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,MVSS 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 forresolution 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

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 ears 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 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.