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Motorcycle Lawyers Discuss the Legal Challenges of Bikers of Lesser Tolerance as it Brings Civil Disobedience and Constitutional Court Challenge to North Carolina

admin — Sun, 14 Dec 2008 19:57:45 +0000

By Ray Henke, a motorcycle accident lawyer and member of Bikers of Lesser Tolerance, California

Freedom fighters joined to form BOLT of North Carolina and are currently bringing nonviolent civil disobedience and constitutional court challenge to the streets and courts of the state in response to the enactment of North Carolina’s new helmet law.

The North Carolina helmet law, which went into effect on January 1, 2008, is the same law that NTSB is recommending to state legislatures nationwide, with the insurance industry and medical lobbies throwing their weight behind the NTSB recommendations. The law requires motorcyclists to wear helmets compliant with the federal motorcycle safety helmet standards set forth at FMVSS 218. The North Carolina law, and all other state laws requiring riders to ride with helmets that meet FMVSS 218 plainly are incapable of being understood by the ordinarily intelligent person, and are certainly incapable of being applied, except incompetently, subjectively, arbitrarily, and discriminatorily by law enforcement officers. FMVSS 218 is just a list of laboratory procedures and arbitrary impact criteria. You have to be an engineer to understand it, and you have to have the laboratory equipment to apply it. Such laws are unconstitutional because the due process clause of the United States Constitution requires that law be comprehensible specifically so that the citizenry can know what is prohibited, and to avoid arbitrary and discriminatory application of the law by police and the judiciary. You are invited to learn more about the motorcycle lawyers perspective on the Constitutional defects in helmet laws.

The BOLT of North Carolina freedom fighters refuse to be constrained by this unconstitutionally vague legislation. They are holding protest rallies all over the state with a frequency and drawing numbers of bikers refusing to abide the law that has not been witnessed anywhere in the United States in decades. They have sponsored already over a dozen helmet protest rides, in which the riders make their own choices whether to wear helmets. And if they ride with helmets, they make their own choices as to the kinds of headgear they wear, undeterred by North Carolina’s attempt to force them to wear the riding hat specified by this new state biker dress code. The BOLT of North Carolina riders have been joined in their protest by individual bikers numbering over 500, angered by the state’s intrusion upon their freedom, coming from all over North Carolina. According to the Director of BOLT of North Carolina, Janice MacKay, “The next acts of civil disobedience in North Carolina are the 2nd Annual East Coast Helmet Protest on May 18th, followed by the Maggie Valley Freedom Ride on NC Bikers Freedom Ride Day, June 12th, and the WNC Freedom Ride in Asheville from Buncombe County to Henderson County on June 21st.”

It is expected that BOLT of North Carolina will also hold a freedom ride “in solidarity” with BOLT of California, and ABATE of California, organized by BOLT member, Red Barron. Two years ago the San Diego police laid in wait for the participants, setting up roadblocks and issuing helmet tickets. This past year, the police stayed their distance. Similarly in North Carolina, notwithstanding the threats of law enforcement to strictly enforce the new helmet law, Ms. MacKay reports that it is difficult to obtain a helmet ticket without riding back and forth outside the state police headquarters in Raleigh.

If North Carolina will rise to the challenge to enforce the law, BOLT of North Carolina hopes to clog the traffic courts at an average cost to the state of $872 per helmet citation trial, also requiring the law enforcement officers to appear and explain upon what incompetent basis they issued the tickets, providing the evidentiary basis for the initial constitutional challenge that the FMVSS 218 based law cannot be understood by the biker or cop and therefore is unconstitutionally vague.

At the same time, BOLT of the North Carolina is active in the legislature, with a no compromise helmet law repeal bill recently drafted and distributed to all North Carolina legislators by Jan MacKay. BOLT is also actively opposing the Street Gang Act and other legislation often employed by law enforcement arbitrarily and discriminatorily against bikers who chose to wear colors.

This article is provided by Ray Henke, a California lawyer, founder of Motorcyclists Against Dumb Drivers, and co-moderator of Bruce & Ray’s Biker Forum, also a member of Bikers of Lesser Tolerance, and contributor to Biker, Born to Ride and Thunder Road magazines.

A Motorcycle Accident Lawyers Perspective: Motorcycle Safety – What We Can do To Make Our Streets Safer for Motorcyclists

admin — Sat, 06 Dec 2008 02:21:02 +0000

By Ray Henke, a Motorcycle Accident Lawyer, Biker Rights Advocate and founder of Motorcyclists Against Dumb Drivers

The objective of our motorcycling community should be first and foremost to attempt to increase our safety on our American roads and highways. The solution is first to identify the principle causes of motorcycle accidents, and then to arrive at means to reduce the incidence of motorcycle accidents resulting from those causes. What the largest study of motorcycle accidents demonstrates is that two-thirds of all motorcycle accidents result from the inattention and negligence of auto drivers, two-thirds of that number, or fifty percent of the total resulting when the auto driver pulls out from a side street into an intersection or turns left at an intersection into the motorcyclist’s right of way.

The solutions to auto driver inattention and negligence involve legislation, motorcycle awareness programs and education, meaning specifically, auto driver education on how to drive safely for the protection of motorcyclists. The type of legislation that motorcycle groups have been able to obtain in many states to address specifically this most common type of motorcycle accident include ROWV laws, meaning “right-of-way violation laws,” providing more serious penalties, preferably long drivers license suspensions, where a driver injures a motorcyclist in an accident resulting from the auto driver’s having violated the rider’s right of way.

Many motorcyclists are aware of “Motorcycle Awareness” programs, now given at least some attention by State Governors proclaiming May as Motorcycle Awareness month. But there is much more that must be done year long. Every city and town should place permanent “Please Watch for Motorcyclists” signs at even just a few key intersections given that intersections are the location where these most common of motorcycle accidents occur. There are a growing number of cities that are doing this. But much more should be done given the seriousness of this motorcyclist safety issue. You can read more about what can and should be done at Motorcyclists Against Dumb Drivers but most importantly we need to provide auto driver education opportunities specifically to inform auto drivers about what they need to do for the protection of their “two-wheeled friends.”

One example is to modify the DMV booklets that auto drivers review in preparation to take the written examinations to obtain and renew their auto drivers licenses. The booklets should contain comprehensive information about motorcyclist safety, the most common ways that auto drivers endanger motorcyclists, and how best to adapt their driving for the protection of motorcyclists, for example, by specifically looking for oncoming motorcycles before entering or turning left at intersections. The booklets should also go into turning around to look into their rear view mirror blind spots, and the disparity of motorcycle breaking distances compared to those for autos of different sizes to reduce rear-end motorcycle accidents.

In addition, we would hope that the states would take the opportunity to similarly educate auto drivers by making motorcycle safety a significant part of the curriculum in all high school and other driver instruction programs, as well as in all voluntary or court ordered driver education programs, such as those offered in most states for drunk drivers or drivers seeking to avoid a traffic ticket point on their driving records, and we would urge specifically for those convicted of any right-of-way violation.

Thank you for considering these motorcycle safety proposals. I hope that when these matters come up in your state that you will consider writing to your state legislators to let them know of your informed opinion.

This article is provided by Ray Henke, a California lawyer, founder of Motorcyclists Against Dumb Drivers, and co-moderator of Bruce & Ray’s Biker Forum, also a member of B.O.L.T. Bikers of Lesser Tolerance, and contributor to Biker, Born to Ride and Thunder Road magazines.

A Motorcycle Lawyers and Biker Rights Advocate’s Perspective:

admin — Sat, 06 Dec 2008 02:20:08 +0000

Quigley vs. CHP, the Constitutional Case Poised to Bring Down the California Motorcycle Helmet Law

By Ray Henke, Esq., Motorcycle Lawyer, Member, 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). Read more as California lawyers discuss the Constitutional attack on the California helmet law

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 motorcycle accident lawyer, 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., and currently, B.O.L.T. of California, legal advisor. He also co-moderates Bruce & Ray’s Biker Forum.

Serious Injury Motorcycle Accident Cases Are Complex Litigation

admin — Thu, 28 Feb 2008 05:57:49 +0000

Motorcycle accidents, unfortunately, often result in serious and catastrophic injuries. Some of the reasons are obvious, such as that motorcycles don’t have the surrounding metal cage, the safety designed interior padding, seat belts and air bags that protect auto drivers. Some of the reasons are less obvious, such as the “inattentional blindness” that impairs many auto drivers’ ability to “see” the oncoming motorcycle often leading auto drivers either to pull out into intersections from side streets or turn left directly into the motorcyclists’ path.

Motorcyclists may suffer quadriplegia, paraplegia, other spinal cord injuries, traumatic brain injury, TBI, debilitating internal injuries, catastrophic orthopedic injuries and limb amputations. Our serious injury motorcycle accident lawyers will discuss two of those categories of cases, involving TBI and spinal cord injuries. However, every serious injury motorcycle accident case is “complex litigation,” much more complicated than “who ran the red light,” and so it is very important that the seriously injured client obtain the representation of qualified lawyers, highly experienced in the preparation and presentation of complex litigation, motorcycle accident attorneys capable of competently presenting to the settlement judge and jury the full measure of the motorcyclist’s general and special damages.

We’ll contrast the ordinary and serious injury motorcycle accident case without in any way discounting the importance of the ordinary case, because every motorcycle accident case is important for the client and should likewise be important for the attorney. However, it would be inaccurate to say that the preparation or presentation of “general damages,” “past and future medical expense” or “past and future loss of earnings” is similar.

For many “motorcycle accident lawyers” the term “general damages” means “pain a suffering”; but for the true serious injury motorcycle accident attorney, the most persuasive general damage evidence is what we call “loss of enjoyment of life damages.” This is commonly the way our seriously injured clients see it. And it can be presented poignantly by juxtaposing the evidence of what the client enjoyed most in his life before the accident, through the testimony of friends, family, home videos and photographs, against a professionally produced “Day in the Life” film, demonstrating the courage of the serious or catastrophically injured client as he confronts and overcomes the challenges of his post accident daily life.

In the ordinary motorcycle accident case the lawyers might have to present some evidence of past medical expense, but presenting future medical expenses for the seriously injured motorcyclist is hugely more complex. For a more general discussion of motorcycle accident litigation you may consider “How Motorcycle Accident Lawyers Present Liability Evidence”. The presentation of the motorcyclist’s future medical expenses commonly requires a number of treating doctors as well as medical experts engaged by the serious injury motorcycle attorneys, and then perhaps most importantly, a life care planner and forensic economist. In the briefest summary, the life care planner, under the direction of the lawyer will consult with the treating doctors and other medical experts first to derive the client’s post accident “life expectancy,” and then identify all of the medical expenses, such as additional surgeries, rehabilitation expenses, anticipated convalescent home costs, replacement prostheses, wheel chairs, all the way down to the cost of the medical supplies and sundries that the injured motorcyclist will likely require over the remainder of his anticipated life expectancy. The serious injury motorcycle accident lawyers will then present the life care planner’s report to the forensic economist who will increase the individual medical costs over by the anticipated date they will be required by use of medical cost inflation government statistics, and then with use general inflation statistics to reduce that number to “present value.” There is no other proper way to present future medical expense, and if not properly prepared, the Court will likely not permit the evidence to be presented.

Similarly, in the ordinary motorcycle accident case, presenting past earnings losses may be as simple as counting the number of days the rider lost from work and multiply it by his daily wage. In the serious injury motorcycle accident case, presenting future lost earning can be extraordinarily complex. In the simplest serious injury case involving the daily wage earner, the qualified and experienced motorcycle accident lawyer will require a number of medical experts, and then perhaps most importantly, a “vocational rehabilitation expert” and an economist to establish the client’s “net loss” as defines the measure of future earnings loss damages. The vocational rehab expert speaks with the client, his medical doctors, the medical experts. He will review the clients school record and other information with regard to his clients earning capacity before and after the accident. He will then provide the report to the serious injury motorcycle accident lawyer outlining the occupations for which the client is now disqualified, and for which he may remain qualified. The information from the medical experts will also provide the serious injury lawyer with the critical information with regard to the client’s “work life expectancy” before and after the accident. The serious injury motorcycle accident attorney will then provide all the information to the forensic economist, who will employ wage rate increase statistics for the client’s occupation before the accident, and those for which he may be still qualified following the accident, for the different work life expectancies, and then, after arriving at the differential will apply general inflation statistics to reduce the amount to present value.

Please understand that these earnings calculations apply only to the simplest case of the hourly wage earner. The serious injury lawyer’s task in presenting future loss earnings can be much more complicated as where the client is self employed or employed in an occupation with realistic advancement opportunity. For a more complete discussion of the presentation of damages in serious injury cases, you are invited to consider “How Serious Injury Lawyers President Damages in Catastrophic Injury Cases”. In that article we go into much more depth in explaining how serious injury attorneys present general damages and special damages, including in particular, future medical expenses and future loss of earnings.

Brain damage and spinal cord injuries, including quadriplegia and paraplegia are commonly sustained in motorcycle accidents, and can be the most catasrtrophic. Perhaps more important than anything else, the qualified serious injury motorcycle accident lawyer must be capable of fully recognizing the devastating changes in his client’s life that have resulted. Again, the “general damages” suffered by the brain damaged or paralyzed client are not limited or principally “pain and suffering.” For clients who suffer traumatic brain injury, TBI, or who are paralyzed in motorcycle accidents the greatest devastation can be characterized most poignantly as “loss of enjoyment of life” damages, demonstrated, as discussed above, by the juxtaposition of all the activities that brought the most joy to the clients life before the motorcycle accident with the professionally produced Day in the Life film illustrating the courage with which the paralyzed client meets his daily post accident challenges.

Traumatic brain injury, paralysis and other serious injury motorcycle accident cases require the lawyers’ compassionate insight into what his client considers his greatest loss, along with his wisdom gained by training and extensive experience to maximize the client’s prospect for settlement or jury verdict obtained at trial.

Raymond L. Henke, Principle trial attorney with the California Accident Attorneys & Medical Malpractice Lawyers Group