The Second District Appellate Court of Illinois ruled Tuesday that three “Black in Color Leather Vests With Attached Outlaws Motorcycle Club Patches” were a kind of contraband called “derivative contraband” and could be seized by the state.
The ruling affirmed a decision by lower court judge Sharon L. Prather. Her decision had been appealed by the AOA15 Civic Organization, Inc., a legal entity that is closely associated with the motorcycle club. The Outlaws had contended that their patches are private property that belonged to the club and should not be seized.
The case began with a bar brawl on November 30, 2012. Five men and a woman wearing cut-off jackets or vests with patches on the back that identified them as members of, or a consort of, the Outlaws walked into a bar called the Lizard Lounge in unincorporated Wonder Lake, Illinois. They were looking, according to the local Sheriff, “for a specific person.”
The appeals court noted that a witness named “Ashley Chovanec testified that she was at the Lizard Lounge when the defendants entered, wearing their vests with Outlaws’ patches. She stated that ‘the bar got quiet’ and ‘people got uncomfortable.’ She further stated that everyone else in the bar felt intimidated. Molly M’Gonigle, Robert Borta, and Cody Hutt testified similarly as to the effect the defendants’ entrance had on the atmosphere of the bar.” According to police two patrons were punched and a woman had beer spat in her face.
Four defendants, Robert Bellmore, Luciano Flores, Michael Blumer, and Kathleen McKevitt, negotiated plea deals. Three of them agreed to forfeit their vests and forfeiture proceedings began. Only three vests were subject to forfeiture because the local Sheriff misplaced Blumer’s vest. Since it wasn’t part of the forfeiture case it was returned to after the police found it.
During a forfeiture hearing two “motorcycle gang experts” testified “that the Outlaws were a commonly recognized gang and that the black leather vests, worn by the defendants during the commission of the crimes charged, were used directly or indirectly to facilitate street-gang activity. As such, the vests were subject to forfeiture.” The two experts were James Duffy, an investigator with the Du Page County State’s Attorney’s office, and Detective Kyle Mandernack.
Duffy testified “that the Outlaws gang members use the Outlaws’ patches on their vests to portray ‘violent intimidation.’ He stated that the intimidation factor of the patches is ‘cultivated through violence’ and that it is ‘systematically approved through their hierarchy.’ He testified that the Outlaws’ patches signify membership in a one-percenter gang, meaning a group that willfully engages in criminal activity. He testified that the vests were used to facilitate street-gang activity.”
Mandernack, “testified that the Outlaws gain their reputation, influence, and membership through ‘violence and intimidation.’ He testified that the vests and patches facilitate street-gang-related activity by identifying Outlaw members to others. He further stated that the vests and patches facilitate street-gang-related activity by creating the impression of dominance and revenge, which warns others of the consequences of ‘messing with’ Outlaws members.”
The appeals court thought Duffy and Mandernack’s testimony was compelling and cited an Illinois law that says: “The following are declared to be contraband and no person shall have a property interest in them…any property that is directly or indirectly used or intended for use in any manner to facilitate street gang related activity.” The court noted “that there are two categories of contraband. Contraband per se consists of those items whose possession alone constitutes a criminal offense, and such articles need not be returned even if improperly seized…. Derivative contraband consists of articles that are not inherently illegal but were used in an unlawful manner.”
Derivative contraband is analogous to a category of crimes that are malum prohibitum – which is to say, crimes that are crimes not because they are traditional or obvious evils but because a lobbyist has written a new law which invents a new crime. In this case, the Illinois appeals court seems to have made a crime of Constitutionally protected expression based on the testimony of two police appointed “experts.”
The court concluded, based on the testimony of the “experts,” that “wearing the vests facilitated the defendants’ goal, to be achieved by violent means if necessary, to show their dominance to others. Based on this testimony, the trial court could reasonably determine that the Outlaws’ vests and patches facilitated the defendants’ violent actions at the Lizard Lounge. Accordingly, the trial court’s determination that the vests and patches were derivative contraband subject to forfeiture is not against the manifest weight of the evidence.” The vests, the learned justices decided, did not “cause” the violence at the Lizard Lounge but did “facilitate” it.
Joel Rabb, the attorney representing the AOA15 Civic Organization in this case told the Chicago Tribune, “Obviously, we are disappointed with the court’s determination.”