The State of
Louisiana is on pace to become the third state to pass a law addressing the
issue of motorcycle profiling. On Tuesday, May 15th, on a vote of 91-0, the Louisiana House Of Representatives unanimously approved HB 141 which requires mandatory motorcycle profiling sensitivity training be integrated in the current policing curriculum. The measure now goes on to the Louisiana Senate, moving one step closer to becoming law.

A Grassroots Effort

HB 141 is the result of the cooperative efforts of ABATE and the Confederation of Clubs of Louisiana, with support from the Motorcycle Profiling Project and the 2018 National Motorcycle Profiling Survey.

On the heels of a successful campaign to exclude motorcyclists from the state masking laws which were being used as a mechanism of profiling, ABATE and the COC took the next logical step by advocating a law addressing motorcycle profiling at a broader level. With the help of legislators, particularly primary sponsor
Representative Frank Howard, HB 141 has yet to receive a no vote in either the judicial committee or the House Floor.

Mandatory Training

Recognizing that improper training is a primary cause of profiling, HB 141 requires motorcyclist profiling sensitivity training and defines the concept. HB 141 reads:

• (1) The council shall include motorcyclist profiling awareness training in the current bias recognition policing curriculum. The training shall consist of at least one-half hour of classroom or internet instruction, or a combination of classroom and internet instruction. This training shall address issues related to motorcyclist profiling and shall be provided to peace officers as defined in R.S. 40:2402(3)(a).

• (2) For purposes of this Subsection, “motorcyclist profiling” shall mean the arbitrary use of the fact that an individual rides a motorcycle or wears motorcycle- related clothing or paraphernalia as a factor in deciding to stop, question, take enforcement action, arrest, or search the individual or his motorcycle or motor vehicle.

A National Discussion

Motorcycle profiling is now a legitimate policy discussion. In fact, on December 11, 2019 the US Senate unanimously approved a resolution directing all states to follow the lead of Washington State and Maryland and implement policies addressing the issue. An identical resolution is now making its way through the US House of Representatives.

Louisiana appears to be responding to this federal directive.

*for HB 141 tracking and bill text go to: https://legiscan.com/LA/text/HB141/2019

Waco Biker Dismissals an Attempt to Avoid Millions in Lawsuits

In the interests of justice, on April 2, 2019 all remaining charges related to the May 17, 2015 Twin Peaks shootings in Waco, Texas have been dismissed by the newly elected McLennan County District Attorney Barry Johnson. These dismissals are a significant victory in the history of motorcycle club culture and the fight against motorcycle profiling and discrimination. Although this concludes the criminal chapter of Twin Peaks, the legal battles are far from over. There are currently over 100 civil rights claims pending and the official press release announcing the dismissals makes it obvious that the new DA is attempting to cover Waco’s interests from a liability standpoint. There is no apology and no admission of wrongdoing related to the mass arrests. Instead, Johnson puts all the blame on former DA Abel Reyna, arguing that viable prosecutions could have occurred after the initial arrests had correct procedures been followed. The stakes are massive. In total, these lawsuits are seeking hundreds of millions of dollars in damages for a list of obvious constitutional infringements from false arrest to excessive bail.

A Brief Timeline of Events

It has been nearly 4 years (May 17, 2015) since 9 bikers were killed and 20 injured, many at the hands of law enforcement, after gunfire erupted in the parking lot of a Twin Peaks restaurant in Waco preceding a scheduled Texas Confederation of Clubs and Independents meeting intended to discuss motorcycle rights issues.

Surrounded by pre-staged law enforcement obviously expecting an issue, the violence erupted after Bandidos MC members from the Dallas area pulled into the Twin Peaks parking lot. A club called the Cossacks, not members of the Texas COC&I, were already there. A verbal altercation ensued quickly followed by pushing, shoving, and then gunshots from every direction, many coming from law enforcement.

After the violence, instead of questioning and releasing witnesses, law enforcement, at the direction of the former McLennan County District Attorney Abel Reyna, used identical generic affidavits and arrested nearly 200 people charging them with Engaging in Organized Crime solely based on their association with a motorcycle club. Every individual was also held on excessive $1-$2 million-dollar bails.

After nearly 2 years, Bandidos MC member Jake Carrizal from Dallas was the first person to be tried. The trial ended in a mistrial and near acquittal after the county spent $1.5 million dollars on its unsuccessful attempt.

The End of Reyna’s Reign.

After the Carrizal trial, the McLennan County DA’s Officer began to implode culminating in Reyna’s election defeat by a 20% margin largely as a result of the grassroots efforts of Texas motorcyclists that vocally and visibly campaigned against Reyna.

After being defeated, Reyna’s administration dismissed charges against all but 24 individuals. These 24 individuals were then charged with Riot, 3 of them also being charged with murder. The sentence for Riot can be at the level of the most serious crime committed during the riot, which in this case means all 24 charged could have potentially faced life in prison.

Johnson Takes Over.

In January 2019, Barry Johnson became the new McLennan County DA and has publicly stated that he has spent 75% of his time reviewing the Twin Peaks cases. Initially, Johnson stated that most of the 24 cases would be dismissed and a handful of the most viable cases would proceed. On April 2, 2019 the number of viable cases in Johnson’s opinion is zero. It was announced that all charges against all individuals would be dismissed.

Johnson Playing CYA for Waco

Although this is a significant win for those facing charges, Johnson’s statements regarding the dismissals are in no way an apology. Johnson argues that there was reasonable suspicion for the arrest of nearly 200 people and the subsequent grand jury indictments of 154 of those arrested. Johnson is attempting to argue that the arrests were constitutional, despite the generic fill-in-the-blank nature of the affidavit. Johnson further argues that the $1 million-dollar bonds were also reasonable and justified surely in answer to lawsuits charging excessive bail in violation of the 8th Amendment.

Johnson’s statements regarding the dismissals puts 100% of the blame on Reyna’s decision- making post the arrests. Johnson argues that Reyna should have charged individuals with crimes that could be demonstrated beyond a reasonable doubt such as aggravated assault and attempted murder, charges in which statute of limitations has now run out.

Johnson contends that the Riot charges, even if successful, would unlikely survive an appeal because it was an attempt to charge a misdemeanor as a felony. The likelihood of failure at the appellate level, in Johnson’s assessment, means the only prudent decision was dismissal of all charges.

Johnson is Wrong: Arrests Were False and Bail Was Excessive.

Considering his position, Johnson’s strategy is completely understandable. Johnson feels that dismissal is demanded because of the high likelihood of failure, but that no constitutional violations occurred. No one goes to jail. Waco doesn’t go bankrupt for civil rights violations.

Although understandable, Johnson’s position is incorrect and a clearly veiled political attempt to protect against civil liability. The MPP believes that constitutional violations certainly occurred in terms of the 4th and 8th Amendments. And so do many legal scholars.

There was absolutely no particularized and specific reasonable suspicion or probable cause justifying the arrest of nearly 200 people. Absolutely none. Generic affidavits were used to initiate the arrests. Nothing specific beyond association with a motorcycle club, which does not meet the legal threshold.

It is anyone’s guess how the civil proceedings will ultimately play out. But what is certain is that we will not know for a very long time.

The recent decision by Judge David Carter in US v. Mongol Nation that the First and Eighth Amendments to the US Constitution prohibits the government’s request to seize the collective membership marks of the Mongols MC, including their club name patch and center-patch, is a victory for all. A victory that should be discussed and celebrated. However, the MPP also believes that part of this discussion should focus on the other implications to Judge Carter’s decision. Implications that aren’t being discussed because the focus has understandably been on the patch forfeiture issues. What other implications? Beyond the issues of forfeiture, a brand-new strategy to target motorcycle clubs under RICO has been born and legally confirmed. The idea that a motorcycle club can be indicted under RICO as an entity, regardless of other members personal guilt, for crimes committed by individuals already punished for those crimes, should equally alarm everyone. Although the government can’t take a club’s patch, they can seize a club’s property and impose huge fines. What else could the government do with this new theory of prosecution?

A Brief History

In the government’s more than decade long mission to take the Mongols MC’s collective membership marks, and property bearing those marks, they stumbled upon a new theory of prosecution after previous attempts to take the patch were ultimately unsuccessful. The 9th Circuit ruled that the government couldn’t take patches and property from members of the club that had not been indicted because that would violate the First Amendment.

However, the court provided a blueprint for the government’s next move. The court concluded that the Mongol Nation, the unincorporated association that owns the collective membership marks in question, would have to be indicted as an entity for the theory to work. So, that’s exactly what the US Attorney decided to do.

US v. Mongol Nation has been the most recent result of the government’s new strategy. The Mongol Nation, as an entity, defined as all full patched members of the club, was charged and found guilty by a federal jury of racketeering and conspiracy to engage in racketeering under the RICO statute. That jury also granted the government’s request for forfeiture of collective membership marks, which Judge Carter set aside for Constitutional reasons. However, Judge Carter upheld the jury’s decision to convict and conditionally granted forfeiture of seized property. Specific items to be seized will be decided at a sentencing hearing set for April 24th, 2019.

They can’t take a club’s patch, but guilty verdict on MC as an entity upheld.

Although Carter doesn’t believe the government can take a club’s collective membership marks, he “agrees with the Government that an unincorporated association including the Mongol Nation can be held liable for each predicate act alleged in the indictment.”(The predicate acts in this indictment include everything from drugs to assault and murder charges)

The Court sees no meaningful distinction between corporate criminal responsibility and liability of unincorporated associations. The Supreme Court addressed the criminal liability of a partnership and specifically held that “the business entity cannot be left free to break the law merely because its owners, stockholders … partners … do not participate in the infraction.”

Leadership v. Rogue Actors- determining guilt for an association.

It is not enough that various members and associates of a motorcycle club “are involved in spontaneous criminal acts as an individual or as a small group of individuals. In other words, the spontaneous rogue acts of individual members and associates do not create guilt for an association.”

What element is required to find an association guilty of RICO? An implied connection to leadership is enough. “[T]o the extent that an illegal act was committed at the express or implied direction of the leadership of the defendant Mongol Nation, the entity may be found guilty. This is entirely consistent with corporate criminal responsibility, and is precisely what Congress intended in passing RICO, which expressly targets criminal organizations.”

The concerning terms “implied direction of the leadership…”

Further analysis of Carter’s decision may shed some light. Carter argues that Congress may constitutionally impose criminal liability upon an entity for acts of its agents. “Such liability may attach without proof that the conduct was within the agent’s actual authority, and even though it may have been contrary to express instructions.” Carter also argues that it’s not necessary for the government to prove that the act was authorized by the entity formally or in writing. Sounds like the government has a very low threshold of proof to establish that an act was committed “at the implied direction of leadership.”

So, what sentence will Judge Carter impose?

Judge Carter has been very explicit about what he intends to do on April 24th. Carter writes, “The Mongol Nation is guilty of substantive RICO and RICO conspiracy. The criminal organization is subject to sentencing fines and criminal forfeiture consistent with this Order.”

Items to be forfeited include weapons, ammunition, body armor, and related items originally seized during ATF raids. This comes as no surprise to the MPP as it seems consistent with other RICO forfeitures.

However, sentencing fines for criminal liability are not explained in-depth. How much can the fine be? Are there limits? Who pays the fine? The leadership? The membership?

What sentences will we see in the future?

Independent of sentencing fines and asset forfeitures, what else could the government seek in terms of criminal liability when a club is indicted as an entity? I’m not sure many people have a solid answer to this question. But I think the question is definitely worth exploring.

After a club is found guilty as an entity under RICO, can the government feasibly obtain an order against any member of the club possessing or carrying a firearm? The answer may vary depending on what state you are in, but even the very pro-2nd Amendment state of Texas is revoking gun rights from individuals solely for membership in a motorcycle club authority label a gang. The sky may not be falling, but possible impacts to gun rights are at least a possibility, particularly in “may issue” states.

What about employment? An individual without a criminal record is a member of an entity found guilty under RICO of Racketeering and Racketeering Conspiracy. Their employment contract requires that all employees not have a criminal record. Could it be argued that they now in violation of their employment contract?

There is no way to predict what the federal government will do moving forward with the newfound strategy of targeting a motorcycle club as an entity under RICO. But there are empirical reasons to believe that whatever strategy authorities employ will not advance civil liberties. Who could have predicted the strategy to completely redefine the First Amendment before they initially tried to take the Mongols MC’s patch? Who would have predicted the government’s initial success? Who would have predicted that nearly 200 individuals in Waco would be arrested on generic affidavits and incarcerated on $1-$2 million dollars bail instead of being questioned and released? Who would have guessed an individual could be arrested for Unlawful Carry in Texas as a LTC holder solely for being a member of a motorcycle club?

The Constitution does not seem to be a barrier in the decision-making calculus of authorities’ intent on targeting motorcycle clubs.

After individuals were forced to remove their motorcycle club colors before entering the Idaho Senate viewing chambers to observe a vote on a bill addressing motorcycle profiling on March 4th, ABATE of Idaho sent a letter to every legislator in Idaho requesting an end to this discriminatory practice on March 8th.

The President Pro Tempore, Senator Brent Hill, initially responded by apologizing for any inconvenience, but the policy going forward was not clearly stated in his response. So ABATE of Idaho pressed forward requesting an explicit policy. Senator Hill responded in writing that individuals wearing motorcycle club colors would not be denied access to Idaho Senate Chambers going forward.

Although S1109, which would have prohibited motorcycle profiling, failed by one vote on the floor of the Senate this year, this incident and outcome move motorcyclists one step closer to legislative protection and further reinforces the importance of fighting back.

ABATE sends cease and desist to every legislator in Idaho

ABATE responds to Senate’s ambiguous apology

(Cont.)

Idaho Senate clarifies MC colors allowed in Senate Chambers

On Monday March 4th, 2019 members of the motorcycle club community were victims of unconstitutional discrimination inside the Idaho State Capitol when they were told by Capitol Security personnel that they would have to remove their motorcycle club colors if they wanted to enter the Senate chambers to observe a floor vote on S 1109, a bill prohibiting motorcycle profiling. These individuals (one a member of the Brother Speed MC and one an associate of the Vagos MC) also participate in ABATE, the primary grassroots group lobbying for a law in Idaho, and complied in order to watch the vote. ABATE of Idaho responded by sending a cease and desist request to every legislator in Boise on Friday, March 8th, 2019.

Constitutional Issues

ABATE’s letter to Legislators reads: “Any government agent denying an individual access to Senate Chambers because they are wearing motorcycle club colors is a clear violation of speech, association and due process rights protected by the US Constitution. Motorcycle club colors are First Amendment protected expression and wearing motorcycle club colors is considered expressive conduct, particularly when that expression is political.”

Bree Walker, representing ABATE of Idaho, reported to the MPP that she talked with the Capitol Security Officer that denied MC members wearing colors access on March 4th and confirmed that the Idaho Senate Sergeant at Arms; Sarah Jane McDonald, ssgt@senate.idaho.gov, (208) 332-1400, was responsible for giving the order.

“Motorcycle profiling and discrimination have literally followed motorcyclists inside the Idaho State Capitol, a place where freedom of expression in a free society is supposed to be paramount, while participating in the democratic process to address issues of profiling and discrimination. Unfortunately, S 1109, a simple measure codifying Constitutional principles, fell one floor vote shy of passing.”

“Denying access to individuals because they are wearing motorcycle club colors exposes the government officials involved to potential civil liability under 42 USC Section 1983 for violations of the First and Fourteenth Amendments.”

Cease and Desist Request

ABATE of Idaho sent a letter to all state Senators and Representatives requesting “that the Idaho Senate, House of Representatives, and all law enforcement and other personnel involved with Capitol security, take whatever action necessary to guarantee that such unconstitutional acts of discrimination targeting those wearing motorcycle club colors at the Idaho Capitol immediately ceases.”

There is nothing in the Senate Rules that would prohibit motorcycle club colors. That’s freedom of expression. Why would there be?

It appears that evidence of motorcycle profiling in Idaho can no longer be denied.

The MPP has heavily reported on the recent trend of individuals being arrested for possession of handguns merely for membership in a motorcycle club. This includes individuals with no criminal records and License To Carry holder’s. The MPP has even issued a travel warning to motorcyclists traveling through Texas. One such case against a member of the Bandidos Motorcycle Club (Ashley Becker) in Lubbock, TX continues with a refiling of charges for Unlawful Carry for mere membership in the club, which authorities label a criminal street gang. Law enforcement and prosecutors should dismiss all such cases in the name of justice because they rely on an unconstitutional application of statute which ignores the basic principle of personal guilt.

The Details

Texas Penal Code 46.02, the statute prohibiting gang members from carrying weapons, is being misapplied to individuals simply for being members of motorcycle clubs. Take Ashley Becker, who was originally charged with Unlawful Carry and suspicion of possessing a controlled substance in Lubbock, Texas in 2018. The weapon wasn’t illegal, and no crime was committed. He was arrested under 46.02 for being a Bandido in possession of an otherwise legal weapon. The alleged controlled substance, after being tested multiple times, turned out to be inconclusive.

While prosecutors make no admission that they misapplied statute 46.02, they filed a motion to dismiss. The motion reads, “The interest of justice cannot be served through further proceedings in this matter.”

Although the 2018 indictment was dismissed without prejudice, on February 9, 2019 charges were refilled against Becker on the Unlawful Carry charges. The affidavit identifies Becker’s membership in the Bandidos as the only probable cause for arrest.

Authorities persist despite absurd, unconstitutional interpretation of law.

Despite the fact that their interpretation of statute is unconstitutional and in violation of established state and federal rules of evidence, law enforcement and prosecutors persist in wasting public resources targeting individuals like Becker for participating in Constitutionally protected expression and association. This absurd interpretation of 46.02 would mean that carrying a weapon is unlawful for any individual that is a member of the Bandidos Motorcycle Club, with no other evidence, even with a License to Carry.

“If this seems outrageous, your instincts are correct. The MPP, after conducting cursory research on 46.02, has identified precedent, Ex Parte Flores 483 SW 3d 632 (2015), that clearly articulates how law enforcement is currently misinterpreting and misapplying Texas statute in violation of the basic rules of evidence and the US Constitution.”

“Law Enforcement and prosecutors should immediately cease and desist misapplying Texas statute. Applying Texas Penal Code 46.02 to members of clubs with no criminal records, and even LTC’s, would chill 1st Amendment Association and ignore the doctrine of personal guilt, “a cornerstone of American Jurisprudence.”

In the name of justice, prosecutors in Lubbock should again file a motion to dismiss all charges against Becker, this time with prejudice. Furthermore, prosecutors and law enforcement in El Paso, Dallas, and across the state of Texas should follow suite.

After motorcycle clubs, who’s next?

Everyone should ask themselves, “After motorcycle clubs, who’s next?” Every large identifiable group has individuals that have committed crimes. Should your civil liberties be taken based on the actions of other individuals you associate with even if you had no involvement in criminal activity?

The blatant attempt to disarm the entire community regardless of an individual’s personal involvement in criminal activity will not stop with motorcycle clubs if authorities are successful. Every American should be deeply concerned about this assault on basic civil liberties. Unpopular speech, including unpopular association, is the most important speech to protect. Or so long has held the Supreme Court.

Video footage obtained by the MPP from the North Florida Council of Clubs confirms that motorcycle profiling is not only widespread in Daytona Beach, but it is also official law enforcement policy. In the words of Daytona PD Chief Craig Capri, “If you wear your colors [in Daytona Beach], you’re going to get stopped.” This official policy is unconstitutional and exposes the entire Daytona PD to civil liability. This video evidence also justifies a cost-free legislative solution in the form of a simple prohibition against motorcycle profiling combined with relief for victims.

Chief Capri’s Statement Proves Unconstitutional Practices Are Policy

Without any other evidence, Chief Capri’s Statement alone proves that the Daytona PD profiles motorcycle club members as a matter of policy. This official policy irrefutably violates the 1st, 4th, and 14th Amendments to the US Constitution.

Federal courts have confirmed that motorcycle club colors are protected by the 1st Amendment. To punish an individual through seizure in the form of a profiling stop anyone “who wears the insignia of [a 1% motorcycle club], without regard to or knowledge of that individual’s specific intent to engage in the alleged violent activities committed by other members, is antithetical to the basic principles enshrined in the First Amendment and repugnant to the fundamental doctrine of personal guilt that is a hallmark of American jurisprudence. see Coles v. Carlini 162 F.Supp.3d 380 (2015)

Chief Capri’s statement also violates the 14th Amendment because it represents Selective Enforcement of the law. Capri’s statement proves that the strategy to use traffic stops as a way to punish those exercising their rights of expression and association is premeditated and selective. In terms of the 4th Amendment, any minor traffic pretext used to stop a club member in Daytona Beach should be presumed invalid.

Exposure To Civil Liability

Motorcycle profiling as a matter of policy implicates the entire Daytona PD at an organizational level. Independent of individual officers and incidents, each profiling stop exposes the Daytona PD as an entity to civil liability. Chief Capri is the highest authority at the Daytona PD and clearly articulates a policy of discrimination and Selective Enforcement. 42 U.S.C. Section 1983 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.“

An Epidemic In Florida

The National Motorcycle Profiling Survey validates the Florida’s profiling epidemic. The 2018 NMPS lists Florida as one of the top motorcycle profiling concerns in America. According to the 2018 NMPS, 65% of Florida survey participants reported being the victims of motorcycle profiling at least once since 2012. These survey statistics are 99% reliable with less than a 2% margin of error. (See NMPS Executive Summary 2018).

Despite promises, Daytona PD has failed to address motorcycle profiling

There is a long history and pattern of evidence establishing that motorcycle profiling is engrained in the Daytona Beach PD. And the Daytona PD has made empty promises when caught with their hands in the cookie jar.

While attending the 2017 Biketoberfest rally in Daytona Beach, Florida, members of the Iron Horsemen Motorcycle Club (IHMC) were the target of blatant profiling and discrimination at the hands of the Daytona Beach PD. The incident, caught on videotape as a result of quick thinking, is irrefutable. The impact on civil liberties motivated the combined efforts of the North Florida Council of Clubs, the National Council of Clubs, and the Motorcycle Profiling Project to immediately respond with a formal complaint and public record requests. These inquiries, based on the video, sparked an investigation into the actions of the officers involved and a review of Daytona PD policies regarding motorcycle clubs, said a source inside of Chief Craig Capri’s office. As a result of the State Attorney’s inquiry, a curriculum was supposed to be constructed and all Daytona PD officers were to be re- trained relating to motorcycle profiling.

Unfortunately, almost 2 years later, motorcycle profiling is alive and well in Daytona Beach. As articulated, motorcycle profiling is still official policy.

A Legislative Solution

Motorcycle profiling is a legitimate national policy discussion. In December, the US Senate unanimously approved S.Res.154 which directs all states to follow the lead of Washington State and Maryland by legislatively addressing and condemning the practice of motorcycle profiling. A prohibition combined with injunctive and actual relief for victims is a simple solution with no fiscal impact. A legislative prohibition would immediately increase exposure to the issue therefore reducing incidents of profiling.

The federal government will not be seizing the Mongols Motorcycle Club’s collective membership marks anytime soon. Judge David Carter issued a short and direct decision today (February 28, 2019) during phase 3 of the US v. Mongols Nation trial in the Federal District Court of Southern California concluding, “The First and Eighth Amendments to the US Constitution prohibit the Government’s request to forfeit the rights associated with the collective symbols. Accordingly, the Court DENIES the requested forfeiture of collective membership marks.”

Although this is a major victory, it is likely not over yet. Using the past as an indicator, the MPP believes that the government will likely appeal Judge Carter’s decision. But this decision gives hope that the constitutional principles at stake will continue to prevail against overzealous prosecutions.

The Particulars

Judge Carter denied the government’s request for the Mongols Nation to forfeit rights associated with the Mongols collective membership marks, including their name and center- patch. This means Judge Carter has set aside the jury’s grant of forfeiture in phase 2 of the trial based on the First and Eighth Amendments.

However, Carter tentatively granted the requested forfeiture of weapons, ammunition, body armor, and specific property seized during the ATF raids pending the filing of an amended request consistent with this order.

Finally, Carter denied the Mongols Nation’s motion for acquittal and motion for a new trial. This means that the jury’s Guilty verdict in phase 1 of the trial (guilt phase) stands. The Mongols Nation as an entity, defined as all patched members of the Mongols Motorcycle Club, has been found guilty under the RICO statute.

Carter then set the Sentencing Hearing for April 24, 2019 at 1:30pm.

Save The Patch- What happens next?

The MPP believes the government will likely appeal Carter’s denial of forfeiture. And if history repeats itself, the ACLU will also step up as they did in Rivera v. Ronnie A. Carter, Acting Director, ATF; et al. Rivera was an un-indicted member of the Mongols MC that filed a lawsuit fighting the government’s previous patch seizure attempt.

Why does the MPP believe that the ACLU will step up? Because they already have by filing an Amicus brief (requested comment by friends of the court) in support of the Mongols preceding phase 3 of the trial, authored by David Loy, Legal Director for the ACLU of San Diego, who also represented Rivera. Loy successfully recovered attorney fees following the decision.

The ACLU specializes in First Amendment law and Loy has repeatedly demonstrated prowess with the Mongols struggle to defend their right to express and associate. Their attention to this case bodes well for motorcycle clubs and civil liberties in general.

#SaveThePatch

The same jury that found the Mongols Nation Guilty of racketeering and conspiracy in the federal RICO case US v. Mongols Nation has also decided that the club should forfeit their patch because there was a nexus between the Mongols MC’s collective membership marks and conspiracy. However, Judge Carter has not issued a forfeiture order until objections based on the First Amendment are decided at the end of February. Even then, this case is a very long way from its final conclusion.

What’s happened so far.

The Mongols Nation, defined as all full patched members of the Mongols Motorcycle Club, was convicted as an entity last month in US v. Mongols Nation on 2 counts under the Racketeering In Corrupt Organizations Act (RICO) for racketeering and conspiracy to engage in racketeering.

On January 11, 2018, the same jury found a sufficient nexus between the Mongols membership marks (word mark, center patch mark, collective membership marks) and the RICO conspiracy count to justify forfeiture of the membership marks in the second phase of the trial.

On February 28, 2019 the third and final phase of the trial will resume. Judge Carter made it clear that the trial’s third phase will determine whether the First Amendment overrides the jury’s grant of forfeiture. If Carter agrees with the Federal Government, then the Mongols center-patch, name, and other assets connected to the RICO conspiracy count will be subject to forfeiture. If Carter agrees with the Mongols MC, then the First Amendment will override the jury.

Appeal very likely

Regardless of who wins, the losing party will likely appeal any decisions related to forfeiture of the Mongols membership mark to the 9th Circuit Court of Appeals. If the government wins, similar to what occurred in 2008, then the Mongols MC may have their patches and related property seized in the interim, until and only if they win an appeal.

Any decision in the 9th Circuit Court of Appeals sets precedent for the Western US. Any decision from the 9th Circuit will also likely be appealed to the Supreme Court. If the SCOTUS agrees to review the case the outcome would set precedent for the entire country.

Conclusions

Although it is impossible to determine with certainty what Judge Carter will decide, the MPP is extremely optimistic that the First Amendment liberties of expression and association will reinforce the foundational concept of personal guilt and override a jury of lay citizens that are simply unprepared to engage in complex constitutional analysis.

For the sake of the motorcycle club community and the First Amendment, let us hope the MPP is correct. The very identity of a motorcycle club is the patch that they wear.

For the first time in history, in its latest bid to seize the Mongols Motorcycle Club’s logos and collective membership marks, the federal government has successfully indicted every single full-patched member of a motorcycle club on felony RICO racketeering and conspiracy charges regardless of personal guilt.

So, what happens next? What does this verdict mean for the Mongols MC, other motorcycle clubs in America, and the First Amendment to the US Constitution? There are definitely more questions than answers. But one thing is certain. The fight to Save The Patch is far from over. Now, more than ever, motorcycle clubs have a critical issue to mobilize around in order to preserve and insure the survival of a lifestyle and a culture.

Mongols Nation found guilty.

On December 13th, 2018, the Mongols Nation, defined as all full-patched members of the Mongols Motorcycle Club, was found guilty by a federal district court jury in Southern California under the federal RICO Act of racketeering and conspiring to engage in racketeering, for conducting and participating in the criminal enterprise called the Mongols Gang. The Mongols Gang is defined by the federal government as all patched members, prospects, and associates of the club. The federal government argued that, since 2002, the Mongols Gang has committed crimes ranging from drug dealing to murder at the direction and benefit of the Mongols Nation.

No one goes to jail?

Despite a verdict of guilt, no one will be incarcerated as a result. The crimes cited are historical and, in many cases, resolved. The goal here is different. The government maintains that the club’s insignia and patches are an element of the criminal enterprise and a tool of intimidation. If the government gets its way during the sentencing phase, prosecutors argue they will literally be able to take the colors off a Mongol’s back.

The implications for the motorcycle club community at large are obvious. The federal government’s forfeiture strategy could ultimately be applied to other clubs in an attempt to crush the symbolism that defines association in motorcycle clubs. And completely independent of forfeiture, the idea that an entire motorcycle club can be defined as a criminal enterprise regardless of personal guilt also lays the foundation for other severe sentencing options such as excessive fines and asset forfeiture.

Personal guilt and the 1st Amendment.

Beyond immediate impacts to the Mongols MC, the US Attorney’s theory of prosecution compromises important judicial principles such as the doctrine of personal guilt, guilt by association, and the fundamental concepts of First Amendment Association and Expression. Indeed, the prosecution’s theory obliterates long-standing constitutional principles.

To permit the government to impose restrictions on any person “who wears the insignia of [the Mongols], without regard to or knowledge of that individual’s specific intent to engage in the alleged violent activities committed by other members, is antithetical to the basic principles enshrined in the First Amendment and repugnant to the fundamental doctrine of personal guilt that is a hallmark of American jurisprudence.” ¹

Unanswered Questions.

Independent of collective membership mark issues, and even though no one is going to jail as a result this verdict, what are the potential implications of the Mongols Nation- meaning every member of the Mongols MC- being found guilty of two felony RICO counts? No individual person is specifically named in the indictment. But every member they want to seize property from must be an indicted individual in order to avoid the same judgement that gave the Mongols back their property initially.

Does this mean that every member of the club now has a felony record? Does this mean that members can be denied rights like voting and legal possession of a firearm? Does this mean that the Mongols MC has no 1st Amendment right to associate with one another because all patched members, the Mongols Nation, have been found to all be engaged in a criminal enterprise?

These questions, at least to the MPP, remain unanswered. So much focus has, understandably, been placed on the patch forfeiture issue that many of these questions haven’t yet been considered by those discussing and writing about this case.

The potential impacts are vast. Australia has no 1st Amendment so banning motorcycle club associations does not face the same obstacles as in America. The prosecution’s strategy in this case is, the MPP believes, the government’s most recent blueprint for circumventing the 1st Amendment and crushing motorcycle clubs in America.

What happens now?

The US v. Mongols Nation Trial, despite a guilty verdict, is still a long way from being over. After the first of the year, the jury will reconvene, enter the sentencing phase, and decide whether they agree with the government’s forfeiture requests. And even if the jury grants forfeiture, Judge Carter must then adjudicate the extensive legal and constitutional objections to forfeiture.

Fortunately, even if unsuccessful in every phase of this federal district court trial, the Mongols MC can appeal the decision as they previously did when they lost their patch in district court before overturned on appeal. Unfortunately, there is no guarantee what will happen in the interim if the Mongols marks are seized. If history repeats itself, the Mongols MC will be targeted, harassed, and have property and colors seized by authorities.

Make no mistake. This is NOT just about the Mongols MC. In a very real way, the motorcycle club lifestyle is under heavy attack and survival is not assured. This verdict demonstrates that reality. So, the community must not only continue to fight the good fight- the community must win.

Citations

¹see Coles v. Carlini 162 F.Supp.3d 380 (2015)