OFF THE WIRE
by Jeff "Twitch" Burns
If you are a member of a motorcycle club or associate with motorcycle
clubs the chances are that you have been the subject of law enforcement
surveillance for no other reason than your affiliation with motorcycle
clubs. For the purpose of this article we will refer to this type of
surveillance as hostile surveillance. I have been part of the
motorcycle club community for over 16 years and during that time I have
been surveilled by every major federal law enforcement agency, numerous
state and local law enforcement agencies, state Gaming Commission and
even tribal police and Colorado Parks & Wildlife officers.For years law enforcement has made it standard practice to surveil motorcycle club parties and events, funerals, runs, COC meetings, etc. the sole purpose of which is to gather intelligence on what they consider members of criminal organizations. Since the 2015 Waco incident we have seen increased incidents of law enforcement surveillance of motorcycle club members in New York, Idaho, Arizona and California just to name a few states. For many involved in the motorcycle club world this hostile surveillance has just become an annoying and invasive part of our lifestyle that we tolerate and tell anecdotal stories about because most don’t know what can be done to stop it. This article will address what our community, the motorcycle club community can do to counter, deter and stop this type of law enforcement harassment.
The most effective way to counter and stop this type of hostile surveillance by law enforcement is to pass legislation that specifically addresses motorcycle profiling. In 2011, Washington State became the first state in the country to pass a law addressing motorcycle profiling:
R.C.W. 43.101.419. “Motorcycle profiling” means the illegal use of the fact that a person rides a motorcycle or wears motorcycle-related paraphernalia as a factor in deciding to stop and question, take enforcement action, arrest, or search a person or vehicle with or without a legal basis under the United States Constitution or Washington State Constitution.
A law such as the one passed in Washington ties the hands of law enforcement and forces them to limit their investigation and surveillance to instances where there is sufficient legal probable cause to believe that a crime is occurring or is about to occur. While law enforcement surveillance of motorcycle club members was a regular occurrence prior to the passing of the motorcycle profiling law, since the law has taken effect there has been almost no surveillance of motorcycle club related events in Washington State. Obviously legislation is the most effective way to counter hostile surveillance but to pursue legislation you need a persuasive pattern of motorcycle profiling evidence which in the case of hostile surveillance can be accomplished through the use of counter surveillance to obtain photographs of law enforcement surveilling you, demonstrating a pattern of harassment.
In 2011, I was at the Four Corners Rally in Colorado speaking about this very topic when a club member came into the conference room and notified us that the police had surrounded the parking lot of the conference center and were taking photographs of the people and motorcycles in the parking lot. I grabbed my SLR camera with a huge telephoto lens and headed out into the parking lot to find over 20 law enforcement officers from various federal, state, local, and tribal law enforcement agencies taking photos of us. I stood in plain view and began taking photographs of the law enforcement officers who were taking photos of us. I photographed the officers, their vehicles and license plates. Just as we find hostile surveillance incredibly invasive and uncomfortable so does law enforcement and they all immediately left the scene, I had essentially chased them off with my camera and counter surveillance and we remained surveillance free for the remainder of the event. But is it legal to photograph law enforcement in public?
The recent precedent setting case that clarifies whether it is legal to photograph police is Manny Garcia v. Montgomery County, MD. In this case, journalist Manny Garcia was arrested and charged with disorderly conduct for photographing police as they detained two men in Maryland. In this case, the Department of Justice filed a Statement of Interest in the case upholding the right of individuals to photograph police under the First, Fourth and Fourteenth Amendments to the U.S. Constitution. The D.O.J. argues that not only do individuals have a First Amendment right to film officers publicly doing their duties, they also have Fourth and 14th Amendment rights protecting them from having those recordings seized without a warrant or due process. In fact in their statement the D.O.J. stated that the United States is concerned that discretionary charges such as disorderly conduct, loitering, disturbing the peace and resisting arrest are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights. Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges. Federal appellate courts have upheld a First Amendment right to record police in numerous cases from around the country and many of them were cited by the Justice Department in their statement in the Garcia case. So yes, it is legal to film police in public.
Now, let’s say you’re at an event that is under law enforcement surveillance, you take several photographs that documents the surveillance, the police leave the scene, what next? Keep the photos or video in an organized file, note the event, date, time, duration of surveillance and law enforcement agencies involved. Then file a public records request with all the agencies involved requesting copies of the photos/video that they obtained during their surveillance, any police reports, CAD reports, officer log book entries and radio traffic associated with the operation. By following up your counter surveillance with a public records request you will obtain additional photos, documents and radio traffic that may help you establish that you were being unfairly and unnecessarily targeted by law enforcement and will help you build your pattern of evidence. Have all your evidence reviewed by your Confederation of Clubs/Council of Clubs attorney to evaluate for any civil rights violations and whether or not litigation is warranted. If your state is in the process of pursuing motorcycle profiling legislation make the key people in that movement aware of the evidence of profiling you have and make it available to them for use in building their pattern of evidence. If your state is not currently pursuing motorcycle profiling legislation, you can send a copy of your evidence to us at the Motorcycle Profiling Project and we will store it for later legislative use in your state.
Hostile law enforcement surveillance is common in the motorcycle club community, however it does not have to be an accepted part of our lives. Through the use of motorcycle profiling legislation, proactive counter surveillance and public records requests we can turn the tables on law enforcement and severely restrict or put an end to hostile surveillance of our community.
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