Legally Speaking – with Bob Mionske: The break-down lane

By Bob Mionske

Dear Bob,
I have a question about getting harassed by police here in the NewYork/New Jersey area, and wanted to ask what you would do in that situation.First incident, I am waiting at a light, it turns green, and as I proceedthrough the intersection, I drop my chain. No cars coming from the rightside (which would be right on red anyhow), and I have the green. I stoptwo feet from the curb to put my chain back on, I am there for literallytwo seconds when I hear barked behind me, “are you going to get out ofthe road or am I going to have to give you a ticket,” by a police officer.

I said, “Excuse me, my chain just dropped, sir,” but I was infuriatedbecause I felt that he would arrest me just for speaking, since he hadthreatened me with ticketing even though I hadn’t done anything wrong.It really ruined the rest of my ride, because I felt he had harassed mefor no reason other than that he wanted me out of the road at that second.Do you have the same vehicle rights during a break down, and, giventhat I was two feet from the curb, he could have easily gone around me.What is the best response in a situation like this? I felt like saying,”you should be protecting me from all the drivers that don’t care if theyhit me and kill me, but instead you are enforcing a law that does not exist.”In another incident, I was about to take a left hand turn on a narrowtwo lane road. If I went all the way to the double yellow line, invariablysomeone from behind would come too close, plus I don’t want to be hit fromthe other direction. I make a mistake and am one block (one block!) toosoon, meaning, I have to go two blocks with my hand out instead of onebefore I turn. I jump almost out of my skin when I hear behind me a loudspeakerblasting, “If you are going to take a left hand turn get out of the middleof the road,” and something like “now move it,” barked at me once again.If I had been a car, he would never have dared say such a thing, andmoving back to the right would have endangered me unnecessarily. I believeI had the legal right to be there. Again, what is the law in this case,and how should I address his behavior?
Best,
Jen BenepeDear Jen,
Before I answer your questions, I’d like to let my readers know a littlebit about you. I don’t do this very often, but if I just used the initials“J.B.”, nobody would know that I was getting a question from a reader whois both the president of Hotvelocitiand the publisher of NYCycleNews.Hotvelociti is a manufacturer of brightly-colored cycling apparel designedto help you be seen on the road, and in her other role, Jen keeps New Yorkersup-to-date on all the latest in Bicycle and Alternative Transportationnews.  Speaking of news, I’d like to invite all of my readers to hearme talk on the rights of cyclists on BicycleRadio, a web-based radio program focused on our favorite subject. Iwill be a guest on Tuesday, October 23; you can “tune in” to hear me liveat 7 p.m Pacific Time.Now, on to your questions. This week, we’re going to take a look atyour first incident; next week, we’ll cover the second.So what happens when you have a breakdown? Do you have the same rightsas the operator of a motor vehicle? Generally, yes, although the answerwill always depend upon the particular circumstances of that incident,and the relevant law in that jurisdiction.It appears likely that you were stopped in compliance with the law regardingdisabled vehicles. Under New York City and state law, a bicycle is nota “vehicle,” however, in the city a cyclist is subject to the NYC TrafficRules, and as in virtually every other state, under New York state law,a bicycle has all of the rights and is subject to all of the duties applicableto the driver of a vehicle.From your description of the incident, it is not entirely clear exactlywhere in the roadway you were stopped when you were warned to move yourbike, so I’m going to assume the most likely scenario—that you had completelycrossed the intersection before you stopped your bike. Although the NYCTraffic Rules prohibit stopping in a number of locations, they do makean exception for disabled vehicles, allowing the operator of a disabledvehicle to push it to the “side of the road so that it obstructs trafficas little as possible.” After pushing it to the side of the road, the operatormust remove the vehicle “expeditiously.” Therefore, you appear to havebeen operating within the law: you stopped your bike two feet from thecurb, in compliance with the law, and were in the process of reaffixingyour chain, also in compliance with the law.Is that all there is to know, then? Maybe not. Despite the rule allowingthe operator of a disabled vehicle to push it to the side of the road,NYC traffic law also allows law enforcement officers to disregard any traffic“rule in order to expedite the movement of traffic or to safeguard pedestriansor property.” Furthermore, operators of vehicles “must at all times complywith any direction given by a law enforcement officer.” Therefore, if anofficer gives an order that is in contradiction of the traffic law, theoperator a vehicle is required to follow that order. It is conceivable,for example, that a law enforcement officer could order the operator ofa disabled bicycle onto the sidewalk, even though you are not requiredto do so by law.This is where it all gets a bit tricky, however. Under New York statelaw, you are also required to comply with the “lawful orders” of a policeofficer. What does “lawful order” mean? In one case, People v. Donovan,a New York court held that a motorist was not required to obey an orderto “move on,” because the driver was intoxicated, and the officer was ineffect ordering her to commit an illegal act. So there’s a bit of conflictbetween the state law and the city law here, because the state law saysthat you have to obey a lawful order, while the city law says that a policeofficer may disregard traffic laws in order to expedite the movement oftraffic or to safeguard persons or property. How do you resolve the conflict?I think the most reasonable resolution is that you are required to obeythe officer’s order. Because the rule regarding disabled vehicles is aNYC traffic rule, you would be required to obey a law enforcement officer’sorder in regard to your disabled vehicle.In this incident, however, you were not ordered to violate a trafficlaw. In fact, it is unclear exactly what it is you were being ordered todo. The officer asked “Are you going to get out of the road, or am I goingto have to give you a ticket?” Arguably, that could be interpreted as anorder to remove your bicycle to the sidewalk. However, it is also a threatto issue a citation, which implies that you were in violation of one ofthe traffic laws. The officer was obviously mistaken in believing thatyou were in violation, and if you had been cited—keeping in mind that it’sunclear what you would have been cited for—you could have probably beatthe ticket in court.Now suppose you were being threatened with a citation for failing tocomply with the directions of a law enforcement officer—would that havestuck? It’s doubtful, because you hadn’t yet been ordered to comply withthe officer’s directions when the threat was issued. Therefore, the mostlikely scenario is that the officer was threatening to cite you for violationof one of the prohibitions on stopping, and that the officer either didn’tknow or didn’t care that you are allowed under law to push your disabledvehicle to the side of the road.You’ve raised two questions here. The first, “What is the best responsein a situation like this?” Clearly, arguing with the officer at that timeand place would not be the best response, because the officer hadalready threatened to issue a citation. Let’s assume that the best responseis one that neither inflames the officer’s passions nor surrenders one’srights. At that time and place, then, the best response would be to say“My chain just dropped, and I have pushed my bike to the side of the road,in compliance with New York City law. Is there a problem, officer?” Withthis response, the cyclist has done three things. First, the cyclist hasinformed the officer that the bicycle is temporarily disabled. Second,the cyclist has informed the officer that the cyclist is in compliancewith the law regarding disabled vehicles. Third, the cyclist has askedthe officer to state his legal basis for objecting to her actions. Becausethe cyclist is in compliance with the law, the cyclist shouldn’t be subjectto citation, and if the cyclist is cited (presumably for a violation ofthe prohibitions against stopping, standing and parking), the cyclist candefend against the ticket by arguing that she is in compliance with thelaw regarding disabled vehicles. For comparison, it is inconceivable thatthe operator of a disabled motor vehicle, who is in compliance with thelaw regarding disabled vehicles, could nevertheless be cited for violatingthe prohibitions against stopping, standing, and parking. Now, let’s consider the following response scenario:

Officer: “Are you going to get out of the road or amI going to have to give you a ticket?”
Cyclist: “My chain just dropped, and I have pushed my bike tothe side of the road, in compliance with New York City law. Is there aproblem, officer?”
Officer: “Yes, it’s not safe there.”
Cyclist: “Officer, under NYC traffic law, I’m not breaking anylaws.”
Officer: Maybe, but you’re blocking traffic, and it’s not safethere. You need to get your bike off the road.”

Under this scenario, the officer has directed the cyclist to get off theroad—even though she is otherwise in compliance with the law—both in orderto expedite the movement of traffic, and in order to safeguard the cyclist.Although she is still not in violation of the law, her refusal to removeher bike to the sidewalk would probably be grounds for citing her for failureto comply with the directions of a law enforcement officer. Thus, althoughthe cyclist should respond in a manner that neither inflames the passionsof the officer, nor surrenders her rights, once the officer gives her anorder that she is reasonably capable of complying with—for example, “getyour [disabled] bicycle off the road”—she is probably required to obeyit.Now, as you noted, “I felt like saying, ‘you should be protecting mefrom all the drivers that don’t care if they hit me and kill me, but insteadyou are enforcing a law that does not exist.’” From the perspective ofthe officer ordering you off the road, despite the likelihood that he wasaware that you were not violating any law, his order would probably bebased on an interest in protecting you from being hit and killed. If thatis the case, what you wanted to say would probably not get you far withthe officer—or with the court.  The second question raised by thisincident is what issues of law you should raise with the commanding officer.This task is complicated by the fact that relations between cyclists andNew York City have been tense since the 2004 Republican Convention; thus,efforts to address the issues raised in this incident may fall on deafears. Nevertheless, you should consider the following points in your letterto the commanding officer: Clearly, although a bicycle is not a vehicle, a cyclist has all ofthe rights and is subject to all of the duties applicable to the operatorsof vehicles. Therefore, when a bicycle becomes disabled, the law allows a cyclistto push the bicycle to the side of the road, and requires the cyclist toremove the bicycle “expeditiously.” It is inconceivable that the operator of a motor vehicle, havingjust pushed his vehicle to the side of the road, and who is expeditiouslymaking a minor repair, could be ordered to immediately remove his vehiclefrom the road or be subject to citation. A cyclist is subject to the same set of traffic rules, and so shouldbe accorded the same rights—and in fact, under New York state law, whichis applicable in New York City, cyclists are accorded the same rights asoperators of motor vehicles. Therefore, a cyclist whose bicycle has just become temporarily disabledand who is otherwise in compliance with the law regarding disabled vehicles,should be treated the same as any other operator of a disabled vehiclewho is in compliance with the law.Next week, we’ll take a look at your second incident. Before I finishhere, I’d like to remind my readers that, as I’ve mentioned in my recentcolumns, I am currently planning a series of speaking engagements acrossthe country in conjunction with the publication of my new book, Bicycling& The Law. If you would like me to appear to speak at yourevent or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com.I’m looking forward to meeting as many of my readers as possible, and willbe announcing the first leg of my speaking tour very soon. And finally,don’t forget to “tune in” to hear me live on BicycleRadio on Tuesday, October 23, at 7 p.m.
Bob
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

FILED UNDER: Uncategorized