DISCUSSION

On appeal, Hannigan argues that Easyriders has not satisfied the legal requirements to support the district court's issuing of an injunction, and that the injunction incorrectly requires an officer making a traffic stop or issuing a citation to know before citing or stopping a motorcyclist with a non- complying helmet that the motorcyclist has actual knowledge of the helmet's non-compliance. On cross-appeal, Easyriders seeks to enjoin the enforcement of the helmet law on the ground that it is unconstitutionally vague, even as interpreted by the California courts, because motorcyclists are unable to conclude when there has been a determination of a particular helmet's non- compliance with Standard 218.

I. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). "We must determine whether the evidence, viewed in a light most favorable to the non-moving party, presents any genuine issues of material fact and whether the district court correctly applied the law." Id. The district court's grant of a permanent injunction is reviewed for an abuse of discretion or an erroneous application of legal principles. American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066 (9th Cir.1995).

II. VAGUENESS OF THE HELMET LAW

*5 Easyriders argues that despite the limiting instruction given to the helmet law by the California Courts, under which motorcyclists wearing helmets bearing a certification sticker at the time of purchase must have actual knowledge of their helmet's non-compliance with Standard 218 to violate the helmet law, the helmet law remains unconstitutionally vague because motorcyclists "do not know what they are required to have actual knowledge of." We conclude that Easyriders and the individual plaintiffs do not have standing to challenge the vagueness of the helmet law because they seek only an injunction against future enforcement of the law. To prove that the helmet law is unconstitutionally vague, Easyriders must demonstrate that the law

"(1) does not define the conduct it prohibits with sufficient definitiveness and

(2) does not establish minimal guidelines to govern law enforcement."

United States v. Davis, 36 F.3d 1424, 1434 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1147, 130 L.Ed.2d 1106 (1995). "A criminal statute is not vague if it provides adequate notice in terms that a reasonable person of ordinary intelligence would understand that her conduct is prohibited." United States v. Martinez, 49 F.3d 1398, 1403 (9th Cir.1995), cert. denied --- U.S. ----, 116 S.Ct. 749, 133 L.Ed.2d 696 (1996).

Easyriders may not assert a facial challenge to the helmet law. Where a law at issue "does not implicate First Amendment rights, it may be challenged for vagueness only as applied," id., unless the enactment is "impermissibly vague in all of its applications." Schwartzmiller v. Gardner, 752 F.2d 1341, 1348 (9th Cir.1984) (quoting Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)); see also United States v. Doremus, 888 F.2d 630, 634 (9th Cir.1989) (statute facially vague if it specifies "no standard of conduct at all"), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991).

While the statute may have some ambiguity on its face regarding the exact specifications for a helmet that complies with the helmet law, the statute does define generally what conduct is prohibited, and does establish guidelines, though concededly ones that have been difficult to follow, for law enforcement officials. Indeed, the record reveals that the vast majority of motorcyclists have successfully complied with the helmet law with little difficulty. [FN3]

Accordingly, the helmet law can only be challenged as applied to a specific motorcyclist. "In scrutinizing a statute for intolerable vagueness as applied to specific conduct, courts must take the statute as though it read precisely as the highest court of the State has interpreted it." Schwartzmiller, 752 F.2d at 1348 (citations omitted); see also Kolender v. Larson, 461 U.S. 352, 355-56 n. 4, 103 S.Ct. 1855, 1857 n. 4, 75 L.Ed.2d 903 (1983). [FN4]

The district court correctly articulated the helmet law as it has been interpreted by the California courts. The California court of appeals in Bianco concluded that consumers comply with the helmet law as long as they are wearing a helmet that bore the DOT self-certification sticker at the time of purchase unless the "helmet has been shown not to conform with federal standards and the consumer has actual knowledge of this fact." 24 Cal.App.4th at 1123, 29 Cal.Rptr.2d at 717 (emphasis in original).

As examples of information that could provide such knowledge, the Bianco court referred to a determination of non-compliance by NHTSA, a recall by the manufacturer due to non-compliance, or independent laboratory test results. Id. at 1124-25, 29 Cal.Rptr.2d at 717-18. A scienter requirement, like the requirement that a motorcyclist have actual knowledge of their helmet's non-compliance, can mitigate any vagueness in a statute. Hanlester Network v. Shalala, 51 F.3d 1390, 1398 (9th Cir.1995).

*6 In light of the interpretation given to the helmet law by the California courts and Easyriders inability to bring a facial challenge to the helmet law, we conclude that the motorcyclists do not have standing to challenge the vagueness of the helmet law in this action because the plaintiffs only seek an injunction against future enforcement of the law. The standing requirements of Article III of the Constitution require us to review only "cases and controversies," which requires a plaintiff seeking to invoke a federal court's authority to show "(1) actual or threatened injury (2) suffered as a result of the allegedly illegal conduct of the defendant, which (3) fairly can be traced to the challenged action and (4) is likely to be redressed by a favorable decision." Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353 (9th Cir.1994).

Where a plaintiff cannot satisfy these requirements, we lack jurisdiction. Most of the plaintiffs in this case have alleged that they were improperly stopped or cited for violating the helmet law on dates occurring prior to the Buhl and Bianco decisions. Thus, any injury that they suffered is not fairly traceable to Bianco 's alleged offending vague interpretation of the helmet law. A few of the plaintiffs allege that they were cited and convicted for violating the helmet law after the Bianco decision, even though they lacked actual knowledge of their helmet's non-compliance with Standard 218. Even were we to declare that the helmet law was unconstitutionally vague as applied to those plaintiffs, however, such a favorable decision would not redress the injury allegedly suffered by the plaintiffs because the complaint seeks only an injunction against future enforcement of the helmet law. Any past injury suffered by the plaintiffs does not give them standing to enjoin future enforcement of the helmet law.

Insofar as the complaint seeks an injunction against future enforcement of the helmet law based on the possible vague application of the law to the individual plaintiffs, such a claim is not ripe for review. Where there are insufficient facts to determine the vagueness of a law as applied, the issue is not ripe for adjudication. See Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1441 (9th Cir.1996) (concluding that vagueness of one provision of a regulation was not ripe for review due to insufficient facts); Mack v. United States, 66 F.3d 1025, 1033 (9th Cir.1995) (holding that the vagueness of Brady Handgun Act not ripe for adjudication in suit for injunction, but could be raised as a defense in the case of an unlikely criminal prosecution of law enforcement agents), cert. granted, --- U.S. ----, 116 S.Ct. 2521, --- L.Ed.2d ----, 64 U.S.L.W. 3829, 64 U.S.L.W. 3837 (U.S. June 17, 1996) (Nos.95-1478, 95-1503).

The plaintiffs have not pointed to any cases in which a motorcyclist's guilt or innocence turned on whether the motorcyclist's receipt of ambiguous information regarding a helmet's compliance with Standard 218 was sufficient to satisfy the helmet law's "actual knowledge" requirement. Examining the vagueness of the helmet law as applied to plaintiffs would require us to speculate whether a finding of "actual knowledge" of a helmet's non-conformity based on such ambiguous information would make the helmet law unconstitutionally vague as applied to a motorcyclist. The standing requirements of Article III do not allow for such speculation. In the context of Easyriders' request for an injunction, Easyriders' vagueness challenge to the helmet law does not satisfy the Article III case or controversy requirements. Easyriders' vagueness claim is dismissed.

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