http://www.bikersrights.com/states/massachusetts/appeal2000.html
Massachusettes Wins Important Helmet Appeal.
Here's an update on recent Appeals Court win and their forth coming Federal Lawsuit. This is also a fundraiser request. Please donate to this cause. Every law that is challenged and falls helps all of us -Nationwide.
(Besides, you may need to ride through MA someday, and should have the freedom of choice!)
Recent ruling on a law suit brought by some bikers for being ticketed for having illegal helmets.
How the MMA (Modified Motorcycle Association) is using the ruling to try to remove the helmet law.
(NOTE: Info gratefully supplied by Brian Merrikin)
FOR IMMEDIATE RELEASE:July 28, 2000
CONTACT:Paul W. Cote (978) 535-4103
APPEALLATE COURT SUPPORTS BIKERS IN STATE POLICE HELMET FLAK
(Wareham, MA) Massachusetts motorcyclists roared their approval as the Southern District Appellate Division of the District Courts overturned the "responsible" findings of "improper equipment" citations issued to two motorcyclists, Timothy Kinch of Plymouth, and Daniel Zaino of Hyde Park, by the Massachusetts State Police. The ruling completely dismissed the cases that State Police had filed against the bikers.
"This was a long time coming," said Kinch, who was cited by State Trooper Jack L. Garvin on November 19, 1999, in Middleboro for operating with an alleged non-compliant helmet.
Kinch said it wasn't the $35 ticket, or the six years worth of surcharges that had urged him on. "It was a principle thing," Kinch said. "This trooper brags that he writes over 100 helmet citations each year and threatens riders with the towing of their bikes. In Court he misrepresented helmet requirements and statues to the Judge. It was wrong." Zaino echoed Kinch. "In September, I was on my way to a fundraiser for a paralyzed fireman from Hull [MA], when Trooper Valair cited me and over a hundred other riders. It was wrong. We were all wearing helmets. It was tasteless, unprofessional, and pure harassment," Zaino said. "This was worth the fight."
Peabody [MA] Atty. Joseph S. Provanzano represented Kinch and Zaino at the Appellate level.
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"The Appeals Court acknowledged that here in Massachusetts we use 'evidence' in Court trials, not the mere 'opinions' of police officers as to what is non-compliant protective headgear," said Provanzano.
At the District Court hearing, Kinch represented himself. "Mr. Kinch did well, but the transcripts of his and Zaino's trials," Provanzano said, "revealed Troopers Garvin and Valair completely misused the law and may have confused the sitting Judges. These Appeals cost the taxpayers a tremendous amount to rectify this misuse of their authority."
Motorcycling groups, which included the Riders Justice Committee (RJC) and Modified Motorcycle Association (MMA) applauded the Appellate Court decisions.
RJC Spokesperson Georgia Sophis of Braintree stated, "This past year the motorcycle community banded together against this obvious harassment of riders."
"You would not believe the horror stories we are getting. Motorcyclists are being stopped, their personal property [helmets] seized, bikes towed and then being left with their safety in jeapordy stranded by the side of the road," Sophis continued.
Sgt. Michael Valair, who cited Zaino during the Hull fund-raiser, testified on behalf of the State Police. He startled bikers present at the Appeals hearing when by admitting to the three-judge panel that police officers have no authority to seize the riders' helmets, even though he has done so on many occasions and often threatened riders.
MMA Spokesperson Jimi Ricci of Waltham stated, "Most police officers and troopers are reasonable. But we've heard of these two troopers, one or two more, and a few local police, who seem 'hell bent' on harassing helmeted riders. So we banded together, hired a skilled litigator, took this issue to Courts and proved our case."
Zaino, a member of the Hyde Park Harley Riders, the RJC and MMA agreed. "Those Troopers (Garvin and Valair)," he inferred, "has some prejudicial issue with bikers. We had the Law on our side. Now we have the Courts on our side."
The motorcyclists have also hired Provanzano, along with Quincy Atty. Michael Natola, to explore the filing of a Federal District Court suit to order and end harassment, stops, ticketing, helmet seizures and motorcycle towing by Massachusetts State and local police. The riders are hopeful that the federal action may also include repealing Massachusetts' antiquated helmet law.
Massachusetts' mandatory helmet law was passed in 1967 when the Department of Transportation threatened to withhold Federal highway funds from states without helmet laws. Forty-six other states also passed compulsory helmet laws in 1967.
In 1975 Congress removed that coercive authority from the Department of Transportation. Since then, more than 28 States have repealed mandatory helmet laws including Florida who repealed their law last month. Massachusetts riders believe it is time to allow adult riders to make their own choices about helmet use. The bordering states of Rhode Island, Connecticut, New Hampshire, and Maine allow voluntary helmet use for riders over the age of twenty-one.
"Somewhere," Provanzano said, "the Constitutional rights of these riders, as well as some discrimination and interstate commerce laws, are being broken by these Police tactics. We're ready to let the Federal Court sort it out. In the interim," Provanzano said, "biker's might expect District Court to now listen to their arguments."
2.) From: Law Offices of Joseph S. Provanzano
TO: Riders and Friends -
Today we received notice from the Appellate Division of the District Courts, Southern District, that they had dismissed the case Comm of Mass vs. Daniel Zaino, finding prejudicial error, in that the Police Officer (Trooper Valair) was improperly allowed to testify at trial as an expert with no foundation; Police Officer's testimony violated scientific principals as set down in Dabert Cases; Police Officer failed to produce helmet in issue; Judge failed to obtain measurement standards from Police Officer; helmet met federal and state specifications and hearsay allowed.
A major concession during this Appeal Hearing was Trooper Valair admitted to the 3-Judge Panel 1) he was not a helmet expert and 2) he had no authority to confiscate the rider's helmets. (He also stated he didn't even know why he was there on this simple case).
This is the 2nd full dismissal of traffic violation "improper equipment, headgear" at the Appellate Level. This is very significant and allows us to move forward on the Federal Suit, incorporating and referencing these decisions within it.
Funding for the suit is necessary. Please encourage all riders to send in what they can, NOW. $5, $10 $20, etc. Every dollar helps and is necessary. Expected costs of the suit are in excess of $30,000 - and that's at 1/2 price Provanzano and Natola's rates. If 30,000 riders of the 106,000 donated a $1, that would do it. But they won't. We need you and your $, and your friends. Send the Helmet Offense Fund, MMA, P.O. Box 555, Brimfield, MA 01010. When you see a MMA [donation] can at an event, throw a buck or two in it.
Attorney Provanzano is expected to be at the MMA booth in Maynard Sunday at the end site of the Boston HOG "Ronald McDonald House" Run, to answer questions riders may have, and help raise funds for the Helmet Offense Fund.
Let's keep the momentum going. South Shore HOG member Walter Belmonte has a hearing tomorrow in Plymouth, vs. Trooper Garvin, who took his helmet. He's fighting it himself at this hearing - and he's been supplied the RFJ kit and MMA briefings, and these decisions. More to follow tomorrow. Time to 'turn the heat up," the battle was one but the war ain't over.
Thanks -
Paul W. Cote
