Federal appeals panel strikes courthouse ban on 'biker colors'

By The Associated Press

08.27.02

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CARSON CITY, Nev. — A federal appeals court reversed a judge in a northern Nevada case and ruled yesterday that motorcyclists can wear "biker colors" — even those with swastikas — in the courthouse.

The 9th U.S. Circuit Court of Appeals tentatively canceled a ruling by U.S. District Judge Philip Pro of Nevada and ruled that a ban on such garb in a Carson City court building violated First Amendment rights of free expression. Pro had refused to grant the bikers' request for a preliminary injunction.

Circuit Judge William Fletcher, writing for a three-judge panel, said restrictions that led to the arrests of motorcyclists who refused to take their jackets off at the courthouse were unreasonable.

The ruling applies to areas of court buildings outside courtrooms where, Fletcher said, judges can impose restrictions to ensure "a reasoned resolution of issues."

But he said there was nothing to show that extending a ban on biker clothing to hallways or other non-courtroom areas "can plausibly be justified by the need to protect the courtroom environment itself."

The judge also said there's no evidence to conclude that "clothing indicating affiliation with biker organizations is particularly likely to be disruptive or intimidating."

While court officials defended the clothing rules by citing a confrontation between security guards and the bikers, Fletcher said the bikers were protesting "what they perceived as an unconstitutional policy."

"It was not a disturbance that demonstrates any disruptiveness inherent in the wearing of such clothing," Fletcher said.

"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 1985 and 1971 U.S. Supreme Court cases on First Amendment rights, Fletcher added it's not reasonable "to prohibit speech in courthouse hallways merely because it may offend some people's sense of decorum."

There was no evidence of any danger created by the bikers' jackets, so the rules seem to be "impermissibly motivated by a desire to suppress a particular point of view," the judge said.

The case, Sammartano v. First Judicial District Court, was remanded to Pro to see whether Carson City judges and the district attorney want to add anything to the record to bolster their case. Until that occurs, Fletcher said he wouldn't hold that the bikers were completely successful with their appeal.

The controversy began with the March 2001 arrests of Scot Banks and Steve Dominguez when they appeared at the courthouse on a traffic citation and refused to remove their "Branded Few" motorcycle club jackets that bear a swastika in the insignia.

Ten other bikers were arrested when they came to the men's hearing and also refused to take their jackets off.

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