|FN1. The helmets worn by plaintiffs were manufactured by Mohawk, E & R, Chico's, Florida's Choice, Frenchies, and an unknown manufacturer.
FN2. SDSD and HBPD agreed to be bound by any injunction of the CHP issued in favor of the motorcyclists.
FN3. A study by the Director of the Southern California Injury Prevention Research Center at UCLA's School of Public Health revealed that in 1992, the year after the helmet law was passed but before any interpretation of the statute by Bianco or Buhl, helmet use increased to about ninety- nine percent from the fifty percent usage prior to the law's implementation. Decl. of Dr. Jess F. Kraus at 2. A random sampling of 3,214 motorcyclists at twenty-nine locations throughout California revealed that only seven percent of riders appeared to wear non-standard helmets. Id. at 3. Thus over ninety percent of motorcyclists have been able to comply with the helmet law.
FN4. "When interpreting state law, federal courts are bound by decisions of the state's highest court. 'In the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.' " Arizona Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir.1995) (quoting In re Kirkland, 915 F.2d 1236, 1239 (9th Cir.1990)). In the absence of convincing evidence that the state supreme court would decide differently, "a federal court is obligated to follow the decisions of the state's intermediate courts." Kirkland, 915 F.2d at 1239. Thus, in the case at bar, we scrutinize the statute for vagueness as interpreted by California's intermediate Courts of Appeals.
FN5. Many of the considerations involved in determining the propriety of issuing an injunction often overlap with the considerations used in determining whether there is an Article III case or controversy. Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 1666, 75 L.Ed.2d 675 (1983). Thus, for example, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief," O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974), and also does not provide sufficient grounds, absent a "great and immediate" threat of irreparable injury, for an injunction. Id. at 499, 94 S.Ct. at 678. Because we conclude below that Easyriders has made the greater showing necessary to sustain a portion of the injunction, we do not separately discuss the fact that Easyriders meets the Article III standing requirements.
FN6. Indeed, of the five name-brand helmets that the named plaintiffs have been cited for wearing, four have at least had models recalled or investigated further by the DOT based on failure of tests. Thus, given that the helmets in question either did not comply with Standard 218 or bore striking similarities to stickers that did not comply, it can hardly be said that the officers were not at least "reasonable" in stopping them based on the appearance of their helmets. While the Fourth Amendment prohibits stops from being based on "broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped," Rodriguez-Sanchez, 23 F.3d at 1492, stops based on the appearance of a helmet do not involve such an impermissibly "broad profile" where there is a reasonable correlation between a helmet's appearance and its non-compliance with Standard 218.
FN7. Black's Law Dictionary defines "specific intent" as "a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime." Black's Law Dictionary at 1399 (6th ed.1990).
FN8. This specific intent is not required, of course, where the helmet was not certified by the manufacturer at the time of sale.
FN9. One of the plaintiffs was cited by the CHP, and the other was cited by the Laguna Beach Police Department, which relies on the CHP policy for helmet law enforcement.
FN10. Probable cause may be based upon hearsay statements, and on information relayed to the arresting officer through official police channels. Butler, 74 F.3d at 920.