What’s Wrong With The Current Approach To Biker Profiling

I’ve been closely following legislation and lawsuits regarding biker profiling for over a decade. In that time, Arizona’s motorcyclists’ rights organizations have been giving it more and more attention. I think it’s fair to say that, for many or maybe even most bikers, it is the single most pressing issue they feel those organizations ought to be addressing right now.

In many ways, I’m inclined to agree. I hear new stories about police telling business owners not to allow patches in their establishments almost every day. As a criminal defense attorney, I represent clients who are clearly targeted by officers simply because they ride. Even after charges are filed, bikers are regularly treated far more harshly. In the City of Mesa, for instance, there is a special prosecutor for misdemeanors involving bikers, and things that would ordinarily be resolved with a fine or even pled down to a civil violation for a pedestrian or a car driver often involve a plea to jail when the accused happens to be a biker. It’s disturbing, and the outrage from the biker community is clearly justified.

There’s undoubtedly a problem, and change undoubtedly needs to happen. The problem, however, is figuring out a plan of attack that actually makes a difference. Although I risk offending who knows how many well-intentioned organizations and individuals, I worry that bikers’ current approach of lobbying, legislation, and lawsuits is never going to make a difference. There are three big hurdles standing in the way.

The first hurdle is the fact that the vast majority of bikers have a fundamental misunderstanding about their rights. The single most important thing to remember is this:

You have no independent right not to be discriminated against because you are a biker.

That doesn’t mean officers can stop you on your bike for no reason, arrest you for no reason, take your patches for no reason, or prevent you from gathering for no reason. Stopping a bike and detaining the rider is a seizure within the meaning of the fourth and fourteenth amendments, so it requires a violation of the law or reasonable grounds to suspect the rider has committed an offense. To make a valid warrantless arrest, the fourth amendment requires that a police officer must have probable cause to believe both that a crime has been committed and that the person to be arrested committed the crime. Furthermore, under the first amendment, seizures of expressive materials like patches are prior restraints on speech, what courts call “the most serious and least tolerable violation of First Amendment rights,” and the Supreme Court of the United States has recognized that the first amendment also embraces a “right of association” when intimate relationships or expressive activities are involved.

If an officer stops or arrests you solely because of how you look, he’s violated your fourth and fourteenth amendment rights. If he takes your patch or breaks up your rally to prevent you from expressing something, he’s violated your first amendment rights. None of it has anything to do with any sort of special right you have because you’re a biker.

That leads directly to the second hurdle, which is the fact that the vast majority of bikers also have a fundamental misunderstanding about the outcome of lawsuits on the subject of profiling. Literally every time I attend any sort of rally, I hear stories about some lawyer somewhere winning a discrimination case. I have made it a point to research every single one of the cases that have been brought to my attention, and I have yet to encounter a single one that actually involved a true victory for motorcyclist discrimination. At best, they involve a victory for rights everyone already has. The plaintiffs just happen to ride motorcycles too.

The cases invariably involve officers who violate established rights, like the right to free speech or the right against unreasonable searches and seizure. A cop who stops a biker because he doesn’t like bikers isn’t basing the stop on reasonable suspicion, which the constitution requires. If a lawyer sues for the biker and wins that case, it isn’t a victory for motorcyclists’ rights any more than it would be victory for the Arizona Cardinals if the cop had stopped the rider for wearing a Cardinals jersey. It isn’t that being a biker or being a Cardinals fans makes you part of a protected group; it’s that neither constitutes valid cause to initiate a traffic stop.

The most frustrating situation occurs when people make a loss sound like a win. I’ve heard about the Saxon Creed Motorcycle Club suing the City of Rio Vista, California more times than I can count. They were denied a temporary use permit for a pig-roast party they wanted to have, and they filed suit. Unfortunately, the court granted the city’s motion to dismiss, saying the club’s suit was “supported only by conclusory and illusory allegations.” Now, people make the fact the court allowed the club to file again sound like a win. The same also happens with many of the Mongols’ various lawsuits, especially in Nevada. I have only seen them win cases on obvious issues having nothing to do with any supposed unconstitutional biker discrimination issue, yet people paint it as just that. In cases where clubs do claim discrimination without some other valid cause of action, most plaintiffs’ cases against most defendants are dismissed. Look no further than their 2012 case against the Las Vegas Metropolitan Police Department for an example, yet people keep acting like it’s something other than a run-of-the-mill lawsuit that isn’t going so well for the plaintiffs. The victories, when they actually happen, are never as much for bikers as they are for well-established constitutional rights.

That’s the reason why I also doubt whether the Sons of Hell lawsuit is likely to have any impact on bikers’ rights. The initial order dismissing the case had nothing to do with the merit of the claims, but rather with the club’s lawyer’s failure to prosecute. The new complaint and subsequent filings, like the first, fail to list a single constitutional violation that is going to prevent biker-specific discrimination in the future. If they win, it will be because the officers detained club members without cause and damages ensued. It will not be because they infringed on a biker-specific right, and it will do nothing for the greater cause. Officers will still be more than able to violate the rights of bikers everywhere; they will just have to try to avoid violating other more-established rights that they should’ve known about anyway.

The third hurdle is a direct consequence of the first two, and it involves successfully implementing a solution to the problem of widespread biker discrimination.

Officers generally say whatever best supports justifying whatever they did. They know they have to see a traffic violation or suspect criminal activity to stop a biker, so they claim that’s what happened. In reality, they saw fifty car drivers do the same thing and only stopped that one biker they profiled, but as long as they claim they saw a traffic violation or suspected criminal activity, they’re probably going to win. Discrimination laws are only going to protect bikers from cops who are too stupid to make up a good reason for initiating a traffic stop or making an arrest. The constitution already prohibits stopping someone for no reason except for the fact they’re a biker, yet cops do it all the time and say it was because the biker crossed a marked line, failed to signal, or went too fast or too slow. If we pass a law saying they can’t discriminate against bikers, they’ll just continue to fabricate other justifications.

Telling the cops to respect the constitution will change nothing, as that’s already required of them and they routinely fail to do it. On top of that, motorcyclist discrimination alone isn’t even a violation of the constitution. This year’s SB1086, which failed to pass despite the fact it only required officers to attend courses emphasizing “the prohibition against motorcycle profiling” and provided no basis for a lawsuit to enforce it, also would have made no difference. If we want to attack the root of the problem, we will have to do something very different from anything that is currently on the table.

As a lawyer, but more importantly as a biker, I think we need to change our approach altogether. I see no real possibility of us finding and funding the perfect case all the way to the Supreme Court of the United States, and even then, I see no realistic chance of us changing centuries of case law. I also see no chance of us passing at the state or the federal level an enforceable law against profiling with penalties for government officials who violate it. What we need to do is quit looking to lawyers, courts, and legislators to save us. They aren’t on our side, and at one point, we knew that.

ABATE’s main thrust was to “Educate, Not Legislate” when I started participating in motorcyclists’ rights organizations, but times have changed. I wish it was still like that today. The next time we wonder why we’re running out of money and bleeding members as we pay lawyers and lobbyists to fight what’s likely to end up a losing battle, I think we should reconsider out priorities and focus on the educational mission that drew most of us to this in the first place.