Friday, May 24, 2002
C.A. Strikes Down County Fair Dress Code in Hell’s Angels Case
By KENNETH OFGANG, Staff Writer/Appellate Courts
Sonoma County officials violated the civil rights of a patron who was prevented from wearing his Hell’s Angels vest at the county fair, the First District Court of Appeal ruled yesterday.
A dress code that, among other things, barred “apparel or accessories intended to provoke, offend or intimidate others…including offensive slogans, insignia or ‘gang colors.,’” was vague and overbroad, Presiding Justice J. Anthony Kline wrote for Div. Two.
The enforcement of the code against Stephen Gatto, Kline said, “deprived him of a liberty interest in his personal dress and appearance” without due process of law. The panel affirmed a judgment awarding Gatto $1,000 in damages and $23,700 in attorney fees as a result of his 1998 ejection from the fair.
Gatto also asked for an injunction against enforcement of the code, but retired San Mateo Superior Court Judge John J. Bible, on assignment to the Sonoma Superior Court, said the amendment of the code prior to trial made the issue moot.
Gatto’s complaint accused the county both of violating rights to due process and free speech, as well as his right of equal access to accommodations under the state’s Unruh Civil Rights Act. Kline, however, concluded there was no Unruh Act violation.
Under a 1991 California Supreme Court decision, Kline explained, a plaintiff claiming an Unruh Act violation has a heavy burden in seeking to extend the act beyond the specified protected categories of sex, race, color, religion, ancestry, national origin, disability, or medical condition.
Gatto’s claim that discrimination based on “unconventional appearance” violates the act fails, the presiding justice wrote, under Hessians Motorcycle Club v. J. C. Flanagans (2001) 86 Cal.App.4th 833.
The court in that case held that a bar owner could legally prohibit motorcycle gang members from wearing patches, indicating specific gang affiliations, on the premises. The defendant said the action was necessary in order to discourage gang fights in the bar.
Kline said it was impossible to determine whether Gatto’s wearing of the Hell’s Angel insignia was protected speech, because the insignia itself was not in evidence.
Nor was there testimony on the issue of whether the gang’s members “espouse a political view or other ideas entitled to constitutional protection” or “whether Gatto wore its insignia with the intent to convey a particularized message and there was a great likelihood the message would be understood by those observing it…not merely as a fashion statement.”
It may be, Kline suggested in a footnote, that Hell’s Angels are what Hunter S. Thompson described them as in a 1966 book—“growing legion of young unemployables whose untapped energy will inevitably find the same kind of destructive outlet that ‘outlaws’ …have been finding for years.” Their various forms of insignia, the author suggested, were “no more than an antisocial joke.”
But the question of whether the Hell’s Angel “attitude” carries free speech protection, Kline wrote, need not be decided, given the vagueness and overbreadth of the code.
“In sum, even if a person’s choice of dress and manner of appearance does not constitute the sort of expressive conduct protected by the First Amendment, it is nevertheless a form of individual expression that is constitutionally entitled to some protection against arbitrary governmental suppression,” the jurist wrote.
The code, Kline went on to explain, is vague because it fails to define “gang colors” and—in its prohibition against dress that is “intended to provoke, offend, or intimidate”—utilizes “operative criteria [that] are so highly subjective as to provide enforcement authorities almost unfettered license to decide what [it] permits and prohibits.”
The presiding justice made clear that the court’s decision does not prevent operators of fairs or other public events from banning particular insignia under appropriate conditions.
“If appellants knew, and could show, that the wearing of distinctive insignia unique to a discernible group was reasonably likely to provoke violence at the fair, persons wearing that insignia could be excluded; appellants would not have to wait for the expected violence to materialize,” Kline wrote. “But that is not what happened in this case. Appellants did not prohibit the wearing of Hell’s Angels insignia (or the insignia or symbols of any other specific group), and there is no showing that the wearing of such an insignia was likely to lead to violence.”
The case is Gatto v. County of Sacramento, 02 S.O.S. 2503.
Copyright 2002, Metropolitan News Company