Filming Police in Public is a Constitutional Right

By David “Double D” Devereaux

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

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

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

A Legal Opinion-Simple and Concise

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

For those of you who don’t know:

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

We therefore have the right to film them.

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

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

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

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

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

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

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

What Do The Courts Say?

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

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

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

A Word of Caution

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

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

Source-

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

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NY Police Detain 169 Motorcyclists on Long Island

By David “Double D” Devereaux

ny-police-detain-169-motorcyclists-image1

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

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

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

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Suffolk Police News Release

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For Immediate Release
November 6, 2016

Incident: Fifty-Four Summonses Issued at Motorcycle Safety Checkpoints

Location: Eastbound Sunrise Highway and Eastbound Long Island Expressway

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

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

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

14 Unlicensed Operator

2 Suspended License

10 Un-inspected Motorcycle

3 Unregistered Motorcycle

2 Uninsured Motorcycle

10 Helmet Not Approved by New York State Department of Transportation

6 Modified/Loud Exhaust System

1 Other Equipment Violations

6 Failure to Comply with Lawful Order

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

Authority: Timothy D. Sini, Police Commissioner

16-351243 Suffolk County Police Department VC/1835

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Is Law Enforcement Training To Terminate Bikers?

By David “Double D” Devereaux

law-enforcement-training-terminate-bikers-screesnshot

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

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

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

Target Company Says Bad Bikers Need To Be Terminated!

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

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

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

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

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

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

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

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

Study Confirms Stereotypic Shooting Targets Can Increase Deadly Force

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

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

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

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

Ending the Use of Discriminatory Training Targets

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

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

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Waco Biker Speaks OUT! MPP Exclusive Interview

By David “Double D” Devereaux

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

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

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

Waco Biker Exclusive Interview

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

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

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

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

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

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

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

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

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

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

Paul: No, I did not.

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

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

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

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

Conclusions

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

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

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State Rep. Calls Minnesota Mayor A Motorcycle Gang Member?

By David “Double D” Devereaux

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

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

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

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

Cornish Actively Impedes Anti-Profiling Efforts

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

Statistical Data Proves Motorcycle Profiling Occurs In Minnesota

Cornish writes to the FDN:

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

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

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

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

Testimony Proves Profiling Is Occurring in MN.

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

Current Law And Police Training Do Not Prevent Motorcycle Profiling

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

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

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

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

Cornish Embraces Discriminatory Biker Stereotypes

Cornish reveals his discriminatory bias when he writes:

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

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

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

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

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Conclusions

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

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

The Letter

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Being a Biker Could Mean Losing Your Gun Rights

By David “Double D” Devereaux

John is a member of a motorcycle club and a proud Texas biker. He is a hard working family man, a degree professional, and has never been charged with a crime. Recently, while riding his motorcycle, and wearing his club colors, he was pulled over by police in Fort Worth for failure to signal before changing lanes. He immediately gave the police his CHL, his license and insurance.

But the real motive of officers soon became apparent, and John was harassed with questions regarding his club and the patches on his black denim vest. They asked to search his motorcycle but he refused to consent without a search warrant. There was no basis for a warrant and the officers knew it. But after the officers spoke back and forth with their Sgt., he was arrested for failure to use a turn signal.

Pictures were then taken of John, his vest, and his bike. Officers then proceeded to search his motorcycle incident to the arrest for a minor traffic infraction. Officers broke his locked saddlebags in order to search them. They found nothing! But his legal weapon was confiscated and the police are refused to release it. Moreover, officers in Fort Worth have filed with the state to have his CHL rights taken away.

Motorcycle Profiling and Gun Rights

John’s story epitomizes the issue of motorcycle profiling, most often taking the form of a pre-textual traffic stop initiated to harass and search motorcyclists based on appearance and protected associations. In many states, traffic infractions are crimes subject to arrest, which in turn allows officers to legally search you and your vehicle.

John’s story also demonstrates a newly emerging trend where members of motorcycle clubs have their weapons seized and/or their legally obtained concealed carry licenses revoked for no other reason than appearance and association.

Targeting individuals with concealed carry permits makes little sense from a law enforcement perspective. In order to obtain a permit, an individual must pass extensive background checks and have no relevant criminal history. Individuals with permits, even motorcycle club members, are not convicted gang members or violent criminals. Is stereotype really that much stronger than reality? And even if it is, shouldn’t motorcyclists attempt to do something about it?

Building a Coalition

There has been a longstanding position taken by many motorcycle rights advocates to avoid mixing politics with other political coalitions. But gun rights may be the one exception. The impact of motorcycle profiling on 2nd Amendment rights strikes at the political and philosophical heart of most motorcyclists and many Americans generally. Rethinking this perspective may be in order.

Legislative solutions are the best path because 4th Amendment law says pre-textual traffic stops are permitted regardless of subjective motives. State legislation can go beyond the minimal protections against pre-textual traffic stops with a discriminatory motive.

Building a partnership between the 2nd Amendment and the motorcycle rights lobby, based on legitimate policy crossover and issues of profiling (gun owners are profiled too), provides the potential for a coalition that expands the manpower of both movements based on fundamental liberties.

[John’s actual name has been omitted for privacy and safety of the victim]

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Supreme Court Legalizes Bribery?

By David “Double D” Devereaux

A recent SCOTUS decision legalizing previously corrupt practices impacts many special interests, including the movement to end motorcycle profiling.

With no media attention, the Supreme Court of the United States this summer issued McDonnell v. US (2016), a decision that makes the ability for corrupt special interest lobbyists and politicians to legally peddle influence. Although this impacts all Americans in some way because special interests touch a broad range of issues, why is this decision particularly important to the movement to end motorcycle profiling? Because the law enforcement lobby consistently opposes anti-profiling laws, is one of the most powerful lobbying groups at both the state and federal level, and the Supreme Court has just legalized lobbying practices that have historically been considered corrupt and illegal. The solution is a grassroots manpower driven movement combined with targeted lobbying strategies to overcome a politically powerful opposition.

How SCOTUS Legalized Corrupt Lobbying Practices

As explained by the Court, former Virginia Governor Robert McDonnell, and his wife, Maureen McDonnell, were indicted by the Federal Government on fraud related to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. A jury convicted the McDonnell’s and the 4th Circuit Court of Appeals affirmed the District Court’s conviction. But the Supreme Court disagreed and reversed the conviction.

The Supreme Court decided that “every action that is within the range of official duty” is not to be considered an “official act”, “contrary to the well-settled understanding of the term established by the Supreme Court a century ago, and followed by the federal courts ever since.”

Under the Court’s new interpretation, “setting up a meeting, calling another public official, or hosting an event” does not, standing alone, qualify as an ‘official act.’ The Court reasoned that this interpretation was less wide open and vague.

This decision further opens the door to legalized influence peddling to special interest lobbies. In simple terms, these previously corrupt and illegal acts are now considered legal. It stands to reason that lobbyists will seize the opportunity and freely operate inside the Court’s newly drawn lines.

Interestingly, the unanimous 8 to 0 decision was neglected by the media on a news day distracted by other events.

Law Enforcement Lobby Opposes Anti-Motorcycle Profiling Laws

The Motorcycle Profiling Project, which is involved in the grassroots movement to pass anti- motorcycle profiling laws nationwide, has found that the law enforcement lobby consistently opposes the motorcycle community’s efforts to address discrimination. In both Washington State and Maryland, the only 2 states to have laws addressing the issue, the law enforcement lobby denied that profiling was occurring and opposed the law. This was particularly true in Washington State, where the law enforcement lobby heavily opposed the bill, even in the face of an irrefutable pattern of evidence.

In other states attempting to pass the law, the police lobby has voiced similarly clear opposition. In Minnesota, for example, the law enforcement lobby testified against the measure and even released statements to the media denying that motorcycle profiling was occurring. The law enforcement lobby was effective and the bill failed to pass out of committee.

Considering the power of the law enforcement lobby, it should come as no surprise that it’s been very difficult to implement basic protections for motorcyclists in most states.

Although police officers may lead the public to believe they don’t create the laws, they just enforce them, this is not truly the case. According to retired Lt. Commander Diane Goldstein, in statements made to Mint Press News (May 29, 2014), “Capitalism is alive and well in politics” and over the years law enforcement has created an “incredibly powerful lobby”.

The Supreme Court’s decision provides more avenues of influence for an already powerful lobby that stands in opposition to laws addressing profiling. So how should motorcyclists respond? What strategies should the motorcycle rights movement employ to overcome this opposition in the legislature?

Solutions- Overcoming Powerful LE Opposition

Although the law enforcement lobby is strong, and the Supreme Court has just strengthened the political influence for cash market, an organized grassroots movement can still be successful.

The issue of police accountability is an ongoing societal concern and the need for reform is seen by many legislators. But proper preparation must be employed to overcome the opposition’s influence.

With a proper pattern of evidence documenting tangible incidents of profiling, motorcyclists can overcome the powerful LE lobby and successfully pass anti-profiling laws. In Washington State and Maryland, video evidence obtained through public information requests provided incontrovertible proof that profiling was occurring and motorcyclists were being targeted based on association and appearance. Without this type of evidence legislators are not going to be willing to defy the lobby.

In terms of strategy, gaining the endorsement of legislators with law enforcement experience can be an important tool to overcoming the law enforcement lobby. These legislators are in a unique position of having both LE experience and the perspective of a law maker. In Washington, legislators with LE experience sponsored the anti-motorcycle profiling legislation. And every legislator with LE experience in Washington and Maryland voted “yes”, in every committee and on the floor, unanimously passing the legislation into law.

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Reports Say Maryland’s New Law Reduces Motorcycle Profiling

By David “Double D” Devereaux

On Saturday, October 1, 2016 Maryland’s new anti-motorcycle profiling law went into effect. Maryland is now officially the second state to have an anti-motorcycle profiling law on the books. Washington State passed a similar measure in 2011 and has enjoyed a reduction in profiling incidents since then. Will the new law result in a similar reduction in Maryland? Early indicators suggest the answer is yes.

Although the law went into effect less than a week ago. Senate Bill 233 landed on the Governor’s desk after unanimously passing through both chambers of the statehouse and was signed into law on May 19, 2016. The MPP reached out to two individuals that have their finger on the pulse of the community (Bill “Colt” Kaitz from the Maryland US Defenders and Michael “Bighead” Abbott from Thunder Roads Magazine.) to determine whether there has been any reduction in profiling incidents involving motorcyclists in Maryland.

No Profiling Incidents Are Being Reported

Bill “Colt” Kaitz, head of the Maryland US Defenders, served as the main lobbyist for the anti- motorcycle profiling effort in 2016 and regularly communicates with both legislators and Maryland bikers. The Maryland US Defenders is the only network connecting many clubs and independents involved in the state’s motorcycle rights movement. Kaitz is also the co-founder of the MPP and a member of the Legion MC from the Baltimore area.

Although not necessarily dispositive proof, Kaitz says, I have not received any validated reports of motorcycle profiling since the Governor signed the bill into law in May. And being the main spokesperson and lobbyist for the motorcycle profiling effort in Maryland, I regularly received reports of profiling incidents before the law passed. If profiling were occurring at the same level, then logic says I would be receiving at least some reports.”

No Mass Profiling At Ocean City Bike Week 2016

Video obtained through public information requests proved that law enforcement, specifically the Maryland State Police, conducted mass motorcycle profiling stops during Ocean City Bike Week in both 2014 and 2015. This video evidence was presented by Bill “Colt” Kaitz to the state legislature in support of the new law.

The MPP spoke with Mike “Bighead” Abbott, Owner/Publisher at Thunder Roads Mid-Atlantic Magazine headquartered in Maryland, and asked whether he believes the new law has had any short term impact. Bighead covered the motorcycle profiling efforts in Maryland when they began in 2015 and he regularly attends Ocean City Bike Week providing firsthand insight and information.

The MPP asked Bighead if there were any motorcycle profiling incidents during OC Bike Week held September 15-18, 2016, after the Governor signed the law on May 19th, but before it officially became effective October 1st. Here’s what he said:

MPP: First, can you describe your connection to the MD motorcycling community?

Michael “Bighead” Abbott: I’ve been involved in the motorcycle community for almost 20 years. Me and two other friends purchased the Thunder Roads Mid-Atlantic Franchise in September of 2012 to inform the community of the events and news in the area. I’ve been a member of an MC, a charity association, and a social riding club. I’ve rode up and down the east coast and as far as west as Arkansas. (I have ridden through Arizona, but I flew out and rented a bike.)

I didn’t really see what was going on in the community, until I was invited to look a little deeper by a close friend. He told me about the fight the Mongols were going through with their patch. After doing some of my own investigation, and reading about other incidents of profiling and blatant bigotry towards the motorcycle community, I attended a regional NCOM convention in Glen Burnie Maryland. One of the key note speakers was “Double D”. It was his speech and passion that hooked me, and got me involved in I got more involved with the Motorcycle Rights Organizations (NCOM and Abate.) Since then, I’ve been doing what I can to help promote the issues, and spread the word about meetings and rallies, to get more people involved in changing the laws in Maryland.

MPP: Second, describe the differences, if any, between the Ocean City bike week event before the new anti-motorcycle profiling law passed in MD and this year’s event which followed the law unanimously being approved by the state legislature and signed by the Governor.

This year Ocean City Bike week as held September 15th – 18th, 2016. The new Anti- Profiling law didn’t take effect until October 1st, 2016.

Bighead: The biggest difference I noticed between the 2016 Ocean City Bike Week and in the past was who was pulled over. Over the years, while riding through the main drag of Ocean City, I have seen bikes pulled over almost every third block. With a majority of the bikes pulled over, being ridden by someone wearing an MC patch. And during the two highest attending days, Friday and Saturday, I would see entire clubs pulled over by several police vehicles representing multiple organizations.

This year, where the police were still pulling over bikes, the frequency was not nearly as was seen in the past. I am only aware of one incident where someone wearing a patch was pulled over during the week. That’s not to say it didn’t happen, I just wasn’t aware of any other incidents.

And I didn’t see the plate scanners set-up at the entrance to the main parking area as I’ve seen in the past. From what I saw, and speaking with a few of the patrol officers, the police were focused on speeding, wheelies and other stunts, and handlebar height. At no time, did I see an entire club pulled over by the police. A big difference from prior years, and I credit this to the anti-profiling bill.

Conclusions

The MPP is proud to have been a part of Maryland’s efforts, and going forward other states should gain confidence that an aggressive lobbying strategy can work well and work quickly. We now have anti-motorcycle profiling laws on each coast. The momentum being created is undeniable. There is currently a proposed Federal resolution that encourages other states to follow Washington and Maryland’s lead. H. Res. 831 makes motorcycle profiling a national policy discussion. Maryland’s success serves as a model for an effective and collaborative grassroots legislative campaign and lobbying strategy resulting in a law that reduces profiling.

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Police and 1% Motorcycle Clubs – Don’t Believe the Hype

By David “Double D” Devereaux

Being in a motorcycle club is not illegal. Law enforcement action should be based on behavior, not appearance. So being in a motorcycle club should not influence law enforcement’s decision to take action against a person. Despite this, however, there is a common misconception that being a member of a 1% motorcycle club is a self-admission of criminality. Many in law enforcement and some prosecutors label all members of 1% clubs gang members, and the media is all too willing to perpetuate a sensationalized perspective.

Maybe even more troubling, the stereotype is so powerful that even other bikers are susceptible. The truth is that many are wary of clubs and many buy into the sensationalized hype and stereotypes, particularly about 1%’ers. But through education regarding the 1st Amendment maybe these perceptions can be overcome in favor of reality. Then the real work of protecting bikers can be more effectively achieved.

Do Independent Bikers Stereotype 1%’ers as Criminals?

Not all independents believe the hype. But the fact remains, many do. A perfect example of this perception became evident to me at the recent “Meeting of The Minds” event hosted by the Motorcycle Riders Foundation, this year held in Oklahoma City, Oklahoma, June 22-25. The theme this year was “Bridging The Gap” in the motorcycle rights movement among all of the different organizations and elements of the motorcycling community that have common political, legislative and legal interests. And the issue that is beginning to galvanize the unification process is motorcycle profiling.

One of the primary gaps to be bridged is between independent bikers and motorcycle club members, often called “Patch Holders”. Although it is becoming more common for independents and patch holders to work together on legislative goals in some areas of the country, in many places there is still resistance.

At the end of a panel I was participating in titled “Bridging The Gap”, an independent raised his hand and said he had to ask the obvious question. What about 1%’ers being gangs and being involved in criminal activity?

It was the perfect opportunity to explain how that perception violates the fundamental principles of association and expression enshrined in the 1st Amendment. It was an opportunity to educate.

Why Membership In A 1% MC is Constitutionally Protected

The United States of America is intended to be a free society. Essential to that freedom is the idea that people should be able to associate with whomever they choose and express that association or other political views. The reality is that not all views or associations are very popular either with government entities or other people. This is particularly true with many political views.

What about organizations or clubs that have had members convicted of crimes, including acts of violence? Well, the Supreme Court says that an individual’s association with an organization that has members that have committed acts of violence or other crimes is protected by the 1st Amendment, and that no restrictions may be imposed on any person that associates with such a group absent specific evidence that they intend to participate in the criminal activity of other members.

What Do The Courts Say?

Recently a federal court concluded:

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).

To permit [law enforcement officers] to impose 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.

  • (See Coles v. Carlini, U.S. District Court for the District of New Jersey, Civil No. 10-6132, Opinion, 9/30/2015, p.28)

What Does Basic Logic And Reality Say?

According to government estimates, there are approximately 44,000 members of motorcycle clubs that the government labels gangs or criminal organizations. It’s absurd to suggest that they are all criminals or gang members. The statistical data simply disproves the claim. The courts understand that the purpose of motorcycle clubs, including 1% clubs, is brotherhood centered around motorcycling. Law enforcement refuses to recognize the truth.

Law enforcement says anything positive 1% clubs do is intended as a smokescreen for illegal activity. This fundamental misperception ignores one of the most important functions of the motorcycle club community. Charity and social activism are a driving force of the biking and club community. Every 1% club has fundraisers and benefits for Veterans, Cancer victims, toys runs for children, and to benefit motorcycle accident victims in the community. This is not a smokescreen. It is genuine and tangible activism.

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Understanding the Waco Biker Prosecution

By David “Double D” Devereaux

On May 17, 2015, Paul Landers was looking for a place to hang a Texas Confederation of Clubs and Independents banner in preparation for a scheduled political gathering to discuss motorcycle rights issues when gunfire erupted at a Twin Peaks in Waco, Texas. Paul was there to provide the region updates following the National Coalition of Motorcyclists National Convention that was held in Denver the previous week.

Despite being a dedicated political rights advocate with an indisputable track record, Paul and 176 other individuals were arrested and charged under the state’s organized crime statute for engaging in organized crime and committing or conspiring to commit capital murder. 154 of those arrested have had their cases presented to a grand jury, have been indicted, and are currently awaiting trial.

The significance of Waco to the motorcycle club community cannot be over-stated. What law could possibly allow 177 motorcyclists to be arrested for mere association? A simple analysis of the Texas Organized Crime Statute is key to understanding the prosecutor’s strategy and the legal argument 154 defendants will have to overcome.

Understanding the Texas Organized Crime Statute

The statute underlying the charge that 177 people were engaging in organized criminal activity in Waco on May 17, 2015 is broad and all consuming.

Sec. 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY.

  • A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:

  • murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
  • “Conspires to commit” means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the

Texas Statute says “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.

The conspiracy clause of the statute doesn’t require an individual to actually participate in the commission of the actual violent act at issue. Rather “conspire to commit” requires that a person agree to commit the crime and then that person and one or more persons “perform an overt act in pursuance of the agreement.”

Importantly, this agreement doesn’t have to be tangible and there doesn’t have to be direct proof that an agreement was made. “An agreement constituting conspiring to commit may be inferred from the acts of the parties.”

Court Says Attending the Waco TCOC&I Meeting with any Knowledge of Tension Between Bandidos and Cossacks is an “Agreement To Conspire”

In the case of a motorcyclist present at the Twin Peaks on May 17th, merely being affiliated with an organization labeled a gang that allegedly was involved in the violence that day was considered to be probable cause for an arrest. The statute clearly requires that an agreement be made. So how has this probable cause justification held up to examining trial scrutiny? Where is proof of an agreement?

Remember, the agreement can be inferred from the act of the parties. Consider a married couple (last name English, also members of a club) arrested in Waco for merely being present that challenged the basis for probable cause in their examining trial. After all, the prosecution admits there was no evidence of a direct crime.

But the prosecutor countered, and the court agreed, that it was improbable the couple wasn’t knowledgeable of club tensions in Texas. Yet they still willingly attended a meeting in Waco where conflict between these clubs could easily erupt. Basically, the agreement was inferred from the act of attending the meeting regardless of whether the couple actually participated in any actions that lead to death.

Prosecution’s Theory Is Based On Pure Assumption

Recent alleged tensions between the Bandidos and the Cossacks were widely reported in Texas newspapers and on television news stations preceding Waco. Upholding probable cause based on the assumption of knowledge gained from news reports is specious at best. The court is assuming that everyone pays attention to the news and that everyone attending the event knew the Cossacks would attend the meeting. Remember, the Cossacks were not members of the TCOC&I and had not attended meetings in the past.

Texas Statute Threatens Fundamental 1st Amendment Freedoms

Any statute that allows mere association to be a criminal act is far too broad and overly restrictive of the 1st Amendment. There is no requirement of personal guilt. Assumptions of knowledge and membership in a motorcycle club should not be considered sufficient to establish that an individual conspired to commit capital murder.

Motorcycle clubs, including those clubs labeled organized or criminal gangs by authorities, are 1st Amendment protected associations. Restrictions solely based on association in a motorcycle club 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).

To permit [law enforcement officers] 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, U.S. District Court for the District of NJ, Civil No. 10-6132, Opinion, 9/30/2015, p.28)

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