wheel and two-wheel vehicles collide? According to a recent Florida Department of Transportation study, bikers are right. Motorists driving cars and trucks are mostly at fault, often failing to yield the right of way to the smaller vehicles.

 

In analyzing 10 years of Florida motorcycle crashes, Chanyoung Lee, a senior researcher at theUniversity of South Florida's Center for Urban Transportation Research, found that 60% of the time motorists in other vehicles are at fault when they collide with motorcycles.

 

But the study uncovered more: When looking at all motorcycle crashes, motorcycle operators bear a lot of responsibility as well. They have a significantly higher number of single-vehicle crashes than other drivers. Some 34% of motorcycle crashes involve one vehicle, according to the study, compared to only 19% of car crashes involving one vehicle.  When looking at really severe and fatal motorcycle crashes, 50% involve just the motorcycle and no other vehicle, but when multiple vehicles are involved, greater blame falls on four-wheeled drivers. And most motorcycle crashes involve other vehicles.

 

But it's also a matter of awareness, according to Lee, who is part of FDOT's Motorcycle Safety Coalition. In driver surveys, FDOT has asked people how often they see motorcycles. Those with motorcycle endorsements on their driver's licenses report seeing motorcycles all the time, while those without endorsements who live in the same area report occasionally seeing motorcycles.

 

Due to minimal levels of protection to their riders, approximately 80% of motorcycle crashes result in injury or fatality, according to the Network of Employees for Traffic Safety, while only 20% of passenger car crashes injure or kill the vehicle occupants.

 

MMA HELPS DEFEAT SOUND WARRANT IN YARMOUTH, MA 

The Massachusetts Motorcycle Association (MMA) is pleased to report that a town bylaw proposal has been successfully defeated in Yarmouth. With short notice, the MMA in concert with the Yarmouth Chief-of-Police and Deputy Chief attended a recent Board-of-Selectmen meeting and were successful in convincing the board that such a Bylaw would be unsuccessful.

 

Armed with prior testimony used successfully around the state, including used to overturn a similar bylaw passed in Falmouth and subsequently struck down by the Commonwealth Attorney General, MMA Legislative Director Rick Gleason joined the Chief and Deputy Chief of the Yarmouth Police Department in their argument that Town Bylaws cannot exceed State Law, and that such a measure would essentially be meaningless.

 

The MMA has long held strong opposition to the use of the OEM EPA Stamp on stock exhausts as an enforcement tool, because it is a consumer protection mechanism and not meant to be used against the consumer. It is also hard to locate on many models of motorcycle, hidden under seats on sport bikes, under saddle bags of cruisers, or simply facing the wrong way for aesthetic reasons. Most critically, per the very regulation that entitles it, it expires in one year or 3,729 miles, whichever comes first!!

 

Instead, the MMA () continues to hold a firm belief that the existing laws on the books are sufficient if properly implemented and enforced, specifically that simple test procedures do exist for muffled exhaust, whether replaced with after-market or not, with a reasonable sound level.

 

LICENSE PLATE CAMERAS - A NEW WAY TO NAB SCOFFLAWS

First came red light cameras attached to traffic lights to catch drivers trying to beat the light; then came speed cameras along the roadway to ticket lead-footed speeders; but now police are deploying cameras in their cruisers to scan our license-plates in order to get instant feedback on unpaid tickets and other warrants.

 

It also allows authorities to monitor where average citizens might be at any particular time. That bothers some privacy advocates and organizations like the ACLU that oppose public intrusions into individual privacy. The groups are becoming more alarmed about license plate tracking as a growing number of police departments acquire the technology for electronic surveillance of traffic on public streets.

 

Little Rock, AR Police Chief Stuart Thomas said the law enforcement benefits outweigh any concerns about possible abuse of the information, which, as a public record, is legally available for anyone to see. 

 

Lawmakers in several states, including Minnesota and Utah, have suggested setting a time limit for their departments regarding how long such data can be collected and stored, but many places like Little Rock have no set policy and have a growing archive of license plate photos, along with time stamps and the locations, showing where motorists were at certain times.

 

Privacy advocates worry about the potential uses for such outside law enforcement, from snooping by stalkers and private investigators to businesses that sell personal data.  "Given how few rules are currently on the books to protect our privacy, it's plausible that private investigators and data-mining companies could acquire this location data," said ACLU staff attorney Catherine Crump, adding that the organization has requested more information from government agencies, but hasn't filed any lawsuits.

 

 

CANADIAN RIDERS BALK AT HEFTY INSURANCE HIKES

Premier Brad Wall says “maybe mistakes were made” and the Saskatchewan government will revisit motorcycle insurance rate hikes proposed recently by Saskatchewan Government Insurance.  “Our MLAs are reporting a lot of feedback on the issue, not just from those who are riders or have motorcycles, but others in general who note that these increases seem to be very high,” Wall told reporters.

 

When the legislature reconvenes for its spring session next week, the Saskatchewan Party caucus will discuss its next steps, Wall said. He said he’s not convinced SGI has exhausted all of its options to help eliminate a $9-million deficit between crash injury payouts and fees charged to motorcyclists. “Obviously, what’s being proposed by SGI for the rate rebalancing means huge increases and immediate increases, if approved, for riders,” Wall said.

 

SGI’s proposal to the Saskatchewan Rate Review Panel would mean a sudden 73% jump in insurance costs for the average motorcycle owner, compared to an overall vehicle insurance rate increase of 1.03%. The move prompted a backlash from bike enthusiasts and business owners, who fear a big blow to new and used bike sales which could devastate the motorcycle industry.

 

If approved, the rate increases would take effect in August, but Wall said the chance is “slim” the proposal will stay as is. He wants the government and SGI to look at other creative options, such as using better price incentives to reward motorcyclists who have taken training courses.

 

International News

National News

Oregon proposal would make being linked to a (*club*) a crime

PORTLAND, Ore. – In an attempt to crack down on violent (*club*) activity, Oregon lawmakers are considering a bill that would make it a crime just being linked to a (*club*).

Portland saw its latest (*club*)-related shooting in Northeast Portland on Thursday. Edward Paden Jr., 18, was shot and killed near the corner of Northeast 60th Avenue and Killingsworth after a fight in a gas station parking lot. Police haven't arrested anyone yet in the killing.

Mourners on Thursday dropped off balloons and other mementos at a growing memorial for Paden at the site where he died.

The big question is how would authorities decide who's a (*club*) member and who's not. The bill says any group of three or more people whose main purpose is criminal activity, has a commonly known name or symbol and regularly engages in criminal acts would be considered a "criminal street (*club*)."

Right now police track (*club*) members but there's no law against belonging to any particular (*club*) even if that (*club*) is repeatedly tied to criminal activity. House Bill 2679 and its companion, House Bill 2851, would give judges another tool for cracking down on (*club*) members. Under the new law, just being a (*club*) member would be a felony.

"We have people that are in (*club*), that have legal guns and you can't do a whole lot about it," said Rep. Jeff Barker, D-Portland. "This will give a judge the authority to kind of drop the hammer on them. And we're seeing more and more of this vicious (*club*) activity. We want to get that stopped."

Anyone found guilty of a crime tied to (*club*) activity could also get a stiffer sentence under the bill. (*club*)-related crime convictions would also go into the Oregon State Police Law Enforcement Data System with a special designation – "(*club*) related."

That would give any police agency in the state a heads-up that someone has committed a crime tied to (*club*) activity.

The criminal (*club*) activity bill had its first hearing Thursday before the state House Judiciary Committee.

The Oregon American Civil Liberties Union told lawmakers it is concerned that the definition of a "criminal street (*club*)" is too vague.

"The breadth of the bill and the confusion that will result from its definitions, or lack thereof, risks violating a defendant's due process rights because that defendant is not on notice of what activity is criminal," the ACLU said.

The organization also argued that current laws are strong enough to crack down on (*club*) activity and urged lawmakers to not advance the bills.

•House Bill 2679

•House Bill 2851

Prescott Cover Up Continues

More than three months after the fact the Arizona Department of Public Safety has still not released its long awaited report on a cop motorcycle club riot in Prescott last December 22. When the DPS began its investigation last year, it promised to issue a report in March.

What happened last December is straightforward. An unknown number, but greater than a score, of members of the Iron Brotherhood Motorcycle Club were drunk, disorderly and belligerent in the historic Whiskey Row section of Prescott. The club members flaunted their police powers and displayed both patches and badges simultaneously. Three of the revelers were high ranking local policemen. They were Prescott Deputy Police Chief Andy Reinhardt, Prescott Valley Police Chief Bill Fessler and Prescott Area Narcotics Taskforce Commander William “Mongo” Suttle.

About 10:40 p.m. in Moctezuma’s Bar an inebriated young man named Justin Stafford asked Chief Fessler about his patch and was immediately attacked by several members of the Iron Brotherhood. One patch holder, a Homeland Security Officer whose name on the road is “Top Gun” broke Stafford’s nose. Top Gun, who works at the Homeland Security office at 410 North Malacate Street in Ajo, Arizona, then fled to his hotel, which has already been established to have been the Hotel St. Michael’s. Since then he has successfully eluded the short reach of the DPS. According to a statement made by Mongo Suttle to Prescott police shortly after the assault Reinhardt was there and Suttle told him to go home before the cops showed up. During its long investigation, the Arizona DPS has issued a statement that, “Chief Reinhardt was not in the bar at the time of the incident.”

All of this is already public information and most of it has been reported by the Prescott Daily Courier.

Resignations

Suttle was placed on paid administrative leave on February 21 and he and a previously unnamed member of the Yavapai County Sheriff’s Office, Captain Marc Schmidt, resigned from their jobs on March 17. A Sheriff’s Office spokesman named Dwight D’Evelyn announced the resignations and said he “did not know” why either man resigned. Last Friday, D’Evelyn said Suttle was still being paid. The Associated Press reported that Suttle intended to retire.

Fessler finally quit his job on March 18. The day he resigned he issued a statement that read: “It has been an honor and privilege to have served the citizens of Prescott Valley and been involved in building a police department over the last 23 years. Because of the controversy associated with the events of December 22, I feel compelled for the good of the agency and of the Town to take this time to examine my career and choose to retire from the Town of Prescott Valley. I am proud of my service record as a professional police officer with the Town.”

Reinhardt is still on the job. The Arizona DPS is still investigating.

Mongols Win Yet Again

A legal case named Ramon Rivera v. Ronnie Carter et al. was finally settled yesterday after more than four years. It went on as long as it did because the United States Department of Justice, with unlimited money, unlimited manpower and unlimited time delayed, denied and counterattacked in order to maliciously frustrate the interests of justice. The government took the actions it did because its attorneys intended to use the rules of federal court procedure to maliciously punish innocent men.

Eight days ago, on March 18, Stephen R. Welk, the Assistant U.S. Attorney who unnecessarily prolonged this travesty of justice, finally gave up on the case and moved to dismiss an appeal filed with the Ninth Circuit Court. Yesterday, the Ninth Circuit dismissed the case.

At the end the argument was over whether the Rivera’s attorneys were entitled to be paid $243,824.00 in fees, $8,642.00 in additional fees and $740.78 in costs. Now those attorneys, David Loy of the American Civil Liberties Union and consumer attorney Alan M. Mansfield can finally get their money.

The Mongols Case

In the Mongols case, United States versus Doc Cavazos et al., the United States tried to outlaw membership in the Mongols Motorcycle Club by criminalizing the use of the clubs principal identifiers, the name “Mongols” and the Mongols center patch. The club’s former president, Ruben “Doc” Cavazos had trademarked those two marks in the name of his corporation, Shotgun Productions. After his arrest, and possibly before his arrest, Cavazos agreed to forfeit his “ownership” of those two “trademarks” to the government in return for a lighter sentence.

When Doc Cavazos made his deal is unclear because although he was not arrested until October 21, 2008 a temporary restraining order effecting the marks was requested by the government on October 17th. The government’s original request asked that the court (1) proscribe subsequent sale of the Club’s Marks; (2) enjoin use or display of the Club’s Marks by defendants in the criminal case and “those persons in active concert or participation with them”; and (3) authorize seizure of “all . . . materials bearing the [Club’s] trademark.”

The government originally wanted much more. And a press release issued on the day Cavazos was arrested stated:

“’In addition to pursuing the criminal charges set forth in the indictment, for the first time ever, we are seeking to forfeit the intellectual property of a gang,’ said United States Attorney Thomas P. O’Brien. ‘The name Mongols, which is part of the gang’s patch that members wear on their motorcycle jackets, was trademarked by the gang. The indictment alleges that this trademark is subject to forfeiture. We have filed papers seeking a court order that will prevent gang members from using or displaying the name Mongols. If the court grants our request for this order, then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.’”

Cooper Intervenes

For the next eight months, various federal, state and local police agencies treated the press release as if it had the power of law and seized not simply patches but other insignia, mementos and even personal photographs that referenced the Mongols from numerous innocent persons – including people who were not affiliated with the club in any way.

But under American law, Cavazos never owned the marks because they were not trademarks. They were instead “collective membership marks.” The name Mongols and the center patch indicated membership in the motorcycle club and belonged to the collective membership of the club. And collective membership marks are Constitutionally protected forms of expression – they are “free speech.”

Ramon Rivera, an unindicted Mongols patch holder from San Diego filed a civil rights suit over the issue The judge handling the case at the time, the late Honorable Florence Marie Cooper, ruled on both the Rivera suit and Cavazos forfeiture of the marks that summer. She said the marks were owned by the club and not Cavazos. Cooper also pointed out that she had been lied to by the government.

Judge Cooper ruled on July 31, 2009 that the government had no right to Rivera’s patch and on August 6 she ruled on the issue of Cavazos’ ownership. On that matter she wrote:

“Even if the Court were to accept the Government’s evidence that Ruben Cavazos controlled the use of the mark during his tenure as National President,” Cooper wrote, “there is no support for the notion that a defendant’s control of property belonging to a RICO enterprise is sufficient to establish a forfeitable ownership interest in the property. In addition, there is no evidence that Ruben Cavazos owned a majority interest or any interest in the Mongol Nation that would equate to an ownership interest in the mark. There is no evidence that Shotgun Productions, LLC ever used the mark as a collective membership mark – to indicate membership in an organization substantially similar to that of the Mongol Nation. The purported assignment to Shotgun Productions, LLC is therefore without legal effect. Moreover, the Government’s evidence demonstrates that the Mongol Nation began using the collective mark in approximately 1969, and either Mongol Nation or Mongols Nation, Inc. continues to use the mark to identify their members. The Mongol Nation and Mongols Nation, Inc, by virtue of having used the collective membership mark since 1969, having registered the mark in 2005, and having continued use of the mark to identify members of the club, have acquired and maintained exclusive ownership in the collective membership mark at issue.”

“At the June 22 hearing,” she wrote, “the Government revealed for the first time that the mark it sought to forfeit was a collective membership mark. Previously, in its Ex Parte Application for Post-Indictment Restraining Order, the Government (in this case ATF Case Agent John Ciccone) referred to the mark simply as a trademark, which was ‘purportedly for use in commerce in connection with promoting the interests of persons interested in the recreation of riding motorcycles.’ In contrast to commercial trademarks, which are used in commerce and generally not entitled to full First Amendment protections, collective membership marks are used by members of an organization to ‘indicate membership in a union, an association, or other organization.’ The use and display of collective membership marks therefore directly implicate the First Amendment’s right to freedom of association. The Supreme Court has recognized that ‘implicit in the right to engage in activities protected by the First Amendment’ is ‘a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’ This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.’ Furthermore, clothing identifying one’s association with an organization is generally considered expressive conduct entitled to First Amendment protection…. If speech is noncommercial in nature, it is entitled to full First Amendment protection, which prohibits the prior restraint and seizure of speech-related materials without a judicial determination that the speech is harmful, unprotected, or otherwise illegal.

“Prohibiting speech of this nature constitutes an attack on a particular viewpoint. In Sammartano (v. First Judicial District Court, in and for the County of Carson City) the Carson City courthouse enacted a rule to prohibit admission of those with ‘clothing, attire or colors which have symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations,’ because ‘such clothing or attire can be extremely disruptive and intimidating, especially when members of different groups are in the building at the same time.’ The Ninth Circuit reasoned that the rule singles out bikers and similar organizations for the message their clothing is presumed to convey, and held that the rule impermissibly discriminates against a particular point of view – the view of biker clubs as opposed to garden clubs and gun clubs. In this case, the Government targets an even narrower group of individuals, a single motorcycle club. In addition, the Government has been seizing property, which imposes a greater restriction on individual rights than the denial of access to a public facility. Accordingly, the seizure of property bearing a Mongols membership mark should be considered viewpoint-discriminatory. The Government’s ability to seize property bearing the trademark acts as a prior restraint and cannot stand without a judicial determination that the speech is harmful, unprotected, or otherwise illegal. No such determination was ever sought by the Government, and no such determination was ever made by the Court.”

Judges Wright And Carter

After Judge Cooper died in the middle of the Cavazos case, the forfeiture matter was transferred to Judge Otis Wright. Wright eventually ruled: “no amount of discovery could affect the dispositive legal issue: whether Cavazos, or any other individual defendant, had a forfeitable ownership interest in the Marks . . . There is no evidence that Cavazos or any other individual member of the organization holds or ever held an ownership interest in the Marks.”

But the government still refused to give up and eventually the issue was decided by Judge David Carter on February 28, 2012. Carter ordered the government to pay Loy and Mansfield for their work under a federal law called the Equal Access to Justice Act. The government argued that the two attorneys were asking for too much. Carter replied:

“The purpose of Equal Access to Justice Act (EAJA) ‘is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of Government authority.’”

“In sum, the novelty of the government’s position did not make it substantially justified. Rather, it took unlawful ‘action based on an ungrounded and unsubstantiated legal theory, and without sufficient factual support.’”

“Furthermore, Counsel’s hours were reasonable given the government’s obstinacy in continuing to litigate legal theories that have now been rejected by all three judges to hear this case. The government could have, at any time, spared itself the expense of Counsel’s EAJA fees by simply conceding that it was wrong on the law. Instead, the government took advantage of the changes in judges in this case by advancing unsupportable legal theories before each judge. In advancing these theories, the government submitted voluminous documents through which Counsel and the Court were forced to wade.”

The government appealed to the Ninth Circuit. Last week they finally gave up. Today it is over. The government cannot seize the patch of any motorcycle club without first proving that every member of the club and the club as an entity constitute a criminal enterprise.

Local News

In Oz

About 8 p.m. on March 15, just north of Santa Barbara, members of the County Sheriff’s Gang Enforcement Unit contrived a traffic stop on four motorcycles carrying four riders and one female passenger. It was a fishing expedition. The male riders, members of the Vagos Motorcycle Club, were all flying colors.

The police found four pistols in their saddlebags. One pistol was loaded. Two pistols were unloaded but the police claimed the riders of those bikes had ready access to ammunition. The fourth pistol was unloaded and the rider did not have immediate access to ammunition. All five detainees, including the woman, were arrested and charged with possession of a concealed firearm and with being an “active participant of a criminal street gang in possession of a concealed firearm.” The legality of the “criminal street gang enhancement” is ambiguous. The Federal Ninth Circuit Court of Appeals and the California Supreme Court disagree about this law. Under current California case law the arrested woman can be convicted of gun possession and the enhancement even though she is not a member of the Vagos and was not in possession of a gun. The Supreme Court of the United States has never ruled on such a case.

In its account of the arrests, a news website called Cal Coast News accurately stated, “The FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives and the California Attorney General’s Office have each named the Vagos Motorcycle Club an outlaw motorcycle gang.” The accusation is more serious than mere name calling. Basically, it carries the force of law if a “biker authority” from one of these or a similar bureaucracy repeats the accusation in a state court.

Outlawing Outlaws

The point of the March 15 traffic stop was not to make Santa Barbara’s roads safer. The point was to punish the four Vagos for being Vagos. Being a Vago is technically not yet a crime but the alleged gang enhancement makes associating with a group that some policeman do not like a defacto crime. If the Supreme Court ever does rule on such a case it is likely to find gang enhancements unconstitutional but high court rulings increasingly have more to do with the personalities of the judges than with some ideals some dead, white men wrote down long ago

The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Throughout the last two centuries the implications of that statement and every other statement in the Constitution have been elaborated by the federal courts. As a result of the American Civil Rights movement in the 20th Century the Supreme Court eventually ruled that the First Amendment meant that people in the United States can associate with whomever they damn please – even Vagos.

Nevertheless, the four patch holders and one wife must now defend themselves against a bogus crime. Gang enhancements, racketeering allegations, and civil forfeiture are all ways of punishing people associated with those groups of which judgmental cops and pandering politicians disapprove. And news media, because reporters and editors have a natural vested interest in protecting their access to political and police sources, rarely question these tactics or the official blather that justifies them.

But, the March 15 traffic stop was only one brief episode in a widespread and mostly unacknowledged war.

The Global War

There is a global war on motorcycle clubs that coincides with the global war on terror and in many ways the United States is a leader in it. Domestic surveillance infrastructure, like America’s scores of fusion centers and High Intensity Drug Trafficking Area war rooms, has become complexly entwined with an fabulous new industry called “Big Data.” Various technological innovations, like automated license plate readers and drone aircraft or, coming soon, automated license plate readers mounted on drone aircraft, combined with new ways to sort and analyze raw data, like every email sent in America, make it possible for government agents to spy on everybody. The question then becomes about to whom to pay attention – besides Al Qaeda. And, the answer is increasingly alleged criminal groups. And, no allegedly criminal groups are easier to identify than motorcycle club members because, to the disdain of many, they flaunt their allegedly criminal associations on their backs.

Policemen in most of the English speaking world and in Western Europe share the same attitudes toward motorcycle clubs. Russia does not cooperate with the west in this war on bikers because Russia often disagrees with the west and because the largest, and arguably preeminent club there, the Night Wolves, enjoys the favor and protection of Vladimir Putin. But the global war on bikers explains why American federal policeman participate in surveillance and intelligence gathering aimed at motorcycle clubs in Europe. It is the reason why European Hells Angels have an increasingly hard time gaining entry into the United States and why American Bandidos are denied entry into Canada. In one particularly absurd example of this international cooperation, just last year Izzy Wildheart, who is married to a Hells Angel in London and who runs a website that supports the legal causes of imprisoned Hells Angels, and whose mother was American and who has a long personal and family history in the United States – including a written commendation for her good deeds signed by Barack Obama – was denied entry into America.

The global war on bikers relies heavily on the United Nations Convention Against Transnational Organized Crime passed in 2000. And the nature of the criminal allegations made against motorcycle club members often echo the Palermo Protocols which amplify that UN Convention.

The motives and implications of this global war on motorcycle clubs are complex and cannot be briefly discussed here. But simply to understand that there is a global cooperative effort by mostly anonymous apparatchiks to harass and destroy motorcycle clubs provides some context to what is now happening in Australia.

In Oz

Australia has become increasingly hysterical about the biker menace since 2002. The hysteria reached a crescendo in March 2009 after a Hells Angel was beaten to death by a Comanchero in a brawl in the Sydney airport that involved 15 men. The brawl occurred hours after local Bandidos were involved in a series of drive-by shootings into homes associated with the so-called “Nike bikie” group Notorious. The Australian Prime Minister, Kevin Rudd, who coincidentally was in Washington, D.C. at the time, said “this sort of behavior by bikies and others engaged in organized criminal activity is unacceptable in Australia, absolutely unacceptable.”

For the last four years, Australia’s press has carried stories about the inhumanity of bikie brutes almost daily. Last month, the land down under was enraged that “Hells Angels members are blackmailing school children into becoming drug dealers.” Sydney’s Daily Telegraph reported:

“The brazen bikies even wear their full, grimy club colours during supermarket recruiting drives aimed at luring youngsters into acts of criminality. Police in Sydney’s northwest say they have been aware for more than six months of at least one Hells Angel member and his associates forcing teens as young as 16 into crime with threats of violence. Children threatened by the group are recruited on the outskirts of shopping centres, mainly for drug peddling. Opposition Leader John Robertson said despite escalating gang-related violence on Sydney’s streets the NSW (New South Wales) government has failed to outlaw a single bikie gang. ‘Families in northwest Sydney are fearing for their school-aged children because the bikie gangs are being allowed to run riot,’ Mr. Robertson said.”

New South Wales had already done something.



The Bikie Laws

After the Sydney airport brawl, New South Wales passed the “Criminal Organisations Control Act” of 2009. The new law allowed the Attorney General of New South Wales to ban membership in any motorcycle club based on “criminal intelligence.” Under this state’s law the proposed ban had to be made public before it could be implemented. A similar law in South Australia kept the ban secret. In both states the intelligence on which a ban could be based was kept either mostly or completely secret.

There has been a continuing court battle in Australia for the last four years over these bikie bans. They are feasible in Australia because that country, virtually alone among the western nations, does not have a Bill of Rights. Australia does share many legal assumptions with the other English speaking nations including the United States and until recently bikie laws have been found to be illegal.

The most serious problem Australian courts have had with these laws has that they subvert the English Common Law principle that the accused has a right to confront his accuser and examine the evidence against him. A brief survey of American racketeering trials illustrates that the Common Law idea is being subverted here as well. Federal prosecutors here routinely conceal evidence and hide the names of key witnesses until the last moment. But America still pays lip service to traditional legal notions. Australia has evolved beyond that. In the original version of the South Australia law, not even the judge who issued the ban was allowed to see the evidence on which it was based.

Other objections to the bikie laws included violations of the separation of powers and freedom of association. The South Australian notion that not even the judges could see the incriminating evidence tended to annoy judges there. But the idea of striking a death blow to motorcycle clubs, fueled by national hysteria and a manic press, never died. Australian clubs and lawyers have been refining the bikie laws over the last four years: As motorcycle clubs in the United States are evolving to fend off accusations of racketeering and as prosecutors here are inventing new arguments and strategies to win convictions.

To date, five of Australia’s seven states have either implemented or proposed laws to ban membership in organizations the police accuse of being criminal . Those states are New South Wales, South Australia, Queensland, Western Australia and Victoria.

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The Queensland Finks Decision

On March 14, the Australian Supreme Court unanimously ruled that Queensland can ban the Finks Motorcycle Club. Police in Brisbane sought last June to ban members of that club from associating with each other. The application for the ban accused the Finks Gold Coast chapter of murder; trafficking in the popular recreational drugs marijuana, cocaine, ecstasy and methamphetamine; of involvement in a shooting in Sydney; and of stealing a Lamborghini from a Melbourne showroom. The “gang intelligence” on which the accusations were based was and is secret. This month, the Australian high court decided it had no problem with that. If you’re interested, you can read the judgment here.

The Finks lawyer, a man named Bill Potts who probably gets paid by the hour, has vowed to fight on.

But Michael James Condon, the Assistant Commissioner of the Queensland Police Service and the man who sought the ban, sounded ecstatic. “The notion that these are just good citizens riding motorbikes is absolute rubbish,” Condon fumed after the verdict. “They pose a risk to the community, so we should not be drawn into a belief that these are good citizens.” From now on, everybody will just have to take Condon’s word for it.

So today in Oz, it is legal to outlaw any organization on the basis of “criminal intelligence.” The “intelligence does not have to be disclosed to the accused group or its lawyers. The procedure can be legally applied to any group that police say represents “an unacceptable risk to the safety, welfare or order of the community.” The ban against all members of an accused organization can be based on what confidential informants paid by the police say that some members of the organization “might do;” not what they have provably done but what they speculatively might do. The intelligence can include hearsay. “Members” of the banned group include non-members identified by the police as known associates. And, if two non-members who have been identified by police as known associates are caught texting each other they can be sentenced to five years in prison.

For the last two weeks, in conference rooms at ATF headquarters and FBI headquarters and at the Department of Justice, men and women whose names you will never know have been trying to figure out how to do that here.







No Colors Events in California in 2013

• The LA Calendar Motorcycle Show, Queen Mary, Long Beach, July 14

California Legislation

2013-2014 Agenda

• NCOM's End Motorcycle Profiling Act of 2013

• "Profiling of Motorcycle Riders"

Could NOT find an author willing to carry it this year

• AB1192 "Equal Access for Motorcycles in Parking Garages"

Going to be withdrawn due to financial opposition by the insurance industry......

• "Required Helmets for Off-Road Vehicles"

Active Judicial Cases in California - Criminal and Civil

National

• HAMCO vs OHS, Hillary Clinton, Janet Napolitano and Immigration Services Dir. Alejandro Mayorkas - (withdrawn??)

California

Police Harassment and Rights Violations

• Monterey Bay COC - Santa Cruz County Gang Task Force

• Henchmen MC San Jose Chapter - San Jose Police Department

• Mayhem MC - Santa Cruz County

• Henchmen MC Sacramento Chapter - Sacramento Police Department

Discuss active member and or club traffic stop cases and civil lawsuit cases - Get case numbers for all

Government & Law Enforcement Tools, Misconduct and Abuse

Ignorance of the law is legally an excuse for police officers

“Ignorance of the law is no excuse.” Undoubtedly, everyone has heard this tired mantra before. Many people do in fact break the law because they in all earnestness were not aware that whatever petty, trivial transgression they had committed was illegal. Certainly, one would not seem very credible claiming they were unaware murder, rape, or theft is against the law, but when up to 40,000 laws are set to take effect each year, it is not surprising that many people are honestly unaware when they break some laws.

When  feeding the homeless results in arrest, selling raw milk results in armed raids,  driving 2 miles an hour under the speed limit is a ticketable offense, and there is even an attempt to criminalize soda, it is not surprising that many people unknowingly commit crimes, or break the law with zero criminal intent in mind. And of course, if such unsuspecting law-breakers are caught by police, ignorance of the law is no excuse.

However, there is a class of people for whom ignorance of the law is frequently an excuse. You would think that this class of people who are excused for being ignorant of the law might be some special class of people who have no reason or ability to know the law, and who are entitled to some leniency. For example, one might think of the senile, those with learning disabilities, or those with mental incapacity. You wouldn’t think it’d be the police.

Qualified immunity is a legal doctrine by which police are shielded from civil suits when they violate peoples’ rights. If an ordinary person wrongly abuses, beats, or kills another human being, they are of course subject not only to criminal prosecution, but civil liability for their violence. Police on the other hand, are shielded by qualified immunity. This means that there is a major obstacle in place when victims of police brutality try to sue violent cops.

Qualified immunity as a legal doctrine has a bit of history, but at the root of it is the idea, propounded in the Supreme Court case Harlow v. Fitzgerald, that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” I.e. Ignorance is an excuse for them (but of course, not for you).

Not only is ignorance an excuse for police, the whole idea of “innocent until proven guilty” is turned on its head with this doctrine. The default requirement for police is not that they restrain themselves unless they are certain a criminal has violated an establish law (which is how it should be) – the default is that police may act as they please, unless the law has clearly established that doing so is a violation of the victim’s rights.

For instance, Brian Kelly was arrested by police for filming them during a traffic stop. While the federal circuit court (3rd Circuit) ultimately concluded that Mr. Kelly had a right to do so under the First Amendment, they also granted the police qualified immunity for violating Mr. Kelly’s First Amendment rights, concluding that the right to film police was not a “clearly established right” at the time. See Kelly v. Borough of Carlisle. (No need to take my word for it. For or more information, see the FBI’s explanation.)

The entire doctrine assumes that people have no rights, unless the government has clearly defined those rights. This is an absurd approach. Of course the First Amendment does not “clearly” protect videotaping police – video cameras did not exist when the Constitution was drafted. To say that police may violate people’s rights in the absence of a specific law saying they are prohibited from doing so is nothing short of blatantly promoting police abuse.

Under the bulk of the qualified immunity case law, the bottom line is that a police officer faces no personal liability, and no personal consequences for acting negligently or even recklessly if the government has not first declared that a person has a right to be free from specific intrusions.

Again, while an ordinary person is held personally responsible for various negligent actions, and definitely is held criminally liable regardless of ignorance, the same standard does not seem to apply to the enforcers of the law.

Drones over America: How unmanned fliers are already helping cops..

Nidhi Subbaraman , NBC News  

The AeroVironment Qube drone can fit in the trunk of a car and be assembled, the company says, in less than 5 minutes. 

It was getting dark, and the sheriff of Nelson County, N.D., was in a standoff with a family of suspected cattle rustlers. They were armed, and the last thing anybody wanted was a shoot out.

U.S. Customs and Border Protection, which monitors police radio chatter, offered to help. Their Predator was flying back to its roost at the Grand Forks Air Force base and could provide aerial support. Did the sheriff want the assist?

Yep.

"We were able to detect that one of the sons was sitting at the end of the driveway with a gun. We also knew that there were small children involved," Sheriff Kelly Janke told NBC News, remembering that tricky encounter in the early summer of 2011. "Someone would have gotten seriously injured if we had gone in on the farm that night." He decided to wait.

The next day, the drone gave them an edge again by helping them choose the safest moment to make a move. "We were able to surprise them … took them into custody," Janke said. They also collected six stolen cows.

Rodney Brossart, the arrested farmer, sued the state, in part because of the cop's use of a drone. But a district judge ruled that the Predator's service was not untoward.

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Senior Master Sgt. David Lipp / U.S. Air National Guard

This U.S. Customs and Border Protection Predator B drone waits at the Grand Forks Air Force base in North Dakota. It lends aerial support to CBP staff on the ground.

When advocates express concern about government drones threatening people's privacy, the Brossart case is one they bring up. It's one of the first instances of a flying robot doing a cop's dirty work, and this kind of intervention is likely to be more and more commonplace, as the FAA fulfills a congressional mandate to increase its granting of drone permits — certificates of authorization, or COAs.

Cops and flying robotsAt the moment, there are only 327 active COAs, all held by these organizations, and all for unarmed crafts, of course. A tiny sliver of these permits are in the hands of law enforcement agencies, and from them, we're seeing the first glimpses of drone use in policing and emergency response.

"The FAA has approved us to cover a 16-county area," Sheriff Bob Rost of Grand Forks County, N.D., said of their COA. "To look for missing children, to look for escaped criminals and in the case of emergencies." In the spring, they will use two mini-copter drones — a trusty DraganFlyer X6 and an AeroVironment Qube — to check on flooded farms.

The police department in Arlington, Texas, also recently got FAA clearance to fly their drones after two years of testing. The two battery-powered Leptron Avenger helicopter drones won't be used for high-speed chases or routine patrol, the department explains. In fact, the crafts will be driven in a truck to where they're needed, and when they're launched to scope out incidents, local air traffic control will be informed.

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Leptron

The police department in Arlington, TX got FAA approval to use two Leptron helicopter drones like this one.

In Mesa County, Colo., the police department has used drones to find missing people, do an aerial landfill survey and help out firefighters at a burning church. For them, it's seen as a cost-cutting technology.

"It's the Wal-Mart version of what we'd normally get at Saks Fifth Avenue," said Benjamin Miller, who leads the drones program in Mesa County, comparing drones to manned helicopters that would otherwise give police officers help from the sky.

In Seattle, the police department received an FAA permit — but had to give back its drones when the mayor banned their use, following protests in October 2012.

Protests and red tape

"Hasn't anyone heard of George Orwell's '1984'?" the Seattle Times quoted a protester as saying. "This is the militarization of our streets and now the air above us."

Protesters, not just in Seattle, seek more legal definition of what a drone can or can't do, and debate whether or not current laws sufficiently protect citizens from unauthorized surveillance and other abuses. New York City mayor Michael Bloomberg thinks of police drones as an inevitability — "We're going to have them," he recently said in a radio interview — while those on the police (and drone) side say the fears are unfounded.

"This hysteria of [a drone] hovering outside your backyard taking a video of you smoking a joint, it's just that — hysteria," said Al Frazier, an ex-cop from Los Angeles who is now an assistant professor of aeronautics at the University of North Dakota, and a deputy at the Grand Forks sheriff's office.

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AP Photo/Mesa County Sheriff's Office

Deputy Amanda Hill of the Mesa County Sheriff’s Office in Colorado prepares to use a Draganflyer X6 drone equipped with a video camera to help search for a suspect in a knife attack.

The reason the sky isn't lousy with drones already mostly has to do with red tape. The FAA's highly restricted drone application for government agencies is supposed to take about 60 days, though unofficially, we're told it's much longer. COAs are also very strict about where, when and by whom a drone is flown.

"I think there are many agencies who would like to use [drones] for public good, but they're stymied by the process," Frazier said.

That's likely to change — and soon. Last February, Obama signed a mandate that encourages the FAA to let civil and commercial drones join the airspace by 2015. This will take new regulations from the FAA for safe commercial drone flight, and it may take some convincing of local anti-drone activists (who sometimes don't differentiate between drones great and small). It may even require the passing of a few new privacy laws.

Folks like Frazier and Miller don't see the permit process getting easier any time soon but eventually — inevitably — and for better or worse, your local police department will get its drone.

Other/Misc Topics/News

Militarization of Law Enforcement & The Rise of Paramilitary Police

December 9, 1969 was the first significant deployment of the LAPD’s newly formed “Special weapons assault team (“SWAT”) in a four-hour confrontation with members of the Black Panthers.

The Panthers eventually surrendered and by 1974 there was a general acceptance of SWAT as a resource for the city of Los Angeles.

Over the last 30 years, America has seen a disturbing militarization of its law enforcement, along with a rise in the use of paramilitary police units (SWAT teams) for routine police work. The most common use of SWAT teams today is to serve narcotics warrants, usually with forced, unannounced entry into the home.

Meet Mark Ron (YouTube user SuperLuminousTV)

On July 16th, 2012 Mark heard outside his door, what he describes as a women screaming for her life. When Mark opened his door to possibly assist the woman, he was struck in the face by the aggressor. According to Mark’s testimony the assailant was the victims boyfriend who is a 45 year old,  6’5 -280lbs ex cop.

Moments after the assault Mark called 911 in search of some assistance and to press charges with the local PD. When officers arrived they refused to allow either of the victims to file charges but Instead, according to Mark, he was handcuffed and assaulted by an officer so bad his spleen ruptured in two places. Mark quotes the officer as saying  ”don’t play hero in our town”.

Mark was then rushed to the hospital once the ambulance arrived. (Footage here)

Marks recalls the aftermath:

When I woke up in the hospital (hospital footage)  I grabbed my IPhone and found the cops deleted video content.  But not all of it. I posted the evidence to my YouTube channel  for safe keeping. When I got home 8 days later a policemen knocked on my door at close to midnight. The policeman told me to remove the videos of their crimes or else they would be coming for me next day.

As you can see in this video that’s exactly what happened (warning: disturbing footage.)

Mark clearly stated before the raid that he was  unarmed and not a threat to officers positioned outside his residence.

This story is all too familiar, these raids seem to happen far too often in today’s climate of the encroaching police state. This is more substantial proof that we need to take a long hard look at corruption, excessive use of force and the militarization of police in this country .

Presentations / Special Topic / Exercise

Why I Document, Why I Record, and Why I Stand Up For My Rights

Joseph G. shared the following story about his experience with the Swatara Township Police, specifically Jason Umberger, via ’s ‘submit‘ tab.

Let’s go to the start of this mess: Thursday June 8, 2006. The day before, my older brother stopped by to visit me from Allentown. We had fun, messed around a bit, and woke up the next day. We decided to get some good soup before he left, so we went to Pho Vietnam. We ate some excellent soup, bought some pocky on my urging, and started to head back home. We didn’t get very far. Traffic was jammed up tight after a bit, and then we noted emergency vehicles rushing past. We got farther ahead in traffic, and saw a wreck right in front of us.

Well, my brother had his camera that day. I had my little Creative Zen Micro, which had a microphone for taking notes and such. We swung into a parking lot and started taking some photos and I started talking to people to find out what they knew. I was recording the whole bit.

I noticed an official talking to my brother, so I walked over to see what was going on. The official wanted his license, and he asked what he needed it for. After the officer learned that my brother was not with the press, he got angry and kept demanding his ID. My brother asked if he was being detained; the answer was no, so he walked away. The yellow barrier tape was then put up. My brother joined the general crowd and continued taking photos. The news reporters were there recording video and taking pictures as well.

As I was talking to three employees who worked near the accident site, I noticed two cops (one in uniform) standing very close to my brother with very angry looks. I also saw my brother was flexing one of his hands by his side, trying to keep calm.

I walked over still holding the Zen, which was still recording. My brother was being told he couldn’t take photos and needed to leave. My brother questioned the officers about the reporters and was told they understand the respect needed in the situation.

The officers in question started to demand ID and threatened to falsify charges to bring against us, such as physical interference when we were never even on the road, and were even past the sidewalk. They also cursed at us a few times.

Suddenly, Capt. Jason Umberger of Swatera Township saw my MP3 player. “Are you recording this?!” he asked me in a cross tone.

“Yes…”, I said.

“That’s a federal offense!” he said. He then said, “Give me that!” and proceeded to YANK my left arm to hold it in place and try to take the device from me.

I pulled away from him and said, “Sir, unless you are arresting me, or charging or detaining me, please don’t touch me.”

He said, “Okay, that’s it,” took my left arm, yanked it back, and pinned it at my side. At that point, I quickly hit the button to stop and save the recording, fearful the police would cancel or delete it. They saw that as trying to delete the recording and tampering with evidence. Detective Timothy Shatto took my other arm and cuffed me. I was not told I was being arrested until I was cuffed. After I was cuffed, we were asked to move down to the next parking lot, which I did without objecting. I was told by another officer while cuffed on the sidewalk that I was “just another punk-ass teenager, and now [I was] going to learn a lesson in civics in the real world.” I was frisked, put into an unmarked car, and driven off. While driving, I moved my hands at one point because the cuffs were digging into my skin. Suddenly, Detective Timothy Shatto pulled over, threw open my door, and proceeded to frisk me again, asking if I had dumped anything inside the car.

At the station, I was told I would not be allowed to see my parents, and wouldn’t see them the rest of the day. I was told I would stay overnight in a holding cell. One officer remarked that if I’d never been inside Dauphin County Prison, I was going to soon. When told I didn’t know my Social Security Number off-hand, an officer said I was “yanking his chain.”

All through this, I remained respectful towards the officers. I did not curse, yell, or give them any reason to be upset with me. I was charged with “intercepting oral communications,” resisting arrest, and tampering with evidence.

In PA, it is legal to record in situations when there is no expectation of privacy… such as the side of a road. I also made no attempt to be covert about my recording.

Back then, my family could not handle the stress. I ended up pleading down to disorderly conduct, paid a fine, and the audio was deleted. However, the photos were not.

Umberger has since been promoted to Chief of the force.



Swatera Police

599 Eisenhower Boulevard

Harrisburg, Pennsylvania 17111

United States

For police matters that are non-emergency, dial 717.558.6900

Open Discussion and fact gathering – Local Issues (Get forms filled out right there)

o Police Harassment / Profiling

o Discrimination at local business establishments

o Traffic Lights

o Road Conditions

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