Monthly Archives: June 2017

Big Win – MC’s Stop ‘No Motorcycle Colors’ Policy in Colorado

By David “Double D” Devereaux

Royal Gorge Bridge and Park (RGB&P), located near Cañon City, Colorado, recently adopted an over broad policy of discrimination against any individual wearing motorcycle-related patches or colors. So the National Council of Clubs (NCOC), an organization representing the interests of motorcyclists nationwide, immediately protested the decision in the form of a written complaint to RGB&P management.

Normally, private actors such as RGB&P cannot be sued for 1st Amendment restrictions because there is nothing unconstitutional about private actors discriminating. However, RGB&P leases the land from Canon City exposing the government actor to civil rights liability for the discriminatory acts of the private party.

After receiving the NCOC’s letter of complaint, RGB&P management contacted NCOC attorney Wade Eldridge and informed him that all “no motorcycle club colors” signs had been removed from the park and that the park reversed its policy. The NCOC verified on June 10th that all signs have been removed. NCOC participants, members of motorcycle clubs including 1%’ers, have been granted access to the Park.

This is an important win for the NCOC and the motorcycle club community generally. Many motorcyclists frequent RGB&P and some club members have even had their ashes spread at the park.

Silence is consent. Grassroots political opposition is one of the most effective strategies for tangible change, as demonstrated by the NCOC.

Original NCOC Complaint Sent to Royal Gorge

Royal Gorge Bridge & Park’s “No Motorcycle Patch or Colors” Policy Violates the 1st Amendment

Motorcyclists from Colorado and around the US wearing motorcycle-related patches and colors, including members of the Colorado Confederation of Clubs and National Council of Clubs, regularly visit the Royal Gorge Bridge (RGB&P) and Park in Fremont County, Colorado.

Recently, the RGB&P adopted a broad policy of discrimination against any individual wearing motorcycle- related patches or colors.

RGB&P’s discriminatory actions involve significant state involvement sufficient to establish a claim under 42 USC Section 1983. The nature of RGB&P’s lease with Cañon City and its proximity and dependence on Fremont County roads for access, puts the city and county into such positions of interdependence that they must be recognized as “joint participants” in acts of discrimination.

It is settled law that motorcycle patches and colors are Constitutionally protected by the 1st Amendment from acts of government discrimination.

Royal Bridge and Park Openly Discriminates Against Motorcyclists

  1. Members of the Colorado Confederation of Clubs and the National Council of Clubs, motorcyclists that wear patches and colors, have a history of meeting and assembling at Royal Gorge Bridge and Park (RGB&P), located near Cañon City in Fremont County, Colorado, to communicate thoughts and discuss public
  1. RGB&P recently adopted a “No Motorcycle Patches or Colors Allowed on Premises” policy which is prominently displayed on signs posted at the

Cañon City Owns and Leases Property to Royal Gorge Bridge and Park

  1. The 360-acre RGB&P is owned by Cañon City and leased to Royal Gorge Company of Colorado with yearly payments based on a percentage of park sales. 1
  1. The official government registration papers indicate that Cañon City became the owner of the bridge and incline railway during the 1940s, independent of owning the land which they lease to the Royal Gorge Company.2
  1. The bridge and the incline railway were listed in the National Register of Historic Places on September 2, 3
  1. The road leading to and across the bridge from Route 50 is designated as Fremont County Road 3A and begins about 10 mi (16 km) west of Cañon The road leads to the bridge from U.S. Route 50, continues on the south side of the gorge, and eventually re-connects with Route 50. 4

Cañon City’s Lease Agreement Creates Significant State Involvement In RGB&P’s Discriminatory Acts

  1. Burton Wilmington Parking Authority 5,6,7, the controlling on-point Supreme Court precedent, concludes that there is significant state involvement to permit an action under the Fourteenth Amendment of the Constitution when a state leases public property to a private actor who then discriminates.
  1. The very nature of a lease establishes a symbiotic relationship between parties that is absent when persons independently own property.8In Burton, the basis for the “interdependence” between the state and the private entity was rooted in the state lease to the private The property was publicly owned and dedicated to “public use;” and patrons used public infrastructure to access the property. 9
  1. A lease resulting in physical and financial benefits to the state creates a symbiotic and interdependent relationship. “[T]he State has so far insinuated itself into a position of interdependence. . . that it must be recognized as a joint participant” in the discrimination. 10
  1. The lease agreement with RGB&P financially benefits Cañon In 1956, the Royal Gorge Bridge Company agreed to pay the city a percentage of its revenue instead of a yearly fee for the lease. The percentage arrangement has proven very beneficial to Cañon City allowing it to lower property taxes significantly, achieving the lowest property tax rate in Colorado. 11
  1. Access to RGB&P, including crossing the bridge, is 100% dependent on Fremont County Road 3A. This creates an interdependent relationship between RGB&P and Fremont

Parks and Streets are Considered Public Property for the Purposes of 1st Amendment Analysis

  1. Regardless of ownership, “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” 12

RGB&P’s Policy Is Unconstitutional – Motorcycle Colors are Protected from State Discrimination By the 1st Amendment.

  1. Cohen California establishes that individuals have the 1st Amendment right to wear clothing which displays writing or designs in public places. 13 The United States Supreme Court has long recognized and protected the right of an individual to freedom of association. Thus, a person’s right to wear the clothing of his choice, as well as his right to belong to any club or organization of his choice, is constitutionally protected.
  1. In Sammartano First Judicial District Court (2002), the court applied Cohen specifically to motorcycle club colors. 10 individuals wearing motorcycle colors, including the Hells Angels Motorcycle Club, were denied access to a courthouse in Carson City, Nevada. They refused to remove their colors and were arrested for trespassing. The state asserted motorcycle club colors were gang attire and could cause a potential threat of violence and intimidation. The 9th Circuit rejected the gang argument, concluding generalizations were insufficient, explaining that “a total ban on this expressive activity…is “an unreasonable means” of preserving a safe environment.

Any restrictions must be narrow and “specific to particular (apparently hypothetical) cases involving rival organizations.” Restrictions on motorcycle club colors are unconstitutional “absent a showing in the record of actual (or realistic threat of) interference or disruption.14

  1. RGB&P’s policy represents a total ban on expressive conduct and is not based on a reasonable threat. The policy is far too broad to be considered reasonable. The policy is not specific to particular organizations or particular threats. The over-reaching policy encompasses all people wearing “motorcycle patches and colors” and is therefore an unreasonable means of achieving a safe environment under the 1st
  1. Generalizations and past actions of others are insufficient policy justifications. Even a more narrow policy applying only to 1% motorcycle clubs would be too general. Motorcycle clubs, including those clubs labeled organized or criminal gangs by some authorities, are protected associations. Restrictions solely based on expressing those associations violate the 1st

There is “no evidence that by merely wearing [1% motorcycle club] “colors,” an individual is “involved in or associated with the alleged violent or criminal activity of other [1% 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). 15

  1. To permit restrictions on any person “who wears the insignia of [a 1% motorcycle club], without regard to or knowledge of that individual’s specific intent to engage in the alleged violent activities committed by other members, is antithetical to the basic principles enshrined in the First Amendment and repugnant to the fundamental doctrine of personal guilt that is a hallmark of American jurisprudence. 16

1http://www.canoncitydailyrecord.com/news/canoncity-local-news/ci_24210571/royal-gorge-bridge-park-gives-1-06m- lease

2 “National Register Digital Assets”. National Park Service. 09-02-1983

3 id

4 see Google Maps; see “What to Expect”. Royal Gorge Bridge and Park. Archived from the original on 01-27-2016

5 Burton v. Wilmington Parking Authority 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45, 1961 U.S. 1297.

6 Brief Fact Summary: Burton (Appellant), brought an action under the Equal Protection Clause of the Fourteenth Amendment, claiming he was discriminated against because the Wilmington Parking Authority and the Eagle Coffee Shoppe, Inc. (Appellees), refused to serve him in their restaurant. The Appellant claims there is state action sufficient to bring a claim, as the Eagle Coffee Shoppe, Inc. leased its restaurant space from the City and the restaurant was attached to the Wilmington Parking Authority a City owned parking garage.

7 see also Hammond v. University of Tampa, 344 F.2d 951 (5th Cir.1965) (establishment of university made possible by surplus city buildings turns action of university into state action); Wimbish v. Pinellas County, 342 F.2d 804 (5th Cir. 1965) (county lease of land for use as a golf course to private tenant who maintained racially discriminatory policies was state action); Derrington v. Plummer, 240 F.2d 922 (5th Cir. 1956) (lease of basement in county courthouse to tenant who practices racial discrimination in serving policies constitutes state action).

8 Hala Ayoub, e State Action Doctrine in State and Federal Courts, 11 Fla. St. U. L. Rev. 893 (2017) p. 897. ir.law.fsu.edu/lr/vol11/iss4/3

9 Supra note 6 p.723-724; Supra note 8 p. 897

10 Supra note 6; Supra note 8 p.897

11 Dexheimer, Eric (04-29-2009). “The Royal Grudge Bridge”. Denver Westword, LLC.

12 Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)

13 Cohen v. California, 403 U.S. 15 (1971)

14 Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir.2002)

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

16 id

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Motorcyclists Blast WSP Discrimination Targeting Diplomatz MC

By David “Double D” Devereaux

The Washington State Council of Clubs and US Defenders issued a Press Release yesterday (6/23/2017) condemning recent statements made by a Washington State Patrol (WSP) trooper to the media accusing a member of the Diplomatz Motorcycle Club of being responsible for the recent theft of high-end motorcycles in Spokane.

No proof is offered to support these accusations other than highly prejudicial rhetoric about associating with other “outlaw motorcycle clubs.” The WACOC and USD object to these prejudicial statements because they are inconsistent with the state law condemning motorcycle profiling, inconsistent with constitutional principles, and they promote inaccurately dangerous threat assessments from law enforcement.

The Press Release ends by requesting that the WSP issue a public apology to the Diplomatz MC and all Washington motorcyclists.

Press Release

Washington State Council of Clubs & US Defenders June 23, 2017

RE: WSP Profiling Diplomatz MC Contact: usdefenderswa@gmail.com

The Washington State Council of Clubs (WACOC) and US Defenders (USD), organizations representing the interests of thousands of motorcycle club members and motorcyclists in the state, is outraged by recent news reports quoting representatives of the Washington State Patrol (WSP) accusing an unnamed member of the Diplomatz Motorcycle Club for a recent string of motorcycle thefts in Spokane. No evidence is offered to support these accusations other than reference to the Diplomatz association with “outlaw motorcycle clubs.

The WSP’s statements are discriminatory and are diametrically opposed to the law addressing motorcycle profiling unanimously approved by the Washington State Legislature in 2011. Promoting discriminatory stereotypes is philosophically inconsistent with constitutional principles and also very dangerous. Stereotypes can drive law enforcement threat assessments and even deadly force.

Background- WSP Targets Diplomatz MC

On June 14, 2017 KREM News released a story titled, “Spokane high end motorcycle thefts believed to be by the Diplomatz Motorcycle Club.” The article begins by quoting the WSP:

“We have a group of individuals that has been targeting more of the high end sport bikes,”

said Washington State Patrol Trooper, Jeff Sevigney.

But quickly the story begins making baseless accusations about the Diplomatz MC by promoting discriminatory stereotypes about motorcycle clubs. No facts are offered. Only conjecture intended to prejudice the general public and others in law enforcement.

WSP believes a member of the Diplomatz Motorcycle Club is behind the thefts.

“This particular group is associated with other outlaw motorcycle gangs that we’re aware of. We have detectives that’s all they do is track these groups and the criminal enterprises that they’re involved with,” said Trooper Sevigney.

Without offering any proof whatsoever, these motorcycle thefts are being blamed on a member of a club because the club he belongs to associates with other motorcycle clubs. This is irresponsible and condemns an entire club, and even an entire community, without a shred of evidence, merely by invoking the phrase “outlaw motorcycle club.”

Diplomatz MC Strongly Objects to WSP Accusations.

The founder of the Diplomatz MC denies any involvement in any illegal activity and strongly objects to the WSP targeting his club and media sources perpetuating sensationalism. According to the founder:

The Diplomatz MC was established in 2011. Our club promotes positivity and community involvement within the motorcycle community. We annually participate in breast cancer, lung cancer, and diabetes awareness. We also participate in feeding the homeless and back to school drives.”

The accusations also make little sense considering the motorcycles that most Diplomatz MC members ride. The Diplomatz “mostly ride American made Harley, Victory, or Indians.”

WSP Promoting Stereotypes Leads to Dangerous Policing

The WSP’s statements to the media regarding the Diplomatz is not only prejudicial, these statements also put members of the Diplomatz in potential danger. The constant barrage of negative stereotyping relating to bikers logically contributes to how motorcyclists are profiled and treated on the side of the road. Many motorcyclists are treated by police as if they are dangerous, even during simple traffic stops.

A study conducted at the University of Chicago in 2007 concluded that stereotypes in the newspaper reinforces a danger bias in the reader influencing the decision to shoot a target, even an unarmed target. The study says:

“In the domain of criminal justice, category-based judgments can have profound consequences through….the spontaneous, split-second reactions of a police officer.”

Negative stereotypes in the media increase the perception of danger in real life situations. 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.” 1

The Diplomatz are Constitutionally Protected

Motorcycle clubs, including the Diplomatz, that are labeled outlaw clubs or gangs by LE, are 1st Amendment protected associations.

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).

To permit law enforcement officers to vilify an entire club:

“without regard to or knowledge of that individual’s specific intent to engage in the alleged violent activities committed by other members, is antithetical to the basic principles enshrined in the First Amendment and repugnant to the fundamental doctrine of personal guilt that is a hallmark of American jurisprudence.”2

WSP Should Issue a Public Apology

The WSP should issue an official apology to the Diplomatz MC and the entire motorcycle community for promoting discriminatory stereotypes through media connections. Media bias promotes unconstitutional and dangerous behavior inconsistent with the goals of Washington State and the US Constitution.

Washington State Council of Clubs Washington State US Defenders usdefenderswa@gmail.com

1JOSHUA CORRELL from the University of Chicago, The influence of stereotypes on decisions to shoot, Eur. J. Soc. Psychol. 37, 1102–1117 (2007)

2Coles v. Carlini 162 F.Supp.3d 380 (2015)

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Motorcycle Clubs Successfully Pressure State Farm to Change Policy?

By David “Double D” Devereaux

The MPP is pleased to report that the National Council of Clubs (NCOC) has successfully pressured State Farm Insurance to clarify that, as of June 19, 2017, it is no longer State Farm policy to deny coverage to “businesses engaged with motorcycle clubs.” Although decisions to insure any business, including motorcycle clubs, are made on a case by case basis, State Farm says it has no general policy to deny coverage to businesses engaged with motorcycle clubs.

The NCOC approached State Farm because of a letter dated February 27, 2017 from State Farm denying coverage to a Veteran’s motorcycle club because “we don’t provide coverage for businesses engaged with motorcycle clubs.” State Farm’s original response was vague and avoided the explicit questions being asked by the NCOC, so the NCOC continued to press State Farm for clarification on its policy concerning motorcycle clubs.

The June 19, 2017 response from State Farm is, with one exception, clear and concise. There is still one question that has not been clarified. The original letter dated February 27, 2017 explicitly states that “we do not provide coverage to businesses engaged with motorcycle clubs.” This statement in the February 27, 2017 letter is plainly stated and incontrovertible.

Clearly, according to the June 19th response, this is not State Farm policy any longer.

Did State Farm change this policy after the February 27th letter or was the February 27th letter an inaccurate statement of State Farm policy?

Regardless, State Farm is now explicitly embracing the MPP’s fight against profiling and discrimination as evidenced by the following:

June 19, 2017

The National Council of Clubs,

Thank you for reaching out to us regarding business insurance coverage. While we are not able to discuss the specifics of any particular application or customer’s policy information, due to our customer privacy policy, we would like to clear up any misunderstandings.

To be clear, it is not State Farm’s policy to deny coverage to businesses engaged with motorcycle clubs. We offer a variety of business insurance options to help small businesses succeed. However, as previously stated, for clubs and organizations seeking business insurance, including motorcycle clubs, we review each applicant’s eligibility individually. Some organizations may or may not be eligible for coverage. Again, we are not able to discuss the specifics of any particular application, however, we can tell you that it is not State Farm’s policy to deny coverage to businesses engaged with motorcycle clubs.

Additionally, State Farm supports the motorcycle community, and offers individual motorcycle coverage for eligible vehicles licensed for use on public roads. For more information, please see our website.

We appreciate all you do along with other projects that aim to address profiling and discrimination. At State Farm, we’re committed to an inclusive environment where all our associates and customers are treated with respect and dignity, and differences are valued.

Sincerely,

Executive Customer Service Public Affairs

State Farm Insurance Companies

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Motorcycle Clubs Successfully Pressure State Farm to Change Policy?

By David “Double D” Devereaux

The MPP is pleased to report that the National Council of Clubs (NCOC) has successfully pressured State Farm Insurance to clarify that, as of June 19, 2017, it is no longer State Farm policy to deny coverage to “businesses engaged with motorcycle clubs.” Although decisions to insure any business, including motorcycle clubs, are made on a case by case basis, State Farm says it has no general policy to deny coverage to businesses engaged with motorcycle clubs.

The NCOC approached State Farm because of a letter dated February 27, 2017 from State Farm denying coverage to a Veteran’s motorcycle club because “we don’t provide coverage for businesses engaged with motorcycle clubs.” State Farm’s original response was vague and avoided the explicit questions being asked by the NCOC, so the NCOC continued to press State Farm for clarification on its policy concerning motorcycle clubs.

The June 19, 2017 response from State Farm is, with one exception, clear and concise. There is still one question that has not been clarified. The original letter dated February 27, 2017 explicitly states that “we do not provide coverage to businesses engaged with motorcycle clubs.” This statement in the February 27, 2017 letter is plainly stated and incontrovertible.

Clearly, according to the June 19th response, this is not State Farm policy any longer.

Did State Farm change this policy after the February 27th letter or was the February 27th letter an inaccurate statement of State Farm policy?

Regardless, State Farm is now explicitly embracing the MPP’s fight against profiling and discrimination as evidenced by the following:

June 19, 2017

The National Council of Clubs,

Thank you for reaching out to us regarding business insurance coverage. While we are not able to discuss the specifics of any particular application or customer’s policy information, due to our customer privacy policy, we would like to clear up any misunderstandings.

To be clear, it is not State Farm’s policy to deny coverage to businesses engaged with motorcycle clubs. We offer a variety of business insurance options to help small businesses succeed. However, as previously stated, for clubs and organizations seeking business insurance, including motorcycle clubs, we review each applicant’s eligibility individually. Some organizations may or may not be eligible for coverage. Again, we are not able to discuss the specifics of any particular application, however, we can tell you that it is not State Farm’s policy to deny coverage to businesses engaged with motorcycle clubs.

Additionally, State Farm supports the motorcycle community, and offers individual motorcycle coverage for eligible vehicles licensed for use on public roads. For more information, please see our website.

We appreciate all you do along with other projects that aim to address profiling and discrimination. At State Farm, we’re committed to an inclusive environment where all our associates and customers are treated with respect and dignity, and differences are valued.

Sincerely,

Executive Customer Service Public Affairs

State Farm Insurance Companies

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State Farm Responds to Outrage After Denying Coverage to Motorcycle Clubs

By David “Double D” Devereaux

The MPP recently reported that the National Council of Clubs (NCOC), a national rights organization representing the interests of motorcyclists and motorcycle clubs nationwide, recently obtained a copy of a letter from the State Farm Insurance Operations Center notifying a chapter of a Veterans motorcycle club that the insurance coverage on their property was being cancelled. The stated explanation for the policy cancellation was “we don’t provide coverage for businesses engaged in motorcycle clubs.

Although the NCOC received no direct response, the Arizona State Representative for the Motorcycle Riders Foundation, Dale “Animal” Dedrick, took initiative and contacted State Farm Insurance requesting an explanation. “What is the State Farm Insurance company policy relating to motorcycle clubs and their property?” Dedrick received the following response from State Farm on May 25th:

State Farm’s response is vague and never directly responds to the clearly stated policy made clear by State Farm’s original cancellation letter.

On May 25th the NCOC responded to the above letter which included the following:

“The May 25th response does not directly address the original question and core issues sufficiently.

The May 25th response says coverage for clubs is considered on an individual basis, but it is not clear if the statement of policy in the original letter dated February 27, 2017 is now being rejected by State Farm. Does State Farm have a policy “that denies coverage to businesses engaged with motorcycle clubs”?

If the blanket denial of coverage to businesses engaged with motorcycle clubs is no longer State Farm policy, what activities would disqualify an individual motorcycle club or motorcycle organization from receiving coverage from State Farm?”

The MPP will continue to follow and report on any information relating to State Farm’s policies related to motorcycle clubs.

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New Louisiana Law Exempts Motorcyclists From Anti-Masking Arrests

By David “Double D” Devereaux

Motorcyclists in Louisiana score a big win! Efforts of motorcycle rights advocates paid off when the Louisiana legislature approved a law exempting “persons driving or riding a motorcycle” from the state’s anti-masking statute. (See Louisiana State Legislature-HB161)

The Louisiana House passed HB 161 on a vote of 95-0 on June 5th, 2017 following a mass majority approval by the state Senate on May 30th, 2017. The legislation is on its way to the Governor’s desk.

The MPP reported in November of 2016, (See “Bikers Arrested for Wearing Bandanas”, November 29, 2016) following a trip to Louisiana as a guest speaker at a Louisiana

Confederation of Clubs and Independents (LCOC&I) meeting, that motorcyclists wearing legal helmets were being arrested for violating a state “Anti-Masking Law” originally intended to deter public acts of terror being committed by the KKK.

This obvious abuse of Louisiana statute was being used as a tool to profile and target motorcyclists, particularly in the Shreveport area.

The MPP provided a legislative proposal to Louisiana ABATE and the LCOC&I advocating an amendment to Louisiana’s anti-masking law exempting individuals wearing state approved safety gear while riding their motorcycles for the 2017 session.

Louisiana motorcyclists followed through and successfully lobbied their legislators proving that grassroots political rights movements can be effective and achieve results very quickly when mobilized and organized. The MPP congratulates and commends these efforts because they serve as an example and a model for other states attempting to combat motorcycle profiling and discrimination in all of its various forms.

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