Weaverville, NC – Loud Motorcycles – The Constitution…

Weaverville, North Carolina Police Department: Ignoring Illegal Straight Pipes (See Article from Noise Free America Following Narrative from C-CALM)

The relevant article from Noise Free America is attached below, but first, please allow Concerned Citizens Against Loud Motorcycles (C-CALM) to comment on the stark illegality of this conduct and the culpability of Weaverville’s Mayor, City Council and Police Chief.  Note that North Carolina’s State Motor Vehicle Muffler law requires that every motor vehicle operated on the public roadways of that State be equipped with the quiet factory-installed muffler.

EPA muffler label

NORTH CAROLINA

  • 20-128. Exhaust system and emissions control devices.

(a) No person shall drive a motor vehicle on a highway unless such motor vehicle is equipped with a muffler, or other exhaust system of the type installed at the time of manufacture, in good working order and in constant operation to prevent excessive or unusual noise, annoying smoke and smoke screens.

(b) It shall be unlawful to use a “muffler cut-out” on any motor vehicle upon a highway.

(c) No motor vehicle registered in this State that was manufactured after model year 1967 shall be operated in this State unless it is equipped with emissions control devices that were installed on the vehicle at the time the vehicle was manufactured and these devices are properly connected.


Now, please note the following protections provided by the Fourteenth Amendment of the United States Constitution relevant to equal protection of the laws and Title 42 U.S. Code § 1983.

 Fourteenth Amendment

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Title 42 U.S. Code § 1983

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…” 


Questions for Weaverville’s City Administration: Mayor Dottie Sherrill, Vice-Mayor John Penley, Council Members: Doug Dearth, Doug Jackson, Patrick Fitzsimmons, Andre Nagle and Police Chief Greg Stephens…

  1. Do municipal officials, acting under the color of law, while involved in a non-governmental/proprietary function, in the interest of profit for their municipality’s coffer and/or a charity event, possess the Constitutional authority to ignore the well-established rule of law, a vehicular muffler law enacted by Federal and State legislative authorities specifically for the protection of the health and welfare/the quality-of-life of the citizenry, then, to ensure an increased profit margin, invite large numbers of violations of that law into their jurisdiction and conspire to enact a policy or custom of nonfeasance manifesting in misfeasance and ultimately malfeasance, thereby providing absolutely no proactive protection, reactive protection, or any form of control over the movement or the intrusive and physiologically injurious manifestations associated with these numerous violations?

“Even if an activity can be characterized as an integral part of police protection, thereby falling within the police protection exemption, a government entity is still subject to liability if the police protection activity arises out of the negligent implementation of government policy.” Alvarado v. City of Brownsville, 865 S.W.2d 148 (Tex. App.—Corpus Christi 1993)

Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body’s official decision making channels. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978)

“All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who, by accepting office, participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.”” La. v. Jumel, 107 U.S. 711, 2 S. Ct. 128 (1882) 

Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged.”  Griego v. City of Albuquerque, 100 F. Supp. 3d 1192 (D.N.M. 2015)

  1. Do municipal officials have a responsibility to obey the law and to refrain from advocating, participating in, initiating violations of the law that ultimately manifest in injury and subsequent violations of Constitutional protections?

“All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who, by accepting office, participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.”” La. v. Jumel, 107 U.S. 711, 2 S. Ct. 128 (1882)

 “In a just society those who govern, as well as those who are governed, must obey the law.” United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984)

  1. Do the Citizens of Weaverville, North Carolina, as Citizens of the United States, have an expectation of “protection” from the representative agents of that State encumbered with the responsibility of enforcing the laws of said State resulting from a civil-reciprocal-contract existing between the Sovereign and the Servant?
  2. Does the police protection exemption exist when a failure to protect or provide control over rampant antisocial conduct is the resultant of a government policy or custom that ultimately manifests in violations of Constitutional protections, a violation of 42 U.S.C.S. § 1983?

“Even if an activity can be characterized as an integral part of police protection, thereby falling within the police protection exemption, a government entity is still subject to liability if the police protection activity arises out of the negligent implementation of government policy.”  Alvarado v. City of Brownsville, 865 S.W.2d 148 (Tex. App.—Corpus Christi 1993)

“Police action is subject to the Equal Protection Clause and 42 U.S.C.S. § 1983 whether in the form of commission of violative acts or omission to perform required acts pursuant to the police officer’s duty to protect.”  Parkhurst v. Tabor, 569 F.3d 861 (8th Cir. 2009)

One final thought Mayor Sherrill: There is absolutely NOTHING that transpires at a motorcycle rally having been attended by an overwhelming number of illegally equipped, illegally LOUD motorcycles that could not have just as effectively taken place with the motorcyclists at the event atop legal, quiet, motorcycles with the factory-installed, US EPA approved muffler affixed to their motorcycles.  Why must you permit illegally equipped, illegally LOUD motorcycles to attend these events when you know, from experiential knowledge, that these egregiously LOUD motorcycles are in violation of State Law and the dangerous and intrusive noise emissions are a direct threat to the health and welfare and the quality of life of the Citizens of Weaverville and every Citizen in those Municipalities positioned on the routes providing access to and from these motorcycle rallies?

little girl holding ears at biker parade

Questions?  Please see my articles on this subject…

Loud Motorcycles and the US EPA – A Plea for Intercession: https://rickeyholtsclaw.wordpress.com/2016/09/16/loud-motorcycles-the-epa-a-plea-for-intercession/

Motorcycle Noise Enforcement – 101https://rickeyholtsclaw.wordpress.com/2016/09/12/motorcycle-noise-enforcement-101/

The Truth about Loud Motorcycles the Police Won’t or Can’t Tell You: https://rickeyholtsclaw.wordpress.com/2016/03/10/the-truth-about-loud-motorcycles-the-police-wont-or-cant-tell-you/

Biker Rallies and Your Rights: https://www.youtube.com/watch?v=TnWVin8NUko

Sincerely,

Rick Holtsclaw, Houston PD/Retired

Concerned Citizens Against Loud Motorcycles – Facebook, YouTube and WordPress

for FB coverme at lubys

 

Noise Free America

Weaverville, North Carolina Police Department: Ignoring Illegal Straight Pipes

    

Noise Free America: A Coalition to Promote Quiet

October 21, 2016

For immediate release

Contact:

Larry Deal
Ld1958@yahoo.com

Ted Rueter
Director@noisefree.org
877-664-7366

Chapel Hill: The Weaverville, North Carolina police department has won this month’s Noisy Dozen award from Noise Free America: A Coalition to Promote Quiet for participating in a motorcycle ride in which many of the participants had illegal straight pipes.

Weaverville is a small town in western North Carolina; it is part of the Asheville metropolitan area.

On October 8, 2016, the Weaverville police department conducted a “Cops for Kids Toy Drive, which included a motorcycle ride. The Weaverville police department’s own web site contains a photo gallery showing many motorcycles equipped with straight pipes. Such equipment is in clear violation of the state muffler law, which requires motorcycles to have exhaust systems “of the type installed at the time of manufacture” (GS 20-128-a).

The presence of motorcycles with illegal straight pipes at this event raises several questions:

  • Does the Weaverville police department enforce the city’s motor vehicle noise ordinance?
  • Does the Weaverville police department enforce the state muffler law?

Larry Deal, a member of Noise Free America: A Coalition to Promote Quiet, commented that “I’ll bet the Weaverville police department has never ticketed any bikers for violating either the town’s noise ordinance or state law, especially any bikers who violate those laws while participating in Cops for Kids Toy Drives.”

“Although the Cops for Kids Toy Drive is for a worthy cause,” said Deal, “and the Weaverville police department’s charity work is commendable, the ‘charity’ angle employed in many group motorcycle rides tends to provide a blanket of protection for illegal motorcycle noise.”

Deal noted that “law enforcement often looks the other way and effectively grants those bikers an exemption to noise ordinances and the state muffler law. Instead, the police should be strongly enforcing those laws–no matter what. The police should issue citations whenever they encounter motorcycles which are emitting prohibited and obviously ‘excessive or unusual noise’ or are equipped with improper mufflers ‘not of the type installed the time of manufacture.’ This is required by North Carolina’s state muffler law.”

Ted Rueter, director of Noise Free America: A Coalition to Promote Quiet, commented that “the police need to learn how to enforce the state muffler law and start enforcing it aggressively. The same applies to the state DMV, which oversees the state motor vehicle inspections.”

According to Rueter, “Conducting or sponsoring group motorcycle rides is not the primary duty of the police. The police should not turn a deaf ear when motorcyclists violate the state muffler law right under their noses. Our police, sheriff’s departments, and the state Highway Patrol should enforce the state motor vehicle code. GS 20-128 (a) prohibits removing or altering motorcycle exhaust systems and causing additional noise. This law is rarely enforced. The result? A state filled with illegal motorcycle noise.”

Noise Free America: A Coalition to Promote Quiet is a national citizens’ organization opposed to noise pollution. Past “winners” of the Noisy Dozen award include the North Carolina state legislatureAppleton, Wisconsin; and the Pennsylvania Department of Transportation.

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