Ask Our Lawyer April 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

HOW MUCH INSURANCE DO WE NEED ANYWAY?

Q.  We have a few questions regarding ABATE event insurance we are hoping you might be able to assist with. We of course get a Certificate of Insurance (COI) from the state office for our sanctioned events for the specific day and event location, but what should we be requiring, if anything, from vendors that might setup at our event? Should we be requesting COI’s (to CYA) from all vendors? Maybe for only food/alcohol/equipment vendors? We are looking for the best route that covers ABATE, the officers, the event itself, and of course the participants. However on the flip side of that we realize that not all vendors might be an established business (such as artsy/craftsy vendors) and might not be able to obtain a COI for the event if requested. If you could please provide any information and input on this we would greatly appreciate it! Thank you. – Christine Boyer, ABATE Officer

A.  As much as we can reasonably get is the short answer.  Certificates of Insurance should be obtained from all food and alcohol vendors – always and no exceptions.  Also included in that compulsory list are those who provide unique services and items for entertainment.  Keep in mind that many of the arts and crafts-type vendors may not have insurance, so we are relying on the waiver/release that is required for admission for all attendees to cover us.  However, we should require an indemnification agreement from these vendors just in case our waiver for attendees is held unenforceable.  This means that if any of the vendors screw up and injure one of our attendees, and we get sued, we have a claim against that vendor.  Our required Waiver/Release, if enforceable, should get the vendor off the hook along with us, as they are generally identified in our waiver.  If our waiver is determined unenforceable for some reason, we can hold that vendor responsible so that we are not paying for his sins.

AND I THOUGHT WE HAD THE RIGHT TO REMAIN SILENT – THE COWBOY CASE

Q.  My wife and I were pulled over by a local police officer for having a cracked windshield. My wife was driving and I was in the passenger seat. It was 8:30 AM and we were on our way home from working a midnight shift. The car is in my wife’s name. The officer asked for my wife’s license and proof of insurance which she handed to him. Then the officer looks at me and says he wants my ID also. I asked him what I did wrong, and he said to just give him my ID which I reluctantly did. He came back to the car and gave my wife a warning for the cracked windshield and didn’t say a word to me. Did I have to give the officer my ID even though I wasn’t driving, the car wasn’t in my name, and I committed no crime? All I was doing was sitting quietly in the passenger seat with my seatbelt on. – Joe and Edie Irwin, ABATE members

A.  Well, my worse angels would want to tell the officer to go pound sand, but I’m afraid the answer is that you most likely required to provide basic identification to the investigating officer. Since you were not driving, you had no obligation to carry a driver’s license, but if you had it in your billfold or access to it in your car, I believe the courts would rule against you if you failed to produce your driver’s license. The U. S. Supreme Court did not serve us well in what I call the “cowboy case.” In that case we had an independent-minded citizen from the West who thought he had the right to remain silent when asked by the local cops to give his name. He refused and was promptly charged, the case went all the way to the the Supreme Court, and the rest is history as they say. In today’s climate of I.D. paranoia and hyper-surveillance, I believe the Courts would have ruled against you if you had refused to surrender your driver’s license. At the very least, I bet the cop would have given your wife a ticket–-with a fine–for the cracked windshield. You know, some cops are like that.

There are a few states also have “stop and identify statutes,” which require individuals to comply with police requests for identification. In Ohio, Indiana, and Illinois, such cooperation is required when the officer has a reasonable suspicion that the person is committing, has committed, or is about to commit a criminal offense, or that the person witnessed an act of violence or an act which would create a risk of serious physical harm to another person or to property. In those cases, the person is required to give his or her name, address, and date of birth. The statute in Indiana is much broader, requiring that a person provide either his or her name, address, and date of birth or a driver’s license, if in the person’s possession. Illinois requires that if an officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense, he may demand the name and address of the person and an explanation of his actions. In Missouri, officers have the power “to stop any person abroad whenever there is reasonable ground to suspect that he is committing, has committed or is about to commit a crime and demand of him his name, address, business abroad, and whither he is going”(although it appears that this provision may only extend to officers in Kansas City – see Mo. Rev. Stat. §84.710(2).

For some interesting reading, check out the following US Supreme Court cases: INS v. Delgado, 466 U. S. 210, 216 (1984), Terry v. Ohio, 392 U. S. 1 (1968), United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975).

TRADE MARKING ABATE CHAPTER NAMES AND EVENTS

Q.  We have a chapter name that we are very proud of, along with chapter events that are very important fundraisers for our organization. Do we have to do anything legally to protect our interest in that name?

ABATE Member

A.  We receive inquiries about trademarking the names of regions/chapters and their events several times a year. Technically, a trade name is not considered a trademark or entitled to protection under trademark laws unless it is accompanied by a product or service. If a name is used to identify a service or event, the name will then be considered a trademark and entitled to protection if it is distinctive enough.

A trademark includes any word, name, symbol, or device or any combination used or intended to be used, in business, to identify and distinguish an event or organization.

One of the good things about trademarks as opposed to patents is that trademarks have protection forever, as long as they are being used. Another question is: Should our organization trademark an event and its name? The common law provides for protection if you do nothing more than use the name and were the first to utilize the name of that event. Certainly one is afforded greater legal protection if the name of the event is “trademarked” but that may not be worth the expense, particularly if you can prove the first usage of the name for your organization.

ARGUING WITH COPS IS OK IN ILLINOIS, OHIO, INDIANA AND MAYBE EVERYWHERE ELSE

 

Q.  I was stopped by a cop on my motorcycle. When I tried to argue with him about the facts, he told me to shut up or I was going to jail. Do I have the constitutional right to argue with a police officer about an arrest? – ABATE Member.

A.  Many are under the assumption that once you are stopped and questioned by a police officer, you have no right to debate your position with the officer. Wrong. An Illinois Appellate Court, along with the courts in Indiana and Illinois, has reaffirmed our basic right to argue our position with an investigating police officer. However, one needs to be mindful that an errant cop has the ability to charge you with resisting and obstruction. In the Illinois case, the prosecution told the jury that the defendant had no right to argue with the police officer. On appeal, the Court held that this was a gross misstatement of the law and reversed the conviction. We have and should always have the right to call into question the facts of an officer’s arrest. This probably goes without saying, but once you’ve have made your point, it’s wise to clam up. Now, are you resisting if you are on a cell phone? No, but it could become resisting if you persist in refusing to get off the phone when requested.

So to sum up, according to the Court, nothing in the law suggests that you can’t initially question the validity of the officer’s actions. Certainly you can ask why you are being arrested, and you can point out the officer’s mistake(s) and protest and argue against the officer’s actions. That said, if there was ever a time to practice diplomacy, it is when interacting with a police officer. Some of us have found out the hard way that jail is not good. They won’t let you do what you want in jail.

TIRED OF AN UNCIVIL CONGRESS? SOLUTION: BRING BACK DUELING

There was a time when politicians were civil. My theory: Dueling was the cause. If you run the possibility of getting shot for your foul mouth and ill ways, it may just make you a little nicer. I say bring it back for to state capitals and Washington, D.C. Who knows? It might even work with lawyers.

In one famous duel, James Shields challenged Abe Lincoln to a duel. As challengee, Abe had the right to choose weapons. Since Shields was diminutive with short limbs, lanky Lincoln chose “long swords.” Apparently, Lincoln’s reach was such that the duel would have been completely unfair. The story goes that the absurdity of the proposed duel was so comical that Shields and Lincoln patched things up and remained friends for life. Interestingly, Lincoln commissioned Shields as Brigadier General, and he later served as a U.S. Senator in 3 different states; which is still a record.

SENATE ADDRESSES MOTORCYCLE CHECKPOINTS

Speaking of lawmakers, I would like to take the rare opportunity to positively acknowledge the efforts of the US Senate to ban federal funding for motorcycle-only checkpoints. As you may have heard, the bipartisan bill was introduced in January by Sens. Jeanne Shaheen (D-N.H.), Ron Johnson (R-Wis.), Kelly Ayotte (R-N.H.), Joe Manchin (D-W.Va.) and Susan Collons (R-Maine). “The Stop Motorcycle Checkpoint Funding Act” would restrict the Secretary of Transportation from granting funds to any government entity for a program to check helmet use or to create checkpoint for an operator of a motorcycle or a passenger on a motorcycle.” Motorcycle checkpoints are clearly discriminatory, and motorcyclists are already subject to various state regulations subjecting them to inspection at the same checkpoints as other motor vehicle operators. Furthermore, I think you’d be hard-pressed to find anyone who actually believes they prevent accidents, which is their supposed raison d’être.

 

 

TIS THE SEASON

 

Potholes, potholes and more potholes. After a lengthy and snow-ridden winter, it’s no surprise if you’ve noticed the absurdity of our roadways. The constant freezing and thawing of snow and ice makes for treacherous driving conditions here in the Midwest. Thankfully we have riders like you that are willing to report these behemoth craters, and the place to do it is RoadHazard.org. We take pride in the fact that we help facilitate the improvement of our streets for motorists and motorcyclists alike. Help us help you, report dangerous roads at RoadHazard.org today!

 

Rod Taylor


ABATE Legal Services

abatelegal.com
All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. 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. 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. Questions? Submit them to RodTaylor@abatelegal.com.  © 2015

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