The Implications on Biker Advocacy of NTSB's Specific Helmet Law Recommendations to the States. Constitutional Court Challenge May be The Only Remaining Viable Road to Freedom. It is Certainly the Only Freedom Road with An End Game.

To all those still absorbing the significance of the NTSB helmet law recommendations, please consider the implications, and how biker rights advocacy nationwide must change now to gear up to challenge the helmet laws in the courts. This may be the only long term solution to obtain freedom, particular now given the NTSB recommendations, and it is certainly the only solution with an "end game."

I think that many have begun to accurately sense the seriousness of the NTSB's specific recommendations to the states, to enact helmet laws or change their helmet laws to require universal use of headgear compliant with FMVSS 218, as reflected in the posts following Bruce's announcement of the recommendations below. There are a number of serious ramifications of the NTSB recommendations. One is that this will make it much more difficult for our good biker rights legislative lobbyists to resist newly proposed helmet legislation in the free states specifically identified in the recommendations, and it will create another very substantial hurdle to overturning current state helmet legislation in lid states.

I am in the process of preparing two Freedom of Information Act requests for all documents, memoranda and other writings in the possession or control of NTSB and NHTSA to attempt to determine whether the NTSB's entry into motorcycle safety last September, the farcical NTSB agenda for the September 12, 2006 "Motorcycle Safety" Forum, the absurd hearings in which NTSB chose the "experts" who would testify at the outset of the hearings and thus define the "science" upon which all that followed would be measured, and now these resulting state by state recommendations to enact uniform state laws to requiring the use of FMVSS 218 compliant helmets, was all contrived as an end-run to get around the prohibition that has heretofore restrained NHTSA from lobbying the states for helmet laws.

If, as I suspect, the NTSB's entry into motorcycle safety last year, leading to these specific recommendations to the states, was intended to get around the prohibition on lobbying, or otherwise a violation of the prohibition, I suspect this might contribute to the efforts, such as those recommended by Bruce below, to have Rosenker impeached. It is conceivable that this lead to the withdrawal of the recommendations. But this is probably overoptimistic on my part. And I'm concerned that the likelihood is that much of the damage has already been done. It's what trial lawyers call "unringing the bell." It can't be done. Once we have these types of highly specific recommendations made by a federal government agency with jurisdiction over "safety," recommendations that most legislators unfortunately will consider "reliable," you can bet it will be urged with substantial effect by helmet proponent legislators and insurance and medical lobbyists in every state.

I discussed this with Richard Quigley last evening, and then Quig called me back at 4:30 this morning. I've got to stop here to tell you: Quig worked through the night on this while literally on his death bed. He will not live more than another few more days. And I would hope that folks take note that this is the level of commitment that Quig has brought to the cause of freedom for the past 15 years, freedom for you now, not for him, and right through to his dying breath. This is also the type of commitment that is going to be essential right now, from bikers nationwide, if bikers want to ever ride free again.

What Quig and I discussed was that now more than at any time before, the writing is on the wall for all biker advocates to see clearly. The only way we will ever find enduring freedom will be through challenging the constitutionality of these proposed helmet laws in the courts.

First I suggest that to underestimate the implications of the NTSB recommendations will be a serious mistake by our bikers rights advocates both in free states and in lid states. There has been a very tight balance in the weight brought to the helmet battle by our good brothers in ABATE, MRF and the other state MROs on the one hand, and the insurance industry and the medical lobby on the other, with the federal government taking the sideline. Now, the federal government has weighed in, and weighed in powerfully, with these very specific recommendations, pointing the finger specifically at the states which the NTSB insists must change their laws to achieve uniform universal FMVSS 218 helmet laws. In many lid states even before the NTSB recommendations many biker right advocates have expressed disillusion that the likelihood of overturning the helmet laws is dim. In free states, it has been a constant battle, year to year, tooth and nail to retain freedom of choice. Many on this Forum have expressed their frustration with this endless helmet law legislative battle with no end ever in sight. Indeed, there could never be any end in sight, as it has never been suggested that the insurance industry or medical lobbyists, or the helmet proponent legislators would ever give up.

I am not suggesting that the good biker advocates who have devoted their endless good energy to the battle have done so in vain. They have preserved our freedom where freedom could be preserved, fought for freedom where they believed that freedom could be obtained, and maintained freedom, to the extent that we have enjoyed it, only by their good and strong commitment. I am also not suggesting that the legislative fight be abandoned, indeed, I would hope that their commitment may be redoubled, because that will be what it will take to hold out hope that freedom might be maintained in some states even with this new weight brought to bare on the legislatures by the NTSB recommendations. What I want to urge is that biker rights advocates in every state must now gear up to fight this fight on a new front of court challenge too, because it is the only front that has the prospect ultimately seize freedom as a matter of constitutional principle, unassailable by insurance industry money, medical lobbyists, politically motivated government bureaucrats and paternalistic politicians.

The constitutional challenge is a long and difficult road. But it has an "end game," unlike the legislative helmet law wars, and now it may be the only game in town that holds out any realistic prospect that we will ever ultimately gain enduring freedom from state government oppression. I say it is a long road, but it needn't be such a long road as the road it has been in California, by which nail after nail has been hammered into the helmet law, the last of which we expect to bring to trial in April 2008. This coffin for the California helmet law has been built entirely on constitutional principle, each plank fashioned by biker rights advocates, each nail hammered home by our California Courts of Appeals.

And this helmet law that has been serially unraveled in California is precisely the same law that the NTSB is urging that all states now adopt. That's right. And the constitutional infirmity of the California helmet law indeed derives specifically from its incorporation of FMVSS 218.

I will set forth the history of the court challenges and the California Court of Appeals decisions which have rendered the California helmet law unenforceable, and which we expect as soon as April of next year will result in freedom for California riders. This odyssey of constitutional challenge after constitutional challenge, whittling the helmet law down to a piece of legislation that is only enforced illegally now by the California Highway Patrol, in violation of the achieved constitutional decisions and a federal injunction effectively tying the California Highway Patrol's hands, was an odyssey that began in 1993. But it needn't be such a lengthy road for biker advocates willing to carry the constitution into the courts of other states.

True enough, the constitutional challenge in every other state but California will call on the state courts to determine the constitutionality of the state helmet law as an "issue of first impression," meaning an issue that has yet to be determined by the appellate courts of the state. But soon enough, if BOLT of California has its way in the litigation set for trial in April, on the same evidentiary record that resulted in Judge Barton's Superior Court decision that the California helmet law was unconstitutional as applied, and assuming that the California Court of Appeals will again side with us on the constitutional arguments, as the United States Court of Appeals for the Ninth Circuit has also, biker advocates in other states will soon have the ability to use our work to overcome the helmet laws of every other state.

When state courts "face issues of first impression," meaning issues that the appellate courts of the particular state have yet to decide, they always look to how the courts of other states have resolved the issues. In cases of first impression, indeed, it is expected that the lawyers will brief the judges on how the other states which have faced the issues have decided them. Already, any lawyer urging the constitutional challenge in any state that already has or hereafter adopts the kind of helmet statute recommended by NTSB will be able to cite to the heretofore achieved California Court of Appeals constitutional decisions which have already rendered the California helmet law unenforceable. Yes, the law is still enforced in California, but now is enforced illegally, in violation of our Court of Appeals constitutional decisions, as has also explicitly recognized by the United States Court of Appeals for the Ninth Circuit, and more recently by the Judge Barton, of the California Superior Court for the County of Santa Cruz, in his highly reasoned opinion finding the California helmet law unconstitutional "as applied" by the California Highway Patrol.

But the final nail in the coffin of the same law NTSB now recommends has yet to be achieved. And we need the help of bikers rights advocates nationwide in order to assure that we can put on the very best trial in April 2008. The case seeks declaratory relief and a statewide injunction against the CHP based on the same evidence of the CHP's illegal policies and enforcement practices that Quig presented in the case which led Judge Barton to declare the California helmet law unconstitutional as applied. That decision can't be cited in other California courts or in the courts of other states because it is trial court decision, not a published court of appeals decision. As will be described below, the Attorney General strategically chose not to appeal Judge Barton's constitutional decision. And Quig couldn't appeal a decision that went in his favor, obviously. For that reason, the pending declaratory relief and injunction proceeding was filed. Either way that case turns out, it will go up on appeal. The Attorney General can't let stand a decision that declares the helmet law unconstitutional and enjoins the CHP from further enforcement of the law. And if the trial court rules in favor of the CHP, now the BOLT member plaintiffs will have opportunity take the case up to the California appellate courts. And that is the decision which we hope biker advocates in other states will be able to use to much more quickly move to the same result without having to go through the 15 year battle that Quig and the other BOLT members have fought here.

I need to insert this pitch here, before demonstrating the legitimacy of the constitutional challenge, so that bikers rights advocates nationwide will know that they are empowered right now to significantly aid in assuring that a good constitutional decision, finally unraveling the California helmet law is obtained in the injunction/declaratory relief case so that advocates in other states will then be able to use this case law to challenge these same NTSB recommended laws nationwide. BOLT of California is an organization with very highly committed members, but we are very few in number. Our members have laid the foundation for these Court challenges by obtaining hundreds of helmet tickets and fighting them in the Courts. Quig, is one who you know, and Steve Bianco, the truck driver, responsible for obtaining the controlling California law, Bianco v. CHP, without the aid of a lawyer, is another. The others are less well known nationally, but well known here in California. But we do not have a war chest. The attorney currently handling the injunction/declaratory relief case hasn't been paid in months. So we need outside help in terms of funding this "last nail" in the coffin of the California helmet law. ABATE of California has set up a fund for those concerned with freedom nationally to contribute specifically to pay the attorneys fees and trial costs in this specific litigation. I would urge all those who read this to send a check, and then go to your state and local MRO chapter and urge that the hat be passed around NOW with members asked to dig deep into their pockets, for all of the reasons set forth above and below. The address of the ABATE of California fund set up specifically to fund this pending injunction/declaratory relief action is: Judicial Fund, c/o Abate of California,
10240 Seventh Avenue, Hesperia, CA 92345. All donations received will go directly to pay for this specific litigation, and for no other purpose.

Now, what I would need to do is to sell you on the idea that constitutional challenges to helmet laws such as have been recommended by NTSB are valid, and can be used effectively both to render helmet laws unenforceable, and ultimately to void them.

Again, please accept that California has precisely the law that NTSB is recommending for all the states. It is an unnecessarily convoluted statute, but it requires that all California bikers wear helmets compliant with FMVSS 218. The legal challenge in California began with Buhl v. Hannigan, 16 Cal. App. 4th 1620, 20 Cal. Rptr. 2d 740 (1993) in which it was contended that the California helmet statute was unconstitutionally vague as written, inter alia, because it required bikers to comply with this FMVSS 218 technical helmet performance standard that no reasonably intelligent person could possibly understand, and required law enforcement to apply the same FMVSS 218 standard which it was alleged no law enforcement office could possibly understand.

Constitutional "due process" requires that laws be comprehensible to the ordinarily intelligent person, so that folks can in good faith conform their behavior to comply with the law. Due process also requires that laws not be "vague" to avoid arbitrary and discriminatory police enforcement practices. Vague laws violate both the due process clauses of the state constitutions and the due process clause of the United States Constitution.

Consider the following quick summary of why vague laws violate due process. This is an excerpt from a United States Supreme Court opinion, in Grayned v. City of Rockford, 408 U.S. 104, 108 (1971).

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory application."

The California Court of Appeals in the Buhl v. Hannigan case, supra, agreed that to require the helmet "consumer," meaning the biker, or for that matter, the law enforcement officer, to understand and apply FMVSS 218 in determining whether the use of any particular helmet complied with the law was "absurd." This is the first nail in the coffin of any law that requires the motorcyclist to wear a helmet compliant with FMVSS 218. The Court of Appeals didn't void the law as unconstitutionally vague as written, rather it reinterpreted the law to require that bikers wear helmets "certified" as compliant with FMVSS 218, meaning helmets with "DOT" stickers on the back, importantly, making plain in the opinion that the "fabrication" of any helmet was not a matter that the biker should be required to consider, nor that law enforcement may be permitted to consider in determining to write a helmet citation.

The California Court of Appeals decision in Buhl, supra, in relevant part reads:

"Appellants contend the helmet law is void for vagueness under the federal and state constitutions in that it 'prescribes a standard which cannot be understood by persons of ordinary intelligence.' They assert that neither motorcyclists nor police officers can tell whether a particular helmet complies. (Para) Their first claim in this respect is that the law is too specific: The incorporated federal safety standards are so technical one must be a physicist or an engineer testing the product in a laboratory to ascertain whether a particular helmet complies. But underlying this argument is the proposition that the statute requires the consumer or enforcement officer to decide if the helmet is properly fabricated, and such a reading of section 27803 is absurd. When sections 27802 and 27803 are harmonized, as they must be (citation omitted), it is clear the law requires only that the consumer wear a helmet bearing a certification of compliance."

This reinterpretation of the statute to require only that the biker wear a helmet with a DOT sticker, and that law enforcement was prohibited to consider helmet fabrication was the first step on the road to defeat the California helmet law. It was then followed then by Bianco v. CHP, 24 Cal. App. 4th 1113, 29 Cal. Rptr 2d711 (1994). Again reinterpreting the California helmet law so as not to be void for vagueness, the Courts of Appeals in Bianco, supra, held that if the headgear is labeled with the "DOT" symbol, a legal presumption is raised that the helmet complies with FMVSS 218, and the Court held that the presumption of compliance can only be rebutted if (1) the helmet has been recalled by the manufacturer for noncompliance with FMVSS 218, or if there has been determination by NHTSA or other qualified independent laboratory that the helmet does not comply with FMVSS 218; AND (2) it is shown that the motorcyclist had "actual knowledge" that the manufacturer recalled the helmet or that there had been determination of the helmet's noncompliance by NHTSA or an independent laboratory.

Please note that the Bianco case now inserts the essential "scienter" element into its interpretation of the helmet law, as necessary to conform it to constitutional principles. Specifically, if any piece of headgear, no matter how it might be fabricated or "look," has the letters "DOT" on the back, law enforcement can't legally write a helmet ticket unless the officer knows the helmet has been recalled or that NHTSA had tested that model helmet and determined that it fails to comply with FMVSS 218, AND, where the police officer determines that biker had "actual knowledge" of the recall or that NHTSA had determined his headgear to be noncompliant.

Well, the Bianco decision should have led the CHP to just give up right there, because even if the CHP could educate its officers to recognize helmets which had been recalled or determined by NHTSA to be noncompliant with FMVSS 218, they sure as hell had to figure that they could never get a biker to acknowledge that he was aware of any recall or NHTSA determination that his helmet was noncompliant simply because the fact is that bikers just have no information one way or another about manufacturer recalls or what helmet models NHTSA tests or what the test results might be on any particular helmet. Right?

Because of the Bravenet Page Limitation, this Article is Continued in Part II, Immediately Below.