Video footage obtained by the MPP from the North Florida Council of Clubs confirms that motorcycle profiling is not only widespread in Daytona Beach, but it is also oﬃcial law enforcement policy. In the words of Daytona PD Chief Craig Capri, “If you wear your colors [in Daytona Beach], you’re going to get stopped.” This oﬃcial policy is unconstitutional and exposes the entire Daytona PD to civil liability. This video evidence also justifies a cost-free legislative solution in the form of a simple prohibition against motorcycle profiling combined with relief for victims.
Chief Capri’s Statement Proves Unconstitutional Practices Are Policy
Without any other evidence, Chief Capri’s Statement alone proves that the Daytona PD profiles motorcycle club members as a matter of policy. This oﬃcial policy irrefutably violates the 1st, 4th, and 14th Amendments to the US Constitution.
Federal courts have confirmed that motorcycle club colors are protected by the 1st Amendment. To punish an individual through seizure in the form of a profiling stop anyone “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 162 F.Supp.3d 380 (2015)
Chief Capri’s statement also violates the 14th Amendment because it represents Selective Enforcement of the law. Capri’s statement proves that the strategy to use traﬃc stops as a way to punish those exercising their rights of expression and association is premeditated and selective. In terms of the 4th Amendment, any minor traﬃc pretext used to stop a club member in Daytona Beach should be presumed invalid.
Exposure To Civil Liability
Motorcycle profiling as a matter of policy implicates the entire Daytona PD at an organizational level. Independent of individual oﬃcers and incidents, each profiling stop exposes the Daytona PD as an entity to civil liability. Chief Capri is the highest authority at the Daytona PD and clearly articulates a policy of discrimination and Selective Enforcement. 42 U.S.C. Section 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.“
An Epidemic In Florida
The National Motorcycle Profiling Survey validates the Florida’s profiling epidemic. The 2018 NMPS lists Florida as one of the top motorcycle profiling concerns in America. According to the 2018 NMPS, 65% of Florida survey participants reported being the victims of motorcycle profiling at least once since 2012. These survey statistics are 99% reliable with less than a 2% margin of error. (See NMPS Executive Summary 2018).
Despite promises, Daytona PD has failed to address motorcycle profiling
There is a long history and pattern of evidence establishing that motorcycle profiling is engrained in the Daytona Beach PD. And the Daytona PD has made empty promises when caught with their hands in the cookie jar.
Unfortunately, almost 2 years later, motorcycle profiling is alive and well in Daytona Beach. As articulated, motorcycle profiling is still oﬃcial policy.
A Legislative Solution
Motorcycle profiling is a legitimate national policy discussion. In December, the US Senate unanimously approved S.Res.154 which directs all states to follow the lead of Washington State and Maryland by legislatively addressing and condemning the practice of motorcycle profiling. A prohibition combined with injunctive and actual relief for victims is a simple solution with no fiscal impact. A legislative prohibition would immediately increase exposure to the issue therefore reducing incidents of profiling.
The federal government will not be seizing the Mongols Motorcycle Club’s collective membership marks anytime soon. Judge David Carter issued a short and direct decision today (February 28, 2019) during phase 3 of the US v. Mongols Nation trial in the Federal District Court of Southern California concluding, “The First and Eighth Amendments to the US Constitution prohibit the Government’s request to forfeit the rights associated with the collective symbols. Accordingly, the Court DENIES the requested forfeiture of collective membership marks.”
Although this is a major victory, it is likely not over yet. Using the past as an indicator, the MPP believes that the government will likely appeal Judge Carter’s decision. But this decision gives hope that the constitutional principles at stake will continue to prevail against overzealous prosecutions.
Judge Carter denied the government’s request for the Mongols Nation to forfeit rights associated with the Mongols collective membership marks, including their name and center- patch. This means Judge Carter has set aside the jury’s grant of forfeiture in phase 2 of the trial based on the First and Eighth Amendments.
However, Carter tentatively granted the requested forfeiture of weapons, ammunition, body armor, and specific property seized during the ATF raids pending the filing of an amended request consistent with this order.
Finally, Carter denied the Mongols Nation’s motion for acquittal and motion for a new trial. This means that the jury’s Guilty verdict in phase 1 of the trial (guilt phase) stands. The Mongols Nation as an entity, defined as all patched members of the Mongols Motorcycle Club, has been found guilty under the RICO statute.
Carter then set the Sentencing Hearing for April 24, 2019 at 1:30pm.
Save The Patch- What happens next?
The MPP believes the government will likely appeal Carter’s denial of forfeiture. And if history repeats itself, the ACLU will also step up as they did in Rivera v. Ronnie A. Carter, Acting Director, ATF; et al. Rivera was an un-indicted member of the Mongols MC that filed a lawsuit fighting the government’s previous patch seizure attempt.
Why does the MPP believe that the ACLU will step up? Because they already have by filing an Amicus brief (requested comment by friends of the court) in support of the Mongols preceding phase 3 of the trial, authored by David Loy, Legal Director for the ACLU of San Diego, who also represented Rivera. Loy successfully recovered attorney fees following the decision.
The ACLU specializes in First Amendment law and Loy has repeatedly demonstrated prowess with the Mongols struggle to defend their right to express and associate. Their attention to this case bodes well for motorcycle clubs and civil liberties in general.
The same jury that found the Mongols Nation Guilty of racketeering and conspiracy in the federal RICO case US v. Mongols Nation has also decided that the club should forfeit their patch because there was a nexus between the Mongols MC’s collective membership marks and conspiracy. However, Judge Carter has not issued a forfeiture order until objections based on the First Amendment are decided at the end of February. Even then, this case is a very long way from its final conclusion.
What’s happened so far.
The Mongols Nation, defined as all full patched members of the Mongols Motorcycle Club, was convicted as an entity last month in US v. Mongols Nation on 2 counts under the Racketeering In Corrupt Organizations Act (RICO) for racketeering and conspiracy to engage in racketeering.
On January 11, 2018, the same jury found a suﬃcient nexus between the Mongols membership marks (word mark, center patch mark, collective membership marks) and the RICO conspiracy count to justify forfeiture of the membership marks in the second phase of the trial.
On February 28, 2019 the third and final phase of the trial will resume. Judge Carter made it clear that the trial’s third phase will determine whether the First Amendment overrides the jury’s grant of forfeiture. If Carter agrees with the Federal Government, then the Mongols center-patch, name, and other assets connected to the RICO conspiracy count will be subject to forfeiture. If Carter agrees with the Mongols MC, then the First Amendment will override the jury.
Appeal very likely
Regardless of who wins, the losing party will likely appeal any decisions related to forfeiture of the Mongols membership mark to the 9th Circuit Court of Appeals. If the government wins, similar to what occurred in 2008, then the Mongols MC may have their patches and related property seized in the interim, until and only if they win an appeal.
Any decision in the 9th Circuit Court of Appeals sets precedent for the Western US. Any decision from the 9th Circuit will also likely be appealed to the Supreme Court. If the SCOTUS agrees to review the case the outcome would set precedent for the entire country.
Although it is impossible to determine with certainty what Judge Carter will decide, the MPP is extremely optimistic that the First Amendment liberties of expression and association will reinforce the foundational concept of personal guilt and override a jury of lay citizens that are simply unprepared to engage in complex constitutional analysis.
For the sake of the motorcycle club community and the First Amendment, let us hope the MPP is correct. The very identity of a motorcycle club is the patch that they wear.
For the first time in history, in its latest bid to seize the Mongols Motorcycle Club’s logos and collective membership marks, the federal government has successfully indicted every single full-patched member of a motorcycle club on felony RICO racketeering and conspiracy charges regardless of personal guilt.
So, what happens next? What does this verdict mean for the Mongols MC, other motorcycle clubs in America, and the First Amendment to the US Constitution? There are definitely more questions than answers. But one thing is certain. The fight to Save The Patch is far from over. Now, more than ever, motorcycle clubs have a critical issue to mobilize around in order to preserve and insure the survival of a lifestyle and a culture.
Mongols Nation found guilty.
On December 13th, 2018, the Mongols Nation, defined as all full-patched members of the Mongols Motorcycle Club, was found guilty by a federal district court jury in Southern California under the federal RICO Act of racketeering and conspiring to engage in racketeering, for conducting and participating in the criminal enterprise called the Mongols Gang. The Mongols Gang is defined by the federal government as all patched members, prospects, and associates of the club. The federal government argued that, since 2002, the Mongols Gang has committed crimes ranging from drug dealing to murder at the direction and benefit of the Mongols Nation.
No one goes to jail?
Despite a verdict of guilt, no one will be incarcerated as a result. The crimes cited are historical and, in many cases, resolved. The goal here is diﬀerent. The government maintains that the club’s insignia and patches are an element of the criminal enterprise and a tool of intimidation. If the government gets its way during the sentencing phase, prosecutors argue they will literally be able to take the colors off a Mongol’s back.
The implications for the motorcycle club community at large are obvious. The federal government’s forfeiture strategy could ultimately be applied to other clubs in an attempt to crush the symbolism that defines association in motorcycle clubs. And completely independent of forfeiture, the idea that an entire motorcycle club can be defined as a criminal enterprise regardless of personal guilt also lays the foundation for other severe sentencing options such as excessive fines and asset forfeiture.
Personal guilt and the 1st Amendment.
Beyond immediate impacts to the Mongols MC, the US Attorney’s theory of prosecution compromises important judicial principles such as the doctrine of personal guilt, guilt by association, and the fundamental concepts of First Amendment Association and Expression. Indeed, the prosecution’s theory obliterates long-standing constitutional principles.
To permit the government to impose restrictions on any person “who wears the insignia of [the Mongols], 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.” 1
Independent of collective membership mark issues, and even though no one is going to jail as a result this verdict, what are the potential implications of the Mongols Nation- meaning every member of the Mongols MC- being found guilty of two felony RICO counts? No individual person is specifically named in the indictment. But every member they want to seize property from must be an indicted individual in order to avoid the same judgement that gave the Mongols back their property initially.
Does this mean that every member of the club now has a felony record? Does this mean that members can be denied rights like voting and legal possession of a firearm? Does this mean that the Mongols MC has no 1st Amendment right to associate with one another because all patched members, the Mongols Nation, have been found to all be engaged in a criminal enterprise?
These questions, at least to the MPP, remain unanswered. So much focus has, understandably, been placed on the patch forfeiture issue that many of these questions haven’t yet been considered by those discussing and writing about this case.
The potential impacts are vast. Australia has no 1st Amendment so banning motorcycle club associations does not face the same obstacles as in America. The prosecution’s strategy in this case is, the MPP believes, the government’s most recent blueprint for circumventing the 1st Amendment and crushing motorcycle clubs in America.
What happens now?
The US v. Mongols Nation Trial, despite a guilty verdict, is still a long way from being over. After the first of the year, the jury will reconvene, enter the sentencing phase, and decide whether they agree with the government’s forfeiture requests. And even if the jury grants forfeiture, Judge Carter must then adjudicate the extensive legal and constitutional objections to forfeiture.
Fortunately, even if unsuccessful in every phase of this federal district court trial, the Mongols MC can appeal the decision as they previously did when they lost their patch in district court before overturned on appeal. Unfortunately, there is no guarantee what will happen in the interim if the Mongols marks are seized. If history repeats itself, the Mongols MC will be targeted, harassed, and have property and colors seized by authorities.
Make no mistake. This is NOT just about the Mongols MC. In a very real way, the motorcycle club lifestyle is under heavy attack and survival is not assured. This verdict demonstrates that reality. So, the community must not only continue to fight the good fight- the community must win.
Closing arguments in the US v. Mongols Nation, the trial in which the US government is trying to assert control over the club’s Patch and other trademarks through forfeiture, occurred today (12/03/2018) and according to an anonymous source observing the trial, “the strategy is clear- motorcycle culture and traditions are on trial…Assistant US Attorney Steven Welk’s behavior is nothing less than tragic and embarrassing.”
The government’s goal in this case is to take a motorcycle club’s identity by giving law enforcement the legal right to force members to forfeit their colors and property bearing the Mongols MC marks. The jury now is deliberating on the guilt phase of the trial. Their decision could potentially impact the entire motorcycle club world and also limit the fundamental rights of freedom of expression and association for all Americans.
Welk’s Closing Argument
“US Attorney Welk’s entire argument is framed around the outright mocking of motorcycle culture,” says the trial observer.
“US Attorney Welk directly attacked former Minnesota Governor Jesse Ventura, self- defense Laws, men that stand their ground instead of running like coward, and even the love and dedication women in the motorcycle world show their men.”
“It’s clear- motorcycle culture is on trial. If someone attacks you, the government wants you to retreat like a coward, and call the police. The government is trying to make it part of a crime if bikers don’t conform to their own set of morals and values,” says the trial observer.
“The US Attorney wants to dictate whether a biker ok lady should be allowed to wear a property vest, of her own free will. If not, the Department of Justice will try to make you pay, not only with criminal charges, but with the cruel and unusual punishment of having to listen to US Attorney Welk ramble on about it for hours, while laughing alone to his own jokes…and it’s an awkward, nerve-cringing laugh too. Oh God, please make him stop,” says the observer.
“Finally, at 3:37pm, after US Attorney Welk spent almost the entire day basking in the personal excitement of listening to his own whiny voice, in between his grunty, self- loving laughter (…everyone stood puzzled as to what could possibly be funny), the Department Of Justice finished their closing argument. The jury…sat up in their chairs, and seemed gleeful that the torture had ended.”
Defense Attorney Joseph Yanny’s Closing
According to the trial observer, Yanny’s closing set the burden of proof and gave an inspiring history on the founding fathers and power of the jury.
Yanny has previously conceded that some members had committed crimes, but said those men had been kicked out for violating rules against bringing trouble down on the the club. Yanny has also maintained that in some violent incidents Mongols simply acted in self-defense or in defense of others. 1
Who more effectively made their argument? Soon, the decision will be in the hands of the 12 people whos opinion matters the most in this phase of the case.
First Amendment Implications
Predictably the government’s argument is based around a stereotype crafted by making generalizations about motorcycle club culture based on the actions of the few. In this case, the actions of individuals that have long ago been prosecuted. In fact, if the jury brings back a verdict of guilty no one will go to jail. But they would lose their right to express their association to the Mongols MC. This violates the fundamental concepts of personal guilt and freedom of expression.
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] to impose restrictions on any person “who wears the insignia of [a 1% 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
The outcome of this trial is likely a looking-glass into the future of the government’s one- sided war against motorcycle clubs. Australia, Europe, and Canada have all focused on various strategies to make motorcycle club membership illegal. The MPP believes that trademark forfeiture is American law enforcement’s attempt to achieve the same outcome. None of those countries have a 1st Amendment. If the government succeeds in this case, our fundamental understanding of the protections the 1st Amendment provides will be completely rewritten.
Of course, this case is in a district court. Precedent will not be created until the decision is ultimately appealed and decided by a higher court. Regardless, even success at the district court level will embolden the US Attorney’s office to employ this strategy against other motorcycle clubs and ultimately other organizations.
1courthousenews.com, Courthouse News Service, Feds Pull Out All the Stops Against Mongols Biker Gang, November 1, 2018
As the trial for the Mongols Motorcycle Club patch that began with jury selection on October 30th, 2018 continues, 1 the far-reaching implications cannot be overstated both in terms of potential impacts on motorcycle clubs in America, and the First Amendment to the US Constitution. A trial observer that wishes to remain anonymous has reached out to the Motorcycle Profiling Project to report that attorney Joseph Yanny is waging a vigorous defense on behalf of the club. Specifically, former Minnesota Governor and Mongols MC member Jesse Ventura, while on the stand for the defense on November 28th, 2 left US Attorney Welk “visibly annoyed, shifting in his chair, and fake-smiling with a beat red face,” states the observer.
Jesse Ventura Outclasses US Attorney Welk?
US Attorney Welk first asked former Governor and longtime Mongols member Jesse Ventura a question about the Constitution. “Mr. Ventura strongly and boldly responded: “I believe this trial is ridiculous because of the First Amendment.” Shocked, the US Attorney stumbled on a motion to strike the answer, and the judge denied it. The answer stood,” reports the trial observer.
Sounds like Mr. Ventura believes what most people with this case believe, and it sounds like he has a good grasp on 1st Amendment protected expression and association. And by the motion not being stricken, maybe this indicates that Judge Carter agrees?
“Trying to do damage control, the US Attorney asked a follow-up question about fairness by law enforcement, and Governor [Ventura] gave a brilliant and eloquent speech, using a clear example of tyranny from those oﬃcers that abuse their power. Everyone in the courtroom then sat reverently, pondering in silence while the US Attorney bustled to figure out how to change the subject. So powerful,” according to the trial observer.
And how did US Attorney Welk respond? According to the trial observer, “the US Attorney is now sitting red-faced, and looking like an embarrassed kid that was just spanked in front of his friends.”
We can now all only hope that the jury has the same perception. A former Governor, MC member, and WWE wrestler has the potential to be persuasive to a jury. But when he can also body slam the prosecutor oﬀ the turnbuckle intellectually as well, he has the potential to be a game changer.
Save The Patch!
1 Mercury News, Notorious Mongols Motorcycle Club fighting U.S. government to keep its vest patch, November 1, 2018
2 Redlands Daily Facts, Former Minnesota Gov. Jesse Ventura defends Mongols Motorcycle Club in federal court in Orange County, November 28, 2018
One of the long-term implications of the Waco biker massacre that occurred on May 17, 2015 is the continuing erosion of the rights base of motorcycle clubs in Texas. Over 3 years after 9 people were killed at a Twin Peaks restaurant in Waco, and nearly 200 individuals were arrested and given $1-$2 million-dollar punitive bonds, charges have been dropped against all but 24 persons, and recent reports indicate the high likelihood that most of those will be dismissed as well.
Despite these dismissals, motorcycle clubs are still being profiled and harassed while participating in Constitutionally protected political and charitable gatherings. And at ground zero, members of motorcycle clubs in Texas have endured extensive harassment without cause.
Motorcycle clubs participating in an organization called the United Clubs of Waco (UCoW), recently attended a Copperas Cove City Council meeting to report to council members the extensive harassment and profiling that occurred at a recent charitable event to raise funds for Veterans sponsored by the UCoW. Charitable events are explicitly protected by the First Amendment to the US Constitution and actions impacting participation or participants in such events are prohibited. Violations also expose law enforcement, and in turn the state of Texas, to exorbitant civil liability claims, such as the hundreds of millions in claims currently pending related to Twin Peaks.
Legislative action prohibiting the practice of motorcycle profiling, particularly following the Twin Peaks incident, is an empirically a simple solution that reduces incidents of profiling with zero negative fiscal impact.
According to local news media reports, the chairman of the United Clubs of Waco, Frenchy Brea, was joined by more than 20 fellow motorcyclists on November 20th at the regularly scheduled Copperas Cove City Council meeting. 1
The Copperas Cove Silverbacks, one of the 70 clubs that belong to the United Clubs of Waco and the Killeen nonprofit We Leave No One Behind, reported to the council that the Copperas Cove Police Department had an over-the-top presence that dissuaded residents from attending a bike washing fundraiser in support of veterans Sept. 17 at the nightclub TrackSide on Joe’s Road off U.S. Business Highway 190.
The UCoW Chairman told the Copperas Cove City Council, mayor and interim city manager:
“Your police department is attempting to profile, harass and intimidate motorcycle clubs,”
“Squad cars lined around the property, and eight police officers and several Department of Public Safety officers could be seen inside the club.”
“They staged their vehicles just off the property and created the appearance that something was going on at this establishment, causing several groups who were planning on attending this event to turn around. This, in turn, took money away from the fundraiser.”
Veteran’s Charity Echoes Claims of Motorcycle Profiling
James “Righteous” Norwood, president of We Leave No One Behind, confirmed many of the UCoW’s claims. We Leave No One Behind works with local police to connect veterans in crisis to mental health resources. Norwood, an active-duty major in the Army, reports:
“There were things that were done and decisions that were made that negatively affected the motorcycle club’s ability to sponsor our charity.”
“We provide person-to-person contact continually … the prejudice that was used against the individuals in the motorcycle club, who were doing something to benefit the community on a whole — is that a good thing to do? Should we allow preconceptions to affect our decision-making process?”
Charitable Events Constitutionally Protected
The actions of the Copperas Cove Police Department are in violation of the basic principles of the First Amendment. Charitable events are considered expressive conduct. If, as alleged, police intimidation chilled participation in a charitable fundraiser for Veterans, then a violation of the First Amendment has occurred.
Supreme Court precedent clearly establishes that charitable appeals for funds…are within the protection of the First Amendment.”2 Sponsoring and supporting charitable community events, like the solicitation of funds, “is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues.” Id.
When motorcyclists are harassed while involved in a charitable fundraising event federal courts have said that “a reasonable jury could find that they were entitled to some constitutional protection based on the specific activity they were engaged in,” and an individual’s association with a motorcycle club “for that purpose was also protected by the First Amendment.” 3
The Need for Legislative Protection
The harassment being experienced by members of the UCoW is a microcosm of the larger motorcycle profiling epidemic enveloping nearly the entire state of Texas. Independent of the victims being damaged by civil liberty violations, these incidents also expose law enforcement and government entities to massive financial liability. Statistics validate the epidemic. The National Motorcycle Profiling Survey 2017 further exposes widespread targeting of charitable and political events.
Fortunately, a simple and cost-free legislative solution exists. Washington State, the first state to adopt legislation against the practice, is the only state in America that has recorded a reduction in motorcycle profiling incidents since 2012. 4 An explicit prohibition against motorcycle profiling combined with a mechanism of relief for victims of profiling would substantially reduce these incidents from occurring in the first place.
Sources and Citations
1 kdhnews.com, Bike club, nonprofit say Cove police hurt fundraiser for veterans, November 25, 2018
2 Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73
3 Coles v. Carlini 162 F.Supp.3d 380 (2015)
4 see MPP’s National Motorcycle Profiling Surveys 2016, 2017, & 2018
The National Council Of Clubs (NCOC), dedicated to defending the political, legislative and legal interests of motorcyclists across America, joins those voicing disgust with the videotaped actions of undercover and uniformed Pittsburgh Police officers inside Kopy’s bar on October 12th, 2018, which resulted in the arrests of Pagans Motorcycle Club members Frank Deluca, 36; Michael Zokaites, 38; Erik Heitzenrater, 28; and Bruce Thomas, 61. Video released by numerous news outlets shows officers brutally beating one of these members well past the point of being subdued before being arrested and charged with aggravated assault, conspiracy and riot as a result of the fight1. On November 14th, all charges were dropped against all four defendants. Furthermore, the FBI announced an on-going investigation into the incident.2
In the short-term, the officers involved should have their employment terminated and all officers involved should be held civilly and criminally liable. In the long-term, legislative solutions prohibiting discrimination and profiling would protect against civil liberty violations, and therefore exposure to civil liability, by reducing the probability of such incidents occurring in the first place.
The NCOC also supports the bar owner’s constitutional right to pursue an occupation, which was infringed by officers when the owner was told that he must ban motorcycle club colors in his bar following the brawl. Agents of the government such as law enforcement officers are also constitutionally prohibited from coercing or pressuring a private establishment to discriminate.
A Story of Excessive Force
There are differing accounts of what started the brawl. The bar owner, for example, reports that the police were the agitators and aggressors. But regardless of what started the fight, punching a completely defenseless Frank Deluca in the head and face 23 times while his arms were being held and his hair pulled back, as irrefutably shown in video, is unconstitutional use of excessive force even if there was probable cause for an arrest, which, according to defense attorneys, eyewitness accounts to local news media, and the recent dismissals, is highly improbable.
“Without a doubt, the most controversial issue in American policing is the use of force by police officers. On too many occasions, we have seen newspaper headlines reporting that an individual has been brutalized or, worse yet, killed by the police. The consequences of excessive and deadly force have been severe, affecting both police organizations and the communities they serve.” 3 The events of October 12th are a perfect demonstration.
Equal Access and Threatening Kopy’s
Independent of the excessive force issues, the Pittsburgh undercover officers involved continued their streak of constitutional violations after the beatings and arrests. As published by Channel 11 News/WPXL on October 24th, 2018:
The owner of Kopy’s, who was doused with pepper spray, said after the fight, a police lieutenant blamed him.
“The lieutenant stated that this was my fault for letting them in with jackets. I responded the bikers did not cause the fight, and the lieutenant began screaming to me about the bikers being dangerous and referenced that they had guns and that someone could have been shot or killed.”
The owner said the lieutenant also told him to post a dress code and that he doesn’t want to see any bikers in his bar.
It is settled law that agents of the government are barred from acts of discrimination. Wearing motorcycle club colors expressing associations falls “squarely within the protective umbrella of the First Amendment…any action to punish or deter such speech…is categorically prohibited by the Constitution.” 4
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.” See 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). The constitutional right infringed in cases of excessive and unreasonable police conduct, like demands that a private establishment prohibit motorcycle club colors, is “the right to pursue an occupation.” Benigni v. City of Hemet, 879 F.2d 473 (9th Cir. 1989)
What Should Be Done?
The actions of the officers at Kopy’s bar were simply egregious and inexcusable. Aside from the direct harm caused by their conduct, these officers have exposed the department, government, and taxpayers to huge civil liability damage for irrefutable violations of the constitution.
In the short-term, the NCOC believes that all officers involved should ultimately have their employment terminated when allegations of excessive force or coercion are confirmed through investigation and due process. The NCOC supports the efforts of those violated to pursue relief through civil rights claims.
Longer-term, the NCOC believes that legislative solutions to address the issue of motorcycle profiling, combined with basic training and education related to current constitutional prohibitions against government discrimination, would reduce similar incidents of profiling and discrimination going forward.
Incident Again Proves Video Evidence is Key
This incident is further confirmation that video is the best weapon available in the fight against motorcycle profiling and discrimination. Without video, law enforcement’s version of events would likely go unchecked and 4 individuals would still be facing aggravated assault and riot charges.
Indeed, video has been the key factor in many motorcycle profiling successes. Video is incontrovertible in many cases. In Washington State, video of state troopers crawling through the bushes on the grounds of the Capitol during biker day at the Capitol convinced legislators that motorcycle profiling had followed us to the very steps of the Capitol. In Maryland, the other state with a law addressing the issue, video obtained through a public information request proved that the state police participated in a mass profiling stop, despite complete denial.
Video is often critical in individual incidents of profiling as well. In Kansas City, an off duty officer moonlighting as a security guard was caught threatening a 1% club member with arrest for trespassing because the Quick Trip didn’t allow 1%’ers on their property. Video of the …read more
If this seems outrageous, your instincts are correct. The MPP, after conducting cursory research on 46.02, has identified precedent, Ex Parte Flores 483 SW 3d 632 (2015), that clearly articulates how law enforcement is currently misinterpreting and misapplying Texas statute in violation of the basic rules of evidence and the US Constitutional.
Law Enforcement and prosecutors should immediately cease and desist misapplying Texas statute. Applying Texas Penal Code 46.02 to members of clubs with no criminal records, and even LTC’s, would chill 1st Amendment Association and the doctrine of personal guilt, “a cornerstone of American Jurisprudence.”
Summary of Ex Parte Flores
Ex Parte Flores, decided by the Texas 14th Court of Appeals in November, 2015, completely discredits law enforcement’s current application of 46.02 to any member of a club labeled a criminal street gang by law enforcement, found to be in possession of a weapon.
The plain language of 46.02 requires that the defendant must be one of the three or more individuals continuously or regularly associating in the commission of criminal activities. To apply 46.02 to any member of the Bandidos, for example, relies on an incorrect construction of the statute that would be constitutionally arbitrary and overbroad.
Law Enforcement and Prosecutors are Ignoring Caselaw
Law enforcement and prosecutor’s “arguments that a defendant need not be involved in or even aware of the gang’s criminal activities rely on [an] incorrect construction of the statute. The term “member” in section 46.02(a-1)(2)(C) derives its content from the definition of “criminal street gang” contained in section 71.01(d). Read together, these provisions indicate that a gang “member” must be one of the three or more persons who continuously or regularly associate in the commission of criminal activities.” (Ex Parte Flores at 16)
Ex Parte Flores explains that all evidence of criminal activity not directly connected to the defendant must be excluded under Rule 403. Moreover, 46.02 does NOT authorize law enforcement’s currently unfettered, arbitrary, and discriminatory application of 46.02 being applied to individuals for mere membership in what law enforcement labels a criminal street gang.
The task to identify whether an individual continuously or regularly associates in the commission of criminal activity is well within normal law enforcement duties during a traffic stop. No indication of a criminal record, no outstanding warrants, or the possession of a LTC are clear indications that an individual is not continuously or regularly associating in the commission of criminal activity.
Finally, applying 46.02 solely based on membership in a motorcycle club violates the 1st Amendment and the doctrine of personal guilt. There is “no evidence that by merely wearing [1%] “colors,” an individual is “involved in or associated with the alleged violent or criminal activity of other [1%] 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 to arrest, and prosecutors to charge, any person “who wears the insignia of the [1% 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)
Why Did a Jury Say it’s Illegal For a Bandido to Posses a Gun?
The recent conviction of Bandido DT in El Paso was unjust and raises some serious questions. The requirement of personal guilt should have been explained to the jury. Why would every attorney involved not be aware of Ex Parte Flores? Why would evidence of crimes not directly connected to DT be entered into evidence considering Rule 403 is a basic rule of evidence?
The MPP has every hope that DT will be successful on appeal and that this recent trend will come to an end. Or at the very least, that those continuing to falsely arrest and maliciously prosecute individuals based on a misinterpretation and application of statute will be held responsible.
Law Enforcement and Prosecutors Should Cease And Desist
All law enforcement agents, law enforcement agencies, and prosecutors should immediately cease and desist applying 46.02 to individuals solely based on membership in a motorcycle club that authorities label a criminal street gang. Probable cause for arrest under 46.02 requires that an individual not only express association, but also be directly involved in the continuous or ongoing criminal activity of the organization.
Absent other specific evidence, a clean criminal history check or a valid LTC are factors that can be established during a traffic stop that evaporate the probable cause necessary to establish that an individual is a member of a criminal street gang by statute, and hence subject to arrest and prosecution under Texas Penal Code Section 46.02 which prohibits possession of weapons by members of criminal street gangs.
There is simply no excuse for prosecutors in these jurisdictions. A basic understanding of the rules of evidence reveals that any criminal activity not directly connected to the defendant has no probative value, is unduly prejudicial, and should properly be excluded under Rule 403, specifically in 46.02 proceedings.
Arrests of motorcycle club members with no criminal records for illegal possession of weapons in El …read more
A jury in El Paso, Texas decided Friday that it is illegal for a member of the Bandidos Motorcycle Club to possess a weapon in the state. DT, a member of the BMC in El Paso, was arrested October 16th, 2017 on his way to work for Unlawful Carrying Of A Weapon. Although it was conceded by all sides that DT had no felony record and was not a convicted criminal, the prosecution argued, and the jury agreed, that merely being a member of the Bandidos was enough to consider an individual a gang member prohibited from exercising their 2nd Amendment rights.
DT’s case is just one in a long list of similar incidents. The MPP believes that successful convictions such as DT’s further embolden law enforcement across Texas and other states to continue their campaign to disarm the Bandidos and other motorcycle clubs and their members based solely on association.
DT’s case represents only one case in a lower court. The legality of motorcycle club members in Texas possessing weapons will ultimately depend upon successful judicial opinions at the court of appeals level or higher, setting precedent against what the MPP believes is an unconstitutional application of Texas law.
The attempt to disarm individuals because they belong to an organization in which other members have committed crimes, regardless of personal guilt, is an extremely dangerous slippery slope that could ultimately impact many sectors of society far beyond motorcycle clubs.
DT was on his way to work last October when he was pulled over for a traffic infraction. When the El Paso officer asked whether he was carrying a weapon, he indicated he was legally transporting an unloaded firearm. DT does ranch work, and ranchers often carry firearms to defend against predators and snakes threatening livestock.
DT was informed that it was illegal for a member of the Bandidos to possess a weapon in the state of Texas because they were considered a criminal street gang. He was charged under Texas Penal Code Sec. 46.02, UNLAWFUL CARRYING WEAPONS. He paid a $1,500 bond and was released.
Until this incident, DT had no criminal record – other than a DUI a decade ago. He is a combat veteran, serving in the Army, 1st Calvary Division for 5&1/2 years, 2 of them in Iraq.
DT went to trial last Thursday, September 20th. The argument on both sides was fairly straightforward. He explained to the MPP, “The state is trying to just simply say me being a member of the Bandidos MC is enough to justify me being a gang member. My defense is saying they have to show me specifically [involved] in acts to prove me…a gang member.”
The next day, the jury deliberated and agreed with the prosecution. In this jury’s opinion, being a Bandido is enough to prohibit an individual from legally possessing a weapon in the state of Texas, even if the individual has no criminal record.
What Does DT’s Case Mean For Everyone Else?
Independent of the personal impact on DT, his case has implications for others. His trial does not set precedent for others because it’s a lower court decision. If the case is appealed, however, the outcome of that trial would set precedent for others in the El Paso court’s jurisdiction.
But even if this trial doesn’t set precedent, this conviction is likely to embolden law enforcement to further embrace this tactic in El Paso and across the state of Texas. As reported directly to the MPP from victims of blatant and obvious mass profiling, the same day the jury in El Paso handed down a guilty verdict, members of another 1% club having a gathering at the Stockyards in Fort Worth were warned that it was illegal for members of motorcycle clubs to possess weapons in Texas even if those members held valid CWP’s.
Why The MPP Thinks Texas Statute is Unconstitutional “As Applied.”
This statute as it is being applied violates fundamental 1st Amendment liberties and the doctrine of personal guilt. 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)
But that is exactly what is happening in Texas. The idea that the government can impose a restriction such as prohibiting the right to posses a weapon in a shall issue state, based solely on association, is completely inconsistent with constitutional principles.
Properly applied, wouldn’t the state have to show that an individual specifically participated in the criminal acts referenced? This interpretation of Texas Penal Code Sec. 46.02 would both preserve the 1st Amendment right to associate and the doctrine of personal guilt.
Why This Could Mean The End of Clubs As We Know Them?
If this trend continues in Texas, California, and New York, how long before it spreads to other states? If gang laws themselves are any indication, the tactic could spread coast- to-coast.
According to the National Motorcycle Profiling Survey 2017, 99%+ of MC members strongly support the 2nd Amendment and only 2% of the members of even 1% clubs have a felony record. How many individuals that currently have a legal right to posses weapons would knowingly sign away those rights to join a motorcycle club?
And the potential implications extend far beyond the MC community. <a class="colorbox" href="http://www.motorcycleprofilingproject.com/travel-advisory-texas/" …read more