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NHTSA

Mac Made

Tuesday, April 15, 1997


Sheriff Sherman Block
4700 Ramona Blvd.
Monterey Park, CA 91754


Complaint: Deputy Porche, West Hollywood Sheriff, improper tactics & harassment
Reference: Citations: K644574 (4/1/96), J940189 (10/8/95)


Dear Sheriff Block,

I am writing you today on the recommendation of Mr. Rudy DeLeon, Office of the Ombudsman.

Overview:
Deputy Porche (220254) of the West Hollywood Sheriff's Department has issued me 2 helmet tickets for the same helmet even after the first ticket he issued me was dismissed at arraignment on the basis that I was in compliance with the law. I believe there is enough evidence to support that Deputy Porche is acting outside the law and local and U.S. court decisions pertinent to this matter and that he is abusing the law and his power in a prejudicial manner.

Purpose:
The purpose is to register my complaint against Deputy Porche for improper tactics, harassment and violation of my civil rights (Penal Code Section 236) relative to CVC 27802 and CVC 27803, the Helmet Law, the United States Court of Appeals decision Easyriders vs. Hannigan, case no. 93-0807-3, CHP "Bulletin #71" and The Risk Management Bureau's "Indexed Briefing #96-2" dated 11/7/96 issued to all Station Commanders.

Goals:
The goals are to get Deputy Porche to obey the helmet law, recent U.S. Court Appeals decisions and to stop his prejudicial law enforcement. In addition I wish to solicit your support in getting a list of approved helmets from the state so there is no more confusion as to what is legal, once and for all.

Note:
My helmet was DOT stickered at the time of purchase.

1) History - First Ticket 10/8/95 - (#J940189):
Deputy Porche driving east on Sunset at Doheney passed me, one of 6 motorcyclists with 3 passengers going west. He saw us, did a u-turn and pulled us all over. We were all wearing helmets. My helmet was DOT stickered at the time of purchase.

From his car door (approximately 2 car lengths behind us) he looked at the 9 of us (a sea of helmets) quickly dismissed 6 and detained 3. We took off our helmets, left then on our bikes and walked over to his car. We asked if he was aware of the Federal Injunction to which he replied, "I don't care about your injunction." and that he was citing us for illegal helmets.

I asked what a "legal helmet" was, he said, "it has to have an inch of padding., you guys know what's legal.“ Porche never physically touched or inspected our helmets and never got closer than 2 car lengths to one! FMVSS 218 has extremely detailed specs testing which is a destructive test and obviously a quick glance from within one's car across the street is not one of them...

My friend, Mario Pikus reminded Porche that he had issued him 2 previous helmet tickets which were both dismissed. Porche said, “then you definitely know better.” My other friend started to tell Porche that he was from Arizona where there is no helmet law, but Porche interrupted him and said, “Oh, you're new here? you can go.” Actually, my friend had been living in L.A. for over 2 months, but Porche never asked him or even if he knew the law.

As with Mario and myself, Deputy Porche assumed a great deal about what we knew and seemed to hear what he wanted to as opposed to the truth. He had an extremely preconceived attitude about him. There was no sense of "innocent until proven" guilty in this deputy's conversation, demeanor or attitude.

Deputy Porche, then, wrote Mario Pikus and I tickets for helmets that did not "conform with regulations". Both our tickets were dismissed at arraignment.


2) History - Second Ticket - 4/1/97 (#K644574):
I was stopped by Deputy Porche again on 4/1/97 on Sunset at Cory just 1/2 a block from the previous stop. Deputy Porche, told me that I was wearing an "illegal helmet". I asked how he knew it was illegal, to which he said "you can see from the car it is."

I asked what makes a legal helmet to which he told me it "it has to have an inch of padding, a sticker inside, a strap and some other technical things that I don't know."

I reminded him about the Federal Injunction (Easyriders vs. CHP) to which he said that it was overturned, which is totally incorrect. I told him that he had cited me for the same violation on the same helmet months ago and that it was dismissed. Remarkably, Porche said with glee, "then you know the helmet is illegal. I told hem that I knew he thought it was illegal, but I didn't plus the court agreed with me and dismissed it. He said, The only reason it was dismissed was because I didn't show up!" He got a very happy grin on his face and told his partner to write the ticket as if he'd "caught me."

What Deputy Porche didn't know or seem at all interested in was that my case was dismissed at arraignment because I was in compliance. Since my case never even got to trial, Porche never had the opportunity not to show up.

Regardless, Deputy Porche is clearly sending a signal that he is not bound by court decisions as he continues to ignore the local court and U.S. Courts relative to this helmet issue. And as a result, my freedom is being severely compromised and I am in double jeopardy.


Summary:
Deputy Porche is "known" in the local area by motorcyclists for writing helmet tickets. In my actual experience, I've received 2 and my friend Mario Pikus has received 3. When I mentioned this to Deputy Don Thompson at the West Hollywood station, he stated that helmet tickets were Deputy Porche's "pet peeve." No surprise, what is the word on the "street" is also the word around the West Hollywood station too!

  1. How many helmet tickets did Deputy Porche write in 1995? 1996? 1997?
  2. What is the Department's policy on tolerating "Pet Peeves"?
  3. How is it that the Department allows Deputy Porche to ignore court decisions?
  4. By what authority and expertise is Deputy Porche able to determine if any helmet conforms with FMVSS 218 when the NHTSA must destroy 4 helmets in a lab to make such determinations?

It is important to note that even though my first ticket never went to trial, Deputy Porche didn't know this but seemed extremely cavalier and lax about not showing up to court as if this were OK or even normal for him.

  1. How many times did Deputy Porche fail to appear for court in 1996 in comparison with the number of tickets he wrote in 1996.
  2. What is the Department's policy on failure to appear for it's deputies?
  3. Is Deputy Porche in compliance with this policy?

There is obviously no "grace" period for knowing the law in California, yet Deputy Porche created one. In my first ticket from him, I observed his methods of determining compliance to be haphazard, inconsistent, without any relation to FMVSS 218 and without any concern or respect for our civil rights or for our time whatsoever.

In the 2 times that I was forced to meet with Deputy Porche, I could clearly see that he really enjoys stopping motorcyclists. At 45 years of age, I have experienced the difference between an officer doing his job in a professional unbiased manner and Deputy Porche who is clearly personally and prejudicially invested in the arrest and citation process. Said in another way, it is very obvious that he "gets off on it".

To help clarify and amplify the problem, the following language is taken directly from CHP Bulletin #71. In addition, the conclusions reached by the U.S. Court of Appeals (Easyriders vs. CHP) and the CHP (Bulletin 71) are mirrored in the Sheriff Department's own memo issued by The Risk Management Bureau's "Indexed Briefing #96-2" dated 11/7/96 issued to all Station Commanders.

"For the purposes of this injunction, a determination of non-conformity with FMVSS 218 is defined as one or more of the following:
  1. A determination of non-compliance issued by the National Highway Traffic Safety Administration (NHTSA), or
  2. A manufacturer's recall of a helmet because of non-compliance with FMVSS 218, or
  3. Other competent objective evidence from independent laboratory testing that the helmet does not meet FMVSS 218."

Conclusion:
With all of this considered, I charge that Deputy Porche is acting outside of the provisions of the helmet law, FMVSS 218 and local and federal court decisions as he has clearly demonstrated a pattern in this regard which is corroborated by his peers, that Deputy Porche has also violated my civil rights by falsely arresting me not once, but 2 times, either which constitutes "false imprisonment" as defined in Penal Code Section 236:

"False imprisonment defined. False imprisonment is the unlawful violation of the personal liberty of another.

I wonder if Deputy Porche has any concept of the incredible amount of wasted time and expense he is causing by writing frivolous and bad tickets? If you consider the time I must now spend (a second time) researching, writing, lawyers, my time in court plus the cost to the court, your time, Lt. Curtis', Rudy DeLeon's and even Deputy Porche's time, etc. it's criminal. And for what? A false traffic infraction? The helmet issue is personal. Whether or not one wears one or not only effects the user. No one else is effected. So why is this deputy spending so much energy on them? And to top it off, Deputy Porche seems not to be bothered to appear in court!

We cannot afford such use/abuse of our tax funds. More importantly, we cannot afford to have any deputy's time wasted on frivolously alleged infractions which only distract him/her from serious law enforcement. How is community relations being served here?

Secondarily to this complaint letter and on a positive pro-active note: in talking with Lt. Curtis we discussed the difficulty of complying and enforcing the helmet law. He pointed out how much easier it would be if there were a list of approved helmets that consumers could buy with certainty. Good point! Why keep it a secret? And why is the burden of compliance with the very technical FMVSS 218, which is only the standard of the law... not the law itself, now shifting to law enforcement, the courts and consumers instead of the manufacturers as prescribed by the law? Why? Simple... because without a list as Lt. Curtis logically concludes, we are all at the mercy of everyone's observation, interpretation, prejudice and even opinion of what a helmet is.

I don't have this kind of confusion when I get my car smog checked. I bring it in, it's hooked up, if I pass, I get a certificate and I'm done. That certificate is essentially my DOT sticker and I don't need to know about EPA, smog, computers, carbs, or any state or federal technical standards. So why are we (consumers, law enforcement and the courts) being forced toward understanding FMVSS 218 instead of just CVC 27802/3 like the law and courts state? Because without a list it's essentially a "guessing game" with consumers, law enforcement and the courts making lay determinations as none of us have the facility or capacity to understand 218. It's time to stop guessing at it.

FMVSS 218 is just not that subjective. But the law points to 218 for it's standard - but no one but the NHTSA or the manufacturer understand it or have to understand it as prescribed by the law. Obviously, this law is badly written, terribly flawed and impossible to comply with - "with certainty". Just look at my case: I bought a DOT helmet, was ticketed once, I go to court, it gets dismissed and then I get cited again by the same deputy!

I agree with Lt. Curtis and want to formally request that in light of the circumstances that the Sheriff's Department petition the legislature for a list of approved helmets that comply with our helmet law so that all concerned can comply with and enforce the helmet law with certainty. You have to ask yourself: why is this law so special that it remains so this ambiguous - this long? Imagine going to a store, seeing a list of approved helmets and buying the one that fits. Simple, definitive, done.

I urge your support in obtaining an approved list of helmets.

In closing, I point out that in response to first ticket, my concern and ABATE's was "community relations", first. The Sheriff's Department responded quickly, professionally and with sincerity and based on the U.S. Court Permanent Injunction, Sheriff Odenthal of the West Hollywood Sheriff's Department issued a watch-brief moratorium on writing helmet tickets.

It seemed to be a win-win solution for everyone. Sadly, the same deputy is stirring the pot again based on his mis-interpretation of the recent U.S. Court of Appeals decision. It almost seems as though he couldn't wait to get back to writing tickets and just as my experience is that he tends to hear what he wants to, I bet this was the same process at play that erroneously gave him the signal to write my a 2nd ticket even over and above Risk Management's Indexed Briefing 96-2.

All this can be avoided if Deputy Porche honors the law, the courts and the citizen's of this jurisdiction and if we can stop guessing at what helmets are by virtue of a list of approved helmets readily available to everyone.

I thank you very much for your time and consideration and attention to this matter.

Sincerely,

Steven Shmerler

CC: Rudy DeLeon
Lt. Curtis
ABATE of California
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