The American Outlaws Association in the upper Midwest has been fighting a couple of cases in which police have seized and kept the cutoff vests of club members.
In a case in McHenry County, Illinois police seized five vests, including a woman’s vest, that bore the Outlaws’ insignia. The accused later agreed to forfeit the vests to the state as a condition of their plea deals.
A separate case in Indiana grew out of raids on Outlaws’ clubhouses in Indianapolis and Fort Wayne and several individual residences. The Indiana case was adjudicated in federal court. As is usual, 18 of 19 defendants took plea deals and those deals included a provision in which the accused surrendered their Outlaws paraphernalia including “vests, patches, shirts, hats, belt buckles, signs, mirrors, flags, calendars, books, and pictures.”
In both cases, the AOA has argued that the patches and other items bearing the club’s name and insignia belonged to the club and were only on loan to the defendants. Therefore, they were not the defendant’s to bargain away.
Different From Mongols Case
The legal issue of who owns an individual patch or belt buckle has become separate and distinct from the legal issue of who owns the trademark of a club’s insignia. Motorcycle club insignias are collective membership marks owned by the collective membership of the club. There is a growing body of case law that says the government cannot seize the collective membership marks of a motorcycle club as a whole.
The government has been trying to steal the Mongols Motorcycle Club’s indicia, or indicators of membership, for eight years. The issue was settled seven years ago but the government keeps pursuing the case as a way of punishing the Mongols with legal fees. The government has also threatened to steal the indicia of the Pagans and more recently the Devils Diciples and dropped both of those forfeiture attempts.
But the issue of banning or outlawing motorcycle club insignia has been conflated, both in back water courts and in the public mind, with the issue of seizing individual patches. In the Illinois case, an outlaw biker expert named Kyle Mandernack told an ignorant local judge named Sharon L. Prather that, “The (Outlaws) vests are directly related to facilitate street gang-related crime,” and Prather believed him.
The Australian State of Queensland currently bans the display of motorcycle club insignia in bars, restaurants and hotels and will soon ban the display of motorcycle club patches in any public place. The government can’t do that here, because the United States has a Bill of Rights.
Ownership Of Individual Patches
But the ability of a motorcycle club to assert its ownership of individual patches took a big hit a week ago with the publication of a decision by the United States Seventh Circuit of Appeals in a case formally titled Joshua N. Bowser, et al, Defendants. Appeal of Bradley W. Carlson.
All members of the club understand that the club as a whole owns their patches and other indicia. Club representative Bradley Carlson, submitted to the court an affidavit of his membership which stated “every member of the AOA is informed and agrees, that a member can only surrender, transfer or forfeit indicia of the AOA to another member in good standing, therefore all property bearing the markings of the AOA is the property of the AOA as a whole, not the individual.” The affidavit concluded with the sentence, “I also know and agree that by becoming a member of the AOA it is not, nor has ever been a criminal enterprise.”
But the appeals court didn’t think either of the declarations meant much of anything. Justice Ilana Kara Diamond Rovner wrote that the statements in the affidavit reflected “a legal conclusion, with no factual basis whatsoever, which appears to be designed to subvert law enforcement efforts. The statement that it was not a criminal enterprise is belied by the RICO charges and convictions as to all members of the Indianapolis chapter in the underlying criminal action here, and the statement concerning the ownership interest fares no better.The affidavit statements do not provide any basis for the court to identify what legal interest the Outlaws have in the property, and certainly would not put the government on notice that the ‘collective membership’ possessed a legal ownership interest in the property.”
Belief Is Not Ownership
The court called the contention that the Outlaws own their indicia a belief “Outlaws members share” but not a legally definable form of ownership like, to cite one of the court’s example, “a bailment.” A bailment is a legal term whose definition takes up almost a full page in Black’s Law Dictionary, can be briefly described as a change of possession of something without a change in its ownership.
Judge Rovner wrote: “In his initial brief to this court, Carlson appeared to assert a bailment relationship, wherein the property would be possessed by the Outlaws members only as bailees with the Outlaws organization presumably the bailor, but he affirmatively denied any such argument in his reply brief and on appeal. Bailment, at least, is a recognized property interest, although appropriately abandoned given the absence of evidence that this was in fact a bailment relationship. He relies instead only on an argument that his legal interest is as an agent of the Outlaws and that his agency interests are a legally recognized interest. But an agent can possess only the interest of his principal, and Carlson has not alleged what legally protected interest the principal – the Outlaws – has in the property.”
The court also noticed that “among the forfeitures challenged by Carlson are those of three persons who were former members of the Outlaws, yet still in possession of such paraphernalia, and at least one person who was never an Outlaws member.”
“In fact,” the court argued, “Outlaws also purport to require members to color over tattoos containing Outlaws symbols if they leave the Outlaws, but that does not suggest ownership of the tattoos. The attempt to control member behavior and the use of symbols is prevalent in many organizations – criminal or otherwise – but does not in itself establish a lawful property interest. In short, it is not enough to merely assert that the Outlaws members understand that Outlaws insignia can only be possessed and exhibited by Outlaws members, or even to assert their ‘agreement’ that the items are owned by the collective membership not the individuals.”
It is an opinion that is likely to be quoted over and over in cases where motorcycle clubs try to prevent the seizure of patches worn by individual members.