Suing The Bastards 

from agingebel.com There were setbacks in two biker civil rights suits last week. Both cases are being contested in federal court. One case is being heard in New Jersey and the other in Nevada. Both cases are still alive and may eventually discourage the common police practice of harassing bikers wearing colors on public roads. The New Jersey case is titled James Coles et al. v. Nicholas Carlini et al. The Nevada case is titled Southern Nevada Confederation of Clubs, Inc. et al. v. Las Vegas Metropolitan Police Department et al.

New Jersey Suit

The Coles case was filed by three men named James Coles, Joseph Ballinger and Louis C. Degailler in November 2010. All three are now members of the Pagans. The three were part of a small pack including members of the Tribe Motorcycle Club which was stopped by New Jersey State Police while going to a charity event. The Trooper in charge was Nicholas Carlini and the stop was obviously made in order to harass and intimidate the six men as a form of extra-judicial punishment for belonging to motorcycle clubs and wearing insignia of membership on their backs. Carlini lectured his detainees that the only gang allowed on New Jersey’s roads was the State Police.

Dueling Countermotions

Last February both sides in the slow-moving case asked Judge Jerome B. Simandle to issue summary judgments. Coles, Joseph Ballinger and Degailler sought summary judgment only on the question of whether “the first amendment was violated by the defendant State Troopers in the course of their ‘anti-colors’ speech delivered during plaintiffs’ custodial detention at roadside.” They didn’t seek a judgment on “whether the stop itself was pretextual and initiated in retaliation for Plaintiffs’ alleged expressive conduct.” The State Police sought a summary judgment of the entire case in their favor on three grounds: “(1) Defendants are entitled to qualified immunity, (2) no violation of the First Amendment occurred, and (3) Plaintiffs Coles and Ballinger are judicially estopped from asserting claims for damages because they failed to disclose their potential claims when each was going through bankruptcy.” The court listened to the lawyers argue about all this on July 7 and ruled against everybody on July 22.

Core Issues Unchanged

First the judge ruled that since none of the men actually removed his club insignia Trooper Carlini’s bullying speech was simply an “attempt” to deprive the bikers of their free speech rights. He did not rule on the issue of whether the stop itself was intended to deprive the men of their Constitutional rights. The State Police had asked that Coles and Ballinger be denied any monetary judgment in the case because they had neglected to list a judgment in the case as a potential asset when both declared bankruptcy. The bankruptcies were filed well before this civil suit but were in their final stages after the suit was filed. Most case law indicates that whether the men could be compensated or not was almost entirely at the judge’s discretion. He ruled against Coles and Ballinger because he thought they acted in “bad faith.” Simandle put it like this: “On the judicial estoppel issue, the key question for the Court is whether bad faith may be inferred from Coles’s and Ballinger’s nondisclosure of this litigation as a contingent asset in their bankruptcy proceedings, while simultaneously pursuing the present claims for damages. Because the Court finds that bad faith may be inferred in this case, the Court will grant Defendants’ motion for partial summary judgment, prohibiting Coles and Ballinger from seeking compensatory or punitive damages.” However the third plaintiff, Degailler, can still be awarded monetary damages if the suit is successful. All three plaintiffs can still obtain what is called “injunctive relief” if they win the suit – which means that Simandle will order the New Jersey State Police not to do it again.

Nevada Case

The key issue in the Nevada case was whether the Confederation of Clubs had legal standing to sue Vegas Metro and the other defendants including former Boulder City Police Chief Thomas Finn. Last Friday Judge Andrew P. Gordon ruled the COC does not. He instructed the Plaintiff’s lawyer in the case. Stephen Stubbs, to modify and refile the suit by the end of next month and he basically told Stubbs how to do it. The judge wants to see the plaintiff’s sorted by club. At the end of his ruling he wrote: “At the July 24, 2013 hearing on the motion to sever, Plaintiffs requested that the court allow the cases to be refiled and grouped by each motorcycle club, such that each club and its related members may file a single complaint (e.g., allowing all Mongols incidents to be contained in one lawsuit, all Stray Cats incidents in another). Based on the allegations presently before the court, the cases may be grouped together as follows: all Mongols incidents may be joined in the present lawsuit (involving Espinoza’s First, Second, and Third Claims for Relief), along with the Jerald Murillo incident; all Stray Cats incidents may be joined in one complaint; all Bandidos incidents may be joined in one complaint along with the Down and Dirty Motorcycle Club incident; the Joseph Pitka incident must be filed in a separate complaint unless Plaintiffs can establish that it should be properly joined with another lawsuit. Each such complaint must be sufficiently pled to satisfy both the joinder requirements ofRule 20 discussed above, and the standing requirements for each plaintiff (including individuals and motorcycle clubs) to maintain the claims. The court does not opine at this time whether the motorcycle clubs can satisfy the standing requirements of Federal Rule ofCivil Procedure 17(b)(3) and any other applicable law. “Plaintiffs are granted leave to amend the present Amended Complaint (as described above) by August 30, 2013. Similarly, the new and separate lawsuits must be filed by August 30,2013, and will be assigned new case numbers. The court further orders that each of the cases will be consolidated before this court for purposes of discovery. Thus, Plaintiffs shall note in the caption of each complaint that any new case filed as a result of this order is related to this base case, and should be assigned to the same judges. The parties to each of the severed actions are required to pay a filing fee.”

Stubbs Comments

When reached for comment, Stubbs said “What has happened is that Federal Court Judge Andrew Gordon granted me a ‘do over’ with some guidance.” “Judge Gordon specifically states that all claims for relief are to be grouped by club, dismisses all claims but the Mongols claims, grants me leave to amend the Mongols claims to repair any defects, and then instructs me to file new and separate claims for the other clubs.” Both suits are ongoing and should remain so for at least another year.

Urge your representative to support today!

On May 7, U.S. Rep. Jim Sensenbrenner (R-Wis.) introduced H.R. 1861, the Stop Motorcycle Checkpoint Funding Act. The bill will protect motorcyclists’ rights and promote crash prevention as the most effective use of taxpayer money to save motorcyclists’ lives. The bill incorporates Sensenbrenner’s legislation (H.R. 904) introduced in the previous Congress. H.R. 904 would prohibit the U.S. Department of Transportation from providing funds to state and local authorities for the purpose of creating motorcycle-only checkpoints. However, this bill also contains language to force the DOT to focus motorcycle safety efforts on crash prevention programs. The Stop Motorcycle Checkpoint Funding Act amends Section 153 of Title 23, United States Code, by removing “motorcycle helmets.” This change will prohibit the DOT from providing grants to states to enforce helmet laws. It will also prohibit the DOT from interfering in state matters with federal funds. For many years, the American Motorcyclist Association has strongly encouraged the voluntary use by adult riders of helmets certified by their manufacturers to meet the DOT standard as part of a comprehensive motorcycle safety program to help reduce injuries and fatalities in the event of a motorcycle crash. However, helmet mandates do not prevent crashes. The AMA believes that comprehensive motorcycle safety programs must promote strategies to prevent motorcycle crashes in the first place. Current law states highway safety plans must prevent crashes and reduce injuries. The Stop Motorcycle Checkpoint Funding Act would require highway safety plans to include programs that “prevent accidents in order to reduce injuries and deaths resulting from accidents involving motor vehicles and motorcycles” by amending Section 402 of Title 23, United States Code. Historically, the enforcement of helmet mandates has siphoned away scarce funds from effective crash prevention programs such as rider education and motorist awareness. This bill is critical to ending the discriminatory practice of MOCs and preventing motorcycle crashes. The motorcycling community needs you to contact your representative now to ask him or her to become a cosponsor. Just follow the "Take Action" option to send a pre-written email directly to your representative. To view the AMA's efforts to end motorcycle-only checkpoints, go to http://www.americanmotorcyclist.com/rights/motorcycleonlycheckpoints.aspx.