Bar & Restaurant Owners That Have Received Threats From The Law Over Motorcycle Riders Who May or May not Wear Kutts or Colors.
A Bar Owner's Constitutional Right To Pursue An Occupation Free From Police or Liquor Control Harassment
The practice of law enforcement or other government actors, such as liquor control agents, harassing and threatening owners of public establishments because they allow individuals riding motorcycles or wearing motorcycle or motorcycle club related paraphernalia to patronize their establishments is unconstitutional. The right to pursue an occupation is a fundamental liberty protected under the Due Process Clause. There are civil remedies available to victims and a laundry list of preliminary steps that can be taken to assist and properly equip your legal counsel.
Harassment Infringes On A Bar Owner's Constitutional Right To Pursue An Occupation.
According to the Supreme Court, the Due Process Clause of the 14th Amendment protects a liberty or property interest in pursuing the "common occupations or professions of life." Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 755-56, 1 L.Ed.2d 796 (1957); Chalmers v. City of Los Angeles, 762 F.2d 753, 757 (9th Cir.1985).
The constitutional right infringed in cases of excessive and unreasonable police conduct is "the right to pursue an occupation." Benigni v. City of Hemet, 879 F.2d 473 (9th Cir. 1989)
"Excessive and Unreasonable Police Conduct" Defined.
"Excessive and unreasonable police conduct" includes bar checks, customers being frequently followed and sometimes arrested, staff and customers frequently receiving parking tickets, officers frequently parking across the street, or vehicles often being stopped in the vicinity of the establishment for traffic violations that had occurred elsewhere. See Benigni v. City of Hemet, 879 F.2d 473 (9th Cir. 1989)
Sometimes the harassing agent is associated with liquor control. Liquor control officers are agents of the government acting under the color of state law. In many states, liquor control is connected to a state law enforcement agency.
General rationale that motorcycle clubs are a threat to public safety ignores protected rights of association.
The idea that an establishment's license could be revoked for serving bikers based on the rationale that motorcycle clubs are dangerous criminal enterprises that represent a threat to public safety or general welfare ignores basic principles of association. Motorcycle clubs, even those labeled criminal organizations by government officials, are protected by the 1st Amendment.
To permit the government to impose restrictions on any person who wears the insignia of a motorcycle club, even a club labeled a criminal organization, "without regard to or knowledge of that individual’s specific intent to engage in the alleged violent activities committed by other members, is antithetical to the basic principles enshrined in the First Amendment and repugnant to the fundamental doctrine of personal guilt that is a hallmark of American jurisprudence." (See Coles v. Carlini, U.S. District Court for the District of New Jersey, Civil No. 10-6132, Opinion, 9/30/2015, p.28)
Proactive Suggestions - What Immediate Steps Should You Take When Threatened By Police or Liquor Control?
Contact an Attorney- Harassment cases often hinge on particular circumstances unique to each claim. If you feel that you are the victim of harassment at the hands of a government agent, it is advised that you discuss your case with an attorney. Education makes motorcyclists a more effective and informed constituency. But there is no replacement for legal assistance.
Document the incident- This may seem obvious, but it is critically important to accurately record every detail of every incident. Date, time, place, agency involved, number of officers involved, officers names, content of interactions, duration of incident, witnesses to incident, and any other relevant details. Accurate details can be very helpful to your attorney and any media or public relations effort.
Video documentation- Oftentimes public establishments have security video that may capture an incident of harassment. Cell phones are also a common source of incident video. Although it is important to consult your attorney, it is generally accepted that an officer performing their duty in public has no expectation of privacy and can therefore be videoed.
Submit public information requests- Submit requests to the harassing agency asking for all information, emails and reports relating to your establishment and the incident in question. Oftentimes prejudicial intent is evident when all information is analyzed. Every state has an open public records law and the Motorcycle Profiling Project also provides educational step-by-step guidance on public information requests. Contact email@example.com.
What Civil Options Does A Victim Have?
42 U.S.C. § 1983 provides a remedy to individuals whose constitutional rights have been violated by persons acting "under color of state law." See, e.g., Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir.1988)
Infringements on protected liberty or property interest such as the right to pursue an occupation provide the basis for a section 1983 action. See Benigni v. City of Hemet, 879 F.2d 473, 478 (9th Cir.1989)
Section 1983 remedies include compensatory damages, possible punitive damages, and reasonable attorney fees.