This page contains several accounts of cyclists victimized in various ways by the American Justice System. In most cases, this involves an unjustified citation by police for what was safe and legal bicycle operation on the roadway according to the standard "rules of the road".
Another problem is official indifference to cyclists -- denying them equal protection under the law that should be guaranteed under our legal system. In cases dating back to 1903, a few courts have ruled that municipalities are not obligated to maintain highways for use by cyclists. The outcome of these cases may have been quite different if the courts had been properly educated about cycling.
Cyclists' legal defense must always be properly prepared. Better to suffer
in silence than mount an inadequate court case and lose. These cases can serve
as a lesson for other cyclists and their counsel to help respond to, or prevent,
Selz was brought to trial on February 7, 2000 in Montgomery County, District Court (case no. 99-TRD-4409, unreported). He was represented by "Bikelawyer" Steve Magas of Cincinnati, www.bikelawyer.com/. At trial, Judge Connie Price found Selz guilty and imposed a fine of $100 plus court costs.
Because the case could have set a terrible precedent to deny cyclists access to arterial roads, the Ohio Bicycle Federation decided to help him appeal his conviction and established the Ohio Cyclists' Defense Fund to raise funds for the appeal and for any future such cases. In return, the OBF obtained a valuable collection of documents about the case including: (1) The Defendant’s Trial Brief. (2) The Trial Transcript (which cost the defense $200). (3) The defense appeal brief. (4) The prosecutor's appeal brief. (5) An article by attorney Magas, "The Selz Case Revisited - an Important Decision for the Nation's Bicycle Operators" These are all available on the OBF Web Site.
We can learn a great deal from this case. Selz was charged with "impeding traffic" but the real issue beneath the surface was safety. At trial, the officer claimed that Selz would have caused an accident and indeed, that she prevented this "accident" by issuing a ticket. She also testified that she had warned Selz a month before about making what was apparently a proper vehicular style left turn.
The scene of "the crime"
The prosecutor claimed that since the cyclist could not keep up with other traffic (speed limit 45 mph), he must get off the road any time there were vehicles behind him. Note, this is a five lane road with two lanes for each direction plus a turn lane. Thus, any delay to other traffic would be minimal. What delay does occur is primarily because traffic "platoons" at stop lights. The presence of a cyclist simply redistributes the delays already existing in the system.
The prosecutor would have banned cyclists from the road any time other traffic might be affected. He offered a useless concession: "Frankly, if it's 2:00 in the morning and there's no traffic around, there's no reason why he can't be on the roadway going eighteen or twenty miles an hour..."
Attorney Magas, gave a vigorous defense, arguing eloquently that cyclists are part of traffic and thus meant to be on the road. "Mr. Selz wasn't impeding traffic, he was traffic ... So he now becomes one thread in the fabric of traffic, if you will, along with the horses or whoever else -- the Amish buggies, whoever else has a right to use the roadway and is lawfully using the roadway."
The defense had an expert witness to testify about safe and proper cycling methods. However, the prosecutor offered to "stipulate" that the witness would testify that Selz was "operating his bike in a reasonable fashion". Stipulating prevented the defense from exposing the ignorance of the police officer or educating the court about correct cycling, especially lane position.
Attorney Magas explained his reasoning for not pressing for his witness being allowed to testify: I didn't see the need to waste the court's time by putting him on the stand to say the same things that the prosecutor agreed to. That would have angered the court. In addition, from a tactical perspective, putting him on the stand gives the prosecutor the chance to cross examine him and try to poke holes in the testimony. Mr. Byrum was a very nice guy, but NOT a professional expert used to being grilled by prosecutors! I was a bit worried that he might say something or agree to some question that might have helped the prosecution. Since the prosecutor stipulated to the good stuff, I felt we were OK in keeping him off the stand!
Officer Vance made several statements that implied that Selz was operating recklessly and dangerously. These were not refuted by the defense, likely to avoid calling attention to this issue and because the judge would tend to believe the officer over the defendant. "[He was riding] in the middle of the roadway and sometimes veered over to the traffic lane, the marked lanes there." Question: "Now, is it your testimony that an accident was imminent had you not stopped him? Is that what you're saying?" Answer "I believe so." She described an incident a month earlier where he had merged to the turn lane as follows: "... he had traveled across two lanes, the divider lane and then the northbound traffic, and it was like he was oblivious to the other traffic traveling so I pulled him over ... and tried to explain to him why it was so dangerous and to please avoid either driving on Salem Avenue or ride to the side of the road."
Statements by the police officer show that she is ignorant about bicycle operation, particularly lane position: "Yeah, I've ridden a bike. I know enough to ride to the side of the road. You have X amount of feet you're allowed from the curb." The officer's last statement is wrong. There is no law saying "You have X amount of feet", although Ohio does have a bad law for motorized bicycles that requires riding "when practicable within three feet of the right edge of the roadway." Riding so close to the edge is not a safe practice.
The officer exaggerated, claiming that traffic had to stop (rather than just slow) behind Selz even though he was moving 14-18 mph and by insisting he was in the middle of the lane rather than in the right tire track. Unfortunately, her ignorance was not pointed out to the court and her testimony was accepted. The judge believed the superstition that cycling on this arterial road is "dangerous", thus she ruled Selz guilty.
I have three theories to explain Officer Vance's claims: (1) It is possible that she was correct that Selz does ride dangerously; but from other testimony, this seems extremely unlikely. (2) The officer is clearly ignorant about cycling and afraid of traffic. This would strongly color her perception and may cause her to "see" things incorrectly. (3) She may have realized that she made a mistake but lacked the courage to admit it and instead embellished her testimony to make Selz look bad.
This author and three other board members of the Ohio Bicycle Federation visited the scene on Aug 31, 2003 (see photo above). Our unanimous opinion as cycling experts (two of us certified cycling instructors) is that Salem Ave. is quite suitable for cycling by an experienced bicycle driver. In addition, the correct position on this roadway is near the middle of the lane. The claims by the police officer and prosecutor that Selz should not have been on that road or that he should have been riding further to the right are simply wrong. These people are not qualified to specify the methods of bicycle operation on a road such as Salem Ave.
Selz was required under Ohio law to ride "as near to the right side of the roadway as practicable." Considering the condition of this road, especially the width of the traffic lane, we conclude that riding closer to the right edge of the roadway would be less safe and is therefore not practicable. Indeed, this cycling expert would ride a bit more to the left on that road.
Trotwood claimed to have "highly trained" officers, including a police bike patrol. Perhaps the Trotwood bike patrol is "highly trained"; but they failed to exert a beneficial influence on the conduct of this case. From their testimony and actions, the officer, prosecutor and judge involved in this case were badly misinformed about bicycle operation. These Trotwood officials need training about bicycle driving.
A specific bicycle "Drivers Ed" training course for police officers is available through the International Police Mountain Bike Association. In addition, Ohio has several certified civilian cycling instructors, including this author. One of us could be engaged to provide a seminar. There is also the National Police Bicycle Awareness Curriculum produced through a grant from the National Highway Traffic Safety Administration.
Magas give a short "history of bicycle operation on roadways", including the fact that "Bicycle operators played a critical role in the betterment of the nation’s highway system." He described the police officer and prosecutor actions as attempting to banish bicycles from major roads by raising an impossible standard -- riding at the 45 mph speed limit. "The SOLE reason for issuing the citation was ... his slow speed..."
Magas ignored the police officer's contention that Selz was about to cause an accident. He did not attack the officer's ignorance. Apparently he was trying to avoid calling attention to her claims that Selz was riding erratically, "veering toward traffic". "Over a defense objection, the court allowed Officer Vance to testify about a prior 'warning', which she had given to Appellant. Other than provide Officer Vance with a motive to target Appellant on the day in question, this testimony clearly lacks relevance."
The defense strategy may have invited trouble on the subject of lane position by giving the following comment without discussing the reasons cyclists should sometimes NOT ride at the edge of the road. "A bicycle operator’s right to use Ohio’s roadways is clear from the inclusion of bicycles as 'vehicles.' Bicycles may be operated on the roadways, but must be ridden 'as near to the right as practicable.'"
Magas summarized his primary claim: "Clearly, it cannot be seriously disputed that bicycling is encouraged by the State of Ohio and State Legislature and that bicycle operators have a RIGHT to use Ohio’s roadways and a RIGHT to expect some accommodation stemming from physical limitations inherent in the vehicle! Local police authorities cannot simply unilaterally take on 'parens patriae' duties out of some vague opinion that operating a bicycle in a particular neighborhood is bad, or dangerous or crazy! Here, the appellant/cyclist was at home in traffic, was riding appropriately and had every right to use the roadway in question. Appellant cannot be BANNED from the road because he was going slow for the Officer’s sensibilities. It is undisputed that he was traveling as fast as he could and traveling at a reasonable speed for a bicyclist!"
Magas quoted a statement by the judge that reveals her ignorance of cycling: "I certainly understand the impassioned defense on this case because I do believe that bicyclists need a place to ride and it is not safe a lot of times to ride it on the streets on 49. I don’t think I’d ride there at 2:00 am, just because of the traffic. I don’t think it’s safe." [Emphasis added.] Then Magas added: "Again, this is precisely the sort of 'parens patriae' approach that caused cyclists to fight for being included as 'vehicle operators' under state law. With all due respect to the court’s opinion, it really does not matter whether the court, the prosecutor or the arresting officer 'feels' it is safe. The legislature has already determined that cyclists have the right to use the roadways."
Magas ended by defining "Parens patriae": "Curiously, 'Parens patriae' originates from the English common law where the King had a royal prerogative to act as guardian to persons with legal disabilities such as infants, idiots and lunacy. Black’s Law Dictionary, 5th Ed., 1003. It is submitted that this 'prerogative' does not exist today to give police officers the authority to ban legal behavior they feel contains some element of danger."
The prosecutor changed his strategy for his appeal brief. Rather than continue with the untenable argument that a cyclist must travel at the speed limit or get off the road, he tried to ex post facto accuse Selz of violating the requirement to ride "as near to the right side of the roadway as practicable." He partly succeeded in this duplicity. Here are two of his statements: (1) "The lower court, therefore, correctly found that by going at such a slow speed, coupled with driving in the middle of the lane rather than to the right, that the cars behind Defendant/Appellant were forced to stop, thereby unlawfully impeding traffic." (2) "For argument purposes only, the City would concede that a different case might be presented to this Court if the testimony by the Officer, or the facts as found by the lower court, were that the Defendant/Appellant was driving as far right in the lane as practicable."
Steve Selz celebrates
The appeals court effectively declared that Selz violated §4511.55: "Selz was not charged with the violation of R.C. 4511.55(A). Had he been, the evidence in the record would be sufficient to support a conviction on that charge." There are three serious problems with this statement: (1) Since Selz was not charged with violating §4511.55(A), he did not defend himself against this charge. (2) His expert witness was not allowed to testify about bicycle technique. (3) The appeals court essentially invited Trotwood to cite Selz again but this time using §4511.55(A).
The justices had no business discussing their view of any perceived violation of §4511.55(A) (the "far right rule") because Steve Selz was not charged with such a violation, the case was not tried on this issue and the judge did not use the "far right as practicable" language in convicting him. The SOLE issue in the appeal was whether a violation of the "impeding traffic" statute was justified on the evidence presented, ASSUMING the best possible spin on the evidence in favor of the prosecution!
Another troubling aspect of this case is the dissenting opinion of Judge P.J. Grady, who obviously considers cyclists to be inferior road users: "The elements of the necessity defense implicate the greater issue of whether Selz should have been riding his bicycle on Salem Avenue at all under the conditions which then prevailed. Selz, who is a bicycle enthusiast, invokes an absolute right to do that. However, that assumes that other, reasonable alternatives were unavailable to him. It also 'trumps' whatever hazard his slow-moving bicycle created for other traffic on the road, which is a legitimate concern of the ordinance. Also, what was reasonable for Selz might not be reasonable for another, less able cyclist, who might claim the same absolute right."
The "Selz Case" has become internationally famous, in part because of postings on cycling Internet news groups around the world. It is also famous in the world of law. Attorney Magas notes: "On May 14, 2001, the court of appeals decision in the case of Trotwood v. Selz was officially 'published' in Ohio’s law books. Virtually every lawyer in the State of Ohio had the decision on their desks with the other cases published on May 14. However, more importantly, publication of the case greatly increases its precedential value to future cyclists who wish to challenge traffic citations."
The city of Trotwood received much unfavorable publicity, including critical emails from all around the world. This may have had some effect. At one time, one could read their lame excuses in answers sent to cyclist's emails on Riley Geary's web site "Trotwood Ohio - SHAME! (This article no longer available.) Perhaps this pressure influenced the Trotwood attorney not to appear at the appeals court hearing.
** Since this case, the Ohio Dept. of Public Safety has issued its own bicycle drivers manual, called Ohio Bicycling Street Smarts. A few other states have done likewise.  The commercial edition of Bicycling Street Smarts is also available on the Web.
Selz v. Trotwood inspired the Ohio Bicycle Federation to propose a
reform to the Ohio Revised Code that became effective (along with several other
reforms) in 2006. ORC §4511.22(A), the "Stopping or Slow Speed Rule" was
revised to clarify that it applies only to "unreasonably slow speed" also adding
"the trier of fact, ... shall consider the capabilities of the vehicle and
In fall, 2009, I had my first experience as an expert witness -- an impeding traffic case (alleged violation of Ohio §4511.22 the "Slow speed" rule). This was a parallel to Selz (see above). I believe that both the defendant and officer used bad judgment but the officer's error was much worse. The officer said he'd had IPMBA (bicycle officer) training, which makes his conduct even more inexcusable.
The incident occurred in Peninsula, OH, a small town in the Cuyahoga Valley Nat'l Park. The case involved two cyclists riding up a very steep hill on Oak Hill Rd off Wheatley Rd. Oak Hill is a very narrow road (~9' lanes) with limited visibility and little traffic. The steep section is about 1/4 mile long and (from the map) climbs about 160' before the hill eases. Then it climbs only another 50 feet in the next 1/4 mile. See map of the scene from this link.
The defendant represented himself (pro se). Neither he nor I had prior trial experience although he did get some advice via email from Bikelawyer Steve Magas. He was told to bring the Selz appeal's court decision to the trial.
Oak Hill Rd
The defendant had a few photos. Unfortunately, they were taken through the windshield of his car and did not adequately show how a car would fill the entire lane, not leaving enough room for passing a bicycle. However, you can see in the photo at right that there is very limited visibility.
I had suggested he also bring a copy of Ohio House Bill 389 of 2006, which includes revisions to the Ohio §4511.22 "Slow speed" law: (C) In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.
In addition, I provided an excerpt from the Guide for the development of Bicycle Facilities, which says that a shared lane should be at least 14' wide (except on a steep hill where it should be at least 15').
According to the police officer's testimony, when he turned onto the road he observed a car following two cyclists riding very slowly uphill. Because of the extreme steepness, the cyclists were "tacking" or weaving side to side.
Using his loudspeaker, the officer ordered the cyclists to move to the edge of the road. The woman cyclist was intimidated by "the voice of god" and moved over. Her companion assumed it was some jerk with a loudspeaker and ignored the order.
After a couple more orders to move over, the officer passed the car following the cyclist (this on a hill with very limited sight distance) and again ordered him to move over. The defendant yelled an obscenity and kept going. The officer than passed and stopped, forcing the cyclist to stop. He issued a citation for "impeding traffic".
The officer claimed the defendant had ridden left of the center stripe (which he denied) and claimed that he used the lights and siren on his cruiser (also denied). Since I was not there, I cannot say. However, sometimes police embellish their story to make it more convincing. (See Selz case above.)
The woman attended the trial. Before it started, she was asked if she would testify. She did not think it necessary, thus said no. When the officer claimed defendant had gone over the center line, she called out that is not true. The magistrate ordered her to be silent. Because she had not asked in advance to testify she was not allowed to testify. (If she had told the court that she planned to testify, she would have been "separated" so she would not hear other testimony before giving her's.)
There was another potential witness who had driven a sag wagon (stopped at top of the hill) but he was not present. Only the defendant and the officer were "witnesses of fact".
Based on the officer's testimony and from observing the scene, I believe the officer violated §4511.29, Driving to left of center of roadway in overtaking and passing traffic proceeding in same direction. This law requires: No vehicle or trackless trolley shall be driven to the left of the center of the roadway in overtaking and passing traffic proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made, without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken.
I testified that the road was much too narrow for within lane sharing and thus a "lane controlling" position was appropriate. Normally a witness does not dare to criticize the police least the judge becomes annoyed. (That is the attorney's job and we had no attorney.) I missed an opportunity to do so when the prosecutor asked me if I would have moved over. I simply said I would not want to get a ticket.
I wish I'd said:  I have been harassed by kids with a loudspeaker in their car. The best way of dealing with this is ignoring it so the situation does not escalate. Thus I would have maintained my position. Once the officer passed and I saw the police car, I hope I could control my temper better than the defendant. I certainly would have been very upset at a police officer putting me in danger by illegally passing and by ordering me to adopt an unsafe position on the road.
However. to avoid a ticket, I would have probably stopped and then later complained to the police captain or chief about the extremely poor judgement and unprofessional conduct of this officer."
Fortunately, the magistrate who heard the case took his time so he could read the materials provided by the defense. His decision echoed the Selz appeal decision, finding the defendant not guilty of the offense charged but suggesting he could have been guilty of 4511.55 (the "far right rule" in Ohio). The police officer got away with his reckless conduct. No charges were filed against him for his illegal passing on that hill.
If there is another incident like this, the police officer will write a citation based on §4511.55. Such a ticket might be harder to beat. We'll need an experienced lawyer and we will need to educate the judge and that may not be easy. Fortunately, the Ohio Bicycle Federation was able to get the Legislature to add a clarifying paragraph to this otherwise bad law:
(C) This section does not require a person operating a bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle and an overtaking vehicle to travel safely side by side within the lane.
The long-term solution to the problem of discrimination in law enforcement is to educate all of our society to overcome common fallacies about bicycle operation.
The "best" harassment case is the one that never occurs. This was the next best: a ticket that never got written. Frank gives a valuable lesson on how to keep your cool in dealing with a hostile law officer.
In 2003, when my wife, daughter and I rode coast to coast (E to W) we
crossed Lolo Pass in Idaho and camped a few miles beyond the summit, next to the
beautiful Lochsa river. We were looking forward to over 100 miles of
downhill on the two-lane road paralleling the river, and planning on riding it
with another couple of bike tourists we'd just met.
The next morning, we were leaving the campground, still in the process of turning left onto the narrow two-lane, when a state patrolman arrived in an SUV and began YELLING at us over his loudspeaker, telling us to stop blocking the road, to always ride single file, and that if we weren't in the bike lane, he'd ticket us. When our touring friend said "There is no bike lane!" he said "The bike lane is painted _white_!"
He was referring to the fog line, right at the edge of the narrow gravel shoulder.
We began carefully, respectfully asking questions, to which he snarled responses, telling us what the law required. Eventually I said I'd seriously be interested in seeing the [supposed] laws he referred to, since I teach bicycling. He growled that he would do exactly that after he checked on another problem, and "Don't try to get away." (As if we could on a mountain road with no intersections for many miles.)
We rode downhill a short distance to a large turnout and stopped. (Our touring acquaintances rode on, fearing a jail sentence.) The cop soon came zooming into the turnout, abruptly stopping with his front bumper just five feet from my daughter - a real intimidation move. He jumped out with code book in hand.
We were careful and respectful. When he said we were not allowed to ride two abreast and pointed to the law in the book, I pointed out that it said "not _more_ than two abreast." When he talked about how we could get hit from behind, my daughter talked about how much more likely it was to get brushed into the gutter by a motorist trying to sqeeze by when they shouldn't. We talked about our years of experience and our legal right to the road, and that we were all about safety.
Amazingly, after half an hour, he had calmed down to being reasonable and even friendly. He ended by shaking hands with us and wishing us a good ride. And apparently, he then visited the couple that had abandoned us. When we later met them, they said "What did you tell that cop?? He was all smiles, and even offered to get us some cold water!"
I'm not quite sure how we pulled that off. It certainly felt like a situation rife with hazards - including, perhaps, never making it to the Pacific. But I'm certain that our tactic worked better than giving him the finger!
I was riding southbound on US 528, intending to zip through Rio
Rancho. US 528 is a 5 lane road with no shoulder and a 45 mph speed
limit. The outside lane is shareable, so I was riding within a foot of the
white line at about 22 mph. Traffic was moderate and passing me smoothly
within the lane.
A police officer was on the side of the road issuing a ticket to a motorist as I was approaching a red light. As I pulled to the middle of the right lane to get in line at the light, the officer waved me over, and instructed me to get on the sidepath, which was about 30 yards to the right of the roadway. I told him I didn't believe there was such a law requiring me to use the sidepath, but if there was, he'd better cite me because I didn't intend to comply with it otherwise.
So it turns out that the City of Rio Rancho has a mandatory sidepath law. I tried to explain to him the dangers of sidepaths, but he wasn't interested. After he issued the ticket, I asked what would happen if I then continued on the roadway, and he told me he would arrest me. I asked him if I could ride the 50 yards to the next intersection, where the sidepath met the road at a crosswalk. He instructed me to hike my bike through the sand and weeds directly to the sidepath.
The sidepath itself is a real treat. It's about 10 feet wide, with a stripe segregating 6 feet for bicyclists and 4 feet for pedestrians. At the first signalized intersection I came to, a sign was posted ordering cyclists to dismount and press the pedestrian signal button, so I complied. In order to reach the button, I had to step off the path and reach around the traffic light post.
After walking across the intersection, the path forked several yards further on. the "bicycle" portion of the path curved right and did not go straight, and since the officer was still in sight, I followed it not wanting a ticket for riding on a "sidewalk." The sidepath then took more than a hundred yards out of my way, and then abruptly ended at a cross street.
I was convicted by the Rio Rancho NM Municipal Court of riding on the roadway instead of a bike path. The judge was not interested in arguments about the municipal code conflicting with State law - "We're only concerned with the Municipal Code here - don't bring state law into this courtroom." The judge was also not interested in arguments about the safety or usability of the bike path - "The path is usable. I see people riding on it all the time." The case boiled down to this:
"Were you riding on the roadway?"
"Was there a sidepath where you were riding?"
The case was not appealed. Vance paid a $49 fine.
1) The sidepath law is wrong because it mandates a practice known to be dangerous. It also conflicts with state law.
2) Vance dared the cop to issue a ticket and so he did.
3) The police officer was not properly trained and he acted in an arrogant, unprofessional manner.
4) Vance was not permitted to defend himself. This trial is a disgrace to the American Justice System.
5) A cyclist needs good legal representation and the support of a defense fund.
Postscript by John Vance:
Following the trial, the Department of Public Safety worked with the cycling community to amend Rio Rancho's ordinances. Eventually, at the suggestion of the deputy Chief - who is a cyclist - the entire mess was tossed out on a 5-0 vote by the City Council. In its place the City adopted State law without modification. The State law is very brief. No mandatory bike lane or bike path law, so it's a major improvement. The new law came into effect roughly a year after I was ticketed.
The result of his appearance in court: "Court hearing scheduled for Thursday, September 7, 2000. Court decision -- CASE DISMISSED. The citing officer failed to appear!!"
Peter Rowinsky of Chelsea, was arrested and briefly jailed in May 2000 for disobeying a state trooper's order to get off Memorial Drive. The charges were dismissed. A year later, Rowinsky filed a lawsuit in Middlesex Superior Court, requesting a judge's order to prohibit State Police from stopping or arresting cyclists on any road where they may legally operate, and to guarantee that troopers will be trained on the law as it pertains to cyclists. The case was pending as of early 2002.
"This case has to do with cyclists' rights and cyclists being discriminated against by the State Police," said Rowinsky, 27, who rides as much as 150 miles a week commuting to and from the University of Massachusetts-Boston campus. "I'm out $400 in court costs and legal fees, but this case is much bigger than that."
Rowinsky was represented by cycling attorney and past MassBike president Andrew Fischer. Fischer assembled affidavits from several prominent cyclists to document a pattern of police stopping and removing cyclists from main roads. The cyclists include a professor of transportation engineering and a blind para-olympic cyclist. Another affidavit was filed by transportation engineer Paul Schimek, president of MassBike, who was pulled over on the Jamaicaway in 1998 by a trooper, who shouted at him, "Get on the path now! Get on the path now! Your head is going to be a sponge." Fischer also added documentation from when he was stopped illegally on a state highway and told to get on the sidewalk.
Police question whether cyclists have a right to ride on those busy roads. But even if they do, State Police say paternalistically, the troopers' primary role is to ensure public safety, and as a result, they claim they are duty-bound to move cyclists off the narrow, crowded thoroughfares to avoid what they say would be more deaths and injuries.
The Metropolitan District Commission is a state agency created to oversee water resources and parklands in and near Boston. The MDC manage the parkway roads through these lands, including the roads on which Rowinsky and other cyclists were confronted. The MDC and state police claim that the existence of a multi-use sidepath allows them to forbid cyclists from using certain parkways and state roads. The MDC claims the right to do this based upon its interpretation of a regulation that was intended to regulate mountain biking in parklands
Massachusetts General Laws ch. 85 sec. 11b explicitly permits cycling on "all public ways" except for divided, limited access highways where signs prohibiting cyclists have been posted. However, the MDC and state police claim that their regulation is equivalent to state law, and thus creates a legal 'gray area'. Barring a clear answer from the state court, they agency asserts that its troopers will "continue to err on the side of caution" by prohibiting cyclists from whichever parkways they choose. This issue should have been settled in the early 1980's when John Allen successfully defended against a similar citation (see next story).
State Police Lieutenant Robert Ryan said patronizingly: "What we're saying is, `You have a legal right, but do you have a moral right?'" "Someone could get extremely hurt," Ryan continued. "A road like Memorial Drive has 9 1/2-foot wide lanes, which is much smaller than the normal 12 feet, and traffic is driving faster than the posted limit. All we're saying is, get on the sidewalk for your own safety."
Interestingly, the troopers said nothing about enforcing the speed limit or citing motorists who drive dangerously. Nor do they seem to care that bicycle accident studies show that sidewalk or sidepath cycling has about two to nine times the collision rate as the adjacent roadway.
You can follow progress of the case at http://bikeattorney.com/
The path was not a convenient route and, more important, in addition to the usual dangers of a sidepath, it was nighttime, the path was poorly lighted and little patrolled. A few months earlier a friend had been attacked and injured while cycling on this path. When Allen politely refused to leave the road, and indicated he was within his legal rights, he was issued citations for riding a bicycle in an area not set aside for such use, and for disobeying the order of an officer.
At the trial, Commonwealth vs. Allen, Brighton District Court docket #27268, February 8, 1984, he presented a certified copy of the applicable laws and regulations, indicating that the MDC regulation (rule 8), requiring that bicycles be ridden only in areas set aside for such use, applies only to parklands. Bicycles are specifically defined as vehicles in the MDC regulations (CMR 350, definitions page, rule 22) and are permitted on roadways in consequence of this rule and of MGL Chapter 85, Section 11B. Soldier's Field Road was posted "for pleasure vehicles only." The bicycle weighs considerably less than the weight limit for this category, thus it is legal on this road. The judge dismissed both counts.
After the trial, Lloyd Smith, the MDC prosecutor, claimed that Allen had won
on a "technicality", because the MDC had not presented the right regulations in
court. Allen pointed out that if bicycles were prohibited on MDC parkways
and bridges, it would be impossible to use a bicycle for transportation in the
Boston area. Allen asked Smith to read paragraph 22, which defines
bicycles as vehicles, but he refused. He said he would order MDC police to
continue to ticket cyclists.
Ironically, the MDC haven't shown any particular concern for cyclists on their sidepaths, either. I became involved in bicycle advocacy after I was driven off one such sidepath by an MDC maintenance vehicle that was driving along it -- on the sidepath! -- directly into my path and in clear violation of their own posted rules that prohibit motor vehicles on the path. When I complained, the fellow (who turned out to be an MDC supervisor who was in charge of all maintenance and construction on the entire Southwest Corridor, a six-mile-long swath that contains a subway and Amtrak train route in and out of Boston) immediately called a nearby state police officer who dragged me off my bicycle, hauled me around like a sack of potatoes, and at one point, made a fist and shook it at me while he screamed at me.
After describing this incident to the MassBike list, I was contacted by
[attorney] Andrew Fischer, who was then and still is working on the case of
Matthew Graney, a cyclist who broke both his elbows when he hit a huge mulch
pile placed squarely in the middle and entirely blocking this same path.
Jenney, a 44 year-old electrical engineer and father of two, has commuted by bicycle for 25 years. He admitted riding through a red light and riding on the centerline of the road while passing stopped traffic. Rather than charging Jenney with a moving violation, the prosecution filed a criminal charge that carries a possible $200 fine and up to six months in jail. The police claimed that they were doing this for Jenney’s "benefit", to dissuade him from bicycling in an "unsafe" manner. Apparently, riding on a state road, where the cyclist might get in the way of or pass cars stopped in traffic, is operating a bicycle in an unsafe manner, according to the Wilmington police.
Route 62 in Wilmington, has one lane in each direction and no shoulder. At the time of the alleged offense, the right edge of the road was impassible in places due to snow banks and potholes.
Paul Schimek, president of MassBike slammed the criminal charge saying: "Based on the police report, Jenney may be guilty of going through a red light, and if so he should be given a moving violation. But if he is convicted for disorderly conduct, every bicyclist in Massachusetts will have to fear arrest if he delays other traffic even an instant. Since it is impossible to bicycle or drive a car--without sometimes having others wait for you, bicyclists will have to stick to cars, where they will be free to delay traffic as much as they like."
At the trial November 29, Middlesex County Assistant District Attorney Michelle Boltz stated "I think [Jenney] purposely set out to create a hazardous condition that served no legitimate purpose,". Jenney's attorney, Andrew Fischer, www.bikeattorney.com countered "Riding a bicycle to work is a legitimate purpose."
Officers Martignetti and Chalifour testified they have received training as bicycle officers. However, neither had any familiarity with the works of John Forester or John Allen, two experts in the field of bicycle safety. Based on this lack of knowledge by the officers and the lack of any evidence of "disturbing the peace", Fischer requested a required find from presiding Judge Jonathan Brant, who found Jenney not guilty, after agreeing with Fischer that if Jenney had violated a traffic ordinance or ridden unsafely he should have received a $20 ticket but not charged with a crime.
The judge called Jenney negligent, saying "It does not appear to have been very good bicycle riding," but he found no grounds for recklessness.
Attorney Fischer stated "[This case] demonstrates the severe need for good bicycle safety education." During pre-trial hearings, he offered to coordinate a training program with MassBike and the town of Wilmington on the proper operation of bicycles. "The refusal of the offer clearly demonstrates that the intention of the Wilmington Police Department is not the safety of cyclists, but to get cyclists off the roads," Defendant Jenney offered the D.A. and Wilmington officers a copy of John Allen's booklet Bicycling Street Smarts: Riding Confidently, Legally and Safely. They declined.
In an article on the case, Ride Magazine concluded: "Cyclists can consider this a small victory only, and one of little consequence. By simply finding Jenney not guilty, the court has changed nothing with regard to enforcement. No action will be taken to educate the Wilmington Police about what Fischer called "the great body of knowledge that exists about safe cycling practice," which they admitted not being familiar with. Cyclists will simply have to wait until another such case occurs and fight again."
Because Ms. Cooper was caring for her 80 year old mother who had just undergone surgery, she decided to defend herself in absentia by means of a written description of the incident as appears below. Unfortunately, her defense was not successful. She called the trooper afterwards and discovered why he issued the citation and from this, what she perhaps should have included in her defense. I have added a few comments in italics to indicate changes she told me she wishes she had made.
Editor's comments: Lauren was at a huge disadvantage in not being present at the trial. She could not cross-examine and thus discredit the testimony of the police officer. I also wonder whether she might have done better if she had used a more forceful manner as a bicycle expert rather than so much pleading with such phrases as "respectfully submit" and "humbly request".
Charge: violation of §46.2-877 "Impeding The Flow Of Traffic"
Plea: Not Guilty
To the Honorable Judge:
Please forgive my absence from court, and allow me to plead not guilty and defend myself in absentia through this brief document. My 80-year-old mother is undergoing surgery, and I am needed to care for her afterwards. A note from her surgeon is attached at the end. I deeply appreciate your patience and understanding in this matter.
This incident occurred as I was bicycling on Rt. 151 just before the curve that appears in the two included pictures. Rt. 151 in this area is very narrow, with a mixture of medium-to-high speed traffic and slow vehicles including bicycles, school buses, and farm machinery.
I was southbound, approaching the blind curve. There were only two other vehicles visible on the road; the full-size pickup truck that struck my hand from behind, and a witness somewhere else (Trooper Phillips has his name). I was not in any way swerving about, but was riding in a straight line roughly 3-4 ft. from the right edge of the road, roughly in the right-hand tire track.
I could hear the motorist behind me was not slowing down as we approached the blind curve. A glance in my rear view mirror confirmed that he was crossing the double-yellow line intending to pass. I put out my left arm in a vehicular "slowing" signal to warn him. I did not hear him slow at all; it sounded like he was speeding up. So I extended my left arm and flashed my hand open and closed, simulating the emergency flashing light of a motor vehicle, trying to warn him that he was creating an extremely dangerous situation by attempting to pass on a blind curve, and to give him an idea of what safe passing distance was. Obviously he was going even faster than I anticipated, because before I could pull my hand back in, he struck it very hard.
We both pulled over, along with the witness. My hand was swollen and bruised, but after waiting over an hour for police to show up, it was clear that there was no major injury, other than being so shaken up that I could barely write my report. I declined any medical aid other than to ask Trooper Phillips for an icepack, but he said he didn't have one.
My defense follows (pg. 2, photos of road, not included):
In defense against the charge of impeding the flow of traffic, I respectfully submit the following points for your consideration:
1-- I respectfully submit that the primary rule for safe practice by
bicyclists is the very first law listed in the VA State Vehicle Code:
§46.2-800: "Every person riding a bicycle... shall have all of the rights and duties applicable to the driver of a vehicle."
As I'm sure you know, traffic laws have been derived from decades of study by traffic engineers and safety experts. I respectfully submit that these laws reflect the safest way known for sharing public roads; applying the same principles, the same rules, and the same rights, to every individual who uses a public roadway; and holding each individual responsible for their behaviour, and their behaviour alone.
2-- I respectfully submit that I was operating my vehicle in a responsible, cooperative, and safe manner. No line of traffic was being impeded since only one vehicle was behind me at the time. I respectfully submit that it is safe and reasonable to expect a vehicle operator behind me to slow down for 20-30 seconds and wait to pass safely on a narrow blind curve. This is done for school buses, farm vehicles, left-turning vehicles, and others. All other road users that morning had managed to pass me safely, politely, and cooperatively, without significant delay.
3-- I respectfully submit that my left arm was extended in a legal and proper manner; first in a legal "slow" signal, and then to simulate the emergency flashing signal of a motor vehicle. These lawful signals are described in §46.2-849 and §46.2-888.
§46.2-849. How signals given.
... Whenever the signal is given by means of the hand and arm, the driver shall indicate his intention to start, stop, turn, or partly turn, by extending the hand and arm beyond the left side of the vehicle .... §46.2-888. Stopping on highways; general rule.
... In the event of such an emergency, accident, or breakdown, the emergency flashing lights of such vehicle shall be turned on ...
I used these signals to help the motorist understand that I was operating a slow vehicle; that the motorist was creating an extremely dangerous situation by attempting to pass on a blind curve; and since it soon became clear that he would try anyway, to give him some idea of what safe passing distance was, since "squeezing" past a bicyclist or pedestrian is neither safe nor lawful.
§46.2-838. "The driver of any vehicle overtaking another motor vehicle proceeding in the same direction shall pass at least two feet to the left of the overtaken vehicle."
§46.2-839. "In approaching or passing a person riding a bicycle, ... the driver of a motor vehicle shall pass at a safe distance and at a reasonable speed."
§46.2-843. "The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made safely."
§46.2-854. "A person shall be guilty of reckless driving who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver's view along the highway is obstructed ..."
4-- I respectfully submit that my position on the road was lawful and proper.
Bicyclists, like everyone else, must practice safety, first and foremost.
AASHTO (American Association of State Highway and Transportation Officials)
guidelines define any lane narrower than 12’ as too narrow to be shared between
motorized and bicycle traffic. No law requires cyclists to "squeeze over"
in such hazardous situations. In a narrow lane, doing so only encourages
motorists to "squeeze past", endangering everyone around.
Should have stressed that the "road lane in question was too narrow for a bicycle and another vehicle to pass safely side by side within the lane."
§46.2-905 defines safe practice for bicyclists:
"Any person operating a bicycle ... shall ride as close as practicable to the right .... EXCEPT... when passing ... preparing for a left turn ... when reasonably necessary to avoid conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, pedestrians, animals, surface hazards, or substandard width lanes ... too narrow for a bicycle and another vehicle to pass safely side by side within the lane."
Should have deleted extraneous conditions (left turn, avoid conditions,
etc.) to focus on the narrow lane. Should have included the following:
"Please note that state law specifically precludes the shoulder of the road from this consideration:"
§46.2-100. Definitions. "'Roadway' means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the shoulder."
5-- Given these laws, I humbly request that you please consider dismissing the charge against me as unfounded, as well as a misapplication of the statute. While the majority of provisions in §46.2-800 through 999 refer to a "vehicle" or "driver", a few like this one specifically apply only to a "MOTOR vehicle".
Should have emphasized that my position on the road was lawful and proper
... traffic law clearly states that bicyclists do not stay right in narrow
lanes; despite the personal opinions of less experienced cyclists, and others,
who often firmly believe that cyclists should always do so. Traffic and
cycling safety experts recognize that 'squeezing over' in a narrow lane
encourages motorists to 'squeeze past', and endangers everyone around. I
respectfully submit that the safest practice for bicyclists in such conditions
is again defined in the general law:
§46.2-800: "Every person riding a bicycle... shall have ALL OF THE RIGHTS and duties applicable to the driver of a vehicle."
§46.2-877. Minimum speed limits. "No person shall drive a MOTOR vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law. ...."
6-- Closing Argument.
I respectfully submit, for the courts' consideration as my closing argument, the following editorial that appeared in the Daily Progress newspaper of Charlottesville Va., concerning a bicyclist-motorist safety campaign that I was involved with. Lauren ended her material for the court as follows:
Finally, I would very much appreciate your help in understanding one thing:
I do not understand why I was ticketed and the motorist was not. This troubles me because it seems to me that, by ticketing me and NOT the motorist who hit me, Trooper Phillips has in effect ruled in advance for the motorist: that it's ok to hit a bicyclist if you think they're in the wrong place on the road.
I would be grateful to have some explanation of this so that I may hear about it later and understand why. Thank you for your patience and help.
Thank you very much for ALL your time and consideration of this matter.
Respectfully and with gratitude,
Ms. Lauren Cooper
Attachments: (not included here)
full text of applicable Virginia laws
Doctors Medical excuse
Postscript: Lauren posted the following on a newsgroup: I have paid my fine and did not plan to appeal my case, but the area cycling group has been pursuing a conversation about it with the judge. Recently, the judge said that the trooper and other driver claimed I was weaving down the road. I just received the original report and statements, which clearly state that I was "holding a line". So it's being pursued, tho I don't know exactly how.
Lauren's fine was originally to be $60 but was raised to $80 after the trial.
My wife and I were pulled [over] this morning by a cop for allegedly impeding traffic! We were right next to the police station, so went there to discuss the situation with superiors. We will be waiting to hear from the police attorney.
The road is 5 lane (center TWLTL) Airport Rd, speed limit 35, moderate traffic, probably mid 20 something thousand per day. Fairly busy at 8:30 am. Outside lane 13ft from edge of virtual gutter pan to line. I say virtual because the 2' wide pan is paved over to the curb. There are periodic 2' wide sunken drainage grates that have diagonal obstruction striping from the curb outward (courtesy of my vigilance to mitigate a dangerous situation caused by NCDOT disregarding their own standards).
The road is slightly downhill where we were first signaled to pull over, and we were going 20-25 mph. Shortly ahead, there is a 10% grade on a limited sight curve on which we break the 35 mph limit.
Ms. Police officer was irate at us. At first she was in the left lane, pulled next to me, and pointed at me (I was in front of my wife) to pull over. I refused because there was no good spot, at which point she got pissed and swerved behind me, causing my wife to have to yell.
So we pull over and she starts in. Turns out that while NC has an "as far right as practicable rule" that is generic to vehicles, Chapel Hill unbeknownst to me has one targeting bicyclists. I should have known that existed, but was complacent enough to think that in this liberal college town that allegedly promotes cycling there wouldn't be an ordinance more restrictive than at the state level. I of course should KNOW that there would be even more restrictions in a place that is "bicycle friendly" but I never bothered to check it out.
Anyway, I'm not at all worried. The police won't push it because of all the work I've done for them, my reputation here as a bicycling expert, and their desire to not have egg on their faces through any newspaper column I might write, which I do a lot of. Besides, my defense of what we were doing is defensible. I'll crush that local ordinance.
Sue and I will use this as an opportunity to educate the police, at a minimum, here. Even with our discussion, Ms. Police officer still thinks she is right. We will make her apologize and vow to uphold bicyclists' right to use of the full lane.
Postscript: The police spokeswoman called to say that the attorney decided we weren't impeding traffic. I'm going to set up a meeting with the police chief, who allegedly said, "If I knew it was Wayne, I'd have come out to talk to him." The police do like me because of the work I've done for them and the town, a pro bike cop article I wrote, and my position against Critical Mass. My aim is to get the initial officer to acknowledge that she will uphold bicyclists' right to the road, instill some bicycling education into the police force, and to obliterate anti bicycling ordinances.
The Illinois Supreme Court in Boub versus Wayne Township ruled in a 5:4 decision that cyclists are not "intended" users of roadways unless the roadway is signed as a bike route or marked with bike lanes. This causes several problems: 1) It unfairly puts cyclists at risk; 2) There is a liability disincentive to providing safety improvements for cyclists; (3) It is more evidence of cyclists being denied equal rights under the law; (4) It makes "bike advocates" even more anxious to push for bicycle facilities in order to make communities respond to hazards.
Interestingly, at least one cycling expert thinks that the court could have ruled against Boub because he may not have used reasonable care in crossing a bridge that was obviously under repair. Such a ruling would have avoided this bizarre opinion.
John Forester offered this analysis of the "unintended user" issue of the
The categories of permitted highway user and
intended highway user were put into Illinois law to protect the government
from liability for injuries to some users caused by defective highway design
or maintenance. One question is whether or not this is good public
policy. It costs more to maintain a roadway in condition for bicycle
traffic than it does for only motor-vehicle use.
In the Boub Case, the court referred to an earlier decision of the same court, Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992). "To determine the intended use of the property involved here, we need look no further than the property itself. The roads are paved, marked and regulated by traffic signs and signals for the benefit of automobiles.
Brian DeSousa commented on the court's reasoning:
The discussion about permitted vs. intended
roadway users in Illinois has centered around the determination of which class
cyclists fall into. The underlying assumption is that automobiles fall
under the intended user class. We should turn the argument around and
ask ourselves how automobiles (actually drivers of automobiles) became the de
facto intended users.
Read about this infamous case and see a photo of the bridge. And read the Illinois Supreme Court Opinion from the court's web site.
A few excerpts from the Appeals Court reveal bizarre reasoning similar to that in the Boub Case: "Here, as in Boub, the street where plaintiff was injured was not marked or signed to reveal an intent on the part of the city that plaintiff ride her bicycle there." Commenting on the plaintiff's claim that since she was barred from riding on the sidewalk, she must be expected to ride on the street, they answered; "The consequences of such a proposition would be untenable. Consider, for example, a municipality that has banned smoking in its government buildings. Although the municipality might permit smoking in the outdoor areas surrounding those buildings, it would be absurd to conclude that the municipality intended for people to smoke in such areas." To equate cycling with smoking is an insult to cyclists. In addition, a municipality that permits smoking in some area would be negligent to store combustible materials there.
Further evidence that cyclists are second class citizens in Illinois: "... it is our intent that when riding a bicycle, you use marked bicycle lanes, where we have assumed a duty to provide safe passage." The decision was summarized as follows: "Because the street where plaintiff was injured was not marked or signed to suggest that it was intended for use by bicycles, and because the Code contains no provisions that suggest that defendant intends, rather than permits, bicyclists to use the city streets, plaintiff is not entitled to damages under the Tort Immunity Act."
In the Boub and Latimer cases, the Illinois courts have declared that cyclists are intended to ride only in marked bicycle lanes. If they venture out of those lanes, then cyclists cannot expect even "ordinary care" from those who maintain the roadways.
You can read the official decision on the Latimer case on the Appeals Court website.
Turned out I was charged, under VA law, prosecuted by a US attorney because this was within a national park, with impeding traffic and using an access-controlled road. I wrote to the prosecutor pointing out that under VA law impeding traffic applies only to motorists, not to donkey drivers or cyclists, and it is not lawful to close a road to any particular kind of traffic without posting signs informing the public. Since the signs said only NO TRUCKS, then bicycles were permitted.
The prosecutor admitted that neither of those charges would fly, but demanded that I go to the courthouse in any case. I went, which I shouldn't have done, for then he had the police officer arrest me on the new charge of riding a bicycle on a national capital park road without the permission of the superintendent of parks. That was a fake charge too, because the law obviously meant that cyclists were permitted on roadways, and on other places where the superintendent permitted, but the prosecutor worked up the charge as if cyclists needed permission for both roadways and other places. Not that anybody who rode on the numerous national capital park roads ever asked for permission, and not that there were any signs posted giving permission where people rode every day. But I was convicted anyway.
The highway there, as I remember, was three lanes. And, of course, crowded with holiday motor traffic. We two cyclists rode along with the traffic, until I heard, behind me, the telltale sound of the microphone of a loudspeaker system being picked up. The county sheriff ordered us off the road onto the bikepath. We didn't change our course, which upset the sheriff some, and he tried to get ahead to steer us over. I seem to remember riding up on the left-hand side of the sheriff's vehicle so that I could talk to him through his car window, which annoyed him some more. We pulled into a shopping center parking lot, where I told the woman to get lost, ride off to get her toothbrush and leave the cop to me.
I sat on the porch of a real-estate office and started to refresh my thirst from my water bottle while the cop lectured me. I got the whole spiel, from all the money spent on that marvelous bike path to the crowded condition of the round-the-lake highway, but, of course, I knew that California not only had no mandatory-bike-path law but also had a law that prohibited any local authority from enacting one. After listening for 40 minutes, during which I told him that I was the bicycling expert from the Legislature's committee on California vehicle law regarding bicycles, and other things which he didn't believe. At one point, I said that California had no mandatory bikepath law, and if he wanted to find that out he should radio his headquarters and get the real truth. When I had refreshed my thirst from my second bottle, I told him that I had no need to listen to his lecturing any longer and stood up to leave. His hands shot out halfway across the space between us, then just hung there in midair as he realized the situation he would be in if he touched me. I told him that since I was not violating any law, he had no justification in detaining me, and that therefore there was no proper business between us, and I could move on whenever I pleased. So I did, while he stood there after wasting more than 40 minutes, but, possibly, getting an education while doing it.
If you cross the bridge northbound on the proper side of the road, the eastern side, you find that you have to descend a long stairway to get to where the trail again follows the river. However, if you cross the bridge on the wrong side of the road, the western side, you find that there is a nice smooth grade to descend. There was another complication in that the west side of the bridge itself, but not its approaches, was equipped with a horse path.
Naturally, most cyclists, whichever way they are going, use the western side. So King, eastbound, came off the trail and turned left onto the bridge roadway, climbing up the wrong side, while Lechner, westbound, was descending on his proper side. There was some misunderstanding about which side they should pass each other, and they collided head on. Lechner had his face chewed up by the guard rail. Lechner sued both King and the County. I assisted King's attorney.
In essence, the road was fine, it was the connections between the path and the roadway that were misleading and dangerous. When I was deposed, the County's attorney asked enough questions to determine that the road was of standard design. He then stopped questioning me. Had we gone to trial, he would have been completely surprised by the argument that I would have presented, because he didn't ask any questions about what my other opinions were. However, Lechner's attorney quit the case, saying that I hadn't presented his argument (and he didn't pay me, either).
It is never the function of the expert being deposed to present a case; his sole function in deposition is to answer whatever proper questions the opposing attorney asks. As it is, because the opposing attorney didn't ask the right questions, he was quite in the dark about what the case was really about. Lechner's attorney was incompetent. Had he wanted, by California law he could ask me questions to elucidate points that he thought were ambiguous or not stated, but he didn't do that, either.
Yesterday, as I was completing my training ride
(trans-am 2002) I was buzzed by a police officer. Returning home I
travel down a one way, two lane city street. Catching the light just
right, I managed to turn onto the street and get up to the speed limit (25,
downhill) before the light released traffic behind me. After 3 cars
passed me, I was startled by the super loud buzzer that police use to move
traffic out of the way. He passed by and pulled me over. His
reasoning? He feared for my safety in traffic. He thought that I was
impeding traffic and someone might take offense.
Clark said he had been riding about three to four feet from the curb in the right-hand lane. He had moved toward the center line so motorists rounding a nearby curve would be better able to see him. The officer said "This piece of road isn't safe enough for a bicyclist; you have to use the sidewalk." She used the example of a police car doing 60 mph in the 40 mph zone coming around the curve and hitting the bicycle. (Apparently this officer thinks she has the authority to drive recklessly. Official policy limits police cars to not more than 15 mph over the posted speed limit in such a case, and then only if such speed is safe.) She claimed he created a dangerous traffic situation and thus issued a citation for obstructing traffic, under §10:54 of the city traffic code which states: "No person shall park any vehicle upon a street, in such a manner or under such conditions as to leave available insufficient width of the roadway for free movement of vehicular traffic."
"The problem is that at no point was I stopped or parked," Clark said. "It's a little bizarre."
Ann Arbor Police Department Deputy Chief Lawrence Jerue said he was confident the ticket would not have been issued unless there was a problem. "The officers are highly educated and well-trained in both criminal statutes and traffic code," he said. "The officer has the discretion to issue violations when he or she sees fit, and I value their opinion in assessing that."
The charge was later amended to alleged violation of §10:170: "All bicycles when operated on roadways shall be kept to the right and shall be operated as near as practical to the righthand edge of the highway except when making left turns and when through traffic is not permitted in the right lane, provided that on one-way streets they may be operated on the far left-hand edge of the highway of the roadway as practicable." (Note the local ordinance says "as near as practical" rather than "as near ... as practicable" as in Michigan state law.)
Clark fought the ticket. Under the Michigan Vehicle Code cyclists are entitled to use the road. Ann Arbor cyclists are often harassed by angry motorists and police for using the public roads in a city that touts itself as "bicycle and pedestrian-friendly".
Below are Clark's comments on the case:
... the City Attorney's office is trying to
throw out Effective Cycling. The attorney is arguing that the ordinance
(and law) do not allow for cyclists to use more than the rightmost usable 2'
of roadway under any circumstances except riding abreast. In particular,
the Ann Arbor Attorney is arguing that using three feet of the roadway to
improve sight-distance on a blind curve is illegal.
John Forester offered the following analysis of this case in a message on a forum for Cycling Instructors.
The real substance concerns two things: the safety of cyclists versus the convenience of motorists, and the law regarding faster vehicles overtaking slower vehicles. It doesn't really concern the side-of-the-road law; that's just an excuse for prosecuting cyclists. Here is the Ann Arbor City Attorney questioning [expert witness and cycling instructor] Reuben Chapman:
Q: So, which way is it, is the right-hand lane of Plymouth Road to be shared with motorists by bicyclists or is -- are motorist to defer to bicyclists in every instance; in other words, does the bicyclist have the upper hand on that -- that's --- let me restate the question -- strike all of that. Let me put it another way.
In your affidavit you say, therefore, the right-hand lane of Plymouth Road was built to be shared with motorists and bicyclists such as Mr. Clark. Is the bicyclist supposed to actually share that right lane with the motorist or is the motorist required to give up that lane if the bicyclist decides that the best place for him or her to ride is in the location where the motorist cannot pass in that lane?
The correct answers to such questions are that the motorist has the right to continue in the use of that lane, that nobody is denying him that use. However, the motorist has to obey the laws that all drivers have to obey, and one of those is that one must not overtake unless the overtaking movement can be made with safety. If the motorist cannot overtake safely, then he is prohibited from trying to overtake. The problem is the unsafe behavior of motorists, not the allegedly unsafe behavior of the cyclist.
The point has been made already in this case that on this right-hand curve motorists habitually drive very close to the curb, much closer than they do on the straightaway. I say that this is very likely to be a correct observation because I often have observed this situation in similar locations. When motorists rounding that curve in their habitual manner encounter a cyclist ahead, they have to take abrupt evasive action because they have already steered their car on a collision course.
In other words, the danger consists of motorists rounding a curve on the assumption that the lane ahead would be clear, and then, when they see the cyclist ahead, abruptly swerving around him, instead of slowing and waiting until they can overtake in the proper manner.
The appropriate action by the cyclist riding through this area is to ride further to the left so that motorists approaching from behind are clearly told that at this location it is unsafe to try to overtake in the same lane, that they either have to change lanes to overtake or slow down until the road straightens again, when overtaking in the same lane become safe again.
The point has already been made by Ken Clark that this is precisely the effect that he has observed. In other words, his experience was that staying far right produced evidence of incipient collisions (horns, braking noises, etc.), while staying further to the left produced no such evidence.
The trouble with both the state and the local statutes is that they ignore the safety of the cyclist, insisting that the convenience of the motorist takes priority. That is exactly the point of view that is made by the substance of the questions that the Ann Arbor Attorney asked in Chapman's deposition. That is exactly the point that Ann Arbor is trying to make in its prosecution of Ken Clark. This demonstrates that the side-of-the-road laws should be rendered invalid by judicial opinion because it is an improper use of the police power to make the convenience of motorists superior to the safety of cyclists.
The city prosecutor had contended in her brief:
"The bike ordinance cannot be interpreted to allow for defendant's (Ken Clark's) safety considerations. Applying the common definitions quoted above [the brief cites dictionary definitions of "near," "practical" and "practicable"] only permits construing the bike ordinance to require operation at the shortest distance from the right side of the road that the rider is physically capable of effecting." In essence, Ann Arbor argued that cyclists must hug the right side of the road at all times EVEN IF IT IS UNSAFE.
Fortunately, Judge Goodridge rejected this position in her opinion, which she delivered orally. The Court specifically noted that the City Ordinance (and the Michigan Vehicle Code) were drafted to ensure the safety of both cyclists and motorists, and that the words "practical" (used in the Ann Arbor Ordinance) and "practicable" (used in the State MVC) allow the cyclist to use a "certain degree of discretion" in determining what is a safe distance from the curb to ride.
Applying this interpretation of the law to the facts of the case, the Judge noted that Ken Clark testified that he was operating his bicycle in a manner calculated to provide for his safety.
In 2005, Ann Arbor received a Bicycle Friendly Communities Award despite the callous disregard for cyclists' safety shown in this case. So far as we know, the city has never offered to reimburse the defendant's legal expenses nor even apologized, yet they were given this award.
Wherrett v. Doyle, 456 F Supp 203 (U.S. Dist. Ct. Neb. 1978). The plaintiffs were seeking access via bicycle on the shoulder of three interstate route bridges over the Missouri River between Council Bluffs, Iowa, and Omaha, Nebraska, (I-680, I-480 and I-80). They sued the director of the Nebraska Department of Roads, the Iowa District Engineer and the commander of the Iowa State Patrol.
The plaintiffs based their case on their right to travel and of being deprived of equal protection guaranteed by the Fourteenth Amendment. They claimed a discriminatory classification based on wealth has been established: "persons who can afford to operate automobiles are provided with avenues for travel and persons unable to afford automobiles but rely upon bicycles are deprived of such avenues." They asserted that bicycle travel on the paved shoulders of the interstate highways is safer than bicycle travel on most non-interstate highways and streets where bicycle riders are permitted to travel.
The defendants argued that restrictions on bicycle travel on interstates are a proper exercise of the police power for the protection of the health, safety and welfare of the traveling public. They also noted an alternative route for bicycle traffic exists, the Highway 275-92 bridge, known as the South Omaha bridge.
The defendants also claimed: "The drainage grates along the shoulders of the interstate bridges pose a particular threat to bicycle riders. The bars of the grates run parallel to the direction a bicycle will travel, creating a serious danger for bicycle riders. However, that design for the drainage grates has maximum hydraulic efficiency.
The plaintiff's claim for relief was denied. From the memorandum opinion: "This case concerns the question of whether bicycle riders who are prohibited from traveling on the interstate bridges have been deprived of equal protection under the law and their right to travel freely in and among the states. The plaintiffs are bicycle drivers who claim to use bicycles for business and pleasure driving. ..."
"... this court finds that bicycle riders on the interstate bridges, whether in the actual traffic lanes or on the shoulder lane, promote a dangerous and unsafe condition."
"It is the conclusion of this court that the regulation of traffic on the interstate bridges to the exclusion of bicycles is a proper exercise of the police power and is not arbitrary and capricious."
John Forester gave this review of the Omaha Bridges Case:
That case should not have turned out as it did. The problem was that the Nebraska DOT put up traffic engineers as expert witnesses, while the plaintiffs neither put up expert witnesses nor consulted with experts in bicycle transportation engineering. I have read the testimony of the Nebraska DOT traffic engineers, and an informed cross examination would have made them look silly. With no testimony to oppose the NDOT engineers, and no cross examination that disclosed the absence of science in their testimony, the court had no choice but to find as it did. The plaintiffs went to the trouble to start a case for which there was good evidence available, but then mismanaged the case and lost, thus making it harder in the future for vehicular cyclists.
The Nebraska DOT predictably brought forth its highway engineers (two, as I remember) to testify that riding a bicycle on the shoulder of an interstate highway was extremely dangerous because, primarily, of the danger of car-bike collisions. To that, they added the danger of the bicycle-wheel-trapping drain grates that were installed. A defense based on this combination of safety claims apparently surprised the plaintiffs, who should not have been surprised because the supposed dangers of cycling have always been the justification for limitations on bicycle travel. Because the plaintiffs had not recognized that the defense would be based on the supposed dangers of cycling, they had neither taken steps to present in their case evidence showing that shoulder cycling was safe and that such grates could be fixed at minor cost, nor, once that defense had been presented, did they prepare a rebuttal to the claims of the danger of shoulder cycling and of these drain grates.
There was, and never has been, any engineering or scientific evidence that cycling on the shoulders of interstates is unjustifiably dangerous; the testimony of the NDOT highway engineers could easily have been shown to be nothing but unsubstantiated superstition. As long as the permitted cycling route ran from the last on-ramp before each bridge to the first off-ramp beyond each bridge, there would be no traffic conflicts that would even justify concern.
As for the argument that the drain grates had to be of the wheel-trapping parallel-bar design because of its hydraulic efficiency, that argument had also been thoroughly refuted, and bicycle-safe drain grates had been produced. Had such facts been placed before the court by a qualified expert witness, and had the cross-examination of the NDOT witnessed been conducted by an attorney informed of the state of knowledge regarding bicycle transportation engineering, it would have been very difficult for the court to have maintained its opinion that the danger of cycling on such bridges justified prohibiting cyclists from using them.
Hunter’s Creek Bike Ban
Ms. Janan Toma was riding a bicycle on a roadway in the City of Hunter’s Creek Village, Texas near Houston. A police officer ordered her to ride the adjacent sidewalk instead of in the roadway. She refused because the sidewalk was unsuitable for cycling, thus the officer issued a citation for alleged violation of Hunter’s Creek Ordinance 422 (1987).
She was convicted in municipal court and fined $200. After a new trial on appeal in county criminal court, she was again convicted of violating the ordinance, but the fine was reduced to $100. On appeal to the First Court of Appeals on the constitutionality of the ordinance, the conviction was affirmed, Toma v. State, __ S.W.3d __ (Tex. App. – Houston [1 st Dist.] January 9, 2003). A motion for rehearing was overruled on grounds that the court did not have jurisdiction to hear a 'criminal' matter, on March 28, 2003.
You can read materials about this case, including the next step, A PETITION FOR DISCRETIONARY REVIEW to the The Court of Criminal Appeals of Texas on the BikeHouston Web Site.
There is a discussion using this case as an example concerning the issue of the right to use the road in, Legally Speaking, with Bob Mionske: Is there a right to bike? The article compares limiting right to the road to regulating free speech. According to the Supreme Court, authorities may limit free speech only subject to three elements: (1) The regulation must be necessary to carry out an important public purpose. (2) The regulation must be no broader than is necessary to carry out that purpose. (3) Ample alternatives must be left open.
The legislature's use of the word "practicable" is critical to defining that which the law requires of cyclists. A legislature must be PRESUMED to write traffic laws with safety in mind. The word "practicable" is defined in Black's Law Dic. to mean: "...that which MAY be done, practiced or accomplished; that which performable, feasible, possible and the adverb practicably means in a practicable manner."
The term "as far to the right as practicable" MUST mean as far right as it one can SAFELY ride a bicycle... The concepts of safety and feasibility are attached to the law... A cyclist doesn't have to ride over a roadway that presents safety hazards any more than a motorist has to drive through a huge pothole that's likely to damage his vehicle or cause injury to the occupants. The concept of "practicability" is fluid, dynamic, and changes with each foot of roadway depending on the conditions encountered. Is there a CASE that says this? Actually, yes there is... although an odd sort of case...
Take a look at Columbus v. Truax (1983), 7 Ohio App. 3d 49. In this case our current Chief Justice of the Ohio Supreme Court was sitting on the Court of Appeals. He wrote a decision finding a silly Columbus, Ohio law unconstitutional. Here, the law stated: "Pedestrians shall move, whenever practicable, upon the right half of crosswalks." Mr. Truax purposely walked on the left side of the crosswalk and goaded the officer into ticketing him so he could challenge the law.
Justice Moyer noted the above definition of "practicable" from Black's Law Dictionary and also cited the case of State, ex rel. Fast & Co., v. Indus. Comm. (1964), 176 Ohio St. 199, 201 [27 O.O.2d 86], which defined "practicable" to mean "capable of being put into practice or accomplished" or something that is "reasonably possible."
Justice Moyer held that the use of the word "practicable" in a penal statute did NOT render the law unconstitutional due to vagueness. He DID rule that this particular law was unconstitutional stating: "A legislative body cannot constitutionally enact laws prohibiting harmless acts. To do so infringes unduly on the rights of persons not to be deprived of their personal liberty in an arbitrary, discriminatory, capricious or unreasonable manner and violates their rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution"
Interesting case and a useful one for cyclists since it puts a definition of
"practicable" into play that takes "reasonableness" and feasibility into
Although about California, Bicycles and the Law: The Case of California has useful information for other states.
You can help to improve bicycle traffic laws in all 50 states. See the article Reforming Bicycle Traffic Laws. To improve local conditions, try to have your police department use a new training program developed by MassBike under a grant from the Nat'l Highway Traffic Safety Administration: The National Police Bicycle Awareness Curriculum.
You should also check your local ordinances to see whether they mandate dangerous practices and whether they violate state law. This author performed a survey of Bicycle Traffic Ordinances for 75 NE Ohio Communities. The survey points out several problems and rates each community on an A-F scale. Some communities have improved their ordinances in response to the article and to changes in Ohio law. You may also be interested in a set of Model Local Bicycle Ordinances.
Please send any new ideas, questions, suggestions or corrections to
Disclaimer: The author is an engineer, cyclist and certified bicycling safety instructor, but not an attorney.
© Copyright 2002-2011 Fred Oswald and
Bicycle Law Reform.
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revised 17 Apr 2011
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