Local bikers sue Sacramento cops, CHP over helmet harassment

Mark Temple knew the drill: As the patrolman approached, he swung his leg over the dark maroon Harley Davidson, leaning on its kickstand in a parking stall of a McDonald’s in Fair Oaks.

Temple and California Highway Patrol Officer Robert Di Miceli were well acquainted prior to that March 2014 afternoon. According to court documents, Di Miceli had personally stopped and cited Temple at least three times for the same alleged grievance: riding his motorcycle without the proper headgear.

The biker wore what Di Miceli described in court documents as a modified baseball cap, coated with a plastic shell and chin-strapped to his face. The sort-of helmet sported a label from the Ill-Eagle Helmet Company of Oakland (say it out loud).

Because Temple hadn’t obeyed his prior commands to wear what he considered a legal helmet, court documents attest, Di Miceli placed him under arrest.

Almost two years later, biker and cop are fighting this battle on a larger stage, and with significantly more at stake.

Temple belongs to an unincorporated motorcyclist club called B.O.L.T., which stands for “Bikers Of Lesser Tolerance.” To its members, B.O.L.T. is a civil-rights group that views helmet laws as a violation of bikers’ First Amendment rights, but still complies with them—barely. To law enforcement, B.O.L.T. is an anarchic organization made up of “constitutionalists” (a code word usually associated with white anti-government types) that brazenly flouts motorcycle helmet requirements.

Temple and 11 other B.O.L.T. members have sued the CHP, Sacramento County Sheriff’s Department, Rancho Cordova Police Department and their respective municipalities in federal court. The plaintiffs and their attorneys are requesting restraining orders and an unspecified amount in monetary damages. The cops-slash-defendants want the lawsuit dismissed with prejudice.

The case is the most recent salvo in the ongoing feud between an outlaw biker culture that bristles at efforts to tame it, and an establishment that values safety over fashion.

“You’ve got the two extremes,” said James Hernandez, a Sacramento State criminal-justice professor who often testifies for defense attorneys as a gang expert. “Law enforcement is all about conforming. Bikers are about a total rejection of conformity. They give each other purpose.”

In their complaint, plaintiff attorneys allege that Rancho Cordova police improperly cited their 12 clients for wearing inadequate helmet protection while riding in and around the city. (Per an agreement, the sheriff’s department provides police services in Rancho Cordova.)

The conflict basically comes down to a question of profiling.

Plaintiff attorney Gary Gorski says officers were using the helmet law as a cover to stop and harass his clients, one of whom includes a member of the Hells Angels Motorcycle Club. “It’s the oldest trick in the book,” he said. “They use those minor traffic infractions … to find something.”

B.O.L.T. is claiming that the enforcement is unconstitutional, and is seeking an unspecified amount in damages. “We haven’t made any demands yet,” Gorski said, adding that his clients are mostly interested in recouping their own court expenses.

After his arrest, Temple faced nine separate counts—three misdemeanors and six infractions—that resulted in a short trial in November 2014. Temple was acquitted on eight counts, and the last one was dismissed.

Temple had also been ticketed twice by a Rancho Cordova police officer, while he and his co-plaintiffs have appeared numerous times in traffic court.

In the cases that he’s reviewed, Hernandez says it’s not uncommon for law enforcement to target bikers for small things, like helmet or turn-signal violations.

Biker clubs originated after World War II, established by returning combat veterans who couldn’t quite put the pieces of their old lives together in any way that made sense, he says. “The clubs kind of gave some guys a place to go and someone to be,” he explained. “It’s an identity.”

There was a similar boom following the Vietnam War, but not so much after the lengthy campaigns in Iraq and Afghanistan. As a result, the bikers are graying. But that doesn’t mean they’ve mellowed.

Last May, a large summit erupted into a wild shootout between bikers and police at a diner in Waco, Texas. Authorities arrested 177 members of the Bandidos and the Cossacks, according to media reports.

In 2011, a high-ranking member of the Hells Angels was killed during a fatal shootout inside of a casino in Reno, Nev.

“They do get into a lot of trouble. They do cause a lot of problems,” Hernandez said. “It’s a hard life. You’re not drafted into it. You choose it.”

According to online court documents, Temple pleaded guilty to one misdemeanor count of driving under the influence in 1989. Co-plaintiffs John Robert Dalke and Glenn Osborn did the same in 1996 and 2014, respectively. In 1998, co-plaintiff Lyle Duvauchelle pleaded no contest to one misdemeanor count of battery, though he’s had charges dismissed in three other cases, online court records show.

B.O.L.T. advocates for the repeal of helmet-safety laws on the grounds that they infringe on personal freedom, but its members say they nevertheless comply with the law. Gorski describes it as a civil-rights organization with a bad rap from law enforcement. “They make it sound like B.O.L.T. is a big biker gang,” he said.

Both the National Coalition of Motorcyclists and Confederation of Clubs have taken on helmet laws, as well as gang-validation policies.

Hernandez hadn’t heard of B.O.L.T. before. Neither had Pacific McGeorge School of Law professor Michael Vitiello. But Vitiello was familiar with the “constitutionalist” label assigned to some of its members, which refers to a wing of the militia movement that’s composed largely of veterans, libertarians and Second Amendment advocates, and has its own reading of America’s foundational document, according to Vitiello and a Wikipedia entry he recommended. “They offer pretty odd views of how to read the document,” Vitiello said.

It may be the first instance of someone finding inspiration in the 2007 movie Wild Hogs.

Plaintiffs’ 44-page complaint cites the Tim Allen comedy and other more respectable biker movies—including The Wild One, The Great Escape and Easy Rider—to make its case that man was not meant to restrict his cabesa while riding an iron steed. Plaintiffs cap their skim through movie history with a surprisingly detailed description of an exchange in Wild Hogs. The movie earned an impressive $168 million domestically despite a 14 percent rating on Rotten Tomatoes.

Specifically, plaintiffs recount an early scene where Allen’s character ridicules the William H. Macy character for wearing what he describes as a “leather condom.”

Gorski explained the logic behind including movie synopses in a legal argument. “The Supreme Court has always held that rights can be determined by long-standing traditions that permeate society” and are reinforced by the Legislature, he said.

“The helmet law is a relatively new phenomena,” he continued. “It was the insurance lobby that got the law passed.”

But that’s a sideshow to the main event, which is about whether cops are breaking the law by repeatedly pulling over Gorski’s clients.

A sheriff’s department spokesman declined to comment on the ongoing legal matter, and its lawyers didn’t respond to an emailed request for comment. But in a legal declaration supporting the defense’s motion to dismiss, Sheriff Scott Jones wrote that he updated the department’s General Orders and Operations Orders this past August to provide department personnel, including those assigned to Rancho Cordova, with more guidance on how to enforce the state’s mandatory helmet law.

Jones’ declaration doesn’t admit wrongdoing on the part of the department. But the motion does indicate that if officers were improperly citing and arresting the plaintiffs, that practice would stop under the amended policy. (Or, in the parlance of the motion, “voluntary cessation of purported illegal conduct can render the claim moot.”)

The amended sheriff’s policy essentially spells out the interpretation that state courts have adopted when it comes to enforcing the mandatory helmet law in California. State law says motorcyclists and their passengers have to wear helmets that meet federal safety standards. But it puts the onus on the helmet manufacturers to comply with those standards.

In Easyriders Freedom F.I.G.H.T. v. Hannigan—a similar case where CHP officers were ticketing motorcyclists for wearing “nonconforming” helmets—the Ninth Circuit ruled that the bikers had to know their helmets weren’t in compliance with federal standards to be arrested or cited. “In other words,” the defense’s motion acknowledges, “the ticketing officer must have probable cause to believe” the motorcyclist had specific intent to flout the law.

Defense attorneys have responded to the lawsuit by saying the new sheriff’s policy renders the plaintiffs’ complaints moot. Attorneys filed a motion to dismiss the complaint on the grounds that the plaintiffs no longer have any standing, because they’re no longer being injured by the policy they’re complaining about. Both sides are waiting for the judge to rule on the motion, which could happen at any time, Gorski says. A pretrial scheduling conference was rescheduled from this month to April 25.

But Gorski says it’s enforcement practices, not policies, that his clients are suing over. “So a written policy doesn’t mean diddly,” he said. “It’s the enforcement techniques that are not being addressed.”

Long term, Gorski and his clients want to overturn California’s helmet law, which he says should be up to the rider. “I never heard of anyone getting killed by a motorcyclist riding without a helmet,” he said. “I might kill myself [riding without one]. But I can smoke cigarettes and kill myself.”