agingrebel.com
This morning at 9 a.m. Pacific district
judge David O. Carter denied a preliminary order of forfeiture that was
transparently intended to turn the Mongols Motorcycle Club’s various
indicators of membership, or club only patches and tattoos, into
contraband.
The government has been pursuing this
cause through two major criminal cases and a civil case spanning more
than ten years. In October 2008 Thomas P. O’Brien, who was then United
States Attorney for the Central District of California, gloated about
the first of those cases:
“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. 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.”
Mongol Problem
And, for the next seven months local and
federal policemen did that and more. They broke into cars to seize
patches that said “MFFM,” for “Mongols Forever Forever Mongols.” They
raided bike rallys to seize Mongols tee-shirts. They used Swat to
execute search warrants on people’s homes in search of Mongols
calendars, posters, bandannas and coffee mugs.
A federal judge named Florence Marie
Cooper put a stop to that but the prosecutors running the government’s
case, Steven Welk and Christopher Brunwin refused to give up the notions
that: First, there is a “motorcycle gang problem;” and second, that the
motorcycle gang problem may be solved by outlawing motorcycle gang
symbols.
Eventually the crusade to end the
“motorcycle gang problem,” or at least the “Mongol problem,” became a
federal racketeering case titled United States versus Mongol Nation: An Unincorporated Association.
It was always a ridiculous case. It was the child of a conspiracy to solve the Mongol problem between the prosecutors at play today, Welk and Brunwin and a mortifying district judge named Otis Dalino Wright II. Wright is an ex-Sheriff who saw his duty as helping Welk and Brunwin solve the Mongol problem. Mongol Nation was his idea. He quit the case because he was afraid that if he did not remove himself from Mongol Nation he would end up being publicly shamed for his despicable conduct of it.
It was always a ridiculous case. It was the child of a conspiracy to solve the Mongol problem between the prosecutors at play today, Welk and Brunwin and a mortifying district judge named Otis Dalino Wright II. Wright is an ex-Sheriff who saw his duty as helping Welk and Brunwin solve the Mongol problem. Mongol Nation was his idea. He quit the case because he was afraid that if he did not remove himself from Mongol Nation he would end up being publicly shamed for his despicable conduct of it.
Indicia
That was how the case wound up in Carter’s court.
Today Carter put a stop to the final solution to the motorcycle gang problem.
What the government has always hoped to
accomplish has been to rip symbols off people’s backs. To break into
people cars to confiscate contraband symbols. To raid the homes of
“known Mongols” in the middle of the night, to kill their pets,
terrorize their children, bully their wives and parents, steal their
cash, smash their momentos, confiscate their electronics and blow their
houses off their foundations – all under the pretense of searching for
contraband symbols.
Brunwin and Welk have denied this. They
have denied it to Carter. Neither Brunwin nor Welk have told the truth
in any of these cases in the last decade. They have lied repeatedly in
Carter’s court and there seems to be some possibility that he has
noticed.
Near the beginning of the 51-page ruling he released this morning, Carter wrote:
“For more than a decade the United
States has expended resources in seeking forfeiture of the Mongol
Nation’s collective membership marks. Why? It is beyond question that
the Government has a legitimate interest in attacking the economic roots
of a criminal organization like the Mongol Nation. But what does the
United States accomplish by seizing control of the intellectual property
associated with a motorcycle club’s symbols? The Government’s own prior
admissions shed light on the objectives underlying more than ten years
of these effort: The collective membership marks are ‘potent emblems’
use to ‘generate fear among the general public’ and the Government has
sought orders to prevent use of ‘the trademark to create an atmosphere
of fear through public display.’ The Government has stated publicly that
it has sought to ‘stop a gang member and literally take a jacket right
off his back.’ The Government is not merely seeking forfeiture of a
ship’s sails. In this prosecution the United States is attempting to use
RICO to change the meaning of a ship’s flag”
“Now that preliminary order of
forfeiture is before the Court, the Government contends that its request
is limited; the Government argues at length about what the requested
preliminary order of forfeiture does not authorize.”
“But the First Amendment ‘protects against the Government; it does not leave us at the mercy or noblesse oblige’ or any promise to use power ‘responsibly.’”
Trusting The ATF
“The Government has included language in
its proposed POF stating that the order ‘standing alone’ does not
authorize seizure of property bearing symbols and that the Government
‘shall not apply to any Court (other than this Court) requesting seizure
or enforcement authority based upon this Order.’ This is not enough to
remedy the chilling effect the forced transfer of a symbol to the United
States government has on Mongol Nation, its members and society at
large. The Government has not been forthright with the Court and the
public regarding whether the United States can feasibly use the Mongol
Nation’s collective membership marks or transfer the marks to a third
party for their exclusive use. These statements to the Court have been
accompanied by public threats made by the United States Attorney
regarding the Government’s intention to strip vests off members’ backs.
More recently, the special agent in charge of the Bureau of Alcohol,
Tobacco, Firearms and Explosives, Los Angeles Field Division, stated
that the Government has successfully seized a ‘unity symbol.” Because
the forced transfer of symbols to the United States immediately chills
the Mongol Nation’s and its members’ continued rights to display or
otherwise use the collective membership marks without fear of
retaliation or payment of a licensing fee at any point following
forfeiture, the forced transfer of the collective membership marks to
the United States violates the First Amendment.”
“The Government’s request also violated
the Eighth Amendment’s Excessive Fines Clause and must be denied on this
basis alone. The Mongol Nation is a convicted criminal entity, and its
members have pleaded guilty to heinous acts of murder, attempted murder,
drug trafficking and other crimes. But in this case the jury found the
Government did not prove the requisite nexus between the collective
membership marks and the substantive RICO offense; the jury found the
collective membership marks fofeitable as to RICO conspiracy alone. The
forfeiture of rights associated with a symbol that has been in
continuous use by an organization since 1969 is unjustified and grossly
disproportionate to the offense.”
Yanny
After Carter made his ruling, Mongols
attorney Joe Yanny said, “It’s been a long hard road and this is a major
victory for motorcycle clubs.”
“The case was a product of the brains of
some government employees who were trying to justify their existences
and shows not just a complete lack of understanding of the intellectual
property laws but a complete ignorance of and disregard for the
Constitution and the rights of citizens.”
“We can only hope the government gets
the message that they don’t have free reign to spend tens of millions of
taxpayer dollars to abuse people they don’t like or don’t understand.”
At first glance, it does not seem likely
that Brunwin and Welk will appeal Carter’s order. The appeal would go
to the Ninth Circuit which has already ruled, in a case titled Sammartano v. First Judicial District Court, in and for the County of Carson City, that symbols like the Mongols are Constitutionally protected expression.
And, their appeal would have to be
approved by the Solicitor General of the United States. It would
probably boil down to a political decision. The current Solicitor
General is Noel Francisco. He was appointed by President Trump after his
Washington law firm, Jones Day, worked on behalf of the Trump campaign.
It is anybody’s guess how much political capital may still be made by
waving the motorcycle menace in the public’s faces.
Probably, the government’s long crusade to strip motorcycle clubs of their symbols is finally over.