Category Archives: Motorcycle Profiling Project

MC Members Being Arrested For Unlawful Carry Without Cause

By David “Double D” Devereaux

The MPP is issuing this Travel Advisory to all members and associates of motorcycle clubs traveling in or to the state of Texas.

WARNING- As a motorcycle club member, there is a legitimate risk of being arrested for Unlawful Carrying of a Weapon in the state of Texas solely because of membership or association with a motorcycle club, even if you posses a legitimate carry permit recognized by the state. The MPP believes that the risk is exponentially higher for members and associates of 1% motorcycle clubs.

ABC News in El Paso reported this last weekend that 5 members of the Bandidos Motorcycle Club were arrested for Unlawful Carrying of a Weapon (click to read article), even though every one could legally possess a weapon, solely because of their membership or association with the motorcycle club. They were initially stopped by the El Paso PD Gang Unit for an alleged failure to properly signal. All 5 men are from New Mexico and were traveling to El Paso to attend a funeral for a deceased member. (NOTE: The MPP has confirmed that only 2 of the 5 were members of the Bandidos Motorcycle Club)

This is not a isolated event. In November 2015, the MPP reported that “the trend to confiscate handguns and revoke legally obtained permits from motorcycle club members in America is on the rise.

From Houston to Long Island, and now back to Texas, law enforcement is aggressively targeting the gun rights of those in motorcycle clubs.” (See Revoking Gun Rights from Motorcycle Clubs is on the Rise, November 12, 2015). That trend, particularly in Texas, shows no signs of slowing down.

This assault on fundamental 1st and 2nd Amendment rights is based on a Texas statute that makes it illegal for a gang member to carry a weapon. Many motorcycle clubs are labeled gangs by law enforcement, so the implications are vast and impact thousands of US citizens.

According to the Texas Penal Code Sec. 46.02, UNLAWFUL CARRYING WEAPONS. A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is a member of a criminal street gang, as defined by Section 71.01. “Criminal street gang” means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.

This statute is diametrically opposed to fundamental 1st Amendment liberties. To permit the government to impose 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.” see Coles v. Carlini 162 F.Supp.3d 380 (2015)

Every American should pay attention and be extremely concerned. “In a very real way, the fate of motorcyclists will serve as a blue print for other groups in the future. Disarming bikers, even those associated that have no criminal records of any kind, is a strategy to cripple the rights base of one of the most visible and active grassroots social and political movements in America.

Much of the movement’s efforts are to combat civil liberty abuses by law enforcement targeting motorcyclists. If bikers are successfully marginalized as criminals not worthy of baseline liberties, then the strength of our political movement exposing law enforcement abuses will be crippled as well. It’s a blueprint for social control in the 21st Century.” (See It’s illegal for Motorcycle Club Members to Own Guns? That’s What Authorities Say., August 25, 2015)

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Support the Legal Defense Fund for Victims of the Waco Tragedy

By David “Double D” Devereaux

There are many unanswered questions relating to the May 17, 2015 shooting at a Twin Peaks restaurant in Waco, Texas. But what is known provides more than enough to establish that an irrefutable miscarriage of justice has occurred.

177 people were arrested without any individualized or specific probable cause. They were arrested solely based on their association with a motorcycle club, including individuals that law enforcement acknowledges committed no crimes. Each individual arrested was given 1-2 million dollar bails explicitly “to send a message”, which is a clear violation of the 8th Amendment’s prohibition against punitive bail.

A cornerstone of a free society is the idea that protecting one innocent person outweighs society’s interest in punishing the guilty. The ends do not justify the means. The issues of false arrest and excessive bail should take priority over the interests of punishing any guilty party present at Twin Peaks. The interests of the innocent are simply more important from a societal perspective.

This is not about any one motorcycle club. What happens in the Waco prosecution will have far reaching impacts on the entire culture of motorcycle clubs and the 1st Amendment issues of expression and association. And the results of the initial trials could have far reaching impacts on the remaining trials.

The Bandidos Motorcycle Club and associates have been targeted and are being prosecuted first. Time is short. Help is needed. The amount of legal resources available often equates to a better defense. The first trial is set for September, 2017.

Any motorcycle club member, motorcyclist, or individual concerned about the wider implications of the Waco tragedy can contribute to the legal defense of the first club being prosecuted by sending checks or money orders to:

USARG Inc./BMC

PO Box 58868

Houston TX 77258

Texas attorney Bill Morian has confirmed that USARG Inc./BMC is a legitimate and registered 501c3 Nonprofit, that all funds will be used strictly for legitimate purposes, and that all funds are absolutely transparent and reported.

Remember, a failure to support those being targeted only means there will be no one left to stand next to your club or loved ones when they are eventually targeted in the same way as those present in Waco on May 17, 2015.

Supporting victims of the Waco prosecution is supporting motorcycle club culture and the idea that constitutional principles protecting innocent people are far more important than the goals of the corrupt criminal justice system in Waco.

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Pressure Causes San Marcos Police to Condemn Motorcycle Profiling

By David “Double D” Devereaux

San Marcos (TX)- The San Marcos Police Department (SMPD) has publicly rejected motorcycle profiling and discrimination in response to an inquiry regarding a recent Motorcycle Profiling Project (MPP) request that the SMPD cease and desist from recommending that private owners make their establishments unwelcome to motorcycle clubs by adopting “no motorcycle colors” policies. The department explains that such recommendations are the result of one well-intentioned but misguided officer’s actions that are “not in line with the policies of the San Marcos Police Department.” The SMPD reminds KXAN that the department “has a policy against profiling and discrimination” and “support[s] the rights of people to peaceably assemble regardless of their appearance, clothing or affiliation with any group.”

Although, as of this writing, the SMPD has not directly responded to the MPP’s request, KXAN News in Austin reached out to the MPP and the SMPD for comment, and ran a follow up to the original story exposing the SMPD recommendations.(click to view) In a statement sent to KXAN, in answer to KXAN’s inquiries, the SMPD rejects profiling and separates the agency from the recommendations that private owners exclude club members.

From KXAN- The full statement received from the City of San Marcos:

A San Marcos police officer gave well intentioned advice to some local business owners in response to incidents that took place at their establishments. While well meaning, some of that advice is not in line with the polices of the San Marcos Police Department. In fact, the San Marcos Police Department has a policy against profiling and discrimination.

Our department is here to serve and assist the entire community, that includes both business owners and their patrons. We are sometimes called upon to assist in situations that may arise at a business, and in some cases to assist when a person is criminally trespassing. We also support the rights of people to peaceably assemble regardless of their appearance, clothing or affiliation with any group.

Our downtown, and our entire community welcomes all law-abiding citizens and visitors.

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Police in Texas Pressuring Bars to Ban “Motorcycle Colors”

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

cstapp@sanmarcostx.gov

tel: 512-753-2110

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.

Sincerely,

Motorcycle Profiling Project

info@motorcycleprofilingproject.com

motorcycleprofilingproject.com

The San Marcos PD is Encouraging Private Discrimination

  1. 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.
  1. 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

  1. 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
  1. 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
  1. 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
  1. 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
  1. 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)
  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.
  1. 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
  1. 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

  1. 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.
  1. 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
  1. 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
  1. 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.
  1. 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
  1. 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
  1. 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.

  1. “[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
  1. “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

Endnotes

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)

9http://kxan.com/2017/07/05/san-marcos-police-warn-downtown-businesses-of-biker-gangs/

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)

18 id

19City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam).

20id

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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ABATE of Pennsylvania Turns Their Back on Motorcycle Clubs

By David “Double D” Devereaux

ABATE of Pa. Mercer County Chapter is holding its 39th Annual Kickin’ it in the Stix Poker Run in Transfer, Pa July 7-9, 2017. Although the excerpt on the ABATE of Pa. Mercer County Chapter Facebook page post says “Everyone welcome” the event Flyer makes it clear that “no colors” are allowed.

ABATE is supposed to stand for the ideals of motorcycle rights, including freedom of expression and association. To ban motorcycle club colors at an ABATE event is antithetical to these ideals and runs counter to the historical origins of ABATE and the motorcycle rights movement.

Club members started ABATE in most states. Currently, many patch holders are members of ABATE and regularly attend ABATE functions in many states. Clubs and ABATE are also working together well in many states and even at the federal level.

The Motorcycle Riders Foundation (MRF), an organization largely made up of ABATE chapters nationwide, is committed to combating motorcycle profiling and discrimination against motorcycle club colors. In 2015, ABATE of Pa. was advocating for HB 1580, an anti- motorcycle profiling bill that 47 legislators sponsored. How can the current ABATE of Pa. be so far off the mark relative to their own advocacy in 2015, the rest of the country, the movement’s mission, and constitutional liberties?

The MPP has worked with independents and ABATE members all over America that are passionately dedicated to fighting discrimination. Motorcycle profiling and discrimination is a motorcycling problem, not just a club problem. The MPP is appalled that an ABATE event in any state would ban motorcycle club colors or that a paying membership would not stand up and immediately demand a change in policy.

It’s bad enough having to combat government and law enforcement discrimination. But when an organization that exists to educate and protect the rights of motorcyclists turns their back on motorcycle clubs it is a sign that something is very wrong in Pennsylvania.

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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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