Legally Speaking - Your papers, please
Dear Readers, (
Two weeks ago, in From Dodge to Tombstone, we had a letter from a reader in Fort Collins, Colorado, who wrote to ask about the interpretation of Colorado’s two abreast law being advanced by Larimer County Sheriff Jim Alderden in his Bull’s Eye blog post, Cyclists and Dodge City. Because Sheriff Alderden’s interpretation of the two abreast law merited a column to itself, I promised that I would revisit Cyclists and Dodge City to discuss what the Sheriff had to say about carrying I.D. in Larimer County, as well as the Sheriff’s take on protecting the rights of cyclists. So today, we return to Larimer County for another look at Colorado law and Sheriff Alderden’s unique take on the law.
In Colorado, if a cyclist is stopped by a law enforcement officer for “probable cause”—that is, if the officer observed the cyclist committing a traffic violation, or otherwise has “probable cause” to believe that a violation has occurred—the cyclist must produce satisfactory evidence of identification or risk arrest, at the discretion of the officer. Now, just because an officer has observed a violation doesn’t mean that the officer is necessarily going to issue a citation. Many officers will issue a verbal warning if they feel the circumstances warrant a warning rather than a citation. However, if the officer has probable cause, and decides to issue a citation instead of a verbal warning, the officer is entitled to demand that you produce “satisfactory evidence of identification.”
As readers of Bicycling & the Law know, “satisfactory evidence of identification” means either a driver’s license, or it’s “functional equivalent”—for example, a state-issued I.D. card, a military I.D. card, or a passport. The features that make an identification card the functional equivalent of a driver’s license are that it is 1) government-issued; 2) serially-numbered; and 3) includes your photograph. Now, for some cyclists, the requirement to produce I.D. is a bit of a cognitive hurdle to clear—after all, we don’t need a license to ride a bike, so why should we be required to carry one? The answer: You’re not required to carry a driver’s license when you ride, but if you do violate a law, you can be required to produce “satisfactory evidence of identification,” under threat of arrest.
Which brings us back to the officer’s demand that you produce I.D. In Colorado, if the officer is issuing a citation, the officer is entitled to demand that you produce satisfactory evidence of identification. On the other hand, if the officer is not going to issue a citation, you are not required to produce identification. The problem is, how do you know if the officer is going to issue a citation? You don’t. The officer may have probable cause to cite you, but may be stopping you with the intent to issue a verbal warning only. In fact, the officer may not even have probable cause to stop you—you may be stopped, for example, under the lesser standard of “reasonable suspicion,” under which an officer is entitled to briefly detain you to investigate, but which does not entitle the officer to place you under arrest (and as readers of Bicycling & the Law know, a traffic citation is a “non-custodial arrest.”). If you’re being stopped under “reasonable suspicion,” the law requires you to tell the officer your name and address, but the law does not require you to produce identification unless you have your identification with you. So if you don’t know if you’re going to be cited, and the officer is asking you to produce identification, what should you do? Should you comply? Should you refuse? The answer is really up to you. I’m a firm believer in upholding our 4th Amendment right to be free from unreasonable search and seizure, and feel that those who risk their personal liberty in defense of personal liberty are owed a debt of gratitude by us all. However, if you do refuse, and the officer has probable cause to arrest you, you might find yourself under custodial arrest and on your way to jail. And if the officer was only intending to issue a verbal warning, being “uncooperative” might convince the officer to turn the warning into an arrest, at which point you will be required to produce I.D. or face arrest.
So that’s the law in Colorado. How does that match up with the Sheriff’s interpretation? Here’s what the Sheriff had to say in Cyclists and Dodge City:
Many have taken to not carrying identification, so when asked to identify themselves for purposes of determining if there are any outstanding warrants (which we always check), it isn’t unreasonable to determine their county of residence. (Another warning – When issuing a citation for a violation, if we can’t verify the identification of the cyclist, they WILL be taken to jail pending identification and their bicycles impounded. This isn’t a threat. Its the way we operate.)
That seems like a pretty good match, actually. He’s saying—well, actually, he’s implying—that on a reasonable suspicion stop, or if the officer has probable cause, but is only issuing a warning, they will ask for your identification. Under these circumstances, the law requires you to correctly provide your name and address, and to provide the officer with your identification if you are carrying it. He’s also saying that if you are being issued a citation, you will be arrested if the officer can’t verify your identification. Now technically, “verification” doesn’t necessarily mean that you must produce “satisfactory evidence of identification,” but the on-the-ground reality is that, absent some highly unusual circumstances in which your identity could be verified in some other way, if you are asked for I.D. and don’t provide it, you will likely be arrested. That’s almost consistent with the law—almost, but not quite.
The problem with the Sheriff’s approach to enforcement of this law is that he’s not authorized by the State Legislature to order his deputies to arrest anybody who doesn’t produce identification. Rather, the Legislature has authorized individual officers to arrest, at their discretion, any person who is stopped under probable cause and who fails to produce satisfactory evidence of identification. When the Sheriff sets a department policy that all cyclists who fail to produce I.D. must be arrested, he is usurping the Legislature’s authority, and that is an authority that the Sheriff does not have under Colorado law.
Since issuing the warning that cyclists would be arrested if they fail to produce I.D.s, the Sheriff clarified his policy at a meeting with Dan Grunig of Bicycle Colorado, Jeff Morell of Bike Fort Collins, State Senator Greg Brophy, and State Representative Don Marostica: If a cyclist is being cited, doesn’t have identification, and verbally provides a name that is unverifiable through the Larimer County database, that cyclist will be arrested. According to Bicycle Colorado, “It is our understanding this is a consistent practice throughout Colorado’s law enforcement community.”
Protecting the Rights of Cyclists
Despite reading cyclists the riot act in Cyclists and Dodge City, Sheriff Alderden did make an attempt at even-handedness in his enforcement of the law:
“To the motoring public, this does not mean its open season on cyclists. We also have received some complaints about motorists throwing objects at cyclists or harassing them. We will be equally aggressive in defending the rights of the cyclists to share the road as long as done legally and responsibly.”
Nevertheless, despite this attempt at even-handedness, the Sheriff’s interpretation of the law leaves something to be desired. Under Colorado law, cyclists have all of the rights and applicable responsibilities that motorists have. This means that cyclists have as much right to use the road as motorists have—in fact, I believe that cyclists’ claim to the road is greater. The right to travel is a Constitutional right, while driving is a privilege that can be revoked by the state. Thus, while cyclists enjoy a Constitutional right to travel (and thereby, a Constitutional right to the road), motorists use the road only by permission of the state. But even if cyclists had no greater claim to the road than motorists have, they would still have an equal right to the road under Colorado law.
Which brings us to the Sheriff’s analysis. Although the Sheriff promises to defend the rights of cyclists to share the road (and note that he advances the notion that cyclists have a right to “share” the road, rather than a right to the road), he makes that promise contingent upon cyclists sharing the road “legally and responsibly”—whatever that means. This is an ambiguous statement at best. Is the Sheriff promising to defend individual cyclists’ “right to share the road” only if all cyclists do so “legally and responsibly”? Or is he promising to defend individual cyclists’ “right to share the road” only if the individual cyclist is doing so “legally and responsibly”?
The Sheriff’s meaning is ambiguous, but it’s also troubling, regardless of what he meant. A cyclist’s right to use the road does not depend upon the cyclist riding “legally and responsibly,” just as a motorist’s privilege to use the road continues to be in force even when the motorist violates a traffic law (at least until the state suspends or revokes the motorist’s license). So if the individual motorist continues to enjoy the privilege of using the road, even after being cited by one of Larimer County’s finest, why would Sheriff Alderden apply a different standard to cyclists?
This interpretation of the law is troubling in its own right, but it’s also troubling because the Sheriff’s interpretation of the two abreast law is flawed, and thus, his perception of which cyclists are not obeying the law—and thus, not “deserving” of the protection of the law—is also flawed.
Under Sheriff Alderden’s interpretation of his duties, he is implying that one of two equally disturbing policies is in effect in Larimer County: The first meaning he implies is that he will not enforce the laws against assault and battery unless he believes that cyclists are in compliance with the traffic laws—and remember, it’s ambiguous as to whether he means the individual cyclist must be in compliance with the law, or all cyclists must be in compliance with the law. If this is the policy he implies is in effect, he is saying that if cyclists commit minor traffic violations he will not enforce the laws against assault and battery; thus, in addition to conditioning enforcement of the laws against assault and battery upon cyclists observing the traffic laws, he is also elevating the seriousness of the minor traffic violation above the seriousness of the assault and battery. The second meaning he implies is that he will be the arbiter of which users of the road have enforceable rights, and under what conditions. If this is the policy he implies is in effect, he has usurped the Legislature’s authority to make that determination. Whichever implied policy is in effect, they are equally disturbing, and astonishing, and in either case, one would have to ask “is the same policy in effect for motorists who break the law”?
As with the I.D. requirements, Sheriff Alderden issued something of a clarification of his policy on defending the rights of cyclists at the June 9th meeting with Dan Grunig of Bicycle Colorado, Jeff Morell of Bike Fort Collins, State Senator Greg Brophy, and State Representative Don Marostica: If a motorist is driving aggressively, the Sheriff’s Department will investigate. The instructions for filing a complaint are very specific—you must provide a license plate number, or the Department will be unable to identify the vehicle, and you should also be prepared to provide the Sheriff’s Department with the location and direction of travel, a description of the vehicle and the driver, and a description of the aggressive driving being demonstrated. Additionally, you should be prepared to fill out a written report of the incident, and be willing to testify if charges are filed. Full instructions for reporting aggressive drivers are available at Bicycle Colorado’s Larimer County Update Page.
Well, (riding) pards, that’s it for another week. Happy trails,(Bob
(Research and drafting provided by Rick Bernardi, J.D.)
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