(December 25, 1992)
If you are considering manufacturing and selling motorcycle helmets, I suggest that Ed and Reva Wren, owners of E&R Fiberglass of Tacoma, Washington, might be the first people that you will want to contact.
Ed rides a motorcycle and has worn helmets, off and on, for years. He was aware of how difficult it is to keep track of where a rider is in relation to the enemy -- the automobile driver -- while wearing a helmet that restricts vision or hearing. He decided that if he made a helmet which had the properties of light weight, unrestricted vision and unrestricted hearing, which would still provide head protection in case of an accident, that he could satisfy a consumer need; in the tradition of the American entrepreneur, he would have built the "better mouse trap," and people would (with cash in hand) beat a path to his door.
The first task was to determine the legal requirements of manufacturing such a product. They found that in order to establish a standard for a piece of safety equipment which involves interstate usage, such as a motorcycle safety helmet, the authority for the standard has to be Federal; the States are prevented from making, or even duplicating Federal standards as, their own.
Their research led them to the United States Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) as the source of, and administrating body for, Federal Motor Vehicle Safety Standard 218 (FMVSS 218), the applicable standard.
It took a while for them to understand this standard because FMVSS 218 is a "self-certification" standard. E&R couldn't understand what the government meant by "self-certification." It took weeks for it to finally sink in that the manufacturer of a helmet was the only authority for whether or not the helmet met the standard . . . not the DOT, not NHTSA, not the police, not some other certified testing laboratories; but, the manufacturer. It all seemed too simple, and too lax. But, that's the law.
If the DOT had set an exact Federal standard (the exact Federal standard for even a carriage bolt is pages long) then the Federal Government would be forced to assume liability if something happened and that standard, or enforcement of that standard, could be shown to have caused harm to the end-user.
The Federal Government is forbidden by the Constitution, and court decisions, from taking on such liability; so, the Feds set up, instead, a self-certification standard making the manufacturer liable for any possible failure of their product.
Confused? Me too. If you're not, go back and start over...you didn't get it the first time.
Anyway, because a one-shot test would cost the same as building their own testing facility, what E&R Fiberglass did was to set up their own in accordance with the information that they received from DOT and NHTSA, and began to manufacture, test, certify, and sell the E&R Helmet, now known as the E&R "baby beanie" Helmet.
E&R Fiberglass began selling helmets in August of 1991, with "DOT stickers" firmly attached to each helmet (not shipped separately), in accordance with the provisions of FMVSS 218. This protects the consumer by showing compliance with FMVSS 218, as well as with any helmet law statute based on FMVSS 218.
By August of 1991, the whole country knew that California motorcyclists had finally lost their 25 year battle for freedom (on the basis of fraud) and were now faced with the restrictions and requirements of a helmet law; faced with their first decision as to what they were going to wear to comply with the new law.
The trendy rider had already made the choice to wear the full-face, racing-style, helmet -- usually color coordinated to match their racing-style bikes. This market did not open up, at all, for beanie-style helmets.
But, what about the rider who had absolutely no desire to make a fashion statement, and was none-the-less compelled to comply with the law? This was the market for E&R.
There is no doubt about it, the "beanie helmet" was, and is, a nerdy-looking helmet; but, it is light weight, does not impair vision or hearing, and, with the exception of the fact of itself, leaves a rider with much the same feeling as he had without a helmet at all...AND, it was certified as being in compliance with FMVSS 218, by the manufacturer, as required by California's helmet law.
By January, 1992, the E&R Helmet had hit it's running speed, and it was all they could do at E&R Fiberglass to keep up with the demand. The market, it would seem, had made itself evident. The market was primarily Harley Davidson riders -- the very ones that the police had anticipated would revolt against the new law; but, they didn't.
They bought and wore E&R Helmets instead. Not as a means of protest (as has since been claimed in the CHP's bogus "bogus helmet" theory), but as a means of complying with the new helmet law in a way that made the most sense.
Almost immediately, the vagueness problem with the helmet law manifested itself as an attack on the wearers of the E&R Helmets.
Some police decided that they knew what a "legal" helmet was, and that the E&R was not such a helmet. The courts, however, did not share the view or accept the authority of the individual policemen, or their departments, and put a stop to the citations (and helmet confiscations) which started erupting in January.
By March, the first tickets had gone through the courts, and were dismissed; and in many cases, the police were reprimanded by the courts for writing the citations at all.
Someone contacted the California Highway Patrol to find out how they could attack E&R Helmet users (by then synonymous with Harley Davidson riders) over what they perceived as an attempt to circumvent the helmet law though the use of the beanie helmet. The CHP contacted NHTSA and requested a "special test" of the E&R Helmet, which NHTSA then ordered.
E&R was initially told they could witness these tests, and then not. The tests were allegedly made. The results were reportedly negative, extremely negative; raising many questions over their accuracy. Also in question was the deviation by NHTSA from its normal procedure for dealing with test results.
While these questions about the tests were being put to NHTSA by Ed and Reva, the CHP somehow discovered that the E&R Helmet had reportedly failed testing, and took off on an unprecedented campaign against E&R "Baby Beanie" Helmets by launching an all-out attack against their consumers.
On June 1, 1992, Deputy Commissioner Dwight "Spike" Helmick, of the California Highway Patrol, initiated a press release to any media source that would listen stating that E&R Helmets were no longer "DOT approved" (DOT does not approve helmets), and that anyone "caught" wearing one would be stopped and cited as if not wearing a helmet at all. He followed-up this news release with an All Agencies Bulletin (CHP Bulletin #34) designed to inform all police agencies, and the courts, that the E&R Helmet did not comply with the Federal Standard, and therefore anyone wearing one was doing so in violation of the law. What the Deputy Commissioner did not do was his homework.
The first word that E&R received that they were allegedly "in violation of the law" came from their customers in California. CHP Officers, and other police agencies, began ticketing E&R Helmet wearers by the thousands. Complaints rained in on E&R.
One week after the CHP's attack began, E&R was officially contacted by NHTSA, in a letter dated June 5, 1992, stating: " . . . it appears that the 'DOT Approved Baby Beanie' helmet is not in compliance with Federal Motor Vehicle Safety Standard 218. If you agree, . . . you are required to conduct a notification and remedy safety campaign." (bold added)
Ed and Reva had already stop-ped selling the helmets. As they attempted to negotiate with NHTSA to determine how their test results could differ so dramatically from NHTSA's, and how to fix the problem; the effect of the news release by Helmick, and the CHP, was having a devastating impact. Not only was their helmet under attack, but a personal attack had been leveled against them.
Sgt. Mike Nivens, head of Special Projects for the CHP, for example, in a telephone conversation with me, early on, accused Ed and Reva of being "crooks" who were "sitting on a pile of money, laughing at the people that they ripped off with those bogus helmets."
I checked it out. Ed and Reva are not sitting on a pile of money, are not laughing at or about anything, . . . and are most assuredly not crooks.
Yes, they had started to do very well, and were anticipating a major success with their helmet; not because they had found a way to skirt the law, but because they had found a safer and more comfortable way to comply with it. They had entered the right market at the right time with a product that was in demand. They had every right to succeed; such is the essence of the promise of our economic society.
Instead, the reality is that Ed and Reva Wren, and E&R Fiberglass of Tacoma, Washington, are now broke; they have been driven into bankruptcy. Not because they had done something intentionally illegal, or even because they had done anything wrong at all; but, because the California Highway Patrol used the power of their position to order tests of just E&R Helmets; somehow obtained the test results, took them out of context and ruled on them; and, deliberately used the reputation of the CHP to destroy a company that had broken no law, even now.
The most recent and most official word on the status of the E&R Helmet certification came in the form of a letter written to Mr. Steve Bianco, of San Marcos, California, from Robert Hellmuth of NHTSA, dated September 25, 1992, which states that NHTSA has not "made a formal determination of noncompliance" with FMVSS 218 by E&R Fiberglass. NHTSA, the only authority on the subject, has refused to commit to any clarification, in writing, beyond this one letter.
There are a lot more questions than answers in this story, but one thing is sure; if you still think you want to manufacture and sell motorcycle helmets, inside or out of California, my advice is . . . BEWARE! (Quig)
They say the last desperate act of a primate is to defecate and throw it at the predator. Case and point: CHP Bulletin #42, issued May 4, 1993, by CHP Officials.
In November, 1992, the California Judicial Council (CJC) finalized their bail and penalty schedule for 1993. This schedule was issued, and enacted, beginning January 22.
On April 16, 1993 -- almost three months after the bail schedule was enacted -- the HLDL (Helmet Law Defense League) received conformation that helmet law violations were being treated as fix-it tickets.
Long standing rumors of this condition were confirmed when Stormin' Norman, of Santa Cruz, received his courtesy notice from the Santa Cruz County Traffic Court on a citation he had received two weeks earlier for not wearing a helmet. The courtesy notice indicated that he could settle the citation by having a police officer sign his proof of correction, and pay a $10 fee.
The HLDL then contacted the California Judicial Council to get something in writing that would act to assure riders that the information was accurate.
The initial confusion arose when one of the staff members of the Judicial Council erroneously reported the change as a "mistake" -- a misplaced asterisk indicating a correctable violation. It was not a mistake.
When Rick Neal, the Traffic Coordinator for the Judicial Council, returned to his office the following Monday, April 19, he confirmed the correctable status of helmet violations, and explained how and why the determination was made.
The HLDL saw this as a major opportunity for bikers to breathe a sigh of relief, especially in the face of the extremely aggressive enforcement of the helmet law up to that point. A $10 correction fee is a much more reasonable penalty for having a helmet lost or stolen, or having an officer cite a rider because they didn't like their helmet choice, than the upwards of $250 fines that were being assessed.
The HLDL contacted Gary Webb, a reporter for the San Jose Mercury News, to tell him about the change. As hoped, Webb did write the story -- a front page, Friday morning, April 30, 1993, release.
Obviously hysterical over the whole thing, California Highway Patrol Deputy Commissioner "Spike" Helmick declared to the San Jose Mercury News, "We think the Judicial Council is absolutely in error," adding, "Our position is that they are not fixable (tickets), and we will continue to write the tickets as we have been doing."
To insure his position, Helmick sent an inner-office memo to all CHP offices on April 30, encouraging them to " . . . continue with aggressive enforcement of all observed helmet law violations." (emphasis added)
This was followed up with an all allied agencies bulletin, CHP Bulletin #42, encouraging all other police agencies in the state to do the same.
If you doubt the hysterical nature of the CHP's response, that doubt will be erased when you read Bulletin #42.
To begin with, they indicate that they were prompted to write the bulletin by the April 23 Memo from the CJC; but, all the CJC Memo was designed to do was explain the reasons for the November, 1992, determination by the Council about the status of helmet law violations. By paragraph #2, they have reduced the determination by the CJC to "an opinion of Mr. Neal."
They accuse Neal of stating that violations of the helmet law "are eligible for dismissal under the provisions of 40610(b) of the Vehicle Code"; but, what Neal actually wrote is, "Offenses that are eligible for correction . . . are listed in Vehicle Code Section 40303.5." The stupid part is that the CHP quotes Neal's actual statements in their bulletin, while accusing him of others.
There is a big difference between "eligible for dismissal" and "eligible for correction" and an even bigger difference between 40610(b) and 40303.5.
By page two of the bulletin, the shaky hand of blind rage had revealed itself . . . the CHP got everything wrong. First, the CHP instructs officers "not to utilize Vehicle Code Section 40610(b)" and then say, "The Department recommends that all agencies closely monitor citations to ensure that officers indicate that the violation is not dismissable."
What is the authority for that action, "'Cause I said so!"? The disqualifying conditions reside in 40610(b).
They even attempt to rewrite the statutes. "It is the position of the Department that violation of the motorcycle helmet law constitutes an immediate safety risk . . .." but the only applicable statute uses the phrase "immediate safety hazard.
There's yet an even bigger difference between a safety hazard and a safety risk -- in English, and in law.
They just went nuts! Just like they did when they came out with that bogus ban on beanie helmets (CHP Bulletin #34). No jurisdiction. No authority. Just a bigoted obsession with harassing bikers. If the law won't provide them the tools, they just make up their own; and to Hell with the DOT, to Hell with the Legislature, and to Hell with the Courts! The CHP is out of control!!
If the mental picture of Spike's tanums weren't so funny, it would scare the holy bejesus out of me to think that he would have such ill-regard for the decisions of the Judicial Council.
However, the Judicial Council is headed up by the Chief Justice of the California Supreme Court, Malcolm Lucas, who pretty much represents the entire Judicial Branch. To him, Spike's just another cop.
The odds are better than 50-1 that Lucas will not lose this one.
(UPDATE: Surprise, surprise. The Judicial Counsel voted contrary to the advice of Lucas and "decided" helmet tickets were not correctable. Read the transcript for yourself. It's an amazing example of bureaucratic malpheasence. Quig)
Now you see it, now you don't. Finally, after months of study, preparation, and filing of legal briefs, and hours upon hours of anxiety, Bill Fletcher, of Boulder Creek, California, finally got a decision from the Appellate Division of the Superior Court of Alameda County California setting aside his conviction for an alleged violation of California's helmet law.
However, the original decision by the court did nothing to resolve the underlying issues of his case as he had requested in the Prayer for Guidance contained in his appeal.
Fletcher was initially cited by a Livermore Police Officer on June 25, 1992, for a violation of the helmet law because, according to the citing officer, he was wearing an "unapproved helmet" -- an allegation now all too familiar to thousands of California motorcyclists.
Fletcher appeared in the Traffic Court in Livermore California on November 30, 1992, to attempt to defend himself against the allegation.
On the basis of testimony entered by the citing officer, drawn from CHP Bulletin #34, Fletcher was found guilty by Commission Guy Gurney. Gurney explained: "What it comes down to is whether I believe you or the officer, and I believe the officer, and find you guilty."
Fletcher asked Gurney if he would provide him with a list of helmets that were "approved," or at least not "unapproved," to which Gurney responded by directing him to the Appellate Court, sarcastically indicating that they would provide him with such a list.
With what he calls "welcome help" from the Helmet Law Defense League, Fletcher filed his appeal on January 28, 1993. As if in response to the suggestion of Commissioner Gurney, Fletcher included in his appeal brief a Prayer for Guidance ("Prayer" is a "legal term"). This particular move is rare, but effective when a defendant without an attorney is attempting to resolve the issues of a case.
What Fletcher asked the court to do was: (1) sustain the conviction and provide a list of helmets which do comply with the law, (2) overturn the Traffic Court decision and certify his helmet as complying with the law, or (3) issue an injunction prohibiting enforcement of the helmet law "until such time as the Legislature, the CHP, the DOT, and/or the Courts can agree on a standard or statute, or language to define a standard or statute, with which a normally literate person can reasonably comply."
The Alameda County District Attorney responded to the appeal by arguing in support of the conviction, but ignored the elements of the Prayer for Guidance.
Fletcher rounded out his appeal with a Closing Brief which not only out-argued but out-classed the pleadings of the District Attorney. This must be true, because the Appellate Court reversed the conviction of the Traffic Court on April 16, 1993, three votes to zip. However, the Appellate Court did not respond to the Prayer for Guidance, either.
"They say I'm not guilty . . . so what?"
"I knew that." declared Fletcher. "What I need is a way to stop this whole thing from starting all over again when some traffic cop decides he doesn't like my helmet and decides to write me another bogus ticket."
In order to correct this situation, Fletcher contacted the court, by phone, pleading with them to complete the case by responding to his Prayer for Guidance. After many attempts from Fletcher, and excuses for the delay from the clerk at the court; on July 12, 1993, the same three Judge Appellate Court issued a Clarification of Court Order stating: " . . . the judgment of the trial court is reversed on the grounds that the crime for which the defendant/appellant was convicted is unconstitutionally vague."
For the first time since the helmet law went into effect in California, a motorcycle rider had worked his way through the incredibly cumbersome system provided by the California Judiciary, to victory.
But, Fletcher was soon to discover that some victories are very short lived. As he so aptly put it, "It took me over a year to get this decision, and it took them (the District Attorney) only fifteen minutes to take it away. What the hell is going on here?"
His reference is to the latest decision on his case in which, on August 20, 1993, the court ruled: " . . . the original order of reversal issued on April 16, 1993 stands. Clarification is withdraw(n) as improvidently issued in excess of jurisdiction."
This decision was in response to a motion from the Alameda County District Attorney -- nobody knows on behalf of whom -- to expunge the Clarification Order.
"Let me see if I've got this," said Fletcher. "I'm not guilty, but the Court is not going to give me anything to stop this crap from happening all over again?"
Actually, it is just a bit worse than that. Not only does this last decision leave Fletcher, and every other rider in the state in a lurch; but, according to Black's Law Dictionary, the use of the term "improvidently" suggests that the Court feels they were somehow duped by Fletcher, and that that may have been the reason that they have withdrawn their Clarification Order.
Now it's up to Fletcher and his friends at the Helmet Law Defense League to see what, if anything, can be made of that.
Deputy District Attorney Mike Roemer -- who Fletcher thrashed in appeal -- now says, apparently delirious over this victory, that what this all means is that the order never happened. For an attorney, such delusions are no big deal.
Fletcher, like most of us, on the other hand, lives in the real world.
In the real world, expunged or not, at some point in this process three Superior Court Judges in Alameda County determined and agreed that the helmet law is unconstitutionally vague; and, their latest order did not say that the helmet law is not unconstitutionally vague, just that they did not have the jurisdiction to say that it is. They simply took back their response to Fletcher's Prayer for Guidance, and left him hanging.
Fletcher concluded, "This is not over, not by any means."
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STATEMENT OF CONSTITUTIONAL RIGHTS by Tony Pan Sanfelipo (September 1993)
The recent events in California concerning the arrest of individuals and confiscation of personal property in relation to enforcement of the mandatory helmet law has caused confusion over what a citizens rights actually are.
The general constitutional guaranties are a form of protection to the fundamental or inherent rights which are afforded to all citizens of this great country. And to resist encroachments upon these rights is not only admirable, it is obligatory in order to maintain the integrity of the Constitution.
The Bill of Rights set down certain provisions to protect against excessive fines or unusual enforcement by authorities which constituted oppressive or arbitrary rule. The individual states, in order to further protect their citizens, enacted state constitutions which reiterated these rights as well as the sovereignty of the state. Unreasonable search and seizure is an invasion of privacy and cannot be tolerated in a republican form of government.
When stopped by a law enforcement officer, you have a duty to show proof of positive identification. Beyond that, there is little you have to do to assist the officer in his investigation. If there was no probable cause for your delay, or no traffic infraction, you should be allowed to go on your way. No need to consent to a search of your person or property. That is not to say the search will not be conducted against your will, but you have a right to ask that no search be conducted. Without benefit of a lawful warrant, an officer can still conduct a search if in his/her opinion, you pose a threat to yourself or society and possession of weapons is suspected, if you were involved in criminal activity witnessed by the officer, or there is some illegal contraband "in plain view". There may be some other mitigating circumstances, but normally, these are the instances where a search might occur. Without probable cause, any illegal items found may not be allowed to be used against you in a court of law, again circumstances varying upon state and situation. Basically, you have a right to ask to be left alone and allowed to continue on your way if, after the officer conducts a routine check on your identity, there are no charges issued or citations for an infraction.
Let it be understood that when on the streets and confronted by the authorities, you are more or less in a fragile situation. Extreme caution and street smarts should be applied. It should be assumed without saying that to become abrasive and argumentative will serve no purpose other than giving the police an excuse to charge you with trumped up claims of resisting, hindering an investigation, disorderly conduct, etc. The best scenario for you, if stopped, is polite non-confrontational conversation, and hopefully witnesses to the exchange. This will help eliminate the "his word against yours" syndrome which usually finds the biker on the short end of the stick (no pun intended).
When an officer is confronted by a citizen versed in the rights provided under the Constitution, and aware of the Miranda decision, unless there is apparent criminal activity the officer should be inclined to let the person go about his business. If the officer chooses to neglect a person's rights, he may have to answer to a judge at a later date. The bottom line is know your rights, and know when to exercise them. That should be always, but again, under certain circumstances "street smarts" should guide your actions. If placed under arrest, no statements should be given and you should request to be allowed to contact your lawyer.
To obtain your Statement of Constitutional Rights, call:
and ask for PAN. Request your statement card, which will be mailed to you the same day.