OFF THE WIRE
I studied up and before filing a claim in small claims court I have to send a letter of demand, certified, return-receipt requested. This has been done and when I told the little postal gal I'm trying to get a cop to pay me back for making me jump through a bunch of hoops, you should have seen her little face light up. She said, "I hope you beat their asses!" LOL.
(I did not blind copy anyone so if anyone sees I missed a BOLT member or otherwise interested pro helmet choice advocate, feel free to forward.)
Okay I finally did it. I sent off two demand letters in prep for suing two cops personally.
It gave me a great deal of satisfaction to get it in the mail certified, return receipt requested. Now the two boys have 10 days within with to contact me for payment before I take it to small claims. But as I've worked on my stuff, I just might take the advice of the law professor at the small claims class I took - he suggested getting a consultation to see if I should sue in a higher court.
It was a 4-page demand letter with 23 pages constituting six attachments.
I would give just about anything to see their little gomer-faces when they see the letter. They'll laugh it off at first and when they see they had ZERO PROBABLE CAUSE it just might make their little eyes twitch a tad :)
I put the demand letter on GL letterhead:
October 15, 2011
Officer Robert Gibbs (P#6796) OFFICER NAMED IN THE ATTACHED CITATION
Sgt. Stewart Emry (P#3758) OFFICER NAMED IN THE ATTACHED CITATION
LAS VEGAS METROPOLITAN POLICE DEPARTMENT
3141 SUNRISE AVENUE
LAS VEGAS, NEVADA 89101
Dear Officer Gibbs and Sgt. Emry,
This letter is a demand for payment in the amount of $248.50 by each of you for a total amount of $497.00.
As you will recall, on August 28, 2010, Officer Gibbs cited me for violating NRS 486.231, Nevada’s helmet law (Attachment 1). He was unable to tell me what it was about my helmet that made it illegal other than to say it should look like his helmet and said, “It has to be DOT-approved.” I attempted to educate Officer Gibbs about the fact that a rider’s helmet choice does not constitute probable cause for the issuance of a citation, and the fact that DOT does not approve helmets. Officer Gibbs gave me an unlawful order to remove my LEGAL helmet and demanded I put on a full face helmet that was strapped to the back seat of my motorcycle. That full face helmet was damaged and was an illegal helmet – unlike my smaller helmet which was 100% LEGAL.
I asked for Officer Gibbs’ supervisor, and Sgt. Emry responded. Sgt. Emry refused to look at the helmet in question and sided with Officer Gibbs. Both Officer Gibbs and Sgt. Emry told me to take it to court. (As you may both recall I audio-taped the entire detainment, and I have transcribed the entire audio recording, and will reveal it if necessary.)
A few minutes after getting that citation, I put my LEGAL helmet back on (the one for which Officer Gibbs cited me) and went through a DUI checkpoint that was being held just a few blocks from the place I was cited by Officer Gibbs. At the checkpoint, I was again detained because of my helmet, but released without being searched or cited. (I am in possession of video evidence of this detainment that I will provide if necessary.)
According to LVMPD Policy Manual 6/006.01, “Probable cause exists when the facts and circumstances known to the officer would warrant a prudent man in believing a crime had been committed and the accused had committed it.
COMPLETELY ABSENT PROBABLE CAUSE, Officer Gibbs (sanctioned by what was represented to me as his supervisor, Sgt. Emry) violated my 4th Amendment right to be free from unreasonable searches and seizures in the following manners:
1. I was forced to sign a ticket to avoid going to jail;
2. I was forced to attend an arraignment to avoid going to jail;
3. I was forced to attend a pretrial (where I plead NOT GUILTY) to avoid going to jail.
4. I was forced to attend my trial to avoid going to jail.
5. I was COERCED to put on a damaged full-face helmet under the threat that my motorcycle would be impounded.
At the trial, my helmet case was dismissed. So, because the two of you were unwilling to examine and understand Nevada’s helmet law, you both abused your authority and forced me to have to defend myself. Since I could not afford an attorney, and since I did not qualify for a court-appointed attorney, I educated myself about how to defend myself in this matter, and the case was dismissed. Your actions in my case were in violation of 42 USC Section 1983.
I am in possession of Interrogatories, dated November 16, 2006, in which two official agents representing LVMPD, under oath, stated that LVMPD does not train its officers to know how to identify a legal helmet. (Attachment 2.)
A ruling by the United States 9th Circuit Court of Appeals, Easyriders v. Hannigan, (Attachment 3) established that helmets do not constitute probable cause. In a case that arose from the State of California, which has a universal helmet law like Nevada’s, the ruling read in relevant part,
“…citation could only be issued when helmet did not bear certification of compliance or when rider actually knew that helmet did not conform to federal standards; (2) under such reading of law, policy in question violated Fourth Amendment; and (3) motorcyclists were entitled to permanent injunction.
Judgment granted; permanent injunction issued.”
I am also in possession of an LVMPD administrative notice dated May 6, 1994, (Attachment 4) which directs its officers as follows, “If an operator or passenger of a motorcycle is not wearing any protective headgear, they should continue to be cited for violating NRS 486.231. However, if a “skullcap” or other non-D.O.T. or D.M.V. approved helmet is being used, they should not be cited.”
I know of zero helmet convictions in your jurisdiction for any person who has ever challenged a helmet citation for their choice of head gear. Therefore, how is it that any officer can know with certainty that a motorcyclist’s headgear is not legal? Absent any concrete evidence of known trial convictions, helmet citations by LVMPD officers are arbitrary and capricious actions that blatantly violate civil liberties and I was thereby victimized.
Your abuse of your authority caused me a great deal of time, inconvenience, and money. In light of the fact that I could not afford an attorney to defend me, and in light of the fact that the prosecution was not seeking jail-time for my “offense,” I was not entitled to a court-appointed attorney. Therefore, I had to labor for months to educate myself and defend myself in pro per.
I have obtained three estimates (Attachment 5) for what it would have cost me to retain an attorney to defend my NOT GUILTY plea. One attorney quoted $7,500 to take the case to trial, another $5,000, and a third believed he could get the helmet citation dismissed but was unwilling to take the case to trial. His quote to attempt to get the case dismissed was “at least $400.”
Further, I incurred a $97 fee (Attachment 6) in obtaining discovery to prepare for my case. Therefore, I am hereby demanding compensation in the amount of $497 to be divided equally between Officer Gibbs and Sgt. Emry.
Sgt. Emry stated on my recorder that he was unable to delete the citation. He said,
“If he gives you a ticket for no helmet, or an unauthorized helmet, non DOT helmet, then he believes that helmet is not a DOT authorized helmet that can be used in the State of Nevada I’m going to have to go with that. I can look at the helmet and I’m gonna say, ‘is that what you say this is illegal?’ and he’s gonna say ‘yes,’ then I’m gonna have to say, ‘you’re gonna have to go to court.’ Once that ticket is written, once he has given you that ticket, the only way that that ticket is gonna be taken out of the system is you have to go to court, and you have to see a judge, and you have to deal with that. Once it’s written, it can’t be undone.”
If this is true, then I hereby demand that Officer Gibbs compensate me the full $497.00.
Please call me within 10 days to make arrangement for payment. Or send me a check to my below address. Otherwise, I will have no other option than to pursue a Small Claims Court action. I will request additional reimbursement for the costs I will incur as a result of having to file a court action.
5841 E. Charleston Blvd., #230-422
Las Vegas, Nevada 89142
3. Easyriders vs. Hannigan ruling
4. Administrative LVMPD Notice
5. Attorney Retainer Fee Quotations
6. Receipt of Discovery Payment
Lily Gonzalez, Las Vegas, NV, 702-417-6260
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I don't ride to be safe, I ride to be free.