GILROY
– A case currently pending in the 9th Circuit Court of Appeals
in San Francisco could soon decide if the Gilroy Garlic Festival’s
policy restricting gang
”
colors
”
associated clothing is constitutional.
GILROY – A case currently pending in the 9th Circuit Court of Appeals in San Francisco could soon decide if the Gilroy Garlic Festival’s policy restricting gang “colors” associated clothing is constitutional.
The debate revolves around an incident that took place at the 2000 Gilroy Garlic Festival when a group of four Top Hatters Motorcycle Club members were escorted from Christmas Hill Park by Gilroy police officers after refusing to take off their Top Hatters jackets.
Following the incident, the four Top Hatters who live throughout the Bay Area – George Villegas, Bob Poelker, Marcelo Orta and Don Derosiers – filed a lawsuit against the Gilroy Garlic Festival and the City of Gilroy claiming the policy was a violation of their freedom of association and speech.
“The plaintiffs are not seeking any money in the lawsuit, only a change in policy and lawyers’ fees,” said Randolph Hammock, the plaintiffs’ Los Angeles-based attorney. “We applaud the festival’s efforts to stop gangs, but a motorcycle club is fundamentally different than a gang – it’s a fraternal organization, a social and fraternal club – the same as the Masons or Lions Club. My clients feel they should have the right to wear their club’s jackets in public.”
But the Gilroy Garlic Festival Association disagrees and maintains its policy is not intended to deny freedom of speech but protect its patrons.
The GGFA is a private, non-profit entity. But the festival is held at a public city park, and the Gilroy Police Department is used as one method of security at the event, leading to Hammock’s claim against the city.
The city has hired private attorney Mark Strombotne to defend its case.
“As of this point, we are not discussing a change in policy,” said Richard Nicholls, executive director of the Garlic Festival. “We want to provide our customers with a safe and nonintimidating, family atmosphere. We’ve had good compliance with our policy so far, so I don’t see why it needs to change.”
Hammock said one of the fundamental problems with the policy is that it was not available in writing to his clients before the incident.
“I was surprised to discover that the Garlic Festival had no written dress code that warned my clients before the incident,” Hammock said. “Now they have one referring to gangs, but they’ve refused to give it to us to review. Why would they want to keep this a secret?”
Nicholls said the Garlic Festival’s dress code policy has never changed and pointed out that the policy is posted at every entrance to the festival along with other rules. However, the policy is not available for review on the festival’s Web site, he said.
The reason the lawsuit has taken so long to go to trial is because it was originally heard in the Federal Court in San Jose, where in June Judge James Ware dismissed the case. Ware’s dismissal of the case had nothing to do with the constitutionality of the policy, but instead the lack of a “state action” that would constitute the case to be heard by the Federal Court.
In September, the Top Hatters appealed the lawsuit to the 9th Circuit. The case is already filed, but could take up to six months to be heard.
Similar suits to the Top Hatters’ suit have been filed against the California State Fair and the Morgan Hill Mushroom Festival, with varying outcomes, Hammock said.
“We want a change of policy that doesn’t discriminate against anyone without due cause,” Hammock said. “The Top Hatters are not associated with any type of crime like a gang would be, and they do a lot of work in the community. These guys are proud of their organization, and they feel they should be able to display that pride.”
