Category Archives: Motorcycle Profiling Project

Texas Biker Movement Alive and Strong After Waco Tragedy

By David “Double D” Devereaux

2017-01-30_10-48-52

The motorcycle rights movement is alive and thriving in the state of Texas. Although many motorcyclists conjectured that the tragedy that occurred in Waco on May 17, 2017 would reduce participation in the Texas Confederation of Clubs and Independents, over a thousand club members and independents showed up for the bi-annual Rally held at the Capitol in Austin every other year. On January 23, 2017, the Motorcycle Profiling Project joined select motorcycle rights advocates from around the country and a contingent representing the National Council of Clubs (NCOC) in a show of support and solidarity that clearly communicates that clubs and independents from across America support the Texas COC&I and Texas bikers in their struggle against motorcycle profiling and discrimination.

Crisis creates opportunity

After Waco, many in the biker community worried that the motorcycle rights movement in Texas would become fractured and lose participation. This logic was based on a couple of factors. There was supposed to be a Texas COC&I meeting at the Twin Peaks where the tragedy occurred. Would clubs and independents stop participating for fear that merely being present at a political meeting could get you arrested without individualized suspicion and given a 1-million-dollar bond? Would law enforcement start surrounding all TCOC&I political gatherings with a multi-agency task force with high powered rifles?

But Texas bikers have made another choice. The manpower behind the movement to protect motorcycle rights is still mobilized and politically active. TCOC&I meetings have continued to peacefully assemble statewide as they have for nearly 20 years without any incidents or violence.

In the face of crisis, Texas bikers have not laid down and surrendered to fear or complacency. Instead, they have chosen to stand up and fight for their liberties as demonstrated by the mass gathering at the Capitol on January 23rd. And this mobilization is nationwide as evidenced by the support from states coast-to-coast represented in Austin.

Bikers from Across America Show Support for Texas Bikers

After Waco, many motorcyclists view the state of Texas as ground zero in the effort to preserve motorcyclist’s civil liberties and the fight against profiling and discrimination. Although there was some discussion relating to pending motorcycle safety legislation like lane-filtering, the clear message from the community was that motorcycle profiling and discrimination is the most important issue currently facing Texas bikers.

In search of support and sponsorship, the mass of bikers gathered at the steps of the Capitol to deliver their message. Impressively, many of them were not from Texas. Indeed, the NCOC showed their support with a contingent from Washington State, California, New York, Maryland, Nevada North Carolina and Utah. Long Island ABATE was also present and displaying a banner declaring support for Texas bikers. The Motorcycle Riders Foundation, another organization dedicated to the fight against profiling, was also present.

Guest speakers included Dr. Will Dulaney from North Carolina and David “Double D” Devereaux from Washington State, as representatives of the NCOC and MPP. Double D spoke about Texas being at the epicenter in the battle against motorcycle profiling. “Texas showed us all that grassroots manpower worked when they brought the country the US Defenders program. Now it’s time to use the model to protect Texas bikers!”

Dulaney introduced a new program from the MPP providing consultation and expert witnesses to bikers with public defenders facing criminal charges. “Public defenders are often overwhelmed with caseloads and uninformed about issues specific to the biker and club community”, explained Dulaney.

Russell Radke, representing the MRF, discussed the national organization’s commitment to pass federal legislation addressing motorcycle profiling. Radke explained that the MRF is one of the only organizations with an infrastructure firmly rooted in Washington DC.

Finally, recently elected District Attorney Mark Gonzales, a motorcycle club member himself, confirmed that even he has been the victim of motorcycle profiling during his recent campaign. Gonzales explained that his named popped up as a gang member during a traffic stop. He’s the newly elected District Attorney! Gonzales is proof positive that motorcycle profiling impacts everyday bikers simply based on a stereotype. There is obviously a problem when the District Attorney has been labeled a gang member with NO due process.

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Jury Finds Mongols Not Guilty After Motorcycle Profiling Arrest

By David “Double D” Devereaux

2017-01-10_11-45-47

Motorcycle profiling is an epidemic in California and this fact is perfectly illustrated by recent actions targeting motorcycle club members by the San Diego Police Department. Specifically, one Detective Timothy Coyle has recently been targeting motorcycle club members with harassment and frivolous criminal charges related to the possession of weaved leather decorations as slung-shots, commonly called “Get Back Whips”. Documented incidents prove Detective Coyle has been targeting members of the Mongols and Chosen Few Motorcycle Clubs, harassing them, and arresting them frivolously.

Official complaints have been filed and last month a jury in San Diego rejected Coyle’s tactics and found two Mongols MC members not guilty related to illegal weapons charges deriving from so called “Get Back Whips.” Members of the Chosen Few MC are currently awaiting trial on the same charges, again involving Coyle.

This type of discrimination and profiling is unacceptable and must not be tolerated. Legislation prohibiting motorcycle profiling in California would be a cost efficient and effective solution.

Mongols Arrested For Get Back Whips

Dr. William Dulaney, an established expert witness in cases involving motorcycle clubs, recently wrote to the MPP regarding a recent case in which he consulted.

The Story- Two members of the Mongols MC were arrested on illegal weapons charges south of San Diego, California in May 2015 while riding with over 30 other Mongols members and five friends. “Specifically, two members were arrested and charged with illegally possessing “slung shots”, commonly called get back whips,” says Dulaney. (Note that at the time of the incident one of the men was not yet a member.) The group was on its way to their annual World Run held in Mexico.

After exiting the U.S. border, the entire pack of riders were directed to a large inspection area bounded by concrete barriers. There ATF Special Agent Ciccone and other police officers searched several members of the Mongols, including the 2 ultimately charged, “but it was San Diego Detective Timothy Coyle who interpreted a key chain and a decorative braided belt chain as slung shots,” says Dulaney.

Mongols Acquitted in Chula Vista Trial

The prosecution was based on Detective Coyle’s claims he submitted in his report to the court for trial and under oath that, “These slung shots are commonly carried by outlaw motorcycle gang members to be used as a readily available weapon. The weapon is swung at the intended target with the metal clip striking the victim.” (Official Report, “Investigation” section, pg. 6). Indeed, “Coyle goes on to claim that he has ONLY observed these items used as weapons,” writes Dulaney.

But the jury did not agree and both Mongol MC defendants were acquitted. Perhaps they were persuaded by the fact that the defendants were not wearing weapons or whips? Indeed, one defendant was wearing, clipped to his vest, “a 10” keychain made of braided nylon parachute cord and a metal clip similar to clips used on dog leashes.” The other defendant wore “attached to his belt a roughly two-foot decorative chain with nylon parachute cord wound through the chain links.

According to Dulaney, Coyle was unable to answer, under oath, when asked about the history of the slung shot. He stated into the record that he is unaware of any such history. Ever hear the one about David and Goliath?

But maybe most telling was the fact that the officer ordered to take the defendants into custody and to jail “apologized to them both for not having a clue why they were being arrested. Evidence corroborating the claims here is found in the very words used by the arresting officer on the official report,” says Dulaney.

Upcoming Chosen Few Trial

Indeed, “Coyle is making a name for himself as the biker slung shot expert,” says Dulaney. Unfortunately, the Mongols incident is not isolated. Members of the Chosen a Few MC are still awaiting their trials for identical charges. Again, Detective Coyle is involved in their incident as well.

On September 9th, 2016 at least 5 SDPD officers conducted a profiling stop on 2 members of the Chosen Few Motorcycle Club and arrested them for participation in a criminal street gang. These men committed no crimes and had no criminal records but were still given excessive bail.

One Chosen Few member confirmed to the MPP that he was charged with possessing a slungshot- the decorative zip-tied whip- and both men were charged with possessing brass knuckles for wearing rings, including wedding rings. Both men were also given gang enhancements for participating in a criminal street gang. Both men were also given $120,000 bail.

Official complaints have been filed against the officers involved, and one can only hope that another jury will see through this type of discriminatory policing in San Diego particularly considering that Detective Coyle appears to be a common denominator in these recent incidents of discrimination.

Conclusions

The actions of the SDPD are inexcusable. Targeted harassment of motorcycle clubs based solely on association is a baseline violation of an individual’s civil liberties. A simple legislative solution exists that immediately reduces profiling. Other states like Washington and Maryland faced similar discrimination and responded by passing laws prohibiting motorcycle profiling. These laws have been effective reducing discriminatory stops and preserving the right of motorcyclists to travel free from harassment.

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Video Proves Austin Police Trampled Bikers Rights

By David “Double D” Devereaux

On Tuesday the 13th of December at approximately 1:15pm Cody King was the victim of a motorcycle profiling stop in Austin, Texas. Cody was stopped under the pretext of failing to properly signal while riding his motorcycle. But the real intent was to illegally detain Cody so they could violate his privacy without justification by taking pictures of tattoos all over his body. Most bikers and club members have a similar story about being profiled. But Cody went the extra step and recorded the entire incident, exactly what all bikers should do.

Why The Stop Is Illegal

Under federal law, the US Supreme Court recently explained exactly how the 4th Amendment works in terms of extending traffic stops for investigatory purposes beyond an investigation of the traffic infraction that justified the initial seizure. The majority in Rodriguez v. US (2015) writes:

“A seizure for a traffic violation justifies a police investigation of that violation” – not more — and “authority for the seizure . . . ends when tasks tied to the traffic infraction are – or reasonably should have been—completed…” Traffic stops have to be reasonably short, and unless there is reasonable suspicion of some other crime, officers can’t use the stop as a subterfuge for extraneous investigation.” 1

The extended duration of Cody’s stop amounts to a 4th Amendment violation. The moment that the APD officer confirmed that Cody would not be receiving a ticket, authority for the seizure ended because “tasks tied to the traffic infraction” were- “or reasonably should have been- completed…”

Extending the duration of the stop to take pictures of Cody absent “reasonable suspicion of some other crime” is unconstitutional “subterfuge for extraneous investigation.”

Independently, photo-stops violate an individual’s Fourth Amendment rights because an investigative technique must be “reasonably related” to the original suspicion that justified the stop. 2 Obviously, photographing Cody’s tattoos the investigative technique in this instance- is in no way “reasonably related” to the turn signal violation that justified the initial stop.

Cody Did Not Give Consent

The APD offered Cody an unreasonable choice after the traffic infraction was adjudicated. The APD was going to take pictures of Cody regardless of his consent. It’s clear that he was still being detained and not free to leave. Cody was only given the choice between pictures being taken on the side of the road or at the jail. Cody being forced to choose between two unreasonable options does not amount to consent.

Motorcycle Club Membership is NOT Reasonable Suspicion

Many comments on the MPP reveal that some believe membership in a club that authorities label a gang amounts to reasonable suspicion and even probable cause for conducting an investigatory stop. This argument is specious for numerous reasons.

First, Cody is in a motorcycle club and has absolutely no criminal record. This proves being in a club does not make you a criminal. The facts of the specific case override generalized conjecture.

Second, Membership in motorcycle clubs, including clubs labeled organized or criminal gangs by authorities, is protected by the 1st Amendment.

There is “no evidence that by merely wearing [motorcycle club] “colors,” an individual is “involved in or associated with the alleged violent or criminal activity of other [motorcycle club] members. It is a fundamental principle that the government may not impose restrictions on an individual “merely because an individual belong[s] to a group, some members of which committed acts of violence.” In fact, the Supreme Court has long “disapproved governmental action . . . denying rights and privileges solely because of a citizen’s association with an unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972). 3

The Austin Police Should Have Known They Were Violating Cody’s Rights.

The APD officers involved in Cody’s stop are responsible for their actions. Official APD procedures make it clear that Cody’s stop was impermissible. The APD Policy Manual is extremely precise about photographs taken in the field. Knowledge or suspicion of gang membership does not justify photos. The APD Policy Manual reaffirms Supreme Court precedent. The APD Policy Manual reads:

318.6.2 FIELD PHOTOGRAPHS TAKEN WITHOUT CONSENT Field photographs may be taken without consent only if taken during a detention that is based on reasonable suspicion of criminal activity and the photograph serves a legitimate law enforcement purpose related to the detention.

(a) The officer must be able to articulate facts that reasonably indicate that the subject was involved in, or was about to become involved in, criminal conduct.
(b) Mere knowledge or suspicion of gang membership or affiliation is not a sufficient justification for taking a photograph without consent.
(c) If, prior to taking a photograph, the officer’s reasonable suspicion of criminal activity has been dispelled, the detention must cease and the photograph should not be taken. 4

Conclusion: Motorcycle Profiling in Texas is Irrefutable

What appended to Cody is not isolated. Similar incidents have happened to thousands of bikers in Texas and across America. What happens too seldom is documenting these incidents. Filming the police in public is a constitutional right. Cody’s stop is not just an anecdotal story. Cody’s video is incontrovertible proof that motorcycle profiling is occurring in the state of Texas.

Footnotes:

1 Rodriguez v. US, 135 S. Ct. 1609 – Supreme Court 2015

2 Bruder, Molly. “Say Cheese! Examining the Constitutionality of Photostops.” American University Law Review 57, no.6 (October 2008): p. 1695

3 Coles v. Carlini 162 F.Supp.3d 380 (2015) p.28

4 APD Policy Manual, 2016, p.171 https://austintexas.gov/sites/default/files/files/Police/APD_Policy_Manual.pdf

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Why Conviction of Pagans MC Member was Overturned

By David “Double D” Devereaux

On December 2, 2016 a Pennsylvania Superior Court Order overturned the conviction and sentence of Dennis Katona, identified by authorities as a former member of the Pagans Motorcycle Club convicted for possession and the intent to distribute a controlled substance. Despite Katona’s connection, prosecutors claim he was acting alone and without the club’s involvement. 1

Essentially the court determined that evidence obtained from the search of Katona’s home was inadmissible because independent probable cause is required for each intercept of a conversation occurring in a private residence. Therefore, a warrant allowing consensual intercepts of an individual in his home over a 30 day period violates both the US and Pennsylvania constitutions.2

The Superior Court’s Decision

In a 2-1 decision, the Court majority overturned Kastona’s conviction based on the state’s Supreme Court precedent case Commonwealth v. Brion decided in 1994. The Court argued that the constitution requires a judge to approve a search warrant when a wired informant enters someone’s home as opposed to meeting them on the street, in a car or in a restaurant. In Brion, the court held:

“Because the right to privacy in one’s domain is sacrosanct, we hold that Article 1 § 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record his conversations.” 3

The Superior Court reasoned that a clear and unambiguous reading of both Supreme Court precedent and enacted legislation requires independent probable cause for every intercept in a private residence under both the state and federal constitutions. 4

“Because society places a higher expectation of privacy in a face-to-face conversation taking place within an individual’s home compared to a telephone conversation, a 30-day period of time in which to obtain such in-home intercepted communications does not comport with the protections afforded by the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.” 5

Although the Superior Court’s decision is positive for advancing protections against illegal search and seizures, the decision will likely be appealed.

What Happens Next?

Deputy State Attorney General Michael M. Ahwesh, who prosecuted the case reports, “I fully anticipate we will file an appeal.” 6 The state has two appeal options — requesting a new hearing before a nine-judge panel of the Superior Court or requesting a hearing before the state Supreme Court. 7

The Katona court prefers a state Supreme Court review. The court concluded by writing, “we are cognizant of the fact that this court will not be the final word on this issue. We strongly advocate that our Supreme Court review this case and determine whether our interpretation is in line with its seminal decision in Brion. We recognize this decision has broad ramifications for law enforcement.” 8

Katona, who is currently serving 40 to 80 months in prison for his 2014 conviction on drug charges, could ask a judge to release him on bail pending an appeal. 9

Conclusions

Although dissenting Judge Eugene B. Strassburger argued that “requiring police to seek a judge’s approval each time they sent the informant into the home would be a burden”, most constitutional protections, “including the right to be free from unreasonable search and seizures, are supposed to be burdensome,” says Katona’s attorney Paul Boas. “It is burdensome to get a warrant, read a suspect the Miranda warnings, pick a jury and hold a trial.”

“This is a democracy. It’s not supposed to be easy. We’re in big trouble the day law enforcement stops complaining about how hard it is for them.” 10

Footnotes

1 Pittsburgh Action News 4, Nov.11, 2014, Former Pagans head guilty, sentenced for drugs. Deputy Attorney General says it appears Katona was dealing the drugs “on his own. We don’t think the club was involved.”

2 Com. v. Katona, D. No. 1995 WDA 2014, 2016 PA Super 269. p.3 “The crux of appellant’s suppression claim is whether the June 29th search was unconstitutional because it was based on a May 16, 2011 order signed by Judge John Blahovic that authorized consensual intercepts by a confidential informant (“CI”) over a 30-day period in appellant’s home. Specifically, as a result of numerous in-home intercepts, probable cause was established for the full search of appellant’s home. Appellant asserts that the May 16th order violated our Supreme Court’s decision in Brion, in that it allowed for unlimited intercepts in his home over a period of 30 days.”

3 Commonwealth v. Brion, [652 A.2d 287 (Pa. 1994),] and as codified in 18 Pa.C.S.[A.] § 5704(2)(iv)

4 See Supra Note 1 at p.10 “We find that, based on a clear reading and the intent of both the Brion decision and the statute, a separate finding of probable cause was required for each in-home intercept.”

5 See Supra Note 1 at p.13

6 Tribune Review Live, Court overturns conviction, sentence of former leader of Pagans, Dec.2, 2016. http://triblive.com/local/westmoreland/11578375-74/state-judge-court

7 Id

8 See Supra Note 1 at p.14

9 See Supra Note 5

10 Id.

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Bikers Arrested for Wearing Bandanas

By David “Double D” Devereaux

Louisiana motorcyclists in the Bossier/Shreveport area may be experiencing a mechanism of profiling that many are unaware of. It has been reported to the MPP that 17 motorcyclists in the area have recently been arrested for wearing bandanas, scarves, and even a bubble shield while riding because it conceals their identities in public. Local law enforcement contends that covering your face in public is a violation of Louisiana’s anti-mask law, LSA-R.S. 14:313, which carries a 6 month to 3 year term of imprisonment. Although every incident has not been confirmed, the MPP spoke to one motorcyclist directly and confirmed that he was arrested for concealing his identity on November 8, 2016.

The law used to justify targeting motorcyclists for wearing masks in Louisiana exists elsewhere. At least 15 states have what experts call “general anti-mask laws” that could be applied to motorcyclists. Applying anti-masking laws to motorcyclists covering their heads and faces with protective gear is an abuse of statute and demonstrative of motorcycle profiling. An exemption for public safety ought to be obvious.

Motorcyclist Arrested For Concealing Identity

While visiting Louisiana to attend and speak at a state Confederation of Clubs and Independents meeting in Alexandria, the MPP became aware of the alleged arrests for concealing identities in public. The MPP spoke to a member of a motorcycle club in the Bossier/Shreveport area that was able to confirm the validity of the rumors.

Although a traffic pretext was used to justify the stop, the MPP evaluated his citation and he was indeed arrested for concealing his identity, an alleged violation of state code LSA-R.S. 14:313. This individual was on his way to vote in the 2016 National Election. He was denied this opportunity. He was forced to pay a bond in order to obtain his release and as of this writing the issue has not yet been resolved.

(Notably, this same individual has been experiencing a pattern of harassment while riding his motorcycle. 9 days after the mask arrest he was again stopped and harassed for a series of pre-textual infractions preceding more questions about his club affiliations.)

LSA-R.S. 14:313

LSA-R.S. 14:313

Masks or hoods, wearing in public places prohibited; penalty; exceptions; permit to conduct Mardi Gras festivities, how obtained.

No person shall use or wear in any public place of any character whatsoever, or in any open place in view thereof, a hood or mask, or anything in the nature of either, or any facial disguise of any kind or description, calculated to conceal or hide the identity of the person or to prevent his being readily recognized.

Whoever violates this Section shall be imprisoned for not less than six months nor more than three years.

This Section shall not apply:

  • To activities of children on Halloween, to persons participating in any public parade or exhibition of an educational, religious, or historical character given by any school, church, or public governing authority, or to persons in any private residence, club, or lodge room; or,
  • To persons participating in masquerade balls or entertainments, to persons participating in carnival parades or exhibitions during the period of Mardi Gras festivities, to persons participating in parades or exhibitions of minstrel troupes, circuses, or other dramatic or amusement shows, or to promiscuous masking on Mardi Gras which are duly authorized by the governing authorities of the municipality in which they are held or by the sheriff of the parish if held outside of an incorporated

All persons having charge or control of any of the festivities set forth in paragraph (2) of this Section shall, in order to bring the persons participating therein within the exceptions contained in paragraph (2), make written application for and shall obtain in advance of the festivities from the mayor of the city, town, or village in which the festivities are to be held, or when the festivities are to be held outside of an incorporated city, town, or village, from the sheriff of the parish, a written permit to conduct the festivities. A general public proclamation by the mayor or sheriff authorizing the festivities shall be equivalent to an application and permit.

Applying Law To Motorcycle Safety Gear Is Absurd

Originally the Louisiana law against wearing masks and hoods in public was motivated by the Ku Klux Klan wearing hoods and masks concealing their identity while they terrorized and intimidated others.[1] Louisiana’s law makes exemptions for Halloween and Mardi Gras, but none for public safety. Although clearly not the intent of the law, motorcyclists covering their faces to avoid bugs, wind, and rain may be subject to arrest.

Considering Louisiana’s mandatory helmet requirement based on public safety, the absurdity of applying anti-mask laws to motorcyclists is further demonstrated. Every helmet covers a motorcyclists head similar to a hood and all motorcyclists wear eye protection. The very act of riding a motorcycle legally requires concealment. A motorcyclist wearing a full face helmet could be arrested for concealing their identity if anti-mask laws apply. Remember, a full face helmet is considered the best protection among experts that advocate helmets.[2]

Some states that have similar laws have anticipated such conflicts and include an exemption for safety or sporting activities in their anti-mask statutes.[3] But 15 states, including Louisiana, have more general statutes that could lead to these abusive applications.[4] In fact, “general anti-mask laws proscribe the simple concealment of physical identity in public, regardless of coexistent criminal activity. Individuals have been prosecuted under general anti-mask laws for wearing a Ku Klux Klan hood, for dressing in the clothing and wearing the makeup of the individual’s opposite sex, and for placing a leaflet between the individual’s face and eyeglasses.”[5]

Possible Solutions

Numerous strategies may exist to combat anti-mask laws being applied to motorcyclists. Judicially, filing for a Declaratory Judgement arguing that the statute is unconstitutional is another option, although this has been attempted and has not always been successful.

“The conflicting court decisions, along with the varying scope of anti- mask laws themselves, reflect the uncertainty concerning when, if ever, the government can constitutionally ban public mask-wearing. Further complicating this area of the law is the apparent political bias of some of the courts that have ruled on the challenges.”[6]

Legislatively, an anti-motorcycle profiling law would eliminate discriminatory pretext stops at the source. Also, adding an exemption to state statute for safety and sport, including motorcycling, would prevent abuse and preserve the original intent of the law.

[1] https://casetext.com/case/opinion-number-95-188 Attorney General of Louisiana — Opinion 95-188 (Ops. La. Atty. Gen. 1995)

[2] http://helmetadvisors.com/best-motorcycle-helmet/#Full-Helmet

[3] Stephen J. Simoni, “Who Goes ere?” — Proposing a Model Anti-Mask Act, 61 Fordham L. Rev. 241 (1992). Available at: h p:// ir.lawnet.fordham.edu/ r/vol61/iss1/16

[4] See Ala. Code § 13A-11-9(a)(4) (1982); Del. Code Ann. tit. 11, § 1301(l)(g) (1987 & Supp. 1990); D.C. Code Ann. § 22-3112.3 (1989); Fla. Stat. Ann. §§ 876.11-.16 (West 1976 & Supp. 1992); Ga. Code Ann. § 16-11-38 (1988 & Supp. 1991); La. Rev. Stat.

Ann. § 14:313 (West 1986); Mich. Comp. Laws § 750.396 (1991); Minn. Stat. Ann. § 609.735 (West 1987); N.M. Stat. Ann. § 30-22-3 (Michie 1984); N.Y. Penal Law § 240.35(4) (Mc- Kinney 1989); N.C. Gen. Stat. §§ 14-12.7 to .11 (1986); Okla. Stat. Ann. tit. 21, § 1301 (C 1983); S.C. Code Ann. § 16-7-110 (Law. Co-op. 1976); Tenn. Code Ann. § 39-17-309(c) (1991); Va. Code Ann. § 18.2-422 (Iichie 1988); W. Va. Code § 61-6-22 (1989).

[5] Simoni, page 242

[6] Simoni, page 244

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Filming Police in Public is a Constitutional Right

By David “Double D” Devereaux

Does a person have the right to film police officers in public? Despite clear precedent, the MPP has received the inquiry many times. This is a particularly relevant question relating to developing a “pattern of evidence” that proves motorcycle profiling is occurring. Indeed, video of police profiling motorcyclists was critical to passing the law addressing motorcycle profiling in both Washington State and Maryland.

As Americans, we should all be able to agree that the right to be present in a public place and gather information about an ongoing public concern is fundamental to a free society. This is the essence of political expression, political speech, and a free press, particularly when discussing issues of government accountability.

To deny the right to gather information in a public space would deprive the public knowledge about government abuses. Without this knowledge there is no impetus for advancing police accountability.

A Legal Opinion-Simple and Concise

Millie Thompson, an attorney from Austin involved in both the criminal and civil proceedings stemming from the Waco tragedy that occurred on May 17, 2015, recently discussed the issue on social media. Thompson writes:

For those of you who don’t know:

We have co-equal rights to 1) be present in a public place, 2) gather information on a matter of public concern, and 3) speak on a matter of public concern. Police officers – as public officials and agents of the government – are by definition a matter of public concern.

We therefore have the right to film them.

This is not a privilege. It is a Constitutional right. Period.

Filming the police may not be something you would consider doing. You may also not be the type of grab a picket sign and take to the streets to protest something.

Pick a topic about which you are passionate – whatever it is – it doesn’t have to be something I agree with.

Are you passionate about pro-life? Are you passionate about supporting the troops? Or ‘backing the blue?’ Pick a topic that you believe in. The people who support that issue have the same rights as those who disagree with you. Remember do unto others?

You don’t have to agree with a person’s agenda to defend their First Amendment rights around that agenda.

Why defend it? Because it may be you in the future who wants to speak about an issue. Or – it may be you who wants to gather information about government actors so that you have something interesting to say when you do speak.

Do you believe in government accountability? Don’t people need to know what the government is doing in order to hold them accountable?

What Do The Courts Say?

The right to express information relating to an ongoing public concern often frames discussions concerning the 1st Amendment. Less commonly understood is the equally fundamental right to gather that information. Moreover, in an era of cell phone videos and social media the courts have granted individual citizens the same fundamental right to gather information in public as it has traditionally afforded the credentialed press.

In Buehler v. City of Austin (2014), the federal court concludes that the right to film the police in public derives from “foundational and long-standing principles of constitutional law.”

“A private citizen has the right to assemble in a public forum, receive information on a matter of public concern—such as police officers performing their official duties—and to record that information for the purpose of conveying that information.”

A Word of Caution

Despite the fundamental right to record the police, caution is in order. The right is not absolute and without limits. When filming police take care not to break the law or interfere with an officer’s ability to do their jobs.

[N]either the First Amendment right to receive speech nor the First Amendment right to gather news is absolute.” Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 928 (5th Cir. 1996). An individual is not permitted to break the law in the process of filming the police in public. For example, an individual cannot interfere with the police’s ability to do their job. “Thus, to the extent that an individual, in exercising his First Amendment right to film police officers as they execute their official duties, violates a valid criminal law, he cannot plausibly argue that his First Amendment right acts as a shield that protects him from criminal liability.”

Source-

Buehler v. City of Austin et.al., IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION, MEMORANDUM OPINION AND ORDER, Case A-13-CV-1100 ML, 7/24/2014

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NY Police Detain 169 Motorcyclists on Long Island

By David “Double D” Devereaux

ny-police-detain-169-motorcyclists-image1

The battle over motorcycle-only checkpoints is not over. Although Congress banned federal funding for motorcycle-only checkpoints in the 2015 Fast Act, these discriminatory stops continue in some states without federal assistance. On November 6, 2016 Suffolk County Police Highway Patrol Bureau officers, New York State Police troopers and MTA Police officers conducted motorcycle safety checkpoints on eastbound Sunrise Highway at exit 55 and eastbound Long Island Expressway. 169 motorcycles were stopped and 54 citations were issued. Checkpoints are a form of motorcycle profiling that impact all motorcyclists. Those cited were independents, not club members.

Cloaked under the justification of safety, motorcycle-only checkpoints unfairly target motorcyclists and motorcycles as a form of transportation. According to the AMA, “Motorcycleonly checkpoints are discriminatory, forcing riders and their passengers to do something not asked of other citizens, simply because we choose to travel on two wheels, or three, instead of four. The AMA believes the money used for these operations could be better spent supporting programs that conduct rider education, reduce distracted driving and encourage motorist awareness of motorcycles.”

What’s the solution? Motorcyclists in New York State should unify and push for a state prohibition against motorcycle profiling which would include discriminatory motorcycle-only checkpoints.

ny-police-detain-169-motorcyclists-image2

ny-police-detain-169-motorcyclists-image3

Suffolk Police News Release

ny-police-detain-169-motorcyclists-suffolk-police-header

For Immediate Release
November 6, 2016

Incident: Fifty-Four Summonses Issued at Motorcycle Safety Checkpoints

Location: Eastbound Sunrise Highway and Eastbound Long Island Expressway

Date/Time: Sunday, November 6, 2016 from 11 a.m. to 2 p.m.

Suffolk County Police Highway Patrol Bureau officers, New York State Police troopers and MTA Police officers conducted motorcycle safety checkpoints today on eastbound Sunrise Highway at exit 55 and eastbound Long Island Expressway between exits 65 and 66.

Officers stopped 169 motorcycles between 11 a.m. and 2 p.m. as they passed through the checkpoints and a total of 54 summonses were issued for the following violations:

14 Unlicensed Operator

2 Suspended License

10 Un-inspected Motorcycle

3 Unregistered Motorcycle

2 Uninsured Motorcycle

10 Helmet Not Approved by New York State Department of Transportation

6 Modified/Loud Exhaust System

1 Other Equipment Violations

6 Failure to Comply with Lawful Order

A criminal charge is an accusation. A defendant is presumed innocent until and unless proven guilty.

Authority: Timothy D. Sini, Police Commissioner

16-351243 Suffolk County Police Department VC/1835

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Is Law Enforcement Training To Terminate Bikers?

By David “Double D” Devereaux

law-enforcement-training-terminate-bikers-screesnshot

Many people interested in target shooting are familiar with practice targets. Many times these targets are silhouettes of human beings. Nothing descriptive, just a neutral target. Then there are practice targets that more graphically depict people. Beyond neutral practice targets, these targets depict stereotypical images of terrorists, bank robbers, and armed criminals with a hostage. It’s impossible to defend the actions or goals of any of these types of people so vilifying their images receives little objection.

But what about law enforcement practice targets that depict motorcyclists as a caricature of criminality? If motorcyclists wearing helmets and leather jackets are depicted pointing a gun as if they are a threat during training, doesn’t it make sense that this would eventually create the same instinctual threat assessment when they see a biker in the field? Do these targets encourage and reinforce discrimination and profiling against bikers, or worse?

It only makes sense that biker practice targets reinforce a discriminatory mindset that has persisted for decades. But what do the experts or studies say? Experts and university studies both say the instinct to shoot is intimately tied to the visual depiction of the target. And subject matter experts agree that biker shooting targets are dangerous, and all use of such targets should completely cease.

Target Company Says Bad Bikers Need To Be Terminated!

A company called Baker Targets offers a practice target called the “Bad Biker Target”. The ad reads “Bad bikers need to be terminated!”. The ad depicts a masked man pointing a handgun with his right hand while riding a motorcycle. Aside from the fact that reality requires your right hand to be on your throttle while riding or you will rapidly decelerate, this image contains red dots indicating high value targets within the target. Notice one of these is on the front tire!

Unfortunately, “Bad Biker Target” is not the first discriminatory depiction of motorcyclists on practice targets. The practice of vilifying motorcyclists has been occurring for decades. The feature image is a practice target depicting a motorcyclist that has existed since the ’70’s.

Experts Say “Bad Biker Target” Increases the Chance of Unjustified Deadly Force

Retired 1st Sgt. Bobby Colella, a Subject Matter Expert on the U.S. Army’s premier marksmanship training system, has trained thousands of Soldiers in marksmanship skills. Colella says, “If any police department or officer is found using “Bad Biker” targets on or off duty, it’s a logical assumption that they are conditioning their minds to automatically perceive a threat, and subsequently eliminate that threat, based on the observation of a person who resembles a motorcyclist. Perhaps this is what happened in Waco?”

“In conventional warfare, the enemy is identified by his uniform – In civilian policing, the threat should be identified by its actions, and actions alone. Motorcyclists are not at war with the police; they shouldn’t be at war with motorcyclists. These targets MUST be immediately removed from any inventory or range facility.”

Dr. Will Dulaney, an Associate Professor of International Security with over 25 years subject matter expertise in Counter-terrorism and Counter-insurgency says, “The “Bad Biker Target” reinforces a stale negative stereotype of bikers, but also establishes a new “biker threat” to law enforcement: the ride-by biker shooter. And military research over the past nearly seventy years establishes conclusively that these types of targets have a direct and powerful psychological impact on trainees’ willingness to engage human targets.”

“When used in repeated training scenarios – otherwise known as “programming” – law enforcement trainees will likely adopt the conditioned perception that motorcyclists now represent a threat while riding their machines.

Indeed, anyone who purchases and uses these targets, even in fun, will also be conditioned over time to “see” motorcyclists as more and more of a threat. Either way, the result for society can only be negative.”

Study Confirms Stereotypic Shooting Targets Can Increase Deadly Force

A study conducted by the University of Chicago in 2007 concluded that stereotypes in targeting training creates a bias influencing the decision to shoot a target, even an unarmed target. “As predicted, frequent presentation of stereotypic (vs. counterstereotypic) targets exacerbated bias.” The study continues, “In the domain of criminal justice, category-based judgments can have profound consequences through….the spontaneous, split-second reactions of a police officer.”

Stereotypes systematically bias reactions in shoot/don’t shoot decisions. Stereotypes in targeting increase the perception of danger in real life applications. “Perceptions of danger bear directly on the decision task in these studies, [shoot/don’t shoot] which involves the detection of a hostile target.” To the extent that targets seem more dangerous, “they should promote a tendency to shoot, facilitating correct responses for armed targets but inhibiting correct responses for unarmed targets.”

Fortunately, the University of Chicago study provides a possible solution. Eliminating the use of targets that reinforce stereotypes of danger also reduces the probability of shooting unarmed targets. This data can also be seen in a more positive light. The data offers evidence that “counter-stereotypic information can reduce or even eliminate bias, at least on a temporary basis.”

*See JOSHUA CORRELL from the University of Chicago, The influence of stereotypes on decisions to shoot, Eur. J. Soc. Psychol. 37, 1102–1117 (2007)

Ending the Use of Discriminatory Training Targets

Baker Target’s depiction of motorcyclists reinforces a discriminatory mindset that has resulted in decades of profiling and abuse. These targets depict motorcyclists as dangerous criminals and the enemy of law enforcement. The message is explicit. Bad Bikers need to be terminated! How many law enforcement agencies utilize the Bad Biker Target? How many bikers have been victims of felony-style stops at gunpoint for simple traffic infractions because of their training? Why is it acceptable to exploit and vilify a class of 10 million Americans for economic gain?

These are questions that Baker Targets, and other companies selling similar targets, should be forced to answer on moral and ethical grounds. Baker Targets, law enforcement, and other entities either selling or buying targets like “Bad Biker Target” should cease and desist. Law enforcement officers and agencies that utilize these types of targets should be held accountable. Motorcycle profiling is an epidemic in the United States and training law enforcement to treat motorcyclists as an inherent threat perpetuates this discriminatory mindset. Or worse, teaching that bikers should be terminated could potentially escalate harassment to homicide.

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Waco Biker Speaks OUT! MPP Exclusive Interview

By David “Double D” Devereaux

Paul Landers, a motorcycle rights activist and member of the Escondidos Motorcycle Club from Austin, was present at the Twin Peaks in Waco on May 17th, 2015 when 9 bikers were shot and killed and 18 others were injured. Paul (along with 5 members of his club and 170 other people) was arrested, charged with engaging in organized crime resulting in capital murder, and given a $1 million dollar bond. Paul and his club members are among the 154 Waco Bikers indicted by a Grand Jury that are currently being prosecuted.

The thing that always stands out in my mind about Paul’s story, the thing that really hits home in terms of the injustice of this mass arrest, is related to what he was doing when the conflict began. Paul was looking for a place to hang a Texas Confederation of Clubs and Independents banner in preparation for a political meeting. Why would someone have a bag full of political material, looking for a place to hang a banner, if they anticipated a fight? The easy answer, at least to me, is that hanging a banner is not what someone anticipating a conflict would be doing.

Paul recently filed a civil rights lawsuit alleging various 4th and 1st Amendment violations and is still actively involved in the motorcycle rights movement, although on a much more restricted basis due to the fact that he is currently being prosecuted. Paul’s rights to travel and association have been severely limited so his political speech rights have been chilled.

Waco Biker Exclusive Interview

The MPP sent a few questions to Paul’s attorney, Millie Thompson, in hopes that Paul would be willing to talk about some of what is happening to him, his family, and his club as a result of the Waco tragedy. The MPP received the following answers:

MPP: Paul, can you explain why you were at the Twin Peaks in Waco on the afternoon of May 17, 2015?

Paul: In Texas we have held bi-monthly Texas Confederation of Clubs and Independents, (TCOC&I) meetings for many years throughout the State. Our region 1 meeting was scheduled and advertised publicly for all to attend on May 17th, 2015, just like any other meeting.

My duties as a designated spokesman were to inform our riding community on the recent news and updates from the National Coalition of Clubs conference in Denver a week before, as well as the status of three bills pending at the Texas State house and 84th Texas Legislature session; Lane Filtering, Red Light Safety Bill, and the successful win of our $18 million, Watson sponsored, and the Motorcycle Safety & Recovery fund which had already passed out of committee and was on the Governor’s desk.

We always offer political and biker rights printed information, voter registration forms, patches and support items for our grass roots movement. The pop up tent was set up already , tables and banners were to be set up on location. I didn’t have a chance to get the banner hung at TP.

MPP: What specific legislation were you working on, and going to talk about, at the Texas COC&I meeting that day?

Paul: Specifically; the bill on the Governor’s desk SB 3324. Recovering large dollars for all riders including legislated money for the Rider Training program offered by the State. Lane Filtering and our Red Light Safety Bill were also on the agenda. And a topic at every TCOCI meeting , Anti-Motorcycle Profiling and the latest success in Maryland, were also discussed.

MPP: What were you doing when you heard the first gunshot?

Paul: Looking to hang our banners on the front of the building.

MPP: Did you use a weapon, fire a gun, or participate in any physical altercation at any time while at the Twin Peaks in Waco on May 17, 2015?

Paul: No, I did not.

MPP: Have you ever been convicted of a felony or violent crime? Do you have an extensive criminal history?

Paul: No sir. I have a clean record and I am a long time Concealed Handgun License permit holder.

MPP: Is there anything else you’d like people to know? Any final thoughts?

Paul: To our patch holder and independent riding community at large, do not quit! Do not let one tragic incident like Waco curb your passion and commitment to inform, educate, and legislate all riders. We are all Americans. You must continue the fight to protect your civil liberties. Do not be silent! If anything, Raise your Voice. Gather in numbers, organize your community, police yourselves, and control the message you wish to be heard.

Conclusions

Did crimes occur at the Twin Peaks in Waco on May 17th, 2015? Yes. Video evidence clearly depicts bikers killing bikers. But did 177 people deserve to be arrested en masse and given $1 million dollar bonds? Absolutely not.

Paul’s story is proof positive that Waco authorities are engaging in misguided and unconstitutional targeting of political activists that were present at the Twin Peaks for the sole purpose of advancing the political rights base of motorcyclists in Texas.

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State Rep. Calls Minnesota Mayor A Motorcycle Gang Member?

By David “Double D” Devereaux

state-rep-calls-minnesota-mayor-motorcycle-gang-member-incidents

State Representative Tony Cornish, in an editorial commentary written to Faribault Daily News on October 12th, condemned recent efforts by motorcyclists in Minnesota to pass anti-motorcycle profiling legislation. Cornish wrote that the legislation “was testified on in the Minnesota Legislature by the “Sons of Silence,” a motorcycle gang that does not want to be stopped for anything.” What Cornish fails to mention is that the members of the SOS MC that testified are upstanding citizens. In fact, one of them is an elected official.

Mayor Bobby Mann of Hammond, Minnesota (pictured above) is one of the individuals Cornish is disrespectfully labeling a gang member. Mayor Mann, also a member of the SOS MC, testified in favor of the anti-motorcycle profiling legislation. Also testifying was Jim Jahnke, a member of the SOS MC from Rochester MN. Jahnke was a union iron worker for 30 years. In the course of his work, Jahnke successfully passed stringent IBM and Mayo clinic security background checks that were required when working on sensitive facilities.

Cornish’s commentary is an example the inaccurate propaganda that results in profiling stops in the first place. Rep. Cornish is ignorant of relevant statistical data, improperly writes that current laws ban motorcycle profiling, embraces a discriminatory stereotype when talking about motorcycle clubs, and fails to disclose that he is a former law enforcement officer. Cornish’s obvious bias presents a potential conflict of interest relating to police accountability. Motorcycle profiling is an issue in Minnesota that can be fixed with a simple and cost-efficient solution.

Cornish Actively Impedes Anti-Profiling Efforts

ABATE and the Confederation of Clubs of Minnesota have recently been attempting to pass a law addressing the issue of motorcycle profiling. Bills have been sponsored and assigned to the Minnesota House Public Safety Committee, which is chaired by Rep. Cornish. Cornish has refused to give the bill a hearing in his committee, claiming that motorcycle profiling is not happening in the state. Cornish has not stopped at politically impeding a cost efficient and sensible law. He is now writing letters to local newspaper editors attempting to delegitimize the movement to end motorcycle profiling in Minnesota, and disrespecting other elected officials at the same time.

Statistical Data Proves Motorcycle Profiling Occurs In Minnesota

Cornish writes to the FDN:

“First and foremost, there is no proof whatsoever that motorcycle profiling is happening. I’ve been involved in this subject from the start. As chair of the Public Safety Committee, I asked for proof and there was none.”

Recent statistical data proves Cornish is simply wrong. The National Motorcycle Profiling Survey 2015/2016 includes participants from Minnesota that have reported recent profiling incidents. The red dots on the following map show the location of reported incidents of motorcycle profiling. Incidents are occurring all over the state and many incidents are concentrated in Minneapolis. Moreover, ABATE and the Confederation of Clubs of MN presented evidence proving that profiling was occurring. The motorcycle rights movement has been profiled and harassed, even during political events and gatherings.

In 2012 and 2013, law enforcement used the bogus pretext of three bulb headlights to pull motorcyclists over and harass them during ABATE of Minnesota’s State Rally in late August. No riders were cited. Official correspondence validates this. In response to a letter sent by the MN COC attorney to the Meeker County Sheriff, the Meeker County Attorney admitted that these stops were occurring, were wrong, and promised that the officers involved had since been trained that three bulb headlights are legal.

Although, importantly, this proves training is easy and cost free to implement, proper training should go beyond the legality of the pretext, in this case headlights, and deal with the underlying issue of discrimination that truly motivate these stops. Remember, targeting a political movement violates all reasonable constitutional conceptions of free speech, association, equal protection and privacy.

Testimony Proves Profiling Is Occurring in MN.

Jim Jahnke, one of the SOS MC members that testified, described a stereotypical example of motorcycle profiling that brings the statistics to life. Rep. Cornish is disregarding a man that has been the victim of motorcycle profiling and testified about his experience. On one occasion, while riding his motorcycle in Morehead, MN, Jahnke was pulled over and harassed by 6 police units that had been lying in wait across the street from the SOS clubhouse. Jahnke was initially stopped for going 29 in a 30 and held for approximately 90 minutes. In that time, he was harassed and interrogated about his club affiliations. The nature and duration of this stop was unreasonable and definitionally profiling.

Current Law And Police Training Do Not Prevent Motorcycle Profiling

Cornish inaccurately asserts that current law and training already prohibit profiling. Cornish writes:

“Currently every single law enforcement agency is already trained that they cannot stop motorcycles on a whim or for no reason, according to the Constitution. Every law enforcement agency conducts this training and has records to prove it.”

Cornish is correct that current constitutional law prohibits an officer from stopping a motorcyclist “solely” because of how they look or “solely” because of their apparel. What Cornish fails to grasp is that almost all profiling stops, like the ABATE stops previously described, involve the use of a traffic pretext, which means that the discriminatory motive is merely “a factor”, not the “sole factor” in the stop. The Supreme Court says the 4th Amendment only looks to objective criteria regardless of the officer’s other motives. This is why profiling is so prevalent and so easily circumvented under minimal 4th Amendment protections.

Motorcycle profiling legislation goes beyond the mere pretext to the actual motivation for the stop. If a discriminatory motive is “a factor” in the stop, even with reasonable suspicion for a traffic stop, then the stop is invalid.

Cornish Embraces Discriminatory Biker Stereotypes

Cornish reveals his discriminatory bias when he writes:

This move for an “Anti-Motorcycle Profiling” law comes from national motorcycle gangs in the West and was testified on in the Minnesota Legislature by the “Sons of Silence,” a motorcycle gang that does not want to be stopped for anything.”

But Cornish is Ignorant About Clubs And The 1st Amendment.

First, motorcycle clubs are not gangs. To describe motorcycle clubs from Washington State or the West as gangs is prejudicial. And it is pure ignorance to say that motorcycle clubs in the West are pushing for legislation in Minnesota. Although it is true that Washington State was the first to pass the law, Maryland has also passed the law unanimously. And a pending federal resolution, H.Res. 831, encourages every state to follow suit. In response, motorcycle rights groups in a dozen states are already preparing for a push in 2017.

Second, the Sons of Silence is also a motorcycle club, not a gang. And implying that the Sons of Silence “does not want to be stopped for anything” is intentionally painting the picture that members are predisposed to be criminal. And, considering that members of the Sons of Silence serve as Mayors in Minnesota, Cornish should be more cognizant of reality and the fundamental rights of association enjoyed by motorcycle clubs under the 1st Amendment.

state-rep-calls-minnesota-mayor-motorcycle-gang-member-associating-not-guilt

Conclusions

To write the law off as a smokescreen for 1% clubs is intended to delegitimize a national policy discussion that can no longer be ignored. Cornish’s bias is evident, and the fact that he was a law enforcement officer should come as no surprise. Of course, he failed to reveal this bias when writing to the editor, and he also omitted that he was calling an elected Mayor and an upstanding union iron worker gang members. But these omissions are understandable considering Cornish’s conflict of interest.

Incorrect statements. No facts. Ignorance of law. Ironically, Cornish is a walking, talking, living example that demonstrates exactly why Minnesota needs a law addressing the issue of motorcycle profiling.

The Letter

state-rep-calls-minnesota-mayor-motorcycle-gang-member-cornish-letter

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