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Legally Speaking with Bob Mionske – Good night and good luck

  • By VeloNews.com
  • Published Feb. 5, 2009
  • Updated Feb. 5, 2009 at 3:57 PM EDT

By Bob Mionske

The first time I saw a copy of VeloNews, it was still a newspaper. It was the early 1980s and I had just ‘discovered’ the sport. A friend had an extensive collection of VeloNews, and I just pored over the back issues with a religious fervor in between rides, learning the names of the cycling stars of the late ’70s and early ’80s. A few years later, when I first saw my name in the back section that listed local and national results, it was a proud moment indeed!

Over the years, I occasionally submitted a race journal or cold weather riding tips—hey, if you survive winter riding in Wisconsin, you are a de facto expert!

Then, a few years out of law school, I proposed a bike law column to then online editor Charles Pelkey (who himself is about to graduate from law school in May), and Legally Speaking was born. The column evolved as did bike racing and the cyclist’s rights movement. Charles suggested I write a book, and along with Rick Bernardi‘s help and the guidance of VeloPress, it became a reality, the first book for cyclists on their rights and responsibilities since “The Road Rights and Responsibilities of Wheelmen” was published in 1895.

Thus, it is with mixed feelings that I now announce that this is my last Legally Speaking column. I am confident that the coverage of important legal issues that face all cyclists will continue at VeloNews in some form. For my part, I intend to keep up the fight for cyclists’ rights and continue to write and speak on the subject.

For this last column, I would like to point out some of the high points and low points of bicycle law, and look positively to a future where we are not only treated with respect on the roadways, but in fact, are appreciated by society as a whole.

More cyclists on the road

The good news is that cycling’s popularity is on the rise, both as a sport and as a healthful, cost-conscious, environmentally-friendly way of getting around. Witness the 100 cyclists who will pay $500 each for the opportunity to follow the pro peloton across the Golden Gate bridge on stage 2 of the Amgen Tour of California. Or witness the increased numbers of people riding bikes just to get around. Wherever you look, from London, to New York, to Portland, to Adelaide, and all points between, more people are riding. Even China, the onetime Bicycle Kingdom that saw a shift to private automobiles as prosperity increased, is seeing renewed interest in cycling as Chinese professionals rediscover the joys of cycling. This increased popularity means more cyclists on the road, and more cyclists on the road means safer road conditions for all cyclists.

The bad news is that more cyclists on the road doesn’t necessarily result in immediate safety gains, and may in fact lead to increased injuries, as both cyclists and motorists struggle with a new learning curve; new cyclists may not understand safe cycling practices, and drivers unaccustomed to seeing cyclists on the road will have to learn safe driving practices.

Cycling fatalities

The good news is that after a rash of fatalities in Portland, Oregon in 2007, there were no fatalities in 2008. This, despite an increase in the number of cyclists in 2008. Three factors account for the decline in fatalities. First, immediately following the fatalities, Portland addressed cyclist safety at problem intersections by installing green bike boxes and green through-lanes for cyclists. The green color alerts drivers that they must remain behind the bike box, and that there is a bike lane proceeding straight through the intersection. Second, there was an increased awareness of road safety in Portland following the fatalities; hoping to increase that sense of awareness, the City instituted a series of safety events for cyclists; no corresponding events were conducted for motorists, however—a lesson we could learn from the London Borough of Lambeth, which has instituted mandatory training for truck drivers and voluntary training for cyclists. Third, the increase in the number of cyclists that Portland saw leads to a safer road environment for cycling, as drivers learn to adjust their behavior in response to more cyclists on the road.

The bad news is that cycling fatalities have continued unabated elsewhere, with the news from New Jersey being particularly bad—cycling fatalities doubled in New Jersey last year. The increase in fatalities is attributed to an increase in the number of cyclists on the road. This seems contradictory to the experience in Portland, but we have to remember that there’s a learning curve for both cyclists and motorists. For cyclists, that learning curve means learning to ride safely. For motorists, that learning curve means learning to adjust to the presence of cyclists on the road. Experience demonstrates that as the number of cyclists increases, safety will eventually increase as well. The danger is that cycling fatalities may have a chilling effect on cycling; as Jen Benepe reports, cyclists have been avoiding roads where fatalities have occurred.

Prosecutions

The news is generally bad—prosecutors continue to fail to file appropriate charges when cyclists are injured or killed. Sometimes that failure is because they are unable to file charges; sometimes it is because they are unwilling to file charges. Dr. Ed Farrar was critically injured by a driver who tried to retrieve his clipboard as he was approaching a curve in the road. Despite the possibility that gross negligence was involved (and thus, making a charge of reckless driving appropriate), the driver was only charged with negligent driving. Despite his injuries, Dr. Farrar was lucky—he survived his brush with death. Autumn Grohowski did not survive her encounter with a drunk driver.

As in Dr. Farrar’s case, the prosecutor declined to file appropriate charges against the driver, who was eventually convicted of driving under the influence, careless driving, and not yielding to railroad warning signals. Or take the case of Sheriff’s Lt. David Dillon, cut down by a driver who was paying more attention to his cell phone and stereo than he was to the road. The charges filed? Unsafe overtaking/passing, and failure to wear a seat belt. In New Mexico, Anthony Lemieux was killed by a driver who hit him from behind; no charges were filed. In New Jersey, Camille Savoy was killed by a driver who crossed the white line where Savoy was riding; again, no charges were filed.

Police and prosecutors will sometimes claim that the law doesn’t allow them to file more serious charges. This was the erroneous claim that police made in Dr. Farrar’s collision, and it was the erroneous claim that the District Attorney made in the wake of Lt. Dillon’s death.

And sometimes, the law doesn’t allow prosecutors to file more serious charges, a point, argued eloquently by an Assistant D.A. in my column Can’t we do better?, who identified the lack of appropriate laws as a failing of the legislatures.

The problem is clear. First, we need appropriate laws on the books to address the severity of the offense when a driver’s negligence results in another person’s serious injury or death. This lack of appropriate laws in Oregon has led to the Bicycle Transportation Alliance lobbying the state legislature for a Vehicular Homicide law in 2009. This effort follows on the heels of the death of cyclist Tim O’Donnell. O’Donnell was killed by an unlicensed driver who made an illegal and unsafe pass; she was charged with careless driving, passing in a no-passing zone, and driving with a suspended license.

Second, we need appropriate enforcement. In Dr. Farrar’s crash, police determined—erroneously—that reckless driving charges were not applicable, because the driver did not “intend to hurt anybody.” As I noted in Yet another collision, intent is not an element of a reckless driving charge. As the Bike Writers Collective proclaims in its Cyclists’ Bill of Rights, “”Cyclists have the right to the full support of educated law enforcement.” This provision addresses the problem we saw in the Dr. Farrar collision—an uneducated law enforcement agency attempting to determine appropriate charges. And interestingly, this is the provision that ran into trouble at the Los Angeles City Council.

Third, we need prosecutors who have the courage to file charges reflecting the seriousness of the offense. Too many prosecutors want to take the easy way out, filing charges on a minor offense like failure to wear a seat belt, or even by failing to file charges at all. If cyclists can be prosecuted for failure to license a bicycle, surely drivers who injure or kill can be prosecuted for the appropriate offense.

To be fair, some prosecutors do file appropriate charges. In Cupertino, Sheriff’s Deputy James Council is alleged to have fallen asleep at the wheel, drifting into the oncoming traffic lane, killing cyclists Matt Peterson and Kristy Gough. Council was subsequently charged with two misdemeanor counts of vehicular manslaughter.

And in San Diego, a drunk driver hit cyclist Edward Costa from behind, before leaving the scene; Costa died at an area hospital. Remarkably, three days later, while a vigil was being held for Costa at the site, the suspected driver was spotted driving into the parking lot of a bar across the street from the sopt where Costa was killed. The police were called, and Travis Weber was arrested on suspicion of felony manslaughter and hit-and-run. On January 21 of this year, Weber was in court for a preliminary hearing on a vehicular manslaughter charge.

Generally, the news is better when the injury is intentional, rather than negligent. In Los Angeles, Dr, Christopher Thompson began a confrontation with cyclists Ron Peterson and Christian Stoehr that escalated into an assault against the cyclists when Thompson swerved in front of them and slammed on his brakes. Thompson was arrested, and recently pleaded not guilty to felony charges of reckless driving causing injury, battery with serious injury, causing great bodily injury while attempting to commit a felony, and mayhem.

Likewise, when James Millican used his car to assault Portland cyclist Jason Rehnberg, he was charged with unlawful use of a weapon, attempted assault, and driving under the influence.

And when a Toronto cab driver used his cab to assault cyclist Chris Kasztelewicz, virtually severing Kasztelewicz’ leg as he was pinned between the cab’s bumper and a utility pole, the driver was charged with six serious counts: aggravated assault, assault with a weapon, hit and run, criminal negligence, dangerous operation, and attempt to obstruct justice.

Road Rage

The bad news is that road rage incidents involving cyclists dominated the summer news last year. In some of those incidents, the rage was directed towards cyclists by motorists; in others, the rage was directed against motorists by cyclists. In a notorious later incident we witnessed a new phenomenon — bike-on-bike road rage. Although things seem to have quieted down since then, it is virtually certain that we will see more road rage incidents, as anti-social hotheads erupt in conflict over scarce roadway territory.

The good news is there’s a way out of that vast Hobbesian jungle, red in tooth and claw.

Scofflaw Cyclists

The scofflaw cyclist is the single-most cited reason for the animus directed at cyclists. Scofflaw cycling is a massive public relations problem for cyclists, and as long as that public relations problem exists, all cyclists will continue to pay the price in the form of an anti-cyclist bias that is “validated” by some cyclists acting out anti-social stereotypes. That bias manifests itself in a media that never fails to mention scofflaw cycling in any story involving an innocent cyclist and an at-fault motorist, as if the mere existence of scofflaws absolves all motorists of any liability. That bias is at the root of a law enforcement that always seems to find a reason not to charge the at-fault motorist, and it’s on display in the jury that is increasingly siding with motorists, no matter how strong the evidence.

Sure, motorists break the law too. Everybody knows that. But scofflaw cyclists seem to delight in taking it to extremes rarely seen in motorists, behaving as if none of the rules of the road apply to them. Their anti-social behavior is toxic, and it’s hurting cycling.

Bias

Scofflaw cycling is the tip of the iceberg threatening cycling. The hidden mass of that iceberg is the societal-wide bias against cyclists that manifests itself as media bias, law enforcement bias, justice system bias, and a general social bias. Many of the outrageous events of last year were rooted in a bias against cyclists.

In Pima County, Arizona, a Sheriff’s Deputy deliberately drove at the Shoot Out peloton, causing a mass pile-up. When informed that he had caused a crash, he replied “good.”

In Larimer County, Sheriff Jim Alderden began enforcing his own erroneous interpretation of the law, refusing to accept that his interpretation was incorrect, even after being informed of that fact by the law’s author. When cyclists complained about the tickets they were receiving, Sheriff Alderden replied with a reference to “getting out of Dodge.”

In New York, a police officer assaulted a critical mass cyclist, and then lied about the assault in his report of the incident. Unfortunately for the rookie officer, video footage of the incident contradicted his police report account, and he was stripped of his badge and gun pending the outcome of an investigation.

In Pennsylvania, a jury sympathized with the drunk driver who attempted to flee after running 19-year old Autumn Grohowski down, finding him not guilty on a hit and run charge.

In New Mexico, police failed to press charges against the driver who killed cyclist Anthony Lemieux when she hit him from behind.

In New Jersey, cyclist Camille Savoy was killed by a driver who veered across the white line demarcating the shoulder. Police failed to file charges.

In La Tuque, cyclist Serge Venne was killed when a lumber truck made an unsafe pass. The city responded to Venne’s death by banning winter cycling, even though winter conditions had nothing to do with the truck’s failure to pass safely.

The list goes on. The good news? There isn’t any. Cyclists will need to remain vigilant in the fight against anti-cyclist bias.

Bicycle Bans

The bad news is that some localities still respond to the presence of cyclists on the road by banning cyclists. Sinead FitzGibbon of Spokes People reports that the village of Sag Harbor on Long Island banned bicycles on Main Street, to accommodate parking for cars. Despite a ban being illegal under New York state law — a fact acknowledged by the police chief and village council — the ban remains in effect, under the argument that there are “exceptional circumstances” justifying the ban.

Think that’s bad? It gets worse. On the evening of January 6, 2009, Serge Venne was riding home in La Tuque, Quebec when a lumber truck made an unsafe pass. He was caught by a hook protruding from the truck, dragged under the wheels, and killed. The police reported that ice and snow on the road played no role in the crash. Nevertheless, La Tuque city hall responded to the crash by banning winter cycling.

The good news is that these bans don’t really seem to take hold. In December, the long-running controversy over the Crawford County ban on RAGBRAI was resolved when Crawford County rescinded its ban. It remains to be seen what will happen in Sag Harbor and La Tuque, but you can bet that cyclists won’t take these brazen violations of their rights laying down.

Bicycle Laws

The good news is that bicycle laws are becoming increasingly cyclist-friendly. Recently, Congress included the Bicycle Commuter Act in the $700 billion bailout of the financial sector. Representative Earl Blumenauer (D- Oregon), the main impetus behind the Act, is working with Representative Jim Oberstar (D- Minnesota) to include $2 billion of shovel-ready bike projects in the $800 billion economic stimulus package President Obama is pressing Congress to pass. If these two powerful Democrats are successful, the bicycle provisions will be awaiting the signature of a President who repeatedly stressed the importance of cycling as an alternative form of transportation, and the administration of a Secretary of Transportation who is friendly to cycling.

The bad news is House Minority Leader, Representative John Boehner (R- Ohio), recently displayed his contempt for including bicycle infrastructure in the stimulus package. The good news is, Representative Boehner is not in power.

The state legislatures are increasingly receptive to laws protecting the rights of cyclists. In South Carolina, the state legislature passed the Bicycle Safety Bill, which requires that motorists leave a “safe passing distance,” criminalizes verbal and projectile assaults, and eliminates the requirement that cyclists must use an adjacent recreational sidepath. Not to be outdone, Massachusetts just passed its own Bicyclist Safety Bill. This bill addresses several common problems cyclists face from motorists, including unsafe passes, the infamous “right hook,” and the equally infamous “left cross.” The most unique feature of the new law is its requirement that police recruits will be required to receive training on bicycle-related laws, bicyclist injuries, dangerous behavior by bicyclists, motorists actions that cause bicycle crashes, and motorists intentionally endangering bicyclists. The training is optional for in-service training of experienced officers.

The training is optional for in-service training of police officers. MassBike reports that it has “developed a police training curriculum, which will be revised to reflect the new law.”

The bad news is that many state legislatures have yet to address the problems facing cyclists in any meaningful way. In Illinois, the state legislature has yet to undue the second-class status imposed upon cyclists by the State Supreme Court in the infamous Boub case.

This failure of the court and the legislature is tempered somewhat by Chicago’s adoption of its own Bicycle Safety Ordinance. This ordinance, sponsored by cycling enthusiast and Mayor Richard Daley, requires safe passing of cyclists, prohibits dooring, “left crosses,” and “right hooks,” requires motorists to “exercise due care,” and raises the fines for motor vehicles parked in bike lanes.

In Los Angeles—Los Angeles, of all places!—the City Council voted to preliminarily adopt a Cyclists’ Bill of Rights. Once adopted, the Cyclists’ Bill of Rights will become a part of the City of Los Angeles Bicycle Master Plan. When I wrote “Bicycling & the Law,” I opened with the observation that

Gaining the right to the road was the cycling cause of the late nineteenth century; securing that right will be the cycling cause of the early twenty-first century.
In conclusion of that book, I called for
a second civil rights movement for cyclists. It’s time to build on the work of Albert Pope and the 1880s generation of cyclists. It’s time to press for a Cyclists’ Bill of Rights.

Within a year and a half of writing those words, the Bike Writers Collective, in pursuit of a common vision, made that dream a reality.

Thank you to all of you for your interest in and contributions to my Legally Speaking column; without you, the column could not have been the success it is. Although this is my final Legally Speaking column for VeloNews, it is not a goodbye; I will continue to be active writing, speaking, and fighting for the rights of cyclists. You can check out my website for my latest news and updates at www.bicyclelaw.com. I also have a new bicycle law and advocacy blog on my website, at www.bicyclelaw.com/blog/; I will be updating it regularly with new content, including, most recently, a continuing multi-part series on the “Stop-as-Yield” law proposed for Oregon. Finally, there’s one other exciting change to my website—Velologue, my new blog about bicycle culture and politics. You can link to it from www.bicyclelaw.com, or you can access it directly at www.velologue.com. I hope you will visit both sites regularly.
Thank you,
Bob

(Research and drafting provided by Rick Bernardi, J.D.)




Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem. If you have a cycling-related legal question please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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