A video produced and distributed by the National Traffic Safety Administration
Transcription and review by the Helmet Law Defense League
On September 13, 1993, John Verissimo of Armona, California, appeared in the King County Municipal Traffic Court, Judge O'Rurke presiding, to answer to one count of an allegation of violating California's helmet law by wearing a helmet one Sergeant Eggert of the California Highway Patrol didn't like -- a so-called "unapproved helmet."
Three weeks earlier, Verissimo's wife, Katherine, had beaten Sgt. Eggert in an identical case presented by Eggert against her; and the good Sergeant was not going to let it happen again.
This time Sgt. Eggert came prepared. This time he had a video tape from NHTSA, which the Judge entered into evidence, and viewed. Apparently this video contained sufficient information to make Judge O'Rurke regard it as expert testimony, at the very least, with regard to the fabrication requirements of a legal helmet.
The strategy worked. In just 12 minutes, that judge had learned enough about helmets to not only find Verissimo guilty, but to allow him to bestow on himself the authority to make a formal determination of noncompliance (with the Federal standard) against Verissimo's helmet -- something even NHTSA can't do.
A video this powerful just has to be seen to be fully appreciated (the Bell helmet poster in the background is a fairly interesting example). However, reality prevents that in this forum. So, until you get a copy, the following is an exact transcript, with editorial review in italic.
The video opens with a Maryland Police Officer standing outside a conference room. He addresses the camera:
"I'm Corporal Mike Fisher of the Maryland State Police, and today we're going to discuss a relatively new problem with motorcycle helmets."
"Many States have recently enacted legislation regarding the use of motorcycle helmets. These laws work. To put it simply, they save lives. But as these laws go into effect, we've seen an increase in the number of illegal, unsafe, helmets used by people to circumvent these laws. Today I'm going to show you how to spot these helmets, and the difference between legal helmets and illegal ones."
(Enters conference room with several police officers in attendance)
"Hi, how is everybody today? Take your seats, we're about to get started this morning."
"Today, we're going to talk a little about motorcycle helmets. I think it's interesting to note that the National Highway Traffic Safety Administration estimates that compared to a helmeted rider, a non-helmeted rider is about 40% more likely to incur a fatal head injury, and about 50 % more likely to incur a non-fatal head injury, when involved in a crash. From 1984 through 1990, it's estimated that helmet use saved the lives of over 4,740 motorcyclists. If, during those years, everyone on a motorcycle had worn a helmet, that includes both the operator and the passenger, approximately the same number of additional lives could have been saved." (The old-timers will remind you that figures can lie, and liars can figure. With that in mind . . .)
"Per mile, a motorcyclist is about 20 times more likely to die in a crash that an automobile occupant."
"I have some photos for you this morning from the California Highway Patrol, that shows the severity of some of these accidents (passes out photos). We know that helmet use adds a margin of safety that is critical."
"When it comes to motorcycle helmets, there are two aspects of enforcement for the police officer; first, helmet use laws must be enforced; and, second, motorcyclists must wear helmets which meet, or exceed, Federal Motor Vehicle Safety Standard 218, which establishes minimum performance requirements. Helmets which do not meet this standard are illegal, and useless in protecting a motorcyclist from head injury -- which is by far the leading cause of death in motorcycle accidents."
"Now, here's a real obvious question: Why do people wear unsafe helmets?"
"Many bikers are philosophically opposed to helmet laws, and when they ride in a state that requires helmet use, they pick up cheap helmets so theyıll have something, anything, to wear on their heads, to avoid being pulled over . . . obviously in the belief that a police officer cannot visually tell if a helmet is illegal. (This whole statement wreaks of accusations of defiance -- accusing "bikers" of trying to fool the police and circumvent the law. The officers are being trained to see bikers as challenging them.) There are large annual biker rallies held in states like Florida and New York -- states that require helmet use. In an effort to circumvent the Federal Safety Standard, many manufacturers of illegal, unsafe, helmets sell them as novelty items at these rallies. These helmets do not meet the Federal requirement. It's interesting to note that these fake novelty helmets often sell for the same price as a legitimate helmet." (Just look how far those bikers will go. For the same money . . . they could obey, rather than defy, the law.)
"The style of the novelty helmets are popular with bikers, like the German Army design, or the style seen in the movie Easy Rider. (You do remember that movie, don't you. You know, loose young women, choppers, drugs and drug dealing, etc.) Although there are innocent people who do not know that they are not protected by this type of helmet, we suspect that most people who wear these helmets know that they are illegal and unsafe, but wear them anyway." (Never mind probable cause, the rights of the innocent, or any of that other constitutional crap, . . . just get those bikers in line.)
"The examples we are going to talk about are examples of the most obvious and clear-cut cases of unsafe helmets."
"Now: What is the difference in safety?
The difference in the protection offered by a helmet that meets the U. S. Department of Transportation safety standard, and the cheap fiberglass helmets that do not, is like night and day . . . and it's been proven over and over. Actual accident cases show a lesser likelihood of a fatality if the motorcyclist is wearing a helmet that meets the D-O-T Standard."
"There is a case in Boyten Beach, Florida, where a woman was killed wearing an illegal helmet. These photographs show the illegal helmet she was wearing (pictures of a German-style helmet). A D-O-T Standard helmet would have improved her chances for survival."
"What are some ways to identify illegal helmets?
The real proof comes from placing the helmets side by side. Just by looking at the difference in thickness and substance, you can tell which one is an illegal helmet. We'll get into the specifics in a moment, but for now . . . let's talk about style. Style is the best way to visually identify a potential fake."
"The people that are wearing them are betting that you can't spot them, but in fact you can. Look for one of the common design profiles we talked about earlier; the German Army-style, the skull cap design. You should know that there are certain helmets in these styles that are legal, and we'll take a look at one in a moment. However, these styles (holding what looks like E&R) are still the most popular among the illegal helmets. They're essentially nothing more than something to cover the head."
"The D-O-T Standard does not allow anything to extend further than 2/10 of an inch off the helmets surface, so visor fasteners is allowed, while a spike or something similar is not."
"A cheap unsafe helmet will be noticeably thinner than one that meets the D-O-T Standard (he says while handing a half-shell helmet, with a 1/4 pie cut removed, to one of the officers). If the helmet is just a thin shell, chances are it does not provide the required protection.
"What are some other ways to identify illegal helmets?"
"The helmet's labelling is extremely important. The first thing to check for is the D-O-T label. Remember, the United States Department of Transportation does not approve helmets; it simply sets the standard and checks compliance. Helmet manufacturers are required to certify that the helmets they make meet the standard. They do that by placing a label on the outside of the helmet that says "D-O-T". Each manufacturer has a different way of labelling, so look carefully."
"However, many fake helmets are sold with loose D-O-T labels. Often the labels are sold separately, or given to the customer to put on the helmet they buy. Here is an example of an illegal helmet with a D-O-T label (pointing to a tiny half-shell helmet with a D-O-T label)."
"So, the second thing you should check is the inside labelling. Federal law requires that the manufacturer place a label or marking somewhere on or in the helmet that states the manufacturer's name, model size, month and year of manufacture, construction materials and owner information (as he shows a label in a helmet [which says "Made in Canada"]). It's detailed, and often sewn into the helmet lining. Illegal helmets usually don't have such a label because the manufacturer figures that the label on the outside will be enough to fool police. However, not often, but sometimes, an otherwise legal helmet is missing some of this labelling; so, labelling is not a conclusive way to spot an illegal and unsafe helmet."
(What? Maybe I'm a little slow; but, didn't he say to check the labeling because bikers may be trying to circumvent the law, but, labelling is not a conclusive way to spot an illegal helmet, but, if the label is sewn in, maybe it's OK, but, maybe someone's just trying to fool the police, but, . . .WHAT?!)
"The third and most important element to check is the thickness of the inner-liner. The inner-liner must provide a certain level of impact resistance, or about one inch of hard poly-styrene foam. The inner liner won't always be visible, sometimes it's incased in a shell, sometimes you'll have to push the foam padding aside; but, it's there, and you should be able to feel it.
"Fake helmets usually have some soft foam padding for comfort, or a bare plastic shell with no foam at all. Inspect a good helmet against a bad one, and it will become immediately clear which have impact resistance, and which ones do not."
"Does a D-O-T label on the back of the helmet and proper inside labelling prove that the helmet is OK?"
"This is important. Just because there is a D-O-T label, and inside labelling, does not prove that the helmet meets the D-O-T Standard. We mentioned the phoney D-O-T stickers that often come with these helmets, some manufacturers of unsafe helmets also fake the inside labelling . . . they will meet some of the inside labelling requirements, but not all. The tie-breaker is usually the thickness of the inner-lining, and also the chin-strap."
"Most fake helmets also have a very flimsy chin-strap with poor rivets. Always check to see if the helmet has a sturdy chin-strap."
"The best way to tell quickly if a helmet meets Federal Motor Vehicle Safety Standard 218, is to become familiar with brand names, and the overall feel of a legal helmet (now showing a full-face helmet) . . . they feel heavier. Depending on design, and style, fake helmets weigh about a pound or less . . . the real thing weighs about three pounds." (We heard about a helmet law enforcer, somewhere around the Bakersfield area, who is actually using a hand-held fish scale to weigh helmets.)
"By the way, we've never seen a novelty helmet with a full-face design." (Up to this point, I thought a "novelty helmet" was a helmet which did not meet FMVSS 218, but, that can't be so, because I have a list of several full-face design helmets which did not meet FMVSS 218. So, now the question goes beyond what is a fake helmet to what is a "novelty helmet"?)
"Also, get to know what poly-styrene foam looks and feels like. If there's a think inner-liner of it, that's another clue that the helmet is OK (holding a Monarch German-style with a 1/4 pie shape removed). (I think he was holding the actual model that failed FMVSS 218 testing.) Also, as we mentioned, look at the chin strap (while yanking on the chin strap of the Monarch), if it's thick and riveted, that's a good sign."
"There are also stickers inside and outside many helmets that show approval by Snell, and/or the American National Standards Institute known as "ANSI". These are private organizations that test helmets for safety, and give a seal of approval to those that pass." (Snell and ANSI "seals of approval" are not a part of the D-O-T standard, so this whole discussion is a waste of time.)
"We have never seen a fake helmet with a phoney D-O-T sticker, and a phoney inside label, and a phoney Snell or ANSI sticker. Again, it's just too much effort for illegitimate manufacturers." (A total waste of time.)
"Are the German Army-style helmets always illegal?" (as he moves to again pick up the Monarch)
"No, there are several kinds of German Army-style helmets that are perfectly legal, and meet the D-O-T standards . . . and, you can tell the real one from the fake one the same way. Put them right next to each other, and you can see the difference (now he has a cut-away helmet in each hand). The legal one is going to be thicker, heavier, with a better chin strap, with all the appropriate labelling, and with a thick poly-styrene inner-liner . . . it may be a brand name. If youıll just compare each one side-by-side, you can tell which one is legal, and which one is fake . . . and, therefore unsafe." (I guess officers should always carry an extra helmet, preferably with a 1/4 pie cut out of it, so they can do a side-by-side comparison -- in the same Helmet Law Enforcement Kit that contains the band-saw and scale.)
"Let's summarize the ways in which you can identify a fake helmet. First, check for a D-O-T label on the back of the helmet (remembering that fake helmets often time have fake DOT stickers); second, check the inside labelling (remembering that fake helmets often time have fake inside labelling); third, check the thickness of the inner liner (a job for your trusty band-saw); and forth, check for a sturdy chin strap and rivets."
"The biggest problem is the obvious case of an illegal helmet being worn to get around helmet use laws. (No, the biggest problem is the attitude which alleges curcumvention in the absence of any factual evidence.) It's pretty easy to tell a fake helmet when you know what you're looking for."
"Each year, more helmet laws go into effect, and that means that more and more of these phoney helmets will be out there."
"Remember, legitimate helmets save lives. It's worth the effort to get the fake helmets off the street."
"This concludes our training, thanks for coming."
Now that you've read the book, if you want to see the movie, the law firm of Jacobson and Hupy will make copies of the video available, at no charge, to any interested motorcyclist rights groups. To get one for your chapter, local, or group; contact Tony Sanfelipo at 1-800-800-5678 and he will be happy to make the necessary arrangements.
FEDERAL COURT RULES THAT FEDERAL AGENCY IS PROTECTED BY THE CONSTITUTION
On Friday, October 29, 1993, the Helmet Law Defense League received a copy of a notice put out by the National Highway Traffic Safety Administration (NHTSA) announcing a satellite "newsfeed" to be broadcast the following Monday, November 1, 1993, which was actually telecast one week later on November 8, 1993. This was not sent directly to the HLDL, and we can only guess they would just as soon we hadn't received it, but we did
Anyway, some of the contents of that so-called "newsfeed" seemed a bit unnecessary, and the rest untrue and otherwise an attempt to start the ration of B.S. on a national level, concerning "illegal helmets," that had commenced in California in June of 1992 . . . apparently as a result of the same types of propaganda from the same source, NHTSA.
The following is the text from a motion filed in the Federal Court by Steve Bianco in an effort to stop the telecast, and is being reported in this particular section of the REPORT primarily because of the resulting ruling from Judge Thomas Penfield Jackson. That motion, and decision, reads as follows:
The Plaintiff, Steven W. Bianco, is seeking an immediate Temporary Restraining Order against Defendants Pena, U.S. Secretary of Transportation (DOT), and Smolkin, Administrator of the National Highway Traffic Safety Administration (NHTSA), to prevent the scheduled broadcast announced recently in a memo emanating from NHTSA entitled "MOTORCYCLE HELMET SAFETY SATELLITE NEWSFEED" -- discovered by Plaintiff on Oct. 29, 1993, at approximately 4:30 pm EST -- scheduled to be broadcast on November 8, 1993, at 1:00 pm EST.
There is no compelling need for this transmission, and it has no redeeming value to users of motorcycles or so-called motorcycle safety helmets. Rather, Plaintiff contends that the scheduled telecast is specifically intended to, and will, cause irreparable harm to an entire class of people, of which the Plaintiff is a member, referred to in NHTSA's announcement of the broadcast as "biker(s)."
The announcement of the transmission is filled with patently false and otherwise unsupportable contentions, along with unwarranted aspersions against a "suspect class" of which the Petitioner is a member.
1. NHTSA cannot prove their opening statement: "Motorcycle riders who do not wear helmets are 40 percent more likely to suffer a fatal head injury than those who do when involved in a crash." This premise is not supportable by any available confirmable facts, and serves to do nothing except to feed on pre-conceived notions born and built on nothing more than the incessant repetition of this and other equally unfounded claims.
2. The first sentence of paragraph #2 of this announcement is equally without factual foundation, and serves only to inflame the members of the viewing audience by accusing: "Increasingly, motorcycle riders are wearing cheap unsafe helmets to circumvent state laws mandating helmet use."
3. The last sentence of paragraph #3 demonstrates the specific bigotry against "bikers" -- the demon driving NHTSA's entire involvement in this matter.
BACKGROUND
4. A very strange thing happened in June of 1992, in the State of California, regarding the State's newly enacted helmet law. The California Highway Patrol (CHP) commenced a ticket writing campaign against Harley-Davidson motorcycle enthusiasts (hereinafter referred to as "HD riders") over the style of helmet which had become popular within their community.
5. Responding to information provided to the CHP by the NHTSA, the CHP outlawed, by arbitrary edict, (without benefit of the Legislature) the use of an entire style of motorcycle helmets known as, or similar in appearance to, the E&R "Beanie" helmet manufactured by E&R Fiberglass of Tacoma, Washington. It is now clear that this conduct was/is a result of the types of information, and subsequent instruction, provided to the CHP by the NHTSA, about past, pending, and possible future recalls of similar type helmets.
6. The NHTSA made a big deal out of the fact that they had convinced E&R Fiberglass, the manufacturer of the E&R "Beanie" Helmet, to order a recall of their product. Underpinning the mass of disinformation deluged on the CHP by NHTSA in this regard was the unfounded and otherwise provoking accusation that consumers who purchased and used E&R and similar style helmets were doing so in an effort to "fool the police" and otherwise "circumvent" the State's helmet use law, and that such consumers should somehow be prosecuted under the provisions of State helmet use laws.
7. Drawing on the negative myths associated with HD riders -- the primary consumer and users of "beanie-style" helmets -- the NHTSA provided literature, video tapes, and other writings designed to drive home their point that these people (consumers not manufacturers) deserved to be punished for their deceit -- even and in spite of the fact that helmet use laws have no provision, under either State or Federal law, for impugning the consumer under these circumstances.
8. In as much as NHTSA has no jurisdiction, authority, or other statutory imperative for their involvement in this area, and in the absence of any confirmable significant damage resulting from the use of these helmets, it is the claim of the Plaintiff that NHTSA has involved themselves in this unusual manner for many reasons, all wrong, including, but not limited to a predisposition or support of the Bell Helmet Company, and/or, by far the worst offense, anti-"biker" bigotry.
9. The actions of NHTSA in this regard have resulted in over 30,000 citations being issued to helmet users in the State of California on the foundation of an extorted recall of less than 10,000 helmets by E&R Fiberglass, and the repeated and unfounded allegation that these helmet users were attempting to "circumvent" helmet laws and otherwise "fool the police." (Bianco took this opportunity to point out to the court that out of over 5 million seat belt recalls, not one citation had been issued.)
10. The Plaintiff has been so-charged on four occasions, the first two resulting in "Not Guilty" verdicts, the third dismissed by the Court on its own motion, and the fourth still a matter before the Municipal Court of California.
11. Currently, there is a case pending in the California Court of Appeals, Fourth Appellate District, Bianco v. CHP (case #DO-19372), attempting to enjoin the NHTSA promoted practice adopted by the CHP of writing citations, at an alarming rate, to motorcyclists for wearing an alleged "illegal" or "unapproved" helmet with nothing more to justify their conduct than the dis-information emanating from the NHTSA.
12. There are two other actions based on the effect of the omission of the NHTSA that they do not "certify" or "approve" anything, filed in the Federal District Court in San Diego California, both class-action, both pending at this time.
NHTSA endorses the use of a particular brand of helmet, Bell Helmet.
13. The video tape, "FAKE HELMETS, Unsafe On Any Head," is a hit-and-miss abomination of a scathing criticism of users of "novelty" or "fake" helmets. It has been, and is being, used as a training film to convince law enforcement that certain helmets are being worn in protest of helmet laws, and that their users should be subjected to citations based on the expertise bestowed on police officers to recognize "unapproved helmets" just by viewing the video -- thus functionally amending or otherwise altering the letter and intent of the Act, and of FMVSS 218, to regulate manufacturers.
14. A viewing of the NHTSA sponsored production, "FAKE HELMETS, Unsafe On Any Head," will reveal a poster advertising Bell Helmets on the wall behind the instructing officer, leaving a clear picture in the mind of the viewer that Bell Helmets are "approved", and "fake" helmets are not.
15. Further, since no conclusive evidence of significant damage has been shown to have resulted from the use of helmets other than those manufactured by the Bell Helmet Company -- of the so-called "fake" or "novelty" helmets depicted in this video -- it is unclear what purpose other than to show Bell Helmet's competitors in a negative light this video is intended to serve; unless,
NHTSA is discriminating against "bikers".
16. The repeated references to motorcyclists (bikers) using "fake" or "novelty" helmets in an attempt to "circumvent" the law is the only other apparent point of this video.
17. However, no evidence except repeated accusation against this minority group exists which would indicate that such allegations are anything more than malicious speculation intended to cause harm to HD riders.
18. Moreover, until NHTSA can define their use of the term "biker" in the last sentence of paragraph #3 as anything other than a pejorative euphemism for "nigger", the fact of their bigotry cannot be ignored, especially as it relates to allowing the telecast of this so-called "newsfeed".
CONCLUSION
The formation of NHTSA was the result of passage of the Motor Vehicle Safety Act of 1966. Their purpose was, then and now, to raise the responsibility level of automobile manufacturers toward consumers, thereby forcing a shift in emphasis toward safety improvements in auto manufacturing which were, in the government's opinion, lacking at that time.
The entire point of their existence was and is to regulate manufacturers to the benefit of consumers. However, to a major degree, this current administration has turned away from that applaudable goal to one of recruiting law enforcement personnel to act as thugs against "those people" for whom the NHTSA has developed disdain . . . i.e., "bikers."
The use of their video, "FAKE HELMETS, Unsafe On Any Head," combined with a pamphlet put out by NHTSA's Safety Countermeasures Division, has successfully seduced the CHP -- and through them most of the police agencies throughout the State of California -- into harassing HD riders by citing them for their helmet choices; an act clearly without legal foundation. Now, with this so-called "newsfeed," the NHTSA is attempting to go National with their recruiting propaganda. If allowed, this act will convert the tens-of-thousands of unwarranted acts of discrimination in the State of California to hundreds-of-thousands of bogus citations throughout the United States.
The fact of their lies, and the truth of their deception, is gaining on NHTSA, which is the reason for this so-called "newsfeed" at this time. NHTSA is abusing the fact that they have more money, and reputation, to thwart the effort of those, like the Plaintiff, who are trying to bring the truth behind what NHTSA is involved with, out into the light. They are using their position and power to throw up a smoke-screen behind which to hide their bigotry and other agendas.
WHEREFORE, (a) In as much as there exists no compelling reason to permit this subject telecast, and (b) in as much as there is considerable doubt as to the validity of the information contained therein, and (c) in as much as there is substantial reason to believe that the only foundation for this transmission is to bring harm to a minority class of people, and (d) in as much as there is more than a little reason to believe that the other motives behind this proposed transmission are equally and substantially questionable, and (e) in as much as allowing the telecast to take place as scheduled will certainly cause irreparable harm to hundreds-of-thousands of innocent citizens, including the Plaintiff; the at-issue scheduled telecast should be (at least temporarily) enjoined, and an investigation initiated to determine whether it should ever be broadcast at all, and whether criminal charges should be brought against the Administrators, and lawyers, of the NHTSA for planning it in the first place.
Judge Jackson's Order:
"Upon consideration of plaintiff's motion for a temporary restraining order to prevent the broadcast of 'Motorcycle Helmet Safety Satellite Newsfeed,' it appearing to the court that the plaintiff has failed to overcome the heavy presumption that prior restraints on protected speech violate the First Amendment of the Constitution, (citation omitted), it is, this 8th day of November, 1993, ORDERED, that plaintiff's motion for a temporary restraining order is denied." (Signed by U.S. District Judge Thomas Penfield Jackson and filed on November 8, 1993.)
Bianco's response:
"I'm not sure exactly how to proceed at this juncture; but, I can tell you one thing of which I am sure, and that is that the Constitution was written to protect the people from the government, and not the other way around. I don't believe that the government has any rights under the constitution . . . not to free speech, not of the press, none.
"My point is that I don't care what pejorative euphemisms Secretary of Transportation Pena wants to stand on the Capitol steps and shout at whatever individuals or groups of people he chooses to condem, or what NHTSA Administrator Smolkin thinks of bikers, or any other class of people. As individual private perpons they can think what they want or call anyone they chose any name they want, and I will insist that that constitutional right be protected.
"But, and I want to emphasize the but, I am not prepared to just stand by and allow these men, in their official capacities, to use the tax payers money to promote this or any other bigoted acts against bikers, or any other class of Citizens. That is my concern."
Quig