CALIFORNIA - Mongols Win Yet Again

 OFF THE WIRE
agingrebel.com
A legal case named Ramon Rivera v. Ronnie Carter et al. was finally settled yesterday after more than four years. It went on as long as it did because the United States Department of Justice, with unlimited money, unlimited manpower and unlimited time delayed, denied and counterattacked in order to maliciously frustrate the interests of justice. The government took the actions it did because its attorneys intended to use the rules of federal court procedure to maliciously punish innocent men.
Eight days ago, on March 18, Stephen R. Welk, the Assistant U.S. Attorney who unnecessarily prolonged this travesty of justice, finally gave up on the case and moved to dismiss an appeal filed with the Ninth Circuit Court. Yesterday, the Ninth Circuit dismissed the case.
At the end the argument was over whether the Rivera’s attorneys were entitled to be paid $243,824.00 in fees, $8,642.00 in additional fees and $740.78 in costs. Now those attorneys, David Loy of the American Civil Liberties Union and consumer attorney Alan M. Mansfield can finally get their money.

The Mongols Case
In the Mongols case, United States versus Doc Cavazos et al., the United States tried to outlaw membership in the Mongols Motorcycle Club by criminalizing the use of the clubs principal identifiers, the name “Mongols” and the Mongols center patch. The club’s former president, Ruben “Doc” Cavazos had trademarked those two marks in the name of his corporation, Shotgun Productions. After his arrest, and possibly before his arrest, Cavazos agreed to forfeit his “ownership” of those two “trademarks” to the government in return for a lighter sentence.
When Doc Cavazos made his deal is unclear because although he was not arrested until October 21, 2008 a temporary restraining order effecting the marks was requested by the government on October 17th. The government’s original request asked that the court (1) proscribe subsequent sale of the Club’s Marks; (2) enjoin use or display of the Club’s Marks by defendants in the criminal case and “those persons in active concert or participation with them”; and (3) authorize seizure of “all . . . materials bearing the [Club’s] trademark.”
The government originally wanted much more. And a press release issued on the day Cavazos was arrested stated:
“’In addition to pursuing the criminal charges set forth in the indictment, for the first time ever, we are seeking to forfeit the intellectual property of a gang,’ said United States Attorney Thomas P. O’Brien. ‘The name Mongols, which is part of the gang’s patch that members wear on their motorcycle jackets, was trademarked by the gang. The indictment alleges that this trademark is subject to forfeiture. We have filed papers seeking a court order that will prevent gang members from using or displaying the name Mongols. If the court grants our request for this order, then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.’”

Cooper Intervenes
For the next eight months, various federal, state and local police agencies treated the press release as if it had the power of law and seized not simply patches but other insignia, mementos and even personal photographs that referenced the Mongols from numerous innocent persons – including people who were not affiliated with the club in any way.
But under American law, Cavazos never owned the marks because they were not trademarks. They were instead “collective membership marks.” The name Mongols and the center patch indicated membership in the motorcycle club and belonged to the collective membership of the club. And collective membership marks are Constitutionally protected forms of expression – they are “free speech.”
Ramon Rivera, an unindicted Mongols patch holder from San Diego filed a civil rights suit over the issue The judge handling the case at the time, the late Honorable Florence Marie Cooper, ruled on both the Rivera suit and Cavazos forfeiture of the marks that summer. She said the marks were owned by the club and not Cavazos. Cooper also pointed out that she had been lied to by the government.
Judge Cooper ruled on July 31, 2009 that the government had no right to Rivera’s patch and on August 6 she ruled on the issue of Cavazos’ ownership. On that matter she wrote:
“Even if the Court were to accept the Government’s evidence that Ruben Cavazos controlled the use of the mark during his tenure as National President,” Cooper wrote, “there is no support for the notion that a defendant’s control of property belonging to a RICO enterprise is sufficient to establish a forfeitable ownership interest in the property. In addition, there is no evidence that Ruben Cavazos owned a majority interest or any interest in the Mongol Nation that would equate to an ownership interest in the mark. There is no evidence that Shotgun Productions, LLC ever used the mark as a collective membership mark – to indicate membership in an organization substantially similar to that of the Mongol Nation. The purported assignment to Shotgun Productions, LLC is therefore without legal effect. Moreover, the Government’s evidence demonstrates that the Mongol Nation began using the collective mark in approximately 1969, and either Mongol Nation or Mongols Nation, Inc. continues to use the mark to identify their members. The Mongol Nation and Mongols Nation, Inc, by virtue of having used the collective membership mark since 1969, having registered the mark in 2005, and having continued use of the mark to identify members of the club, have acquired and maintained exclusive ownership in the collective membership mark at issue.”
“At the June 22 hearing,” she wrote, “the Government revealed for the first time that the mark it sought to forfeit was a collective membership mark. Previously, in its Ex Parte Application for Post-Indictment Restraining Order, the Government (in this case ATF Case Agent John Ciccone) referred to the mark simply as a trademark, which was ‘purportedly for use in commerce in connection with promoting the interests of persons interested in the recreation of riding motorcycles.’ In contrast to commercial trademarks, which are used in commerce and generally not entitled to full First Amendment protections, collective membership marks are used by members of an organization to ‘indicate membership in a union, an association, or other organization.’ The use and display of collective membership marks therefore directly implicate the First Amendment’s right to freedom of association. The Supreme Court has recognized that ‘implicit in the right to engage in activities protected by the First Amendment’ is ‘a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’ This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.’ Furthermore, clothing identifying one’s association with an organization is generally considered expressive conduct entitled to First Amendment protection…. If speech is noncommercial in nature, it is entitled to full First Amendment protection, which prohibits the prior restraint and seizure of speech-related materials without a judicial determination that the speech is harmful, unprotected, or otherwise illegal.
“Prohibiting speech of this nature constitutes an attack on a particular viewpoint. In Sammartano (v. First Judicial District Court, in and for the County of Carson City) the Carson City courthouse enacted a rule to prohibit admission of those with ‘clothing, attire or colors which have symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations,’ because ‘such clothing or attire can be extremely disruptive and intimidating, especially when members of different groups are in the building at the same time.’ The Ninth Circuit reasoned that the rule singles out bikers and similar organizations for the message their clothing is presumed to convey, and held that the rule impermissibly discriminates against a particular point of view – the view of biker clubs as opposed to garden clubs and gun clubs. In this case, the Government targets an even narrower group of individuals, a single motorcycle club. In addition, the Government has been seizing property, which imposes a greater restriction on individual rights than the denial of access to a public facility. Accordingly, the seizure of property bearing a Mongols membership mark should be considered viewpoint-discriminatory. The Government’s ability to seize property bearing the trademark acts as a prior restraint and cannot stand without a judicial determination that the speech is harmful, unprotected, or otherwise illegal. No such determination was ever sought by the Government, and no such determination was ever made by the Court.”

Judges Wright And Carter
After Judge Cooper died in the middle of the Cavazos case, the forfeiture matter was transferred to Judge Otis Wright. Wright eventually ruled: “no amount of discovery could affect the dispositive legal issue: whether Cavazos, or any other individual defendant, had a forfeitable ownership interest in the Marks . . . There is no evidence that Cavazos or any other individual member of the organization holds or ever held an ownership interest in the Marks.”
But the government still refused to give up and eventually the issue was decided by Judge David Carter on February 28, 2012. Carter ordered the government to pay Loy and Mansfield for their work under a federal law called the Equal Access to Justice Act. The government argued that the two attorneys were asking for too much. Carter replied:
“The purpose of Equal Access to Justice Act (EAJA) ‘is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of Government authority.’”
“In sum, the novelty of the government’s position did not make it substantially justified. Rather, it took unlawful ‘action based on an ungrounded and unsubstantiated legal theory, and without sufficient factual support.’”
“Furthermore, Counsel’s hours were reasonable given the government’s obstinacy in continuing to litigate legal theories that have now been rejected by all three judges to hear this case. The government could have, at any time, spared itself the expense of Counsel’s EAJA fees by simply conceding that it was wrong on the law. Instead, the government took advantage of the changes in judges in this case by advancing unsupportable legal theories before each judge. In advancing these theories, the government submitted voluminous documents through which Counsel and the Court were forced to wade.”
The government appealed to the Ninth Circuit. Last week they finally gave up. Today it is over. The government cannot seize the patch of any motorcycle club without first proving that every member of the club and the club as an entity constitute a criminal enterprise.