By David “Double D” Devereaux
Motorcyclists from Texas and around the US, many wearing motorcycle-related patches and colors, regularly visit public establishments and bars in San Marcos, Texas.
Recently, the San Marcos Police Department (SMPD) made a prejudicial recommendation to downtown San Marcos businesses to implement a broad policy of discrimination against any individual wearing motorcycle-related insignia or colors.
These recommendations amount to coercive pressure from a government actor to implement policies of discrimination. It is settled law that motorcycle patches and colors are Constitutionally protected by the 1st Amendment from acts of government discrimination. Prohibiting individuals from expressing themselves with patches or insignia exposes the government to liability under 42 USC §1983.
No agent of the government may pressure or coerce any establishment to impose a dress code that prohibits attendees from wearing clothing displaying the name or symbols associated with a motorcycle organization.
The Motorcycle Profiling Project (MPP), an organization representing the interests of motorcyclists in Texas and across America, is requesting that the San Marcos PD cease and desist from any further discriminatory recommendations relating to motorcycle clubs and has sent the following letter:
July 25, 2017
Chase Stapp – Chief of Police
San Marcos Police Department
Dear Chief Stapp,
Recently, the San Marcos Police Department (SMPD) issued a prejudicial recommendation to downtown San Marcos businesses to implement a broad policy of discrimination against any individual wearing motorcycle-related insignia or colors. These recommendations amount to coercive pressure from a government actor to implement policies of discrimination. It is settled law that motorcycle patches and colors are Constitutionally protected by the 1st Amendment from acts of government discrimination.
No agent of the government may recommend, pressure or coerce any establishment to impose a dress code that prohibits attendees from wearing clothing displaying the name or symbols associated with a motorcycle organization. Prohibiting individuals from expressing themselves with patches or insignia exposes the government to liability under 42 USC §1983.
The Motorcycle Profiling Project (MPP), an organization representing the interests of motorcyclists in Texas and across America, is requesting that the San Marcos PD cease and desist from any further discriminatory recommendations relating to motorcycle clubs and issue a statement informing the public based on the attached analysis. (See pages 2-4)
The MPP looks forward to your response and resolution of this issue.
Motorcycle Profiling Project
The San Marcos PD is Encouraging Private Discrimination
- Members of motorcycle clubs and motorcycle organizations regularly frequent public establishments in San Marcos, Texas to engage in protected expressive conduct such as charitable and political benefits and political beneﬁts and fundraisers.
- As reported in the San Marcos Record, the President of the Downtown Association of San Marcos has publicly stated that the San Marcos Police Department has seen “an increase in the presence of the Bandidos Motorcycle Gang in the city and in downtown in recent weeks” and are “recommending that downtown establishments to keep an eye out and consider implementing strategies to make their space unwelcoming to this group.” One of those strategies is to post dress code signage at the door to include rules against “Gang related ‘cuts,’ ‘vests,’ or other insignia” in addition to any dress code rules. 1
Police Encouraging Private Discrimination Amounts to State Action
- Prohibited state involvement can be found “even where the state can be charged with only encouraging,” rather than commanding discrimination, such as state actors encouraging owners to exercise their “right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved.” 2
- Public statements by city officials encouraging private discrimination can have as much coercive potential as an actual ordinance. 3 Authorizing private discrimination
significantly involves the state with invidious discrimination. “The right to discriminate is now one of the basic policies of the State.” State action that encourages private discrimination “establishes the right to discriminate as a basic state policy,”” and “will significantly encourage and involve the State in private discrimination.” 4
- State action “which authorize[s] private discrimination” makes the State “at least a partner in the instant act of discrimination. . . .” The courts “conceive of no other purpose for an application of” such state recommendations “aside from authorizing the perpetration of a purported private discrimination. . . .” Such a recommendation “unconstitutionally involves the State in…discrimination, and is therefore invalid under the Fourteenth Amendment.” 5
- Police recommendations invoke state authority to discriminate so those practicing discrimination “need no longer rely solely on their personal choice.” They can now invoke express state authority, “free from censure or interference of any kind from official sources. All individuals, partnerships, corporations and other legal entities, as well as their agents and representatives, will now discriminate…” 6
- Private Owners are acting on the state’s authority to discriminate in San Marcos. The President of the Downtown Association of San Marcos has publicly endorsed the SMPD’s recommendations at a recent Downtown Association of San Marcos organizational meeting, as reported by the San Marcos Register. (See Supra note #1)
- If police recommend private discrimination, and are also responsible for enforcing violations of that private policy of discrimination, then both the recommendation and enforcement of violations are unconstitutional. Even when a state recommendation is neutral in its terms, if the result of its application would be to invoke the sanctions of the State to enforce a concededly discriminatory private rule, such as arresting violators for trespassing, then those recommendations and sanctions would violate the Fourteenth Amendment. 7 The Supreme Court has made clear the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination. 8Imagine if the recommendation was to make public establishments unwelcoming to people wearing clothing or insignia indicating that they are republicans, democrats, environmentalists, or Cowboys fans.
- Private owners confirm pressure from SMPD recommendations, against their own wishes and economic well-being, are driving bikers NBC News affiliate KXAN (Austin) reports that Kristan Alvarez, owner of KnDs in downtown San Marcos, reports:“I want bikers in here; I would love to see more bikers here. Like I said, we do sale biker stuff and I’m totally against it,” says Alvarez.“I know a lot of bikers, Bandidos specifically and I just feel like they aren’t all bad people, they shop here all the time and I want to welcome them here,” said Alvarez. “I was a little upset that they were kind of pushing them away, I lose sales because of that.” 9
- Bar owners have a constitutional right to pursue an occupation free from government coercion. According to the Supreme Court, the Due Process Clause of the 14th Amendment protects a liberty or property interest in pursuing the “common occupations or professions of life.” 10 The constitutional right infringed in cases of excessive and unreasonable police pressure is “the right to pursue an occupation.” 11
San Marcos PD’s Recommendations Are Unconstitutional – Motorcycle Colors are Protected from State Discrimination By the 1st Amendment – Courts Have Rejected Generalized Gang Justifications
- Cohen California establishes that individuals have the 1st Amendment right to wear clothing which displays writing or designs in public places. 12 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.
- Federal Courts say, “On balance, a motorcycle club member’s hardship in not being able to express their views and the public interest in protecting speech outweigh the Government’s interest in suppressing an intimidating symbol.” 13 “Though the symbol may at times function as a mouthpiece for unlawful or violent behavior, this is not sufficient to strip speech of its First Amendment protection.”14 Prohibiting speech of this nature constitutes an attack on a particular viewpoint. 15
- In Sammartano First Judicial District Court (2002), the court applied Cohen specifically to motorcycle club colors and rejected the gang argument, the exact same rational being advanced by the SMPD. In Sammartano, 10 individuals wearing motorcycle colors, including the Hells Angels Motorcycle Club, 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 Federal Appeals Court rejected the government’s gang argument and concluded 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.” 16
- SMPD’s policy recommendation 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 threats. The over-reaching policy encompasses many people wearing motorcycle patches and colors and is therefore an unreasonable means of achieving a safe environment under the 1s Amendment.
- Generalizations and past actions are insufficient policy justifications. Even a more narrow policy applying only to individuals in a motorcycle club such as the Bandidos would be too general absent proof of an actual and specific threat. 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 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). 17
- To permit restrictions on any person “who wears the insignia of [a 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. 18
- SMPD’s recommendations defy logic. Insignia is incapable of action. Removing all insignia does not remove the individual. The standard of a specific and actual threat is superior because it preserves both the 1st Amendment and a safe environment
Associating with (or expressing association with) motorcycle clubs that government authorities label criminal organizations or gangs, is considered expressive conduct relating to an on-going public concern.
- “[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” 19 Further, the debate over the criminality of motorcycle clubs is a topic of “legitimate news interest.” 20“To deserve First Amendment protection, it is sufficient that the speech concern matters in which even a relatively small segment of the general public might be interested.” 21
- “Wearing motorcycle club insignia is expressive conduct because it conveys a message that the wearer supports or is proud to be affiliated with the organization.” 22Wearing colors and associating with a labeled organization may be perceived as expressing support for that organization in protest of government condemnation. “Here, [an individual’s] wearing of [outlaw motorcycle club] insignia and associating with [outlaw motorcycle club] members could be perceived as public support of [that motorcycle club]— i.e., approving of the activities of a perceived criminal organization. This is a matter of interest to the community.” 23,24
1San Marcos Record, “Merchants Warned About Motorcycle Gangs Downtown”, June 30, 2017
2Reitman v. Mulkey, 387 U. S. 369, 387 U. S. 380 (1967) Pp. 387 U. S. 373-381
3Lombard v. Louisiana, 373 U. S. 267
4Supra Note 2 Reitman v. Mulkey
5 Supra Note 2 Reitman v. Mulkey
6Supra Note 2 Reitman v. Mulkey
7Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972), 407 U.S. 179, citing Shelley v. Kraemer, 334 U. S. 1 (1948)
8Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 13 (1948)
10See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 755-56, 1 L.Ed.2d 796 (1957); Chalmers v. City of Los Angeles, 762 F.2d 753, 757 (9th Cir.1985).
11Benigni v. City of Hemet, 879 F.2d 473 (9th Cir. 1989)
12Cohen v. California, 403 U.S. 15 (1971)
13 Ramon Rivera v. Carter, ATF, Case No. 2:09-cv-2435 (C. D. 2009)
14 Rivera citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2003) (“The mere tendency of speech to encourage unlawful acts is not a suﬃcient reason for banning it. . . .First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.”)
15 See supra note 13
16Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir.2002)
17 Coles v. Carlini 162 F.Supp.3d 380 (2015)
19City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam).
21Roe v. City & County of San Francisco, 109 F.3d 578, 585 (9th Cir. 1997)
22 See Supra note 13, Rivera citing e.g., Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966-67 (9th Cir. 2002), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7, 21 (2008)
23RONALD GODWIN v. ROGUE VALLEY YOUTH CORRECTIONAL FACILITY, (RVYCF et al.,) U.S. Court of Appeals, Ninth Circuit, No. 14-35042, AUGUST 10, 2016
24note on Godwin- Diﬀerent appellate circuits have traditionally handled unpublished opinions diﬀerently. Some circuits openly accept them, others do not. In 2006, a new rule was implemented under the Federal Rules of Appellate Procedure. Rule 32.1(a) is intended to replace these inconsistent standards with one uniform rule. Under Rule 32.1(a), a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or for any other reason. Rule 32.1(a) applies only to unpublished opinions issued on or after January 1, 2007.
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