Because justice moves majestically, like a mighty snail, the government is still technically trying to seize the Mongols patch.
Unless you were one of the indicted men, the RICO case named for former club President Ruben “Doc” Cavazos was always the least important half of this government attack on the Mongols Motorcycle Club. The big issue was always whether Americans have the right to be Mongols, Hells Angels, Vagos, Pagans, Outlaws, Bandidos, Boy Scouts, mariachis, Masons, mummers or nuns. This was the great attempted funny hat ban.
As the Las Vegas Sun put it in October 2008, “The most compelling detail to emerge from ‘Operation Black Rain’ is this: Prosecutors won the right Wednesday to bar the indicted Mongols from owning anything bearing their trademarked logo.”
As a matter of fact, prosecutors never had that right. What the then judge in the case, the late Honorable Florence Marie Cooper, had told the prosecutors that they could do was “keep safe” the trademarks associated with the motorcycle club. The idea, which is common in RICO cases, was to keep a disputed asset from disappearing.
But prosecutors and ATF Agents associated with the case, especially Thomas O’Brien who was then a United States Attorney and John Ciccone, who is still a well known and respectfully regarded ATF Agent, spun Judge Cooper’s restraining order to its logical absurdity. Both men told anyone who would listen that the restraining order “empowered police” who saw “anyone in possession” of any Mongols indicia to “stop that gang member and literally take the jacket right off his back.”
This lie was repeated and made true a thousand times. People’s homes were raided by Swat teams in search of Mongols calendars, posters and bandannas. Government agents committed burglaries to get at Mongols paraphernalia. At one point, John Walsh spent several moments on America’s Most Wanted explaining the evil represented by Mongols support tee-shirts.
This entirely arbitrary ban by police almost succeeded. It was in force for a full nine months. Attorneys acting on behalf of the club seemed to stammer and the legal case devolved for awhile into an argument over who signed the trademark papers last and were they authorized to do that. This ban eventually failed because of the efforts of two men: A Mongols patch holder named Ramon Rivera and a San Diego civil liberties attorney named David Blair-Loy.
Rivera filed suit to stop the seizures of Mongols indicia and Blair-Loy constructed arguments that showed Judge Cooper what was really going on. Last July, Judge Cooper ruled that motorcycle club patches are constitutionally protected “collective membership marks” and she told the government to stop stealing them. She wrote:
“In contrast to commercial trademarks, which are used in commerce and generally not entitled to full First Amendment protections, collective membership marks are used by members of an organization to ‘indicate membership in a union, an association, or other organization.’ The use and display of collective membership marks therefore directly implicate the First Amendment’s right to freedom of association. The Supreme Court has recognized that ‘implicit in the right to engage in activities protected by the First Amendment’ is ‘a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’ This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.’ Furthermore, clothing identifying one’s association with an organization is generally considered expressive conduct entitled to First Amendment protection….”
Did Cooper’s Ruling Count
Since then government attorneys have done everything they can to try to wiggle around Judge Cooper’s ruling. Principally, the Department of Justice has tried to hold onto this tool against motorcycle clubs by delaying a “summary judgment” in the Rivera case. So far prosecutors have just barely succeeded with that delay but their sand is running out.
It is the law, so it is tedious, but briefly stated: First the government “voluntarily suspended” seizure of Mongols insignia and souvenirs. Rivera asked for a summary judgment in his suit and the government replied that they had already “voluntarily suspended” doing what they never should have done in the first place so the issue was moot.
Despite Judge Cooper’s ruling, last December federal prosecutors in Charleston, West Virginia announced that they were seeking: “The trade-name, trade-mark and/or service-mark ‘PAGAN’S’” and “related logo/design” “together with any and all common law rights of…” “any of its members to the usage of such image and name and, further, together with any and all associated good will and reputation.”
Then Judge Cooper died last January and before her body was even cold ATF Supervisor John Torres told a Los Angeles paper, “That process (of outlawing Mongols insignia) is still moving forward. No one has ‘won’ the case. It’s just the message that we want to put out to them and other gangs that may use the same type of indicia to identify themselves.”
When asked for clarification by this page, a government spokesman stated: “The government continues to seek the forfeiture of the Mongols trademarks. The issue is the subject of ongoing litigation in the courts, and we will continue to fight to prevent anyone from using the trademark to indicate any affiliation with the criminal organization.”
The government’s working premise seemed to be that the constitutional protection Judge Cooper had recognized in motorcycle club symbols was only her peculiar notion. So it might be dismissed by a less sentimental and more hard-headed judge. And, then the government seemed to get what it wanted when the Rivera case eventually was taken over by another judge – a reputedly hard-headed ex-Marine – named David O. Carter.
Then, about two weeks ago, Judge Carter refused to dismiss Rivera’s motion for a summary judgment. He has not issued that judgment yet. He may not issue it for months. But, what is now clear is that Carter obviously agrees with Judge Cooper. Americans have a constitutional right to wear anything they want on their backs. Motorcycle clubs have a right to exist and men may join any club they wish.
Americans can even wear funny hats.