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Legally Speaking - Rights and responsibilities

Bob,

I just got done reading your April 24th column on the Arizona Shootout Bike Ride . Let me say right off, that the Pima County Sheriff’s deputy’s actions were completely wrong. It’s just dangerous, reckless, and plain dumb to drive a car directly at a group of approaching cyclists. But I guess that I’m in the minority of avid cyclists who feel that most of the problems experienced by cyclists are caused by cyclists. If you look at the issues raised in your column, most of these issues have their roots in the fact that these cyclists were breaking the law and riding illegally. I agree that a significant portion of the law enforcement community have an anti-cyclist bias. And while I’m sure that even if these cyclists were to ride perfectly legally, there would still be complaints about the cyclists simply being on the road, I believe that if they rode legally and courteously, 90 percent of their problems would go away.

What exactly are the police supposed to do in this, or any other case, if they receive complaints? Ignore the complaints? They have a responsibility to investigate, and if they witness cyclists riding illegally, they can and should cite the cyclist. It aggravates me to no end when I hear cyclists here in Texas talk about their rights to ride on the road, and how persecuted they feel by law enforcement and local city governments, and they then go out and blow through stop signs and stop lights, ride more than two abreast, and cross the center line.

There seems to be an attitude in the cycling community, that while we have these legal rights to be on the road, we have no legal responsibilities to ride legally, or even courteously. You can even see this attitude in the sub-title of your book, "Your Rights As a Cyclist." A better sub-title might have been "Your Rights and Responsibilities As a Cyclist.” Even in your April 24th column about The Shootout, this attitude can be seen when you state:

"as a practical matter, when cyclists are taking the lane, does it really make any difference whether they’re riding two abreast, three abreast, or nine abreast? They’re still taking the lane, and motorists still cannot legally share the lane if the lane is too narrow to safely share. Therefore, while it is technically illegal to ride more than two abreast at any time, there’s really no practical reason to cite cyclists who are riding more than two abreast if they are otherwise allowed to take the lane."

Well, the difference is that it is illegal to ride more than two abreast, period. In that statement you talk about how it is illegal for motorist to share the lane when it is unsafe, but then you talk about practical enforcement of the law when it applies to cyclist. That’s a bit of a double standard. With you being a lawyer, I can’t believe that you really believe this. Do we really want to encourage cyclists, or motorists for that matter, to start making practical application decisions in regards to the law? That’s a slippery slope that I really don’t think we want to go down. If we do go down that path, then there are numerous situations were we as cyclists can decide not to obey the law. If I’m approaching a 4-way stop, and as I approach I can see that there is no other approaching traffic, is it really practical for me to stop at that stop sign? And if a police officer sees me run the stop sign, is there really any practical reason for him to cite me? Well, yes there is. It’s the law. Again, as a lawyer, I can’t believe that you really believe this, but by making this statement in your column, you are endorsing and encouraging the attitude that it is okay for cyclists to ignore the law.

We as a cycling community really need to look at our riding habits. Would it really kill us to single up and move to the right and allow motor vehicle traffic to pass on a single lane road? Would our afternoon ride really be ruined if we actually stopped at the stop signs and stop lights? The effects of how we are riding are already being seen here in Texas. There have been several recent examples of local city governments restricting and banning bicycles from certain roads. If we don’t change our riding habits and start riding legally and courteously, then how can we ever expect the motorist out there to "Share the Road," And "Share the Road" works both ways. If we want to motorists to share with us, then we have to be willing to share with them. If we don’t start facing up to our legal responsibilities on the road, then I’m afraid that our legal rights to the road are going to be taken away.(

F.M., Texas

 

Dear F.M.;

Thank you for taking the time to write and share your views, many of which I happen to agree with. In fact, I feel that on at least some of the points you took issue with, I actually made the same points in the column. For example, we both agree that the manner in which the Pima County Sheriff’s Deputy handled the complaint that there was a large group of cyclists riding on the road was, as you put it, “completely wrong.” But then you ask:

“What exactly are the police supposed to do in this, or any other case, if they receive complaints? Ignore the complaints?”

No, although one wonders if they have a responsibility to investigate every frivolous complaint that comes their way — for example, a complaint, as reported to the Sheriff’s Department that morning, that “a large group of cyclists” was riding on the road. While that might be annoying to some who think, as I reported in Bicycling & the Law, that “the road is for cars,“ it’s not against the law. Rather, I think we can all agree that the police should be investigating complaints of actual violations of the law; for example, the complaint that a truck ran a cyclist off the road that day as the cyclist was attending to a cyclist injured in a fall — a complaint that the Sheriff’s Deputy did not take as seriously as the complaint that a large group of cyclists was riding on the road.

So, if we assume that the complaint actually alleged something more serious than trivial violations of the law by the large group of cyclists — and I’ll come back to that point shortly — rather than mere motorist irritation with cyclists, I think we can both agree that the police “have a responsibility to investigate, and if they witness cyclists riding illegally, they can and should cite the cyclist.” We’re also in agreement that cyclists have both rights and responsibilities — and in fact, although that point is not made on the cover of Bicycling & the Law, it is made explicitly in the second chapter, titled “Your Rights and Duties Under the Law.” And in fact, I made the same explicit point in the Shoot Out at the UA Corrral column.

But what about that comment I made that "as a practical matter, when cyclists are taking the lane, does it really make any difference whether they’re riding two abreast, three abreast, or nine abreast?” Am I actually just “endorsing and encouraging the attitude that it is okay for cyclists to ignore the law?”

No. Let me explain why. In Shoot Out at the UA Corrral, I posed that question because motorists have complained to the Sheriff’s Office that they can’t get past the Shoot Out riders because they are riding more than two-abreast. So let’s look at Arizona law to see what would happen if the cyclists were riding strictly within the law. A large group of cyclists is riding on the road — completely legal in every state, including Arizona. The road is two lanes, one in each direction, with a double yellow line dividing the roadway. In accordance with Arizona law, the cyclists are taking the entire lane, and are riding two-abreast. A motorist approaches from behind.

Who has what rights and duties?

The cyclists have the right to take the lane, for at least one, and possibly two reasons. First, they are riding at the normal speed of traffic at the time and place and under the conditions then existing, and thus, are entitled to take the lane. Second, assuming the lane is too narrow to safely share, the cyclists are entitled to take the lane, even if they are not riding at the normal speed of traffic.

In contrast, the motorist has the duty not to cross the double yellow line to pass the cyclists. And assuming that the lane is too narrow to safely share, the motorist cannot legally use the lane to pass the cyclists, because Arizona has a statute requiring motorists to pass cyclists with a minimum of a three-foot safe distance. Therefore, the motorist has the duty to wait until it is safe to pass the cyclists.

Now, from the average motorist’s perspective, the cyclists are illegally taking up the entire lane, preventing the motorist from exercising his right to the lane … and it’s got him so mad, he’s going to call the Sheriff and complain about it! But from the law’s perspective, the cyclists are riding legally and within their rights. They, and not the motorist, have the right to the lane. Of course, there’s nothing in the law that prohibits the cyclists from allowing the motorist past, and if it’s safe to do so, common courtesy would indicate that the cyclists should single up and allow the motorist to pass. However, that determination of when it is safe to single up and share the lane must be made by the cyclists, not the motorist.

Okay, so far all of the cyclists have been remarkably law-abiding. Now let’s place some scofflaws on the ride. Although the law-abiding cyclists are riding two-abreast, and taking the lane, as is their right, the scofflaws have different ideas. They don’t pay any attention to that two-abreast rule — that’s for wusses. No, our scofflaws ride three, four, maybe even nine abreast. What of it?

Well, that’s actually a good question. What of it? What’s changed? The motorist cannot legally pass the group of cyclists, even if they are only riding two abreast. And isn’t that the point, after all, of the two-abreast law — to prevent cyclists from impeding motorists when the roadway is wide enough to safely share? So if the motorist cannot legally pass our law-abiding cyclists when they are riding two-abreast, have our four-abreast scofflaws, who are riding amongst the law-abiding two-abreast cyclists, prevented the motorist from making a lawful pass?

Of course not. And yet, they are violating the law. So if they’re violating the law, how can I say that there’s really no practical reason to cite them? Am I really endorsing and encouraging the attitude that it is okay for cyclists to ignore the law? No — I am not saying that it is okay for cyclists to ignore the law, but I am saying that there’s really no practical reason to cite the four-abreast scofflaws in this particular situation, because the violation is what the law calls “de minimis.” That’s legal shorthand for saying that the violation is so trivial as to be of no concern to the law. What makes this violation de minimis is the fact that whether the cyclists are lawfully riding two-abreast, or unlawfully riding three or four abreast, the motorist cannot legally pass them. The intent of the law is not frustrated by the scofflaws who are riding more than two-abreast, so while the letter of the law has been violated, the violation itself is so trivial as to be of no concern to the law. It is considerably more difficult to make the same legal argument in regards to a “practical” decision to not stop at a 4-way stop.

So, if it’s de minimis, is it okay for cyclists to just ignore the law? No. First, riding in violation of the law can have a devastating effect on a cyclist’s ability to recover damages in the event of a crash. Let’s say the irritated motorist attempts to pass the cyclists, and collides with one of them. While the injured cyclist will be arguing that the motorist’s negligence caused the cyclist’s injuries, the insurance company defending the case will be arguing that the cyclist’s own unlawful behavior contributed to, or even was solely to blame for, the cyclist’s injuries. If you want your rights preserved, you must ride within the law.

And that brings us to the second reason cyclists should obey the law: If we want our rights to the road preserved, we must ride within the law. There’s no more powerful ammunition against us than the ammunition scofflaw cyclists provide to our foes every time they blow through a red light or stop sign. Do drivers also violate the law? Yes, they do.

But they are in the majority, and cyclists are not, and in the competition for the ever-dwindling resource of roadway space, the minority — that’s us — will be scrutinized more closely than the majority for any deviations from “appropriate behavior” that would justify restricting or removing us from the road altogether. Of course, cycling scofflaws are not the real reason motorists want cyclists removed from the roads — if scofflaw behavior were behind the bias, motorists would be calling for bans on scofflaw motorists. Obviously, however, their silence is deafening when it comes to banning scofflaw motorists. Instead, scofflaw cyclist behavior “confirms” that the already-held biases against us are “legitimate.” Therefore, although it seems unfair to be held to a higher standard, the most effective thing each of us can do every day to counter the bias against us, and the hypocritical demands to remove us from the roads, is to simply obey the law.(B

ob
 

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

I’d like to extend my thanks to everybody who has contacted me to request my appearance at their event. I will be speaking extensively on "Bicycling & the Law" this year, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com. (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at mionskelaw@hotmail.com). I’m looking forward to meeting as many of my readers as possible in the coming year.



 

Now read the fine print:
 
Bicycle and the Law, Bob MionskeBob 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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