On Rogue's Request, A Post to Cyril Huze Blog on SC Ruling and Preemption

OFF THE WIRE
Rogue,

Per our e-mail correspondence I've submitted a note to the Cyril Huze blog. In our correspondence I qualified my willingness to write the post. I thought that Mark Infield might be the best situated to write it, or others of our Carolinas brothers and sisters who were named plaintiffs in the case; and then, I was only willing to write the article from the standpoint of educating folks about the preemption argument, which again, is much more simple than a lot of the stuff that our freedom fighters around the country are involved in, including evidentiary trials and due process arguments. You told me to go ahead and submit it, which I've done. My hope for the post below is that it will empower bikers in general to make the preemption argument, both informally when municipalities announce they are considering city noise abatement or helmet laws, as succeeded in Salt Lake City and Delray, or file injunction or declaratory relief actions themselves, given the simplicity of the legal actions. Because I didn't want it inferred that BOLT supported the over-21 law, I also clarified that BOLT does not accept the state law in South Carolina, that semi-free is semi-shackled, and that the work of the true freedom fighter is not done is South Carolina so long as our younger brothers continue to be oppressed.

This is the post:

A number of Bikers of Lesser Tolerance members were parties to the litigation that led to the Supreme Court decsion, along with many other bikers, biker rights advocates and freedom fighters who defied the Myrtle Beach municipal helmet ordinance. The Myrtle Beach ordinances were unique in some respects, including the City's motivations for enacting them, but this was not the first time that muncipalities have sought to enact anti-motorcyclist city ordinances, and it it likely won't be the last. The Salt Lake City mayor sought a similar helmet ordinance in the semi-free state of Utah, the same preemption argument was made, and the Mayor ultimately backed down. Various cities, including the city of Delray attempted to enact municpal noise abatement ordinances, banning bikes from certain upscale streets, lowering proscribed decibel levels, and raising fines above those provided by state law. Each attempt was thwarted by the preemption argument, and it is important for riders throughout the country to be knowledgeable about preemption when confronting municipal oppression of motorcyclists.

Preemption simply means that where the state has enacted a law, and it explicitly states or if it can be reasonably inferred that the state intended to control the subject matter of the law, that any conflicting municipal law enacted on the subject is void as a matter of law. The South Carolina Supreme Court inferred that the state "21 and over" law was intended to control the subject matter, and therefore, the Myrtle Beach local ordinance, requiring that all riders, regardless of age, wear helmets, was preempted. And rather obviously the state intended the "21 and over" law to control the subject, as the Supreme Court inferred. Clearly the state so intended. To rule otherwise would countenance varying helmet laws from municipality to municipality with riders permitted by state law to ride without a helmet required to carry helmets, and then pull over and put them on every time they cross a municipal boundry.

As it applies to municipal noise abatement ordinances, these too are susceptible to the preemption argument, as the states have enacted noise abatement ordinances. The preemption argument was brought to the attention of the City of Del Rey and immediately it ceased its efforts to enact the ordinances.

Preemption is a very easy legal argument to make. Indeed, all that is required is to juxtapose the state law against the conflicting municipal law, and any biker group can present this argument informally to the Mayor or City Council or City attorney, before the ordinance is enacted, or formally, in a simple injunction or declaratory relief proceeding. There is no requirement that witnesses be called. Rather, the case is susceptible to determination "as a matter of law" which is why, I suspect, the Supreme Court took the case up without the necessity for a "fact finding" trial. Usually the fact that the legislature intended the state law to control the subject matter will be obvious, as in the case of helmet laws and noise abatement laws, rather obviously preempting conflictng municipal ordinances. But in points and authorities the lawyer or bikers, appearing in pro per, can elaborate by pointing out the obvious, that state law was intended to control across the state, as otherwise riders permitted to ride without helmets would be required to conform to inconsistent municipal ordinances, with the attendent necessity to carry helmets, or specific types of helmets to comply with the particular city ordinances. Similarly with regarde to state noise abatement laws, the obvious can be pointed out, that the state laws were intended by the state legislature to apply throughout the state, as otherwise riders would have to remove and install pipes with lower decibel levels to travel across the state through cities requiring bikes to meet lower decibel levels. And then, if the attorney or riders in pro per want to get really fancy, they may consider the legislative history surrounding the state law, and as with an over-21 helmet law, for example, certainly a compromise was reached between legislators who would have preferred freedom for all, and on the other side, those legislators who would have preferred that all riders wear helmets. And then, I think the court should again see clearly that a municipality should not be permitted to overturn a compromise arrived at by the state legislature.

To be clear, Bikers of Lesser Tolerance opposes all helmet laws, including over-21 helmet laws. We do not consider that the government should so paternalistically intrude upon the freedoms of any rider old enough to ride a bike. We are organizing in South Carolina, we are actively fighting the law in North Carolina on constitutional due process grounds, and we are actively fighting in the courts in many other states, from California to Michigan, and we do not accept that a returning veteran old enough to decide to put his life in danger to fight for his country should be told upon his return that he isn't old enough to make the decision to ride without a helmet here at home. We must never accept the status quo, if that means that any of our brothers are denied freedom. BOLT will never accept compromise. South Carolina is not a free state. There is more work to do. And the work won't be done until all riders are free to ride free of state government intrusion upon our rights as a communiity of older and younger riders to decide whether or not to wear a helmet. Semi-free is semi-shackled, semi-oppressed, semi-enslaved. Those who are willing to compromise the freedom of any of our brothers are the enemy, whether they wear suits or leather jackets.

Bikers of Lesser Tolerance