Since 2011, the year that the anti-motorcycle profiling bill became law in Washington State, incidents of motorcycle profiling and harassment have dramatically reduced. Although there are still incidents that occur, any charges that are challenged are dismissed and the law has given our state the ability to fight back. Perhaps the biggest change has been the number of incidents involving the Washington State Patrol (WSP). The WSP went from being the most common and egregious profiler in the state to one of the least common. Compliance from the largest law enforcement agency in the state, and the most likely agency to conduct a motorcycle profiling stop, proves that the law prevents most direct and overt profiling stops. Although it would be nice to think that the WSP has changed its mindset, recent events unfortunately suggest that the WSP has merely changed its tactics in an attempt to conceal continued attempts to target motorcycle clubs in violation of the law through covert avenues.
In July, the East and West Side Confederation of Clubs were planning a joint unity meeting in Ellensberg, Washington, a small city in central Washington. Reservations were made at a local hotel that had a restaurant on its premises, complete with a conference room. When reservations were later canceled by the establishment, there was concern that there may have been local PD involvement. It was decided that a Public Records Act Request to the EPD may reveal whether there was any coercion on the part of the police.
In response to a COC member’s request about any records relating to the COC meeting or the COC generally, a single email was provided by a Captain of the EPD to a number of Sergeants that contained troubling revelations about the WSP. The email reads:
Based on this email, the Washington State COC felt that it was appropriate to follow up with a request to the WSP directly. Why do they have an informant giving information about the COC, a political organization dedicated to legal and legislative issues impacting bikers?
In response, the WSP acknowledged that there are, as articulated in the Withholding Redacted doc, approximately 15 pages of emails, a 51 page PowerPoint presentation, and a few word doc’s. But the WSP also claims these documents are exempt as organized crime intelligence. The WSP response reads:
The following 5 pages describe the names of the records being withheld, all within the Organized Crime Intelligence Unit: click here to review
The WSP is covertly targeting the COC.
The evidence certainly suggests that the WSP is targeting the COC for investigation. It appears that they have an informant providing information about the COC. Moreover, it looks as if they are leading other agencies like the EPD in discriminatory operations and mindset.
The anti-motorcycle profiling law legally prevents the WSP from conducting profiling stops on the side of the road because these stops are publicly visible and often involve video and audio. But attempts to target the COC are occurring covertly and out of the public eye, hiding behind a public records exemption that is intended to preserve investigatory integrity, not hide discriminatory targeting and selective enforcement.
Exempting documents pertaining to the COC, a political organization, in a state with an anti-motorcycle profiling law, is not reasonably defended. There is absolutely no accountability that these exempted documents are not prejudicial or discriminatory, particularly when they are being concealed by the historically most prolific motorcycle profilers agency in the state.
Targeting the COC is Illegal.
The Washington State Confederation of Clubs is a legitimate Washington State nonprofit solely focused on legal and legislative issues that impact motorcyclists. Legitimate nonprofits are exempt from state organized criminal gang statutes. COC members include Christian clubs, Veterans Clubs, Women’s clubs, 1% clubs, clean and sober clubs, and plain old riding clubs. The COC’s focus and dedication to the democratic process is demonstrated by its active role in the legislature and the courts. The COC spearheaded the collaborative grassroots effort that resulted in the law against motorcycle profiling. The COC also has a long list of legal victories against profiling and discrimination. No club to club business is discussed. There is a COC attorney present at every meeting to insure compliance with all laws and statutes.
1.Targeting the COC is a violation of RCW 43.19.101:
(3) For the purposes of this section, “motorcycle profiling” means the illegal use of the fact that a person rides a motorcycle or wears motorcycle-related paraphernalia as a factor in deciding to stop and question, take enforcement action, arrest, or search a person or vehicle with or without a legal basis under the United States Constitution or Washington state Constitution.
If membership and affiliation with motorcycle clubs is a factor in deciding to take law enforcement action, like investigating the COC for criminal activity, then the WSP is in violation of the law. Of course, if there is specific and articulable suspicion that criminal activity is occurring then reasonable investigation is warranted. But the Public Records Act exemption being asserted could too easily conceal discriminatory policing and actions motivated by illegal profiling. Hiding behind the exemption also makes accountability that training being provided related to the COC is consistent with 43.101.419 impossible.
A recent public records case in Eastern Washington demonstrates the potential for abuse related to Public Records Act exemptions. The Kennewick police Department was withholding documents related to targeting the COC based on the same gang investigation exemption. Ultimately, the court ordered that each document be evaluated to determine the viability of the exemption. All of the requested documents were ultimately released by court order and Kennewick ultimately paid $45,000 to settle the records act violation.
2.Targeting the COC is a violation of the 1st Amendment.
The Confederation of Clubs is a political organization and COC meetings and events are protected political speech. Political speech and associations are the most important forms of Constitutionally protected speech and are therefore given the highest level of scrutiny. Political speech critical of government agents, like law enforcement, is vital to the preservation of a free society. Justice Black famously states:
“Doubtlessly, dictators have to stamp out causes and beliefs which they deem subversive to their evil regimes. But governmental suppression of causes and beliefs seems to me to be the very antithesis of what our Constitution stands for. The choice expressed in the First Amendment in favor of free expression was made against a turbulent background by men such as Jefferson, Madison, and Mason – men who believed that loyalty to the provisions of this Amendment was the best way to assure a long life for this new nation and its Government…. The First Amendment provides the only kind of security system that can preserve a free government – one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.”
No doubt law enforcement will point to their belief that motorcycle clubs are gangs or are violent. But generalized statements not situationally specific are not relevant or enough to overwhelm the right to free speech. Arguing a propensity to provoke lawless behavior does not diminish this 1st Amendment protection. The Supreme Court siting Tinker (1969):
“An “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”….There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression.”
Police harassment in the form of infiltrating or targeting the COC is a serious violation of state law and the 1st Amendment. Targeting a community that mobilized politically as victims of discriminatory policing is highly suspect. The COC has been very vocal and critical of law enforcement profiling and discrimination. The anti-motorcycle profiling law was a major victory for motorcyclists in Washington and an effort that the WSP fought hard trying to stop. Public Records are one of the best mechanisms available to encourage accountability and compliance with the law. Exempting documents relating to targeting a political organization traditionally critical of discriminatory policing ought to concern every person that believes in the freedoms of expression and association.