About 8 p.m. on March 15, just north of Santa Barbara, members of the County Sheriff’s Gang Enforcement Unit contrived a traffic stop on four motorcycles carrying four riders and one female passenger. It was a fishing expedition. The male riders, members of the Vagos Motorcycle Club, were all flying colors.
The police found four pistols in their saddlebags. One pistol was loaded. Two pistols were unloaded but the police claimed the riders of those bikes had ready access to ammunition. The fourth pistol was unloaded and the rider did not have immediate access to ammunition. All five detainees, including the woman, were arrested and charged with possession of a concealed firearm and with being an “active participant of a criminal street gang in possession of a concealed firearm.” The legality of the “criminal street gang enhancement” is ambiguous. The Federal Ninth Circuit Court of Appeals and the California Supreme Court disagree about this law. Under current California case law the arrested woman can be convicted of gun possession and the enhancement even though she is not a member of the Vagos and was not in possession of a gun. The Supreme Court of the United States has never ruled on such a case.
In its account of the arrests, a news website called Cal Coast News accurately stated, “The FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives and the California Attorney General’s Office have each named the Vagos Motorcycle Club an outlaw motorcycle gang.” The accusation is more serious than mere name calling. Basically, it carries the force of law if a “biker authority” from one of these or a similar bureaucracy repeats the accusation in a state court.
The point of the March 15 traffic stop was not to make Santa Barbara’s roads safer. The point was to punish the four Vagos for being Vagos. Being a Vago is technically not yet a crime but the alleged gang enhancement makes associating with a group that some policeman do not like a defacto crime. If the Supreme Court ever does rule on such a case it is likely to find gang enhancements unconstitutional but high court rulings increasingly have more to do with the personalities of the judges than with some ideals some dead, white men wrote down long ago
The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Throughout the last two centuries the implications of that statement and every other statement in the Constitution have been elaborated by the federal courts. As a result of the American Civil Rights movement in the 20th Century the Supreme Court eventually ruled that the First Amendment meant that people in the United States can associate with whomever they damn please – even Vagos.
Nevertheless, the four patch holders and one wife must now defend themselves against a bogus crime. Gang enhancements, racketeering allegations, and civil forfeiture are all ways of punishing people associated with those groups of which judgmental cops and pandering politicians disapprove. And news media, because reporters and editors have a natural vested interest in protecting their access to political and police sources, rarely question these tactics or the official blather that justifies them.
But, the March 15 traffic stop was only one brief episode in a widespread and mostly unacknowledged war.
The Global War
There is a global war on motorcycle clubs that coincides with the global war on terror and in many ways the United States is a leader in it. Domestic surveillance infrastructure, like America’s scores of fusion centers and High Intensity Drug Trafficking Area war rooms, has become complexly entwined with an fabulous new industry called “Big Data.” Various technological innovations, like automated license plate readers and drone aircraft or, coming soon, automated license plate readers mounted on drone aircraft, combined with new ways to sort and analyze raw data, like every email sent in America, make it possible for government agents to spy on everybody. The question then becomes about to whom to pay attention – besides Al Qaeda. And, the answer is increasingly alleged criminal groups. And, no allegedly criminal groups are easier to identify than motorcycle club members because, to the disdain of many, they flaunt their allegedly criminal associations on their backs.
Policemen in most of the English speaking world and in Western Europe share the same attitudes toward motorcycle clubs. Russia does not cooperate with the west in this war on bikers because Russia often disagrees with the west and because the largest, and arguably preeminent club there, the Night Wolves, enjoys the favor and protection of Vladimir Putin. But the global war on bikers explains why American federal policeman participate in surveillance and intelligence gathering aimed at motorcycle clubs in Europe. It is the reason why European Hells Angels have an increasingly hard time gaining entry into the United States and why American Bandidos are denied entry into Canada. In one particularly absurd example of this international cooperation, just last year Izzy Wildheart, who is married to a Hells Angel in London and who runs a website that supports the legal causes of imprisoned Hells Angels, and whose mother was American and who has a long personal and family history in the United States – including a written commendation for her good deeds signed by Barack Obama – was denied entry into America.
The global war on bikers relies heavily on the United Nations Convention Against Transnational Organized Crime passed in 2000. And the nature of the criminal allegations made against motorcycle club members often echo the Palermo Protocols which amplify that UN Convention.
The motives and implications of this global war on motorcycle clubs are complex and cannot be briefly discussed here. But simply to understand that there is a global cooperative effort by mostly anonymous apparatchiks to harass and destroy motorcycle clubs provides some context to what is now happening in Australia.
Australia has become increasingly hysterical about the biker menace since 2002. The hysteria reached a crescendo in March 2009 after a Hells Angel was beaten to death by a Comanchero in a brawl in the Sydney airport that involved 15 men. The brawl occurred hours after local Bandidos were involved in a series of drive-by shootings into homes associated with the so-called “Nike bikie” group Notorious. The Australian Prime Minister, Kevin Rudd, who coincidentally was in Washington, D.C. at the time, said “this sort of behavior by bikies and others engaged in organized criminal activity is unacceptable in Australia, absolutely unacceptable.”
For the last four years, Australia’s press has carried stories about the inhumanity of bikie brutes almost daily. Last month, the land down under was enraged that “Hells Angels members are blackmailing school children into becoming drug dealers.” Sydney’s Daily Telegraph reported:
“The brazen bikies even wear their full, grimy club colours during supermarket recruiting drives aimed at luring youngsters into acts of criminality. Police in Sydney’s northwest say they have been aware for more than six months of at least one Hells Angel member and his associates forcing teens as young as 16 into crime with threats of violence. Children threatened by the group are recruited on the outskirts of shopping centres, mainly for drug peddling. Opposition Leader John Robertson said despite escalating gang-related violence on Sydney’s streets the NSW (New South Wales) government has failed to outlaw a single bikie gang. ‘Families in northwest Sydney are fearing for their school-aged children because the bikie gangs are being allowed to run riot,’ Mr. Robertson said.”
New South Wales had already done something.
The Bikie Laws
After the Sydney airport brawl, New South Wales passed the “Criminal Organisations Control Act” of 2009. The new law allowed the Attorney General of New South Wales to ban membership in any motorcycle club based on “criminal intelligence.” Under this state’s law the proposed ban had to be made public before it could be implemented. A similar law in South Australia kept the ban secret. In both states the intelligence on which a ban could be based was kept either mostly or completely secret.
There has been a continuing court battle in Australia for the last four years over these bikie bans. They are feasible in Australia because that country, virtually alone among the western nations, does not have a Bill of Rights. Australia does share many legal assumptions with the other English speaking nations including the United States and until recently bikie laws have been found to be illegal.
The most serious problem Australian courts have had with these laws has that they subvert the English Common Law principle that the accused has a right to confront his accuser and examine the evidence against him. A brief survey of American racketeering trials illustrates that the Common Law idea is being subverted here as well. Federal prosecutors here routinely conceal evidence and hide the names of key witnesses until the last moment. But America still pays lip service to traditional legal notions. Australia has evolved beyond that. In the original version of the South Australia law, not even the judge who issued the ban was allowed to see the evidence on which it was based.
Other objections to the bikie laws included violations of the separation of powers and freedom of association. The South Australian notion that not even the judges could see the incriminating evidence tended to annoy judges there. But the idea of striking a death blow to motorcycle clubs, fueled by national hysteria and a manic press, never died. Australian clubs and lawyers have been refining the bikie laws over the last four years: As motorcycle clubs in the United States are evolving to fend off accusations of racketeering and as prosecutors here are inventing new arguments and strategies to win convictions.
To date, five of Australia’s seven states have either implemented or proposed laws to ban membership in organizations the police accuse of being criminal . Those states are New South Wales, South Australia, Queensland, Western Australia and Victoria.
The Queensland Finks Decision
On March 14, the Australian Supreme Court unanimously ruled that Queensland can ban the Finks Motorcycle Club. Police in Brisbane sought last June to ban members of that club from associating with each other. The application for the ban accused the Finks Gold Coast chapter of murder; trafficking in the popular recreational drugs marijuana, cocaine, ecstasy and methamphetamine; of involvement in a shooting in Sydney; and of stealing a Lamborghini from a Melbourne showroom. The “gang intelligence” on which the accusations were based was and is secret. This month, the Australian high court decided it had no problem with that. If you’re interested, you can read the judgment here.
The Finks lawyer, a man named Bill Potts who probably gets paid by the hour, has vowed to fight on.
But Michael James Condon, the Assistant Commissioner of the Queensland Police Service and the man who sought the ban, sounded ecstatic. “The notion that these are just good citizens riding motorbikes is absolute rubbish,” Condon fumed after the verdict. “They pose a risk to the community, so we should not be drawn into a belief that these are good citizens.” From now on, everybody will just have to take Condon’s word for it.
So today in Oz, it is legal to outlaw any organization on the basis of “criminal intelligence.” The “intelligence does not have to be disclosed to the accused group or its lawyers. The procedure can be legally applied to any group that police say represents “an unacceptable risk to the safety, welfare or order of the community.” The ban against all members of an accused organization can be based on what confidential informants paid by the police say that some members of the organization “might do;” not what they have provably done but what they speculatively might do. The intelligence can include hearsay. “Members” of the banned group include non-members identified by the police as known associates. And, if two non-members who have been identified by police as known associates are caught texting each other they can be sentenced to five years in prison.
For the last two weeks, in conference rooms at ATF headquarters and FBI headquarters and at the Department of Justice, men and women whose names you will never know have been trying to figure out how to do that here.