Tuesday, August 27, 2002
Ninth Circuit Rejects Courthouse Ban on Biker Clothes
By a MetNews Staff Writer
Judicial regulations that bar the wearing of clothing with motorcycle organization symbols in a Carson City, Nev. courthouse appear to violate the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A three-judge panel held that plaintiffs, members of several motorcycle gangs who have been banned from wearing their “colors” on the second and third floors of the Carson City Public Safety Complex, had shown that they are entitled to a preliminary injunction against enforcement of the policy.
The case was sent back to U.S. District Judge Philip M. Pro of the District of Nevada, who may consider any additional evidence offered by officials to show that the policy is necessary and viewpoint-neutral, the court said.
The policy governs the floors housing Carson City’s justice and district courts and the district attorney’s office. The policy does not apply to the first floor, where the recorder’s office, marriage license bureau, and an office for payment of traffic fines are located.
Court officials and the district attorney argued that the policy was needed to prevent courtroom disruption and protect the public safety. But Judge William A. Fletcher, writing for the court, said there was “a lack of support in the present record for the assertion that a limitation on this clothing will serve the purported governmental interest.”
The judge emphasized that the court was limiting its holding to the hallways and other non- courtroom areas, since judges retain broad power to regulate conduct and attire within their own courtrooms.
The 13 plaintiffs, who were banned from wearing the insignia of The Branded Few, His Royal Priesthood, Hells Angels, and other groups, sued after three incidents in March and April of last year.
In the first incident, a deputy sheriff arrested two of The Branded Few for criminal trespass after they refused to remove their jackets or to leave the building, where one of them had a traffic court appearance.
In the second incident, 10 people were charged with criminal trespass when they insisted on wearing their jackets and vests to the arraignments of the two who were arrested earlier.
In the third incident, the 10 who were arrested two weeks earlier were barred from passing through security while wearing their biker apparel on their way to their arraignments.
Between the second and third incidents, the judges of the two courts adopted a series of rules regarding courthouse conduct and attire. The rules-which one judge later declared were actually a codification of longstanding policy-prohibited the use of words or symbols that were “degrading” to any ethnic or racial group and banned the wearing of “symbols, indicating an affiliation with street gangs, biker or similar organizations which could be disruptive and/or intimidating,”
A third rule bans “words, pictures or symbols with clearly offensive meanings” and gives an example:
“If someone wants to wear a hat saying ‘f . . . the world’ he or she can do it outside.”
U.S. District Judge Philip Pro of the District of Nevada held that the plaintiffs failed to show that the restrictions imposed by the ban outweighed the courts’ “obviously strong interest...in maintaining a safe and orderly environment within the courthouse.”
But Fletcher said the evidence did not bear out the district judge’s and the local officials’ concerns.
There was no testimony that any incident involving wearers of biker insignia had disrupted operations, the judge said.
While court officials defended the clothing rules by citing a confrontation between security guards and the bikers after the second of last year’s incidents, Fletcher said the bikers were protesting “what they perceived as an unconstitutional policy” and that the face-off “was not a disturbance that demonstrates any disruptiveness inherent in the wearing of such clothing.”
“The government may not use a conflict over the challenged regulation as evidence of circumstances giving rise to the need for that very regulation.”
Citing Cohen v. California, 403 U.S. 15 (1971, which applied First Amendment protection to the wearing of a jacket bearing the message “F—- the Draft” in what is now the Stanley Mosk Courthouse in Los Angeles, rights, Fletcher said it was not reasonable “to prohibit speech in courthouse hallways merely because it may offend some people’s sense of decorum.”
Senior Judge David A. Thompson and Judge Marsha S. Berzon joined in the opinion.
The case is Sammartano v. First Judicial District Court, 01-16685.
Copyright 2002, Metropolitan News Company