OFF THE WIRE
agingrebel.com
There were setbacks in two biker civil rights suits last week. Both cases are
being contested in federal court. One case is being heard in New Jersey and the
other in Nevada. Both cases are still alive and may eventually discourage the
common police practice of harassing bikers wearing colors on public roads.
The New Jersey case is titled James Coles et al. v. Nicholas Carlini et
al. The Nevada case is titled Southern Nevada Confederation of Clubs,
Inc. et al. v. Las Vegas Metropolitan Police Department et al.
New Jersey Suit
The Coles case was filed by three men named James Coles, Joseph
Ballinger and Louis C. Degailler in November 2010. All three are now members of
the Pagans.
The three were part of a small pack including members of the Tribe Motorcycle
Club which was stopped by New Jersey State Police while going to a charity
event. The Trooper in charge was Nicholas Carlini and the stop was obviously
made in order to harass and intimidate the six men as a form of extra-judicial
punishment for belonging to motorcycle clubs and wearing insignia of membership
on their backs. Carlini lectured his detainees that the only gang allowed on New
Jersey’s roads was the State Police.
Dueling Countermotions
Last February both sides in the slow-moving case asked Judge Jerome B.
Simandle to issue summary judgments. Coles, Joseph Ballinger and Degailler
sought summary judgment only on the question of whether “the first amendment was
violated by the defendant State Troopers in the course of their ‘anti-colors’
speech delivered during plaintiffs’ custodial detention at roadside.” They
didn’t seek a judgment on “whether the stop itself was pretextual and initiated
in retaliation for Plaintiffs’ alleged expressive conduct.”
The State Police sought a summary judgment of the entire case in their favor
on three grounds: “(1) Defendants are entitled to qualified immunity, (2) no
violation of the First Amendment occurred, and (3) Plaintiffs Coles and
Ballinger are judicially estopped from asserting claims for damages because they
failed to disclose their potential claims when each was going through
bankruptcy.”
The court listened to the lawyers argue about all this on July 7 and ruled
against everybody on July 22.
Core Issues Unchanged
First the judge ruled that since none of the men actually removed his club
insignia Trooper Carlini’s bullying speech was simply an “attempt” to deprive
the bikers of their free speech rights. He did not rule on the issue of whether
the stop itself was intended to deprive the men of their Constitutional
rights.
The State Police had asked that Coles and Ballinger be denied any monetary
judgment in the case because they had neglected to list a judgment in the case
as a potential asset when both declared bankruptcy. The bankruptcies were filed
well before this civil suit but were in their final stages after the suit was
filed. Most case law indicates that whether the men could be compensated or not
was almost entirely at the judge’s discretion. He ruled against Coles and
Ballinger because he thought they acted in “bad faith.”
Simandle put it like this: “On the judicial estoppel issue, the key question
for the Court is whether bad faith may be inferred from Coles’s and Ballinger’s
nondisclosure of this litigation as a contingent asset in their bankruptcy
proceedings, while simultaneously pursuing the present claims for damages.
Because the Court finds that bad faith may be inferred in this case, the Court
will grant Defendants’ motion for partial summary judgment, prohibiting Coles
and Ballinger from seeking compensatory or punitive damages.”
However the third plaintiff, Degailler, can still be awarded monetary damages
if the suit is successful.
All three plaintiffs can still obtain what is called “injunctive relief” if
they win the suit – which means that Simandle will order the New Jersey State
Police not to do it again.
Nevada Case
The key issue in the Nevada case was whether the Confederation of Clubs had
legal standing to sue Vegas Metro and the other defendants including former
Boulder City Police Chief Thomas Finn. Last Friday Judge Andrew P. Gordon ruled
the COC does not. He instructed the Plaintiff’s lawyer in the case. Stephen
Stubbs, to modify and refile the suit by the end of next month and he basically
told Stubbs how to do it. The judge wants to see the plaintiff’s sorted by club.
At the end of his ruling he wrote:
“At the July 24, 2013 hearing on the motion to sever, Plaintiffs requested
that the court allow the cases to be refiled and grouped by each motorcycle
club, such that each club and its related members may file a single complaint
(e.g., allowing all Mongols incidents to be contained in one lawsuit, all Stray
Cats incidents in another). Based on the allegations presently before the court,
the cases may be grouped together as follows: all Mongols incidents may be
joined in the present lawsuit (involving Espinoza’s First, Second, and Third
Claims for Relief), along with the Jerald Murillo incident; all Stray Cats
incidents may be joined in one complaint; all Bandidos incidents may be joined
in one complaint along with the Down and Dirty Motorcycle Club incident; the
Joseph Pitka incident must be filed in a separate complaint unless Plaintiffs
can establish that it should be properly joined with another lawsuit. Each such
complaint must be sufficiently pled to satisfy both the joinder requirements
ofRule 20 discussed above, and the standing requirements for each plaintiff
(including individuals and motorcycle clubs) to maintain the claims. The court
does not opine at this time whether the motorcycle clubs can satisfy the
standing requirements of Federal Rule ofCivil Procedure 17(b)(3) and any other
applicable law.
“Plaintiffs are granted leave to amend the present Amended Complaint (as
described above) by August 30, 2013. Similarly, the new and separate lawsuits
must be filed by August 30,2013, and will be assigned new case numbers. The
court further orders that each of the cases will be consolidated before this
court for purposes of discovery. Thus, Plaintiffs shall note in the caption of
each complaint that any new case filed as a result of this order is related to
this base case, and should be assigned to the same judges. The parties to each
of the severed actions are required to pay a filing fee.”
Stubbs Comments
When reached for comment, Stubbs said “What has happened is that Federal
Court Judge Andrew Gordon granted me a ‘do over’ with some guidance.”
“Judge Gordon specifically states that all claims for relief are to be
grouped by club, dismisses all claims but the Mongols claims, grants me leave to
amend the Mongols claims to repair any defects, and then instructs me to file
new and separate claims for the other clubs.”
Both suits are ongoing and should remain so for at least another year.
