Cyclists rev up
for legal wheelie
want 'felonious, thuggish'
and troopers indicted
Headgear in hearse
death knell for crash
By GEOFF DAVIDIAN
PUTNAM PIT EDITOR
COOKEVILLE, Tenn. (March
14) -- A Nashville lawyer says state and Putnam County officers committed
felonies when they stopped and cited his clients for riding motorcycles
during the trip from bar-owner Horton Swift's July 1996 funeral to the
In a motion scheduled for an evidentiary
hearing March 25, Nashville attorney John E. Herbison quotes state law
making it a Class E felony to "willfully . . . interfere, by words
or actions, with any funeral procession or any religious exercises."
Herbison says in his Motion to Dismiss
for Governmental Overreaching that at the time his clients and dozens of
other bikers were ticketed for not wearing helmets they "were
engaged in a funeral procession in memory of the late Horton Swift, traveling
from a funeral home in Cookeville" to a burial site in Jackson County.
A sworn law-enforcement officer was
their escort, the defendants' motion says.
"They committed felonies, but we
are being prosecuted for misdemeanors," said Harold H. Hileman, one
of the defendants. His case was consolidated Friday [March 14] with those
of his wife and 11 other mourners who attended the funeral. More than five
dozen bikers also were stopped and cited in the procession after they put
their helmets in the hearse with the deceased.
The Hilemans and the other defendants
say in their motion that officers of the Tennessee Highway Patrol and the
Putnam County Sheriff's Department "effected an en masse arrest
and detention of the accused and others in order to issue citations[,]"
disrupting the funeral procession for several hours.
Defendants allege in their motion that
the legal text "contains no asterisks, and it manifestly does not
include the language, 'No person except a state trooper or sheriff's deputy.'
"The [s]upreme [c]ourts of Tennessee
and of the United States have recognized that 'the conduct of law enforcement
agents [may be] so outrageous that due process principles absolutely bar
the government from invoking judicial process to obtain a conviction.'
"[L]aw enforcement officers' felonious,
thuggish interference with the funeral procession in order to issue citations
to dozens of persons for the alleged commission of a minor misdemeanor
manifestly offends a sense of justice and offends canons of decency and
Cookeville defense lawyer Martelia Crawford,
who earlier represented some of the same defendants during a preliminary
hearing, said while the law protected such a procession from interference,
the state contended that the vehicle carrying Swift's body was not part
of the motorcade and therefore the government's contention was that the
action was not illegal.
Carthage civil rights lawyer Richard Brooks told The Pit after the
incident that law enforcement officerss singled out the bikers for unfair
treatment. "I wonder if they have ever stopped a Christmas parade
and pulled the Shriners out for not wearing helmets?; Brooks said. "This
is not equal protection if you're going to apply the law to some groups
but not to others."
Herbison also puts forth in another
motion to be argued at the same time that the court should dismiss the
indictments because the crash-helmet law is unconstitutional on its face.
He further asks the court to find that the helmet law [T.C.A. 55 -9-302]
cannot be constitutionally applied in this case.
Herbison says that some of the defendants,
much like police officers who come from all over when one from their ranks
is felled, attended the funeral because Swift was a colleague.
"As they traveled in this procession,
some or all members of the group removed or declined to wear their
helmets, which is a practice commonly intended to communicate a show of
respect to a deceased motorcyclist," the motion states.
The motion says "this communicative
conduct" is protected by the First and Fourteenth Amendments to the
United States Constitution, and by Article I, Sec. 19 of the Tennessee
Herbison's brief argues that the statute,
55-9-302 of the Tennessee Code, "fails to satisfy the First Amendment
criteria applicable to regulation's which reach both [']speech['] and [']non-speech[']
elements of communicative conduct.
"Such a regulation," Herbison
quotes from the case U.S. v. O'Brien, "is justified if, and
only if the challenged regulation it furthers [is] an important or substantial
governmental interest unrelated to the suppression of the free expression
and the burden of the First Amendment freedoms is no greater than incidental
to the furtherance of the governmental interest."
[*U.S. v. O'Brien, 391 US 367,
376-77, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)]
Herbison argues that "[t]he challenged
statute cannot be upheld as a mere regulation of the time, place and/or
manner of protected expression [streets are the archetype of a traditional
public forum, according to the case Frisby v. Schulz, 487 U.S. 474,
480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988)].
"The accused avers that [the helmet
law] represents an unreasonable and unwarranted exercise of the state police
power . . . .
"The mandatory requirement that
a motorcycle rider wear a helmet bears no reasonable relation to public
safety or health sufficient to justify the intrusion upon privacy and personal
autonomy that the challenged statute entails."