Free Expression Win as Judge Prohibits Government from Seizing Motorcycle Club’s Property

In a fascinating First Amendment, RICO, and trademark law challenge pitting members of a motorcycle club against the federal government, the ACLU of San Diego & Imperial Counties today scored a notable victory against an unprecedented attack on free speech rights. District Court Judge Florence-Marie Cooper issued a preliminary injunction prohibiting the government from seizing property bearing the “Mongols” trademark from a club member not charged with any wrongdoing. The judge held that such seizures exceeded the government’s legal authority under trademark law, as well as raised serious First Amendment concerns.

On October 22, 2008, a number of current and former members of the Mongols Nation Motorcycle Club were indicted in federal court for RICO violations and other offenses. However, the government did not charge the club itself or the overwhelming majority of its members with any wrongdoing.

In a novel attempt to extend RICO’s asset forfeiture provisions, the government sought forfeiture of trademarks registered by the club. Club members and supporters display items bearing the marks to signify membership and association with the club and to express their beliefs and values.

Because the trademarks were allegedly subject to forfeiture, the government contended it was entitled to seize any personal property bearing or displaying one or more of these marks, even from persons not charged in the indictment. Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) confiscated items that displayed the trademarks from uncharged members or supporters of the club and threatened others who were doing so, even if they were not charged with a crime.

The government’s aggressive actions had a substantial chilling effect on freedom of speech and association. Club members and supporters were forced to curtail their display of the marks and limit their club meetings for fear of having their property confiscated.

On behalf of Ramon Rivera, a club member who is not accused of any crime, the San Diego ACLU filed a complaint and motion for preliminary injunction, arguing that the government’s actions violated the RICO statute, the First Amendment, and the Due Process Clause.

In a complex analysis of trademark, RICO, and First Amendment law, in rulings both in the case brought by ACLU and in the criminal case, Judge Cooper held that the trademarks are not subject to forfeiture and items displaying the Mongols trademark cannot be confiscated from uncharged persons. As Judge Cooper held, the marks belong to the club, not any individual member, and RICO does not allow forfeiture of property that never belonged to an indicted defendant. Even assuming otherwise, Judge Cooper found that RICO does not allow confiscation of items bearing a mark from an uncharged person such as Mr. Rivera, because such confiscation is not necessary to protect the value of the mark.

Because the judge ruled that the plaintiff was likely to prevail on the merits on statutory grounds, she did not formally decide the constitutional issues. However, she observed that “seizure of property bearing the mark at issue would have serious First Amendment implications.”

“The government has no business forcing persons to censor themselves by confiscating property of individuals not accused of any wrongdoing,” said Kevin Keenan, executive director of the ACLU of San Diego & Imperial Counties. “We are glad the court reined in the government from exceeding the scope of legitimate law enforcement.”

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ACLU’s legal director, David Blair-Loy, and Alan M. Mansfield of the Consumer Law Group litigated the case.

Judge’s Order