This very interesting article was forwarded to me by Rogue and written by Ray Henke, a California Motorcycle Accident Lawyer, founder of Motorcyclists Against Dumb Drivers. It demonstrates, with legal arguments, how you can fight the helmet law in California and other states. Because the convincing demonstration that Ray Henke is making is very long, I have edited it and kept the most important arguments.
“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).
The road to demonstrate that the California helmet law is unconstitutional has been a tortuous one, beginning with a challenge that the law was unconstitutional as written. In Buhl v. Hannigan, the California Court of Appeals agreed that it was “absurd” to posit that the ordinary biker or law enforcement officer could examine a helmet’s fabrication and apply FMVSS 218 to determine if it complied with the California helmet law.
The Buhl case was followed by Bianco v. California Highway Patrol in which the California Court of Appeals held that where a helmet bears a “DOT” label it creates a presumption that the helmet complies with FMVSS 218, and that the presumption can be rebutted only if (1) the helmet was recalled by the manufacturer for failure to comply with FMVSS 218 or determined by NHTSA to be noncompliant with FMVSS 218, AND (2) the biker as “actual knowledge” of a recall or determination of noncompliance.
At this point California law enforcement should have recognized that the constitutional restraints on application of the law had rendered it unenforceable. The California Highway Patrol’s response to the foregoing Court of Appeals decisions, however, was to ignore them and to continue to enforce the law arbitrarily based upon the law enforcement officer’s incompetent assessment of the fabrication qualities of the helmet.
Richard Quigley and Steve Bianco then initiated litigation which would later be funded by Easyrider magazine. The bikers established in the federal district court that the California Highway Patrol had a policy and practice of illegally enforcing the law, in violation of the Court of Appeals decision in Bianco v. CHP. The federal district court issued a scathing opinion condemning the CHP for its illegal helmet law enforcement polices and the United States Court of Appeals affirmed an injunction ordering the CHP to cease and desist issuing helmet tickets unless the officer has “probable cause” to believe that the rider has “actual knowledge” that his headgear has been recalled or determined by NHTSA to be noncompliant with FMVSS 218.
Again, the CHP should have just laid down their ticket books, but again, the CHP determined instead to continue on with its illegal enforcement policy. Riders with Bikers of Lesser Tolerance in California like Richard Quigley and Steve Bianco tested the resolve of the California Highway Patrol, accumulating hundreds of helmet tickets, some for wearing the B.O.L.T. “Ill Eagle” helmet, with the Chinese manufacturer’s “DOT” label embroidered on the back, others wore sunglasses with DOT labels, or itsy bitsy teenie weenie helmets, beanie helmets, helmets looking similar to what some refer to as “novelty helmets,” and many manufactured their own smaller-than- watermelon-sized hard-shell helmets, as specifically authorized in a legal opinion authored by CHP legal counsel, appending their own DOT labels.
Quigley challenged his last dozen helmet tickets, this time urging that the California helmet law was unconstitutionally vague “as applied” by the California Highway Patrol. He interrogated the highway patrol officers and introduced the internal CHP policy memoranda and bulletins making plain the CHP’s intent to skirt the Court of Appeals decisions that defined the California helmet law; documents he’d accumulated over a dozen years fighting the CHP in court.
Ten years to the day after the United States Court of Appeals for the Ninth Circuit had upheld the injunction against the CHP’s illegal helmet law enforcement policies, Judge Barton, for the California Superior Court for the County of Santa Cruz found that the California Highway Patrol had engaged in a policy and practice of illegal helmet law enforcement, now not only in violation of the California Court of Appeals decision in Bianco, but also in violation of the Easyriders federal court injunction. The Court issued a several page, highly reasoned constitutional opinion holding that the California helmet law was unconstitutionally vague as applied.
As the Court transcripts reflect, the Court’s purpose in setting forth its reasoning in the opinion was to permit the case to be taken up to the Court of Appeals, and the California helmet law might have been laid to rest in that case. However, the California Attorney General, less concerned with upholding the California and United States Constitution than with preserving the ability of the CHP to continue to enforce the helmet law illegally, declined to appeal the case.
In clear, it is well beyond the qualifications of the ordinary biker or law enforcement officers to determine if helmets manufactured out of hard materials comply with FMVSS 218 and the California helmet law. And it is the Plaintiff’s evidence that the California Highway Patrol has had the policy and practice to illegally ticket California bikers, including the Plaintiffs, arbitrarily and discriminatorily, for the entire spectrum of fabric and hard-shell helmets despite that every court has agreed that CHP officers plainly lack the ability to discern whether a helmet meets FMVSS 218 standards, the sole standard set forth in the California helmet law.
A new litigation was initiated by Richard Quigley and several other members of Bikers of Lesser Tolerance, California. The intent this time to put on at trial not only the same evidence of illegal highway patrol helmet law enforcement practices but the hundreds of illegal citations issued to the other B.O.L.T. Plaintiffs. And what this evidence will amply demonstrate, is that the California helmet law isn’t being enforced in conformity with the California and federal constitutional decisions, and that, as a practical matter, it cannot be enforced constitutionally. The case is framed as an injunction and declaratory relief case to assure that it will reach the Court of Appeals. If the B.O.L.T members succeed in the trial court, we anticipate that the Court will declare that the helmet law unconstitutionally vague as applied and issue an injunction against its further enforcement; so the Attorney General will be forced to appeal. If the Court fails to enter a decision that voids the California helmet law then the Plaintiffs can then appeal and we would expect that the Court of Appeals will have no choice but to recognize that the defect in the law is its unconstitutional vagueness and that the law as reinterpreted cannot be applied constitutionally.
The litigation represents the culmination of the courageous and determined work of the Plaintiffs and other B.O.L.T. members like Richard Quigley and Steve Bianco who have fought the good fight on the streets and in the courts for the past 17 years. The significance of the litigation extends beyond voiding the California helmet law because the due process deficiencies in the law will ertainly undercut the NTSB’s efforts to impose the same law on every other state. It will also provide the precedent for freedom fighters in every lid state to take into their state courts. Yes, this will be California appellate law. But in most states the constitutional arguments that will be upheld in this case will be “issues of first impression,” meaning issues not yet decided by the courts of the other states. When faced with an “issue of first impression” the Court’s always look to the decisions of the other states which have faced and decided the issue. And here on the issue of due process “vagueness,” this case will be the only relevant constitutional precedent in point.
We can shortcut by 17 years the constitutional court battles in every other lid state, and provide you the opportunity to void your helmet law decisively. Please accept this opportunity to join with ABATE of California and Delaware and Michigan and Northern Nevada as our partners in achieving freedom”. Ray Henke