Cyclists rev up for legal wheelie ***** Some want 'felonious, thuggish' deputies and troopers indicted ***** Headgear in hearse could sound death knell for crash helmet law By GEOFF DAVIDIAN PUTNAM PIT EDITOR

COOKEVILLE, Tenn. (March 14) -- A Nashville lawyer says state and Putnam County officers committed felonies when they stopped and cited his clients for riding motorcycles during the trip from bar-owner Horton Swift's July 1996 funeral to the cemetery. 

In a motion scheduled for an evidentiary hearing March 25, Nashville attorney John E. Herbison quotes state law making it a Class E felony to "willfully . . . interfere, by words or actions, with any funeral procession or any religious exercises."  

Herbison says in his Motion to Dismiss for Governmental Overreaching that at the time his clients and dozens of other bikers were ticketed  for not wearing helmets they "were engaged in a funeral procession in memory of the late Horton Swift, traveling from a funeral home in Cookeville" to a burial site in Jackson County. 

A sworn law-enforcement officer was their escort, the defendants' motion says. 
     
"They committed felonies, but we are being prosecuted for misdemeanors," said Harold H. Hileman, one of the defendants. His case was consolidated Friday [March 14] with those of his wife and 11 other mourners who attended the funeral. More than five dozen bikers also were stopped and cited in the procession after they put their helmets in the hearse with the deceased. 

The Hilemans and the other defendants say in their motion that officers of the Tennessee Highway Patrol and the Putnam County Sheriff's Department "effected an en masse arrest and detention of the accused and others in order to issue citations[,]" disrupting the funeral procession for several hours.   

Defendants allege in their motion that the legal text "contains no asterisks, and it manifestly does not include the language, 'No person except a state trooper or sheriff's deputy.' "  

"The [s]upreme [c]ourts of Tennessee and of the United States have recognized that 'the conduct of law enforcement agents [may be] so outrageous that due process principles absolutely bar the government from invoking judicial process to obtain a conviction.'  

"[L]aw enforcement officers' felonious, thuggish interference with the funeral procession in order to issue citations to dozens of persons for the alleged commission of a minor misdemeanor manifestly offends a sense of justice and offends canons of decency and fairness."  

Cookeville defense lawyer Martelia Crawford, who earlier represented some of the same defendants during a preliminary hearing, said while the law protected such a procession from interference, the state contended that the vehicle carrying Swift's body was not part of the motorcade and therefore the government's contention was that the action was not illegal. 

Carthage civil rights lawyer Richard Brooks told The Pit after the incident that law enforcement officerss singled out the bikers for unfair treatment. "I wonder if they have ever stopped a Christmas parade and pulled the Shriners out for not wearing helmets?; Brooks said. "This is not equal protection if you're going to apply the law to some groups but not to others." 

Herbison also puts forth in another motion to be argued at the same time that the court should dismiss the indictments because the crash-helmet law is unconstitutional on its face. He further asks the court to find that the helmet law [T.C.A. 55 -9-302] cannot be constitutionally applied in this case. 

Herbison says that some of the defendants, much like police officers who come from all over when one from their ranks is felled, attended the funeral because Swift was a colleague. 

"As they traveled in this procession, some or all members of the group  removed or declined to wear their helmets, which is a practice commonly intended to communicate a show of respect to a deceased motorcyclist," the motion states. 

The  motion says "this communicative conduct" is protected by the First and Fourteenth Amendments to the United States Constitution, and by Article I, Sec. 19 of the Tennessee Constitution. 

Herbison's brief argues that the statute, 55-9-302 of the Tennessee Code, "fails to satisfy the First Amendment criteria applicable to regulation's which reach both [']speech['] and [']non-speech['] elements of communicative conduct. 

"Such a regulation," Herbison quotes from the case U.S. v. O'Brien, "is justified if, and only if the challenged regulation it furthers [is] an important or substantial governmental interest unrelated to the suppression of the free expression and the burden of the First Amendment freedoms is no greater than incidental to the furtherance of the governmental interest." 
[*U.S. v. O'Brien, 391 US 367, 376-77, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)] 

Herbison argues that "[t]he challenged statute cannot be upheld as a mere regulation of the time, place and/or manner of protected expression [streets are the archetype of a traditional public forum, according to the case Frisby v. Schulz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988)]. 

"The accused avers that [the helmet law] represents an unreasonable and unwarranted exercise of the state police power . . . . 

"The mandatory requirement that a motorcycle rider wear a helmet bears no reasonable relation to public safety or health sufficient to justify the intrusion upon privacy and personal autonomy that the challenged statute entails."