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Ask Our Lawyer - February 2011

MOTORCYCLE RIGHTS UPDATES!

Motorcyclists’ 4th Amendment Rights Violations: New York 2009, Pennsylvania 2010, Illinois 2010 – Your State Next?

Federal funds appear to be the grease that is supporting police road blocks. The police claim these stops are for safety checks. We believe that the “safety issue” is a pretense only, and that the stops serve no useful safety purpose. Most of the roadblocks are near motorcycle events. Unfortunately, the stops are bothersome and provide a chilling effect to our events. These motorcycle stops not only violate motorcyclists’ 4th amendment right to be free from “unreasonable searches”, the motorcyclist roadblocks also infringe upon motorcyclists’ fundamental freedom to assemble in violation of the 1st Amendment. I call this a police two-fer – one stop, two Constitutional violations! If you have been a victim of a motorcycle only roadblock call Rod Taylor at 800-257-4337.

Kentucky Attorney General Wants to Limit Your 4th Amendment– what Part of the 4th Amendment Doesn't He Understand?

I had just written the above article about motorcycle stops and 4th Amendment violations when I learned of a case recently argued in the Supreme Court of the United States. For over a half century, we the people have been protected by the holding in Johnson v. United States that says cops can't bust your door down just because they "claim" to smell dope coming from the door of your house/room. The Court has required law enforcement folks to get a warrant from a magistrate who makes sure the request is proper before they bust down the door to your home or as in the Johnson case, a room. The 4th Amendment is very clear on this requirement.

This right protects us from the zealous officer who is the ex of your current girl friend or the cop who lives next door and hates your dog and has getting even on his mind, or the one that really does not care about rights, period. Or the one that just wants to catch somebody – any body – anyway he can. In the new case before the Court, the police claimed that they not only smelled dope, but that when they knocked loudly and demanded entrance, they heard "sounds" that caused them to fear evidence was being destroyed. The "sounds" of evidence being destroyed seems to be the support for the new case challenging the long term holding of Johnson. Wow – And that is that the officers "heard evidence being destroyed". They claim this gives them a right to bust your or my door down and tear up who knows what else.

I have wondered just exactly what the sound of destroying evidence sounds like coming through a door. Is it a loud or soft sound? Is it a screeching sound? Is it the sound of a flushing toilet? How do you tell the difference from flushing for your daily constitutional or a criminal flushing of evidence, or was it a sound on the tv or radio? Or what if the odor is really coming from the room next door and you just happened to be flushing your toilet? You get the point– I would have a lot of questions for any police officer that broke my door down under those circumstances. If the Kentucky Attorney General has his way, he would like to wander the halls of motels, hotels and our neighborhoods sniffing and listening for those "sounds". (By the way– "sounds" kind of like motorcycle safety stops doesn't?)

Why were the cops roaming the halls of a hotel anyway? I guess it might make criminal fishing easier for them, but what does it do to our right to be free from unreasonable search and seizure as protected by the 4th Amendment? If you want to catch folks get out a big net, and why not start going door to door? They could even have a door-fixing business on the side. Maybe the law should have lock picks making it easier to sneak up on you. Sooner or later they might catch somebody, somewhere doing something, but at what price?

We all agree that the law should catch as many bad guys as they can, but within the limits of the 4th Amendment. Many of us would rather have some pot smoking kids get by with something, rather than allow cops to bust down our door to catch them. In the recent case, all the law had to do when they allegedly smelled dope coming from the room was to quietly get a warrant and come back and do their thing. Armed with a warrant, the law would then have the right to break the door down if there was no response. The specter of law men walking around busting in doors just because they hear sounds or notice odors is exactly the type of conduct our founding fathers sought to stop. And I don't think they wanted the law stopping us at motorcycle-only safety/inspection checks just on the chance that an officer might catch somebody with something. Bikers need to make a stand on this issue not only for us but for ALL of us. Our Founding Fathers would be proud.

Abatelegal.com Announces the Freedom of Information Act “how to” Kit

Now on the Web Site with All Needed Links

The AbateLegal.com web site is fully equipped to handle all of your FOIA request needs. If you can think of it, you can generally get it from the government by following our easy steps. We teach you how to prepare the document and file it with the appropriate government official. You can see letters of response below that demonstrate how effective you can be in obtaining information needed for our cause.

Freedom of Information Act (FOIA) laws are laws ensuring public access to government records. The federal FOIA (and the various, similar, state laws) carry a presumption of disclosure; the burden is on the government, not the public, to substantiate why information may not be released. Upon written request, agencies of the government are required to disclose those records, unless they can be lawfully withheld from disclosure due to a number of specific exemptions in the FOIA. This right of access is ultimately enforceable in the appropriate court.

When requesting information, be mindful of the following:

1. Do your research – Determine whether or not the information you seek is readily available. Information requests can take a long period of time to receive and cost money.

2. Write clearly and be specific – Overly broad requests may not reveal the information you seek.

3. Target the appropriate agency – Make sure you are sending your request to the appropriate agency to avoid delay.

4. Establish a contact within the agency – Typically you will receive an acknowledgment letter or response letter with a case officer. If not, contact the agency to identify who is fulfilling your request. Your effort will help show your interest in a timely response.

5. Stay on top of things – Agencies are allotted specific time limits in which to respond to your request. However, the more extensive the request, the more time you should allow for a response.

6. Delays can be expected – While delays can be frustrating, they can also be expected. FOIA requests are usually not an agency priority, meaning delays are quite possible. Responses regarding National Security may take months, even years to fulfill due to resources and sensitivity.

7. Be reasonable and friendly – Establishing a good rapport with your case officer, while providing a well-written request, will only help your cause.

Having helped our members fulfill requests for information in the past, we decided it was time to give you the tools necessary to fulfill your own interests. Please find more information on FOIA requests at AbateLegal.com. Here’s what we got from some simple requests regarding motorcycle registration and endorsements in Illinois:

Dear Mr. Taylor:

We are in receipt of your recent FOIA request. In that request, you seek certain statistics relating to motorcycles. We are pleased to provide you with the information you seek. Unfortunately, the information will be provided in two separate e-mails as two different departments are involved. For now, we are providing you with the number of motorcycles registered for the period 1999-2010. The statistics are as follows:

1999- 198,444
2000- 207,689
2001- 212,643
2002- 226,550
2003- 226,559
2004- 262,832
2005- 272,180
2006- 287,892
2007- 304,038
2008- 323,047
2009- 343,154
2010- 348,702

We trust you will find this information useful. I will forward the motorcycle endorsement information when I receive those statistics from our Department of Drivers Services.

Sincerely,

Donna M. Leonard
Executive Counsel
Illinois Secretary of State

Dear Mr. Taylor:

Please see the statistics below. With the submission of this information to you, our compliance with your FOIA is now complete.

Sincerely,

Donna M. Leonard
Executive Counsel
Illinois Secretary of State

2000 22,185 547,716
2001 19,714 535,735
2002 N/A N/A
2003 17,791 546,910
2004 16,884 554,479
2005 16,151 563,766
2006 15,589 573,346
2007 15,050 584,007
2008 15,136 599,546
2009 14,796 611,652
2010 14,409 624,413

Laid off When Times Are Tough -- a Gift Horse in the Mouth?

Q. My employer is letting me go. I have been there several years and feel that I have done a great job. This has taken me by surprise and I do not feel he has given me a fair chance. He has offered me severance pay for a few months and basically says take it or leave it. Can the company do this to me?

- ABATE of Ohio member.

A. If you do not have an employment contract or union protection, you are basically screwed. Ohio, Indiana and Illinois are right to work states, meaning that if your employer comes in one day and does not like the color of your shoes, he can fire you. The law will protect you from the various types of discrimination that are prohibited i.e. race, sex, age, religion etc., and I understand that you have no complaints in those areas. According, your employer's offer to give you severance pay for a few months is a gift. Take the money and run. Do not forget to look into your COBRA rights regarding your health insurance.

Grand-dad's Harley-Davidson WLA – Is it Covered?

Q. You are restoring your grandfather's WLA. It is not plated/licensed because you have taken it all apart in your garage and have restored it like new. Grand-dad would be proud. But before you plate/license the bike, your garage catches fire and destroys your family heritage. You call your insurance company and make a claim for your loss under the fire policy for your home/garage. They pay for the garage fire loss and all of the personal property, but deny your claim for the motorcycle. How can this be?

A. Most home owner/fire insurance policies have an exclusion for "unlicensed motorcycles/autos". So if you want your restoration project covered you must call your insurance company and request that the "project" be specifically scheduled on your home owners insurance policy. The charge is usually modest. Failure to get this bike scheduled will leave you without insurance on your bike if it is destroyed by fire. Interestingly, if the motorcycle has been totally disassembled into parts, a good argument could be made that under most homeowner policies, the parts would have been covered. But as to a completed bike, not so. A long time ABATE member from Springfield, Illinois discovered this the hard way. "Digger" was restoring his vintage bike when his garage caught fire and destroyed his prized possession. His insurance carrier took a hard line and denied coverage for his bike. Moral of the story: call your insurance company and ask them whether your unlicensed bike is covered. If they say yes– send a confirming email/letter. If they say no, acknowledge to yourself that you are going bare (no coverage) or get the bike scheduled on your policy for the proper value.

Ride Safe and Free,

Rod Taylor

ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery, and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

Call us at (800) 25-RIDER

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at © 2011, A.B.A.T.E. Legal Services

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