United States Court of Appeals,
Ninth Circuit
Argued and Submitted June 3, 1996

EASYRIDERS FREEDOM F.I.G.H.T., an unincorporated association of motorcyclists, et al.,

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Nos. 95-55946,
95-55947.

Filed: Aug. 16, 1996.


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Plaintiffs-Appellees,
vs.  

Maurice HANNIGAN, as Commissioner of the CALIFORNIA HIGHWAY PATROL, et al.,

Defendants-Appellants.

EASYRIDERS FREEDOM F.I.G.H.T., an unincorporated association of motorcyclists, et al.,

Plaintiffs-Appellants,

vs.  
Maurice HANNIGAN, as Commissioner of the CALIFORNIA HIGHWAY PATROL, et al.,

Defendants-Appellees.

Appeals from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding Jill P. Armour, Deputy Attorney General, San Diego, California, for the defendants-appellants-cross-appellees. L. Louis Raring, Raring & Lipoff, Costa Mesa, California, for the plaintiffs- appellees-cross-appellants.

Before WIGGINS, THOMPSON and TROTT, Circuit Judges.

WIGGINS, Circuit Judge:

*1 Easyriders Freedom F.I.G.H.T. ("Easyriders"), an unincorporated association of motorcycle enthusiasts, and fourteen individual California motorcycle riders brought suit against, inter alia, Maurice Hannigan, Commissioner of the California Highway Patrol ("CHP"), to enjoin the enforcement of the California motorcycle helmet law, Cal. Veh.Code ss 27802-03, which requires motorcycle drivers and passengers to wear helmets that comply with federal safety standards. Hannigan appeals the district court's summary judgment grant of a permanent injunction, enjoining CHP from stopping any motorcyclists without reasonable suspicion that they are violating the helmet law, and from citing any motorcyclists without probable cause to believe that they have violated the helmet law. Easyriders cross-appeals the district court's ruling on Hannigan's motion for summary judgment that s 27803 is not unconstitutionally vague. We have jurisdiction pursuant to 28 U.S.C. s 1291 and affirm in part and reverse in part.

THE HELMET LAW

California Vehicle Code s 27803(b), which became effective in 1992, reads in relevant part:

(a) A driver and any passenger shall wear a safety helmet meeting requirements established pursuant to Section 27802 when riding on a motorcycle, motor-driven cycle, or motorized bicycle.

(b) It is unlawful to operate a motorcycle, motor-driven cycle, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).

(c) It is unlawful to ride as a passenger on a motorcycle, motor-driven cycles, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a). Cal. Veh.Code. s 27803 (West Supp.1995).

California Vehicle Code s 27802 provides that the California Department of Transportation may adopt reasonable regulations establishing specifications and standards for safety helmets offered for sale, or sold, for use by drivers and passengers of motorcycles and motorized bicycles as it determines are necessary for the safety of those drivers and passengers. The regulations shall include, but are not limited to, the requirements imposed by Federal Motor Vehicle Safety Standard No. 218 (49 C.F.R. Sec. 571.218) and may include compliance with that federal standard by incorporation of its requirements by reference.

Each helmet sold or offered for sale for use by drivers and passengers of motorcycles and motorized bicycles shall be conspicuously labeled in accordance with the federal standard which shall constitute the manufacturer's certification that the helmet conforms to the applicable federal motor vehicle safety standards. Cal. Veh.Code s 27802 (West Supp.1995). Federal Motor Vehicle Safety Standard No. 218 (hereinafter "Standard 218"), referenced by the California helmet law and the only provision currently articulating the requirements for helmets to comply with the California helmet law, is a largely technical regulation that establishes numerous standards for motorcycle safety helmets. See generally, 49 C.F.R. s 571.218 (1995).

Assuring a helmet's compliance with the standard requires several impact and penetration tests in a laboratory setting. Helmet manufacturers are responsible for performing their own tests on helmets to determine compliance with federal regulations before the helmets are sold to the public.

Compliance is certified by the manufacturers' placement of a sticker on the outside of the helmet with the initials "DOT" for "Department of Transportation." The National Highway Transportation Safety Administration ("NHTSA") will occasionally contract with private testing laboratories to test selected helmets to determine their compliance with federal regulations. If the helmets are found not to be in compliance, the manufacturers are required to notify owners of the helmets of the defect in the helmet and to stop selling non- complying helmets with the DOT certification. See 49 U.S.C. ss 30112, 30115, 30116, 30118 (1994). Manufacturers that do not recall non-complying helmets are subject to substantial fines. 49 U.S.C. s 30165 (1994).

The NHTSA often releases information regarding non-complying helmets to law enforcement agencies and through consumer advisories, and consumers can contact the NHTSA to determine whether a particular helmet has been recalled. Federal law also calls for decisions regarding recalls to be published in the Federal Register. See 49 U.S.C. s 30118(a) (1994). Manufacturers of helmets that do not comply with Standard 218 may continue to sell them without the DOT sticker as "novelty" helmets.

*2 Two California Court of Appeals cases have clarified the responsibility that motorcyclists bear in complying with the California helmet law.

In Buhl v. Hannigan, 16 Cal.App.4th 1612, 20 Cal.Rptr.2d 740 (1993), several motorcyclists challenged the helmet law on vagueness grounds, arguing, inter alia, that Standard 218 is so technical that a motorcyclist would need to be a scientist with access to a testing laboratory to determine whether a particular helmet complies with the standard. The court, however, concluded that the helmet law does not require either the motorcyclist or an enforcing officer to determine the compliance of a particular helmet, but rather that the law requires "only that the consumer wear a helmet bearing a certification of compliance." Id. at 622, 20 Cal.Rptr.2d at 745 (emphasis in original).

In a subsequent case, Bianco v. California Highway Patrol, 24 Cal.App.4th 1113, 29 Cal.Rptr.2d 711 (1994), a motorcyclist challenged a CHP bulletin that had declared that a helmet manufactured by E & R Fiberglass did not comply with Standard 218, causing Bianco to be cited for violating the helmet law while wearing the E & R helmet. Bianco attempted to rely on Buhl in arguing that he could not be cited for wearing the E & R helmet because it bore the DOT self-certification sticker at the time of his purchase. The Bianco court, however, concluded that "the statement in Buhl that consumer compliance with the state law only requires the consumer to wear a helmet bearing the DOT self- certification sticker does not apply when a helmet has been shown not to conform with federal standards and the consumer has actual knowledge of this fact." Id. at 1123, 29 Cal.Rptr.2d 711, 29 Cal.Rptr.2d at 717 (emphasis in original).

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