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Quigley vs. CHP, the Constitutional Case Poised to Bring Down the California Helmet Law
By Ray Henke, Esq., Bikers of Lesser Tolerance, California
As Don Blancet, Executive Director of ABATE of California,
observed in a press release disseminated by
the Motorcycle Riders Foundation, he expects that the Quigley
v. California Highway Patrol case will pound the final nail in
the coffin of the California helmet law.
The constitutional defect in the California helmet law, and
that which the NTSB has recommended to all states, is that these laws require motorcyclists to
wear helmets compliant with the federal motorcycle helmet performance
standard, FMVSS 218. The defect is that neither the
bikers nor the law enforcement officers could
possibly have any clue what FMVSS 218 requires.
Section 218 states nothing about what a helmet
should look like or what it should be made of. It merely describes some laboratory procedures and some arbitrary impact criteria. And to determine whether a
particular helmet complies with FMVSS 218 requires the essential
laboratory equipment and appropriately trained engineers to operate
it; and in the process of testing the helmet you also destroy it.
The constitutional defect is the law's "vagueness" and the legal
challenge derives from the due process clause of the United States
Constitution. As explained by the United States Supreme Court:
"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." Grayned v. City of Rockford, 408 U.S. 104, 108 (1971).
The road to demonstrate that the California helmet law is
unconstitutional has been a tortuous one, beginning with a challenge
that the law was unconstitutional as written. In Buhl v. Hannigan,
the California Court of Appeals agreed that it was "absurd" to posit
that the ordinary biker or law enforcement officer could examine a
helmet's fabrication and apply FMVSS 218 to determine if it complied
with the California helmet law. The Buhl case was followed by Bianco v. CHP
wherein the California Court of Appeals held that if a helmet
bears a "DOT" label it creates a presumption that the helmet complies
with FMVSS 218, and that the presumption can be rebutted only if (1)
the helmet was recalled by the manufacturer or determined by NHTSA to be noncompliant with FMVSS 218, AND (2) the biker as "actual knowledge" of a recall or
determination of noncompliance.
At this point California law enforcement should have recognized
that the constitutional restraints on application of the law had
rendered it unenforceable. The California Highway Patrol's response
to the Court of Appeals decisions, however, was to ignore
them.
Richard Quigley and Steve Bianco then initiated litigation which
would later be funded by Easyriders magazine. The federal district
court issued a scathing opinion condemning the CHP for its illegal
helmet law enforcement polices and the United States Court of Appeals
affirmed an injunction ordering the CHP to cease issuing
helmet tickets unless the officer has "probable cause" to believe
that the rider has "actual knowledge" that his headgear has been
recalled or determined by NHTSA to be noncompliant with FMVSS 218.
Again, the CHP should have just laid down their ticket books, but
again, the CHP determined to continue on with its illegal
enforcement policy. Riders with Bikers of Lesser Tolerance in
California tested the resolve of the CHP, accumulating hundreds of helmet
tickets, some for wearing the B.O.L.T. "Ill Eagle" baseball cap helmet, with the Chinese manufacturer's "DOT" label embroidered on the back, others
wore sunglasses with DOT labels, or itsy bitsy teenie weenie helmets, and many manufactured their own smaller-than-watermelon-sized hard-shell helmets appending their own DOT labels.
Suffering from terminal lymphoma, Quigley challenged his last dozen helmet tickets, and ten years to the day after the United States Court of Appeals for
the Ninth Circuit had upheld the injunction against the CHP's illegal
helmet law enforcement policies, the Santa Cruz Superior Court found that the CHP had engaged in a pattern and practice of illegal helmet
law enforcement, now not only in violation of the California Court of
Appeals decision in Bianco, but also in violation of the Easyriders
federal court injunction. The Court issued a highly
reasoned constitutional opinion holding that the California helmet
law was unconstitutionally vague as applied.
As the transcripts reflect, the Court's purpose in setting
forth its reasoning was to permit the case to be taken
up to the Court of Appeals. However, the California AG, less concerned with upholding the United States Constitution than with preserving the ability of the CHP to
continue to enforce the helmet law illegally, declined to appeal the
case.
The instant litigation was initiated by Quigley as an injunction/declaratory relief case to assure that the record will reach the Court of Appeals.. Win or lose in the trial court, we will have the opportunity to present our constitutional arguments to the California Court of Appeals where we hope to create the case law that will both put an end to the California helmet law and provide the template and precedent for other freedom fighters to use to overturn helmet laws throughout the country.
Ray Henke is a California trial lawyer, a former Governor of the
Los Angeles Trial Lawyers Association and LATLA's nominee for
the "Trial Lawyer of the Year" Award. Mr. Henke served as legal
consultant to Richard Quigley. He is a made member of B.O.L.T.,
proud to have been nominated by Quig for B.O.L.T. membership,
seconded by Steve Bianco, and currently, B.O.L.T. of California,
legal advisor.
Published in "Born to Ride" magazine.
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