Richard Quigley, et al. vs. California Highway Patrol,
the Constitutional Case Poised to Bring Down the California Helmet Law

By Ray Henke, Esq., Bikers of Lesser Tolerance, California

As Don Blancet, the Executive Director of ABATE of California,
has correctly observed is a press release graciously disseminated by
our friends at the Motorcycle Riders Federation, the instant Quigley
et al. v. California Highway Patrol case will pound the final nail in
the coffin of the California helmet law. But in order to appreciate
why this case is the undertaker that will place the helmet law 6 feet
under, you will need to understand the constitutional defect that
this helmet law was born with - the same defect present at the heart
of the helmet law recommended to all states by the NTSB - and how our
California freedom fighters have constructed the law's coffin, a
labor of 17 years, in the state and federal courts, to lay the
constitutional predicate to finally put the helmet law in its grave.

The constitutional defect in both the California helmet law and
that proposed by NTSB is that these laws require motorcyclists to
wear helmets compliant with the federal motorcycle helmet performance
standard set forth at FMVSS 218. The defect is that neither the
ordinarily intelligent biker nor the law enforcement officer could
possibly have any clue what FMVSS 218 requires. The rider can't read
the law and know how to comply with it; and the law enforcement
officer likewise cannot possibly apply it, except arbitrarily.
Section 218 states nothing about helmet fabrication or what a helmet
should look like. It merely describes some laboratory procedures and
some arbitrary impact criteria. Indeed, 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. California Highway Patrol
in which the California Court of Appeals held that where 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 for failure to comply
with FMVSS 218 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 foregoing Court of Appeals decisions, however, was to ignore
them and to continue to enforce the law arbitrarily based upon the
law enforcement officer's incompetent assessment of the fabrication
qualities of the helmet.

Richard Quigley and Steve Bianco then initiated litigation which
would later be funded by Easyrider magazine. The bikers established
in the federal district court that the California Highway Patrol had
a policy and practice of illegally enforcing the law, in violation of
the Court of Appeals decision in Bianco v. CHP. 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 and desist 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 instead to continue on with its illegal
enforcement policy. Riders with Bikers of Lesser Tolerance in
California like Richard Quigley and Steve Bianco tested the resolve
of the California Highway Patrol, accumulating hundreds of helmet
tickets, some for wearing the B.O.L.T. "Ill Eagle" helmet, with the
Chinese manufacturer's "DOT" label embroidered on the back, others
wore sunglasses with DOT labels, or itsy bitsy teenie weenie helmets,
beanie helmets, helmets looking similar to what some refer to
as "novelty helmets," and many manufactured their own smaller-than-
watermelon-sized hard-shell helmets, as specifically authorized in a
legal opinion authored by CHP legal counsel, appending their own DOT
labels.

Quigley challenged his last dozen helmet tickets, this time
urging that the California helmet law was unconstitutionally
vague "as applied" by the California Highway Patrol. He interrogated
the highway patrol officers and introduced the internal CHP policy
memoranda and bulletins making plain the CHP's intent to skirt the
Court of Appeals decisions that defined the California helmet law;
documents he'd accumulated over a dozen years fighting the CHP in
court.

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, Judge Barton, for the California
Superior Court for the County of Santa Cruz found that the California
Highway Patrol had engaged in a policy 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 several page, highly
reasoned constitutional opinion holding that the California helmet
law was unconstitutionally vague as applied.

As the Court transcripts reflect, the Court's purpose in setting
forth its reasoning in the opinion was to permit the case to be taken
up to the Court of Appeals, and the California helmet law might have
been laid to rest in that case. However, the California Attorney
General, less concerned with upholding the California and United
States Constitution than with preserving the ability of the CHP to
continue to enforce the helmet law illegally, declined to appeal the
case. Parenthetically, in another Quigley case which resulted in a
decision by the California Court of Appeals that helmet law
violations come within the California fix it ticket statute, the
Court in "dicta," meaning without either the AG or Quigley having
briefed it, stated that law enforcement can conclude that a fabric
helmet violates the law, but agreed again with the previous court
decisions that it is well beyond the qualifications of the ordinary
biker or law enforcement officers to determine if helmets
manufactured out of hard materials comply with FMVSS 218 and the
California helmet law. And it is the Plaintiff's evidence that the
California Highway Patrol has had the policy and practice to
illegally ticket California bikers, including the Plaintiffs,
arbitrarily and discriminatorily, for the entire spectrum of fabric
and hard-shell helmets despite that every court has agreed that CHP
officers plainly lack the ability to discern whether a helmet meets
FMVSS 218 standards, the sole standard set forth in the California
helmet law.

The instant litigation was initiated by Richard Quigley and
several other members of Bikers of Lesser Tolerance, California,
including Quig's good friend Steve Bianco, with the intent this time
to put on at trial not only the same evidence of illegal highway
patrol helmet law enforcement practices as previously adduced by
Quig, but the hundreds of illegal citations issued to the other
B.O.L.T. Plaintiffs involving an entire spectrum of different types
and construction of headgear illegally issued by the California
Highway Patrol in violation of the Bianco and Easyriders
constitutional decisions. Prior to his death Quig's video deposition
was taken and his testimony preserved for the trial. The other
members of Bikers of Lesser Tolerance including Steve Bianco will
also testify in the case, describing their several hundred citations
illegally issued by the California Highway Patrol. Don Blancet,
Executive Director of ABATE of California and Assistant Director of
B.O.L.T. of California will testify, describing his greater than 60
helmet citations, all but three of them thrown out of court by the
Judges specifically on the grounds that the citations were illegally
issued in violation of the constitutional law of Bianco v. CHP. The
CHP officers who issued the citations will be interrogated, making
plain that they do not understand and cannot conform to the
constitutional requisites of the California and federal
constitutional decisions which restrain the strict limits of
legitimate application of the California helmet law. And what this
evidence will amply demonstrate, is that the California helmet law
isn't being enforced in conformity with the California and federal
constitutional decisions, and that, as a practical matter, it cannot
be enforced constitutionally. The case is framed as an injunction and
declaratory relief case to assure that it will reach the Court of
Appeals. If the B.O.L.T members succeed in the trial court, we
anticipate that the Court will declare that the helmet law
unconstitutionally vague as applied and issue an injunction against
its further enforcement; so the Attorney General will be forced to
appeal. If the Court fails to enter a decision that voids the
California helmet law then the Plaintiffs can then appeal and we
would expect that the Court of Appeals will have no choice but to
recognize that the defect in the law is its unconstitutional
vagueness and that the law as reinterpreted cannot be applied
constitutionally.

The litigation represents the culmination of the courageous and
determined work of the Plaintiffs and other B.O.L.T. members like
Richard Quigley and Steve Bianco who have fought the good fight on
the streets and in the courts for the past 17 years. The significance
of the litigation extends beyond voiding the California helmet law
because the due process deficiencies in the law will certainly
undercut the NTSB's efforts to impose the same law on every other
state. It will also provide the precedent for freedom fighters in
every lid state to take into their state courts. Yes, this will be
California appellate law. But in most states the constitutional
arguments that will be upheld in this case will be "issues of first
impression," meaning issues not yet decided by the courts of the
other states. When faced with an "issue of first impression" the
Court's always look to the decisions of the other states which have
faced and decided the issue. And here on the issue of due
process "vagueness," this case will be the only relevant
constitutional precedent in point.

As Don Blancet points out, this is indeed historic litigation.
It is an honor for all involved in the case to be a part of it, and
we reach out to all who would join us in this historic opportunity to
take your place at the forefront of this fight. We can overturn the
California helmet law. We can make plain that the law urged by NTSB
is unconstitutionally vague and incapable of constitutional
application. We can render NTSB's recommendations to the states
inert, undercutting the efforts of NTSB, the insurance and medical
lobbies underway to obtain helmet laws in the free states. We can
shortcut by 17 years the constitutional court battles in every other
lid state, and provide you the opportunity to void your helmet law
decisively. Please accept this opportunity to join with ABATE of
California and Delaware and Michigan and Northern Nevada as our
partners in achieving freedom.

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.

This article is submitted for publication as written, and its
publication is not authorized if altered in any way without the
advance written permission of Ray Henke.