Biker Rights Advocate Richard Quigley Must be Our Inspiration. I Believe He Will Gain The Right for All California Riders to Ride Helmet Free. He Figured A Way for All Oregon Riders to Ride Free Even Without Changing The Oregon Law. He is Negotiating The Death of the Nevada Helmet Law, Except in Las Vegas Where He is Set to Challenge The LV Metro Police. Quig Insists That it Can Be Done Anywhere. But What We Need to Do Now Is Understand Richard Quigley, Understand What He Brings to His Cause, We Need to Find Inspiration in His Story, And We Need One Richard Quigley Now In Each Lid State.
“M-A-D-D Ray” Henke
This is the second in a series of articles about Richard Quigley, "American Biker Folk Hero."
I've corresponded with Richard Quigley for some time, and we've had some wonderful long phone conversations in which we've discussed the legal issues presented by his original Santa Cruz case in which he obtained his highly publicized ruling throwing out his helmet tickets on constitutional grounds. I've read and we've discussed his pleadings and points and authorities in the case. We've also discussed his current work to extend his constitutional victory in Santa Cruz to obtain freedom for bikers throughout the state of California and elsewhere.
I've also spent many hours sitting and talking rapidly back and forth with him outside his local coffee shop, often gathering crowds around us as the locals have come to recognize that they have an American folk hero in their presence. He stops at the coffee shop every day to make sure that the homeless are not being pushed around by the local Sheriiff or deterred by shopowners from gathering in what he has declared the "town square." I've spent time riding with him as he patrols the County of Santa Cruz in his blue Suburban, with his Freedom Fighter/BOLT "Sheriff's Star" on either side, his two tape recorders at hand, watching for police harassment and ready to jump in.
I looked up the definition of "folk hero" to make sure I would use it correctly, and he falls squarely within the definition:
"A folk hero is type of hero, real or in mythology, who is loathed by the rich and powerful but idolized by the common person, often stealing from the former to make life better for the latter. The folk hero generally starts off as a regular person, but is transformed into someone extraordinary by their rebellion against oppression upon their own lives."
Quig did not have a happy childhood, the details of which I'm sure Quig wouldn't mind my relating, but which are not what is important to this story. It is important though, in order to understand Quig well, to know that the seeds of his rebellion were planted early. At six years of age he ran away from home for the first time, with his dog, and his gun, a 22 rifle. He made it 300 miles, from his home in Morenci Arizona to Silver City, New Mexico. He thought he had a job cleaning rooms in a small motel, but he found he'd been mislead when his parents came to retrieve him.
Later in life he worked every kind of straight job from bartender and car salesman to corporate marketing executive. As with the folk heros described in the above definition Quig had his defining moment when he was harassed one day by a Santa Cruz policeman. He was pulled over in his van, got out and walked to the back of the van, the policemen ordered him to get his registration and pushed him up toward the door. Quig reached over his 45 Magnum and grabbed the registration. The harassment continued and Quig realized at that moment that we were all vulnerable to bad cops. He took a stand with the police department, internal affairs did an investigation, but upon the officer's denials, took no action. Quig sued in Superior Court, and won a judgment against the County, for one dollar. But it was a victory of principle.
That was the beginning, and Quig hasn't let up since. He got the Aptos Sheriff removed from office, the conclusion of a toe to toe battle over police harrassment, and a $45,000 !st Amendment judgment against the City after the Sheriff threatened a radio station for one of Quig's "commentaries" about the local Sheriff on his weekly radio show. I've spend some time speaking with the attorney who represented Quig on that case and she has been his good friend, participating in his many of his forays into the courts over the past 20 years.
To give you a picture of Quig, just imagine ZZ Top. In another life he could have been one of them. He was pianist, a music prodigy, although he doesn't play music anymore. He does still love music, most of all "dirty music" a full disk of his favorites he gave me and I have gotten a kick out of listening to them. One of his favorites is "If you don't know me, just blow me" in Frank Sinatra style, with a symphony and ensemble of background singers.
Quig's work opposing helmet legislation began simply with his refusal to wear a helmet. He fought some 40 cases over the past 15 years leading up to the most recent ones which have come to the attention of the biker community. There is a wonderful story attached to each one, representing the evolution of his tactics in defeating the prosecutions.
There is a misconception that Quig has obtained a ruling in his last case that the California helmet law is unconstitutional as written. There was previous litigation which took this position and succeeded in the Federal District Court, but on appeal the District Court's decision was limited by the 9th Circuit Court. This is the Easyriders decision. There is controversy about whether the lawyer sold out the bikers in that case, permitting the 9th Circuit to sidestep outright overturning of the law based on the misapprehension that DOT "approves" helmets.
Given that decision, but without ever conceding that the the helmet law was constitutional as written, Quig then took the fallback position that the law was "unconstitutional as enforced." He amassed a wealth of evidence that the California Highway Patrol was enforcing the law according to a misinterpretation that the California law required the use of DOT approved helmets. As Quig points out, DOT doesn't approve helmets; so all of the policy memoranda providing "guidance" on the law to CHP and all other law enforcement officers who take their lead from the CHP are on their face legally erroneous. The CHP policy memoranda also permit the police to inspect the helmets to determine whether they comply with DOT specs, but as Quig points out, CHP and other California law enforcement officers are clearly not qualified to make this determination. Every time Quig was pulled over he would also tape record the conversations with the police and interrogate them on their understanding of the law. The tape recordings are hilarious, and demonstrate clearly that the law enforcement officers on the street have no clue that DOT doesn't approve helmets, nor do they have any clue what the DOT specifications are, let alone the ability to test a helmet to determine if it meets specs. To be clear for those who do not understand the function of DOT, DOT has just set the standards, manufacturers certify their helmets as in compliance with the standards, and are required to attach a DOT sticker, but there is no requirement that the biker maintain the DOT sticker on the helmet, so the absence of the DOT sticker doesn't imply anything.
When Quig first came up against Santa Cruz Superior Court Judge Barton, it was not a favorable experience. But as Quig reappeared before him, it is obvious that Judge Barton both came to like him and became convinced that Quig had a constitutional point. Quig presented his evidence of the CHP internal policy memoranda and his telephone conversations and the testimony of the various officers who had given him the tickets. And he presented wonderfully well drawn legal memoranda discussing the constitutional cases. Most recently, as I think most bikers know, Judge Barton threw out 10 of Quig's tickets and then another two, holding significantly on the grounds that the California helmet law was unconstitutional as enforced.
In the hearing transcript one can see that the Judge wonders aloud whether this result will satisfy Quig, and Quig quickly responds that it will not. Yes, he can now ride free of the California helmet law in Santa Cruz, but he wants all California riders to be able to ride free throughout the state. Currently Quig is involved in seeking an injunction ordering the CHP and all related California law enforcement agencies to cease and desist writing helmet laws. For reasons I've suggested in other postings, I think that he has a good chance of being successful.
I have added my own 2 cents in long conversations both with Quig and his attorney. I think that Quig will win in the trial court but that he may find the California 6th District Court of Appeals a tougher nut to crack. I know well one of the appellate judge's before whom Quig has previously been before and whom Quig fears. I tried a pharmaceutical product liability case before him day in and day out for 5 months up in Palo Alto, California. As a "side bar" one day in the middle of trial the Judge couldn't make it in to Court one morning because of a family emergency; but he had a courtroom full of lawyers waiting for his early morning divorce and probate calendar. The Judge told his clerk to "Have Henke sworn in, and let him take the morning calendars." The head clerk was brought up to the Judge's chambers and I was sworn in as a Judge of the Superior Court (for a day), I dawned the Judge's robe, and then heard and decided the Judge's morning cases. I've since dropped in to see him in his office at the Court of Appeals, and I think I know him pretty well. What I think would be persuasive to this Judge and others of the Judges on the appellate court is to explain also the consequence of the vagueness of the helmet statute and the discretion it then gives to the police to stop bikers as giving rise to the potential for abuse of their rights against unreasonable search and seizure. It is legal for police to stop and search as a matter of constitutional law, but the police must have probable cause for the stop. If the police are given essentially full discretion to pull over any biker they "chose," on the pretext to check to see if the helmet meets DOT standards, and then search the biker, our rights against unreasonable search and seizure evaporate. This argument derives from the same defect, in the vagueness of the law, and in the wide discretionary authority implied by the CHP policy manuals. But my sense is that in the Court of Appeals, the Judges may be additionally or perhaps more impressed if that they see that this is not just about helmets, but about our rights to be free of discretionary police stops and searches.
There is a wonderful environment of legal thinking that centers around Richard Quigley, in part because he is legal thinker in his own right, indeed the most creative and foresightful of all. But he also has the wonderful ability to attract and inspire others to stand up for their rights. Quig told the story of a friend who was popped in Oregon for riding without a helmet. Quig looked up the law and found that the Oregon helmet statute was a civil law, not a traffic or criminal law. He told his friend to show up at Court, post the bond and move to indemnify the damages. This then put the ball back in the state's court to prove up the damages, and of course their were no damages. The Oregon court then threw out the ticket, and Quig tells his Oregon brothers, ride free. You don't even have to change the law.
Earlier today I spoke with Quig's attorney for a couple of hours about another case he is involved in. As I think many may not know it, but Quig is involved in all kinds of causes and litigation. But specifically in challenging helmet legislation he is working now also to overturn the Nevada helmet law, both by negotiation and litigation. They presented the same arguments as were made in the California case to the Nevada attorney general and the Nevada highway patrol, and low and behold, they agreed! So now, as I understand it, at least in terms of Quig’s negotiations with the Nevada AG, Quig has be allowed to ride free in Nevada, so we would hope that our Nevada brothers and sisters will also test the law -- Quig can ride free, that is, except through Las Vegas. The Las Vegas Metro Police apparently take issue with Quig’s and his lawyer’s argument. Quig has raised this issue with the Las Vegas Metro from his home in California, through e-mails stating that he has a group of bikers who intend to ride from California through Nevada to Laughlin, without helmets; and wanted the Las Vegas Metro Police to assure that they could do so without running into police harassment. They received a polite response back from the Las Vegas Metro police, telling them that if they want to pass through Las Vegas that they must wear helmets, and that the police would then leave it to the Courts as to the constitutionality of their enforcement practices. Now that might be reasonable enough, except that they went on to say that whether Quig’s group will be ticketed will be left to the "discretion" of the individual officers. Well, this is the problem with the law, it is vague and leaves it's enforcement to the discretion to the police officers. And so Quig and his lawyer figure they are one step further to making his evidentiary case there.
Now, what is the lesson. In speaking to Quig and his attorney and thinking about this myself, it seems to all three of us that every helmet law in every state in the country suffers the same defects. I believe that all but one is phrased in terms referring to the DOT standards. For the same reasons urged by Quig here, the laws are vague, and any enforcement policy would probably have to suffer from the same vagueness as has been found here to lead to its constitutional infirmity. Indeed, in other states, and in other cases brought to the state high courts or federal courts the argument could be made in the first instance that the state's statutes are also unconstitutionally vague as written, in addition to unconstitutionally vague as enforced. Our 9th Circuit opinion is authority, but it can be shown to be based upon the misconception that DOT approves helmets.
Quig has had his run ins with some biker organizations over the years. He was even thrown out of ABATE for his insistence before the California legislature that ABATE's favored "under 21" helmet law discriminated against the 18, 19 and 20 year olds. That's Quig! Always fighting for those who are left out. But Quig hasn't patented his formula for success, and indeed he welcomes bikers in every state to copy his pleadings and points and authorities and fight the system that has for so long oppressed them.
With Quig's permission I will be reprinting on the Motorcyclists-Against-Dumb-Drivers site the briefs from his case in the California Superior Court, and Quig's attorney will be sending me the pleadings she is preparing to challenge the Nevada law. These can be used as a form for the presentation of these same issues in any state, with some modifications in the legal authorities. As noted, I think that most laws can be challenged as vague on their face. But I think it might be important also to develop the evidence that the statutes are also vague as enforced, and this can and should be done, as Quig did it, by gathering the state highway patrol internal memoranda on enforcing the state's helmet law, and then I think it might be great to get a couple of cops on tape about their understanding of the law as they are issuing the tickets, before they are prepped by the prosecutors, ideally to elicit that they are under the misconception that DOT approves helmets. Although good interrogation of the police officers should be able to demonstrate that the officers have no ability to discern whether any particular helmet meets or does not meet the specifications set forth by the DOT and incorporated in the state law.
Quig started out by wearing little beanies, and then his now trademark baseball cap with DOT printed at the back. But if the law is unconstitutional or unconstitutional as enforced, it is unconstitutional, and we are free to ride free, meaning without helmets.
I should say I came to these conclusions first with a good deal of skepticism, so I wouldn't fault those who may be skeptical. Time will tell, here in California and in Nevada, and we hope that our Oregon brothers will test Quig's wonderful insight that they can just walk into Court, post the bond and move to indemnify the damages. I think it would be wonderful indeed if at least one biker in each state, ideally with the help of an appropriately qualified and enthusiastic attorney, would test each state's helmet law in the way that Quig has here.
We need more biker folk heros like Quig. Indeed, every state needs one.
One more point: As Quig and I sat out near the Santa Cruz beach, in his Freedom Fighter truck, passing back and forth his peace pipe, watching the waves, and for the police who sometimes come along to clear out the homeless, Quig said, "Ray, thanks a lot for telling my story on Bruce-n-Ray’s Biker Forum." This was a posting in which I'd explained that Quig suffered end stage lymphoma, and that he was having trouble paying both for his medications and for the transcripts and other costs of his litigation. I shared with the folks on the Forum what should be obvious from what I've written above. Quig can ride free now. No police officer wants to get within 100 yards of him. He isn't doing this for himself; he’s losing weight, and indeed he confides in me that his doctors didn't think he'd make it this long, and he doesn't figure he'll make it to see this winter. He is doing all this only for the rest of us.
As I passed the pipe back to him he said: "You know, Ray, I've gotten a lot of checks in the mail since your posting. I really appreciate it."
For all who have sent Quig a check, Thank you. Thanks from Quig.
If anyone would like to contribute to Quig's work, you can mail checks directly to him. Even 20 dollars would be great.
His address is:
[Sadly Quig Has Passed Away, A Huge Loss to the Biker Rights Community]
I will be heading back down through Santa Cruz in a couple of weeks and will be meeting up with Quig again. I hope to report at that time about the status of his application for injunction here in California and any movement with the Las Vegas Metro.
Keep the faith,
"M-A-D-D Ray" Henke