[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT. 13, 2001
THOMAS K. KAHN
No. 01-12215 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 00-01682-CV-TWT-1
ABATE OF GEORGIA, INC.,
and all others similarly situated,
Plaintiff-Appellant,
versus
STATE OF GEORGIA,
GEORGIA DEPARTMENT OF PUBLIC SAFETY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 13, 2001)
Before ANDERSON, Chief Judge, DUBINA, and GODBOLD, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant American Bikers Active Toward Education (“ABATE”)
of Georgia, Inc., filed this action against Roy E. Barnes, in his official capacity as
Governor of Georgia, Commissioner Robert E. Hightower of the Georgia
Department of Public Safety in his official and individual capacities, the Georgia
Board of Public Safety (“Board”), and the members of the Board in their official
and individual capacities. Plaintiff brings this action under 42 U.S.C. § 1983 and
challenges the constitutionality of Georgia’s motorcycle helmet law that requires
all persons to wear “protective headgear” while operating or riding a motorcycle.
GA. CODE ANN. § 40-6-315 (Supp. 1999). The district court granted Defendants’
motion to dismiss. Plaintiff now appeals. We affirm.
We review de novo a district court’s order granting a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. See McKusick v. City of Melbourne, Fla., 96 F.3d
478, 482 (11th Cir. 1996).
The statute at issue states in its relevant part:
(a) No person shall operate or ride upon a motorcycle unless he or she
is wearing protective headgear which complies with standards
established by the Board of Public Safety.
(b) No person shall operate or ride upon a motorcycle if the
motorcycle is not equipped with a windshield unless he or she is
wearing an eye-protective device of a type approved by the Board of
Public Safety.
(c) This Code section shall not apply to persons riding within an
enclosed cab or motorized cart. This Code section shall not apply to a
2
person operating a three-wheeled motorcycle used only for
agricultural purposes.
(d) The Board of Public Safety is authorized to approve or disapprove
protective headgear and eye-protective devices required in this Code
section and to issue and enforce regulations establishing standards and
specifications for the approval thereof. The Board of Public Safety
shall publish lists of all protective headgear and eye-protective
devices by name and type which have been approved by it.
§ 40-6-315.
The statute was amended in the 2000 session of the Georgia General Assembly to
substitute the newly created Commissioner of Motor Vehicle Safety as the
applicable regulatory authority for the Board of Public Safety, effective July 1,
2001. See id.
Plaintiff first contends that the Board’s failure to publish lists of approved
headgear and eye-protective devices violates Plaintiff’s rights under the First, Fifth
and Fourteenth Amendments to the United States Constitution. Second, Plaintiff
contends that the statute is unconstitutionally vague. Plaintiff alleges that the
failure of the Board to publish a list of approved gear prevented ABATE’s
members from knowing what equipment satisfies the statutory requirements.
The district court did not err in granting Defendants’ motions to dismiss for
failure to state a claim upon which relief can be granted. The statute authorizes the
promulgation of rules and regulations enacting standards. O.G.C.A. § 40-6-315.
3
Standards have been promulgated and they require manufactures to affix a
permanent label to headgear and eye-protective devices showing compliance with
the applicable standards. See GA. COMP. R. & REGS. r. 570-12-.01 et. seq. (1999);
See id. at r. 570-13-.01 et seq. Plaintiff asserts that the statute requires the Board to
issue lists approving specific types of headgear, which Dowis rejected. See Dowis
v. State, 243 Ga. App. 354, 355 (2000). The Georgia Court of Appeals interpreted
the statute and stated that “[t]he statute does not require the Board to approve
specific types of headgear.” Dowis, 243 Ga. App. at 355. The district court did
not err when it reasoned that it would be a gross intrusion for it to undercut this
decision of the Georgia Court of Appeals, construing a Georgia statute.
Plaintiff raises a flurry of other issues. The statute is not unconstitutionally
vague on its face. Operating a motorcycle is not speech within the First
Amendment. Plaintiff’s due process violation claims have no merit. See Picou v.
Gillum, 874 F.2d 1519, 1521 (11th Cir. 1989). There is no equal protection issue.
Plaintiff’s claims for damages are barred by the Eleventh Amendment. See
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104-106 (1984).
AFFIRMED.
4