It Never Ends

Law enforcement officers—at least in California—just can’t seem to be bothered with actually learning the laws they are charged with enforcing. Consider the Los Angeles Police Department, which has been enforcing a non-existent law against perplexed USC students. Or the California Highway Patrol officer who didn’t see any problem with a driver who turned into a cyclist’s path—yes, the cyclist was riding on the sidewalk, contrary to local law, but the driver also violated the law by failing to look before turning. Then there’s the Redondo Beach Police Department, which has been enforcing a law against riding two abreast. The only problem is, there is no law against riding two abreast.

And now there’s CHP Officer Al Perez, who has his own newspaper column, “Ask a Cop.” The problem with asking this particular cop about the law is he just doesn’t know what the law is. In his recent column, Cyclists in crosswalks aren’t pedestrians, Officer Perez recounts an incident he observed while off-duty:

A few days ago while driving in my personal car, I was in the No. 2 lane of a major street and approaching an intersection as the signal light in front of me was changing from green to yellow to red.

To my right, I noticed a car that was stopped in the right-turn only lane.

As I was slowly approaching the limit line, I noticed an adult male (I will call him "Dad") standing next to a child on a bicycle who was about 8 or 9 years old. Both were waiting for their signal to turn green so they could cross the street.

The signal light changed to green for them and the child began riding his bike from the sidewalk into the street in the crosswalk from my right to my left.

I then noticed Dad giving some gestures to the driver of the car waiting to make the right turn. Apparently, Dad felt that the driver had stopped too close to his child.

While Dad was preoccupied making gestures, the child continued riding his bike, becoming farther apart from Dad. The child passed in front of me, getting closer to the other side of the street and farther away from Dad.

I then noticed a black vehicle approaching from my left and preparing to make a right turn in front of the child. At first, it appeared to me that driver had not seen the child riding his bike in the crosswalk, because he braked hard and made the tires of his car screech.

Again, Dad made some gestures to that driver, coupled with some yells.

I was so glad that the driver of the car was able to stop in time to avoid colliding with the child riding his bike in the crosswalk.

Officer Perez then informs us that if he had been on duty, he “would have spoken with Dad,” because as he observes in his title, “Cyclists aren’t pedestrians in crosswalks,” and therefore, “the child on the bicycle did not have the right of way.”

“As a matter of fact,” he says, “the child was in violation of the vehicle code, because he was riding against the normal flow of traffic.”

Unfortunately, Officer Perez is just plain wrong on the law. Generally, cyclists are treated as pedestrians while in the crosswalk, and therefore, the child would generally have the right of way. Furthermore, the child was not in violation of the vehicle code, because for pedestrians in a crosswalk, the directional flow of traffic is irrelevant. Let’s take a closer look to see why this is so.

Officer Perez begins with the observation that Section 21200(a) gives cyclists “upon the highway” all of the rights and all of the duties applicable to drivers of vehicles. This is correct. What is not correct is Officer Perez’ understanding of the word “highway.” For Officer Perez, “as soon as the child rode his bicycle off the sidewalk and into the crosswalk, he entered the highway and became subject to the rules of the road.” Under California law, the “highway” is well-defined:

360. "Highway" is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.

This definition forms the basis of Officer Perez’ understanding of the law. However, there’s another part of the law that Officer Perez has not taken into consideration:

555. "Sidewalk" is that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.

This definition means that “the highway” includes both the roadway and the sidewalk—and in fact, that analysis is supported by the definition of “roadway”:

530. A "roadway" is that portion of a highway improved, designed, or ordinarily used for vehicular travel.

Thus, the child didn’t “enter the highway” when he rode off the sidewalk; because the sidewalk is part of the highway, he was already on the highway while he was on the sidewalk. And thus, the child was already subject to the vehicle code while he was on the sidewalk. However, a cyclist riding on the sidewalk is treated as a pedestrian, rather than a motorist (after all, motorists are prohibited from driving on the sidewalk), and thus. the laws that are applicable would generally be those that are applicable to a pedestrian.

But what about when the cyclist rides off the sidewalk, into the crosswalk? Is it true that, as Officer Perez claims, cyclists in crosswalks aren’t pedestrians?

No, it’s not true. Under California law, a crosswalk is either an extension of the sidewalk across the roadway, or that portion of the roadway marked for pedestrian crossing. Thus, when a pedestrian enters the crosswalk, it is as if the pedestrian is still on the sidewalk while crossing the road. Therefore, because a cyclist is treated as a pedestrian while on the sidewalk, when the cyclist enters the crosswalk, it is as if the cyclist is still on the sidewalk while crossing the road. And under California law, cyclists are neither prohibited from riding on the sidewalk, nor are they prohibited from riding in the crosswalk (note, however, that cyclists may be prohibited from riding on sidewalks or in crosswalks by local ordinance). Taken together, these laws mean that when a cyclist lawfully enters the crosswalk, the law treats the cyclist as a pedestrian, and thus, the cyclist has the right of way.

And thus, Officer Perez was mistaken in his assertions that the child did not have the right of way, and that the child was violating the law by riding “against the normal flow of traffic.” More disturbing, however, than his ignorance of the traffic laws he is charged with enforcing was Officer Perez’ outright bias for motorists. Not only did he see a cyclist (and a child cyclist at that) “violating” non-existent laws, he overlooked the very real violations of law displayed by the motorists who were endangering the life of a child in the crosswalk.

This ignorance of the real laws, enforcement of non-existent laws, and bias for motorists is a problem we’re seeing repeated all too often in law enforcement agencies, and it’s well past time for these agencies to address the problem.

For more on Officer Perez' column, see Damien Newton’s article in Streetsblog.
 

Comments (Comment Moderation is enabled. Your comment will not appear until approved.)
In 2005, Colorado law was changed specifically to address this question: Colorado Statute 42-4-1412 now says, " A person riding or walking a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall have all the rights and duties applicable to a pedestrian under the same circumstances...."
# Posted By Richard Masoner | 1/14/10 3:00 PM
We need that clarification here in California. Whenever a cyclist is run over at a crosswalk, law enforcement use Officer Perez' ridiculous logic to find fault with the cyclist and relieve the motorist of any criminal, and possibly civil, liability.
# Posted By DJwheels | 1/14/10 9:51 PM
One small problem with this reasoning is that Officer's Perez's article initially appeared in the Whittier Daily News, a publication for the city of Whitter. There is a Whitter ordinance that prohibits biking on sidewalks. Therefore the cyclist in the crosswalk can not be considered a pedestrian, and the child is riding the wrong way in the street.
# Posted By David Whiteman | 1/15/10 4:29 PM
David, you're right, there is an ordinance in Whittier that prohibits riding on the crosswalk where posted. Here's the ordinance language:

10.52.040 Bicycles prohibited on sidewalks.
No person shall ride a bicycle on any portion of any public sidewalk or other public place where signs are erected and or notices placed giving notice of such prohibition.

Actually, we had included mention of that in the post, and I am surprised to realize it's not in there now. So, if notice of the prohibition was posted and in effect on the sidewalk in question, then the child would not be lawfully on the sidewalk or in the crosswalk. However, if notice of the prohibition was not posted and in effect, then the child would be treated as a pedestrian under the law.
# Posted By Rick Bernardi | 1/15/10 4:48 PM
I should elaborate a bit further on the Whittier ordinance. As I noted above, the ordinance states:


10.52.040 Bicycles prohibited on sidewalks.

No person shall ride a bicycle on any portion of any public sidewalk or other public place where signs are erected and or notices placed giving notice of such prohibition.


This language is ambiguous. It could mean that riding on sidewalks is prohibited city-wide; it could also mean that riding on sidewalks is prohibited where posted. If the city wanted to eliminate the ambiguity, it could amend the ordinance with a comma.

For example, if the city wanted to clarify that riding on sidewalks is prohibited city-wide, it could amend the ordinance with a comma as follows:


10.52.040 Bicycles prohibited on sidewalks.

No person shall ride a bicycle on any portion of any public sidewalk, or other public place where signs are erected and or notices placed giving notice of such prohibition.


On the other hand, if the city wanted to clarify that riding on sidewalks is prohibited where posted, it could amend the ordinance with a comma as follows:


10.52.040 Bicycles prohibited on sidewalks.

No person shall ride a bicycle on any portion of any public sidewalk or other public place, where signs are erected and or notices placed giving notice of such prohibition.


But as written, without commas, the meaning of the ordinance is ambiguous.

I have a hard time believing that the city intended to prohibit children from riding on sidewalks anywhere within the city. If the city did intend that, it would mean that children, no matter how young, no matter how unskilled, would not even be permitted to ride on the sidewalk in front of their home-- they would be required by law to ride in the street. I don't believe that was the intent of the city, and therefore, because the ordinance as written is ambiguous, I interpret it to mean that cyclists are prohibited from riding on the sidewalk, where such prohibition is posted.
# Posted By Rick Bernardi | 1/15/10 5:28 PM
I believe that the title of the ordinance resolves the apparent ambiguity. :

10.52.040 Bicycles prohibited on sidewalks.

No person shall ride a bicycle on any portion of any public sidewalk, or other public place where signs are erected and or notices placed giving notice of such prohibition.

If they wanted it to mean bicycles prohibited whereever posted, the title of the ordinance would not say "Bicycles prohibited on Sidewalks." I take it that the ordinance is intended to mean no bicycles on sidewalks, and other public places where there are notices posted, instead of being prohibited where notices are posted on sidewalks and other places.
# Posted By David Whiteman | 1/16/10 6:06 PM
By the way, I just did some research on city bicycle laws: the neighboring city of Santa Fe Springs has an ordinance prohibiting bike riding in crosswalks:

§ 73.04 RIDING IN CROSSWALKS.

(A) Any person crossing a street within any portion of a crosswalk across such street, and in possession of a bicycle at the time, shall not ride such bicycle within such crosswalk area, but shall dismount therefrom and guide such bicycle by hand while within such crosswalk area.

(B) Violation of this section shall be deemed an infraction.

The city of Long Beach has a code section that defines a bicycle as having two wheels of a diameter 20-inches and greater. Which I guess is completely superseded by the CVC definition of a bicycle. According to the CVC a tricycle or quadricycle powered by human power is still a bicycle.

I am sorry if I strayed to far from the topic. I just thought it was interesting.
# Posted By David Whiteman | 1/16/10 6:20 PM
Thank you in advance Rick for being so tolerant regarding my ramblings. I now agree with Rick that the Whittier ordinance means that bike riding on sidewalks and other public places is prohibited where there are notices posted.

I have been reading other municipal ordinances, and I am now under the impression that the title of the ordinance does not really mean that much, and the Rick's reasoning makes far more sense.
# Posted By David Whiteman | 1/18/10 10:07 PM
I'd be curious to know how a bicyclist-as-pedestrian affects insurance liability. When I was rear-ended by a car last year, the accident was treated as if I had been driving, and the driver's insurance paid my claims. This much is expected. However, if the driver had been uninsured, my own auto insurance policy would have covered my claims under the uninsured driver provision, as the policy covers me on a bicycle as if I were in a car. This little fact surprised me.

But consider the permutations: had I been struck in a crosswalk while on foot, my auto policy would not cover me, and if the driver were uninsured, I'd be out of luck. And had I been struck in a crosswalk while riding, and been treated "legally" as a pedestrian, my guess is that the insurance company would use that as a measure to get out of covering my injuries, too.
# Posted By Brent | 1/30/10 1:55 PM
So, does this apply in the netherlands too? I was recently reading a Feb 1, 2010 by Bob Mionske
that talks about how great the Netherlands is....Fact is, my daughter was hit by a car there and the driver's son(the car owner) is asking me to pay for the damage to his car. He even got the dutch police to call me saying they had done a complete investigation and found my daughter was in violation of some traffic law. He never even contacted our family to ask!

So what is the law actually? Are drivers always responsible? Could a cyclist be cited for reckless driving in traffic (while trying to make a turn)?

As Andy Thornley notes, when drivers who injure or kill are not held accountable, we send all drivers the wrong signal about what is expected of them, and consequently, they have less incentive to be careful. By filling in the missing pieces of the vehicle code, we send the right signals to drivers about what is expected of them while operating potentially lethal machinery.

This is not just theory; we can see it in action.

In the Netherlands, drivers who collide with cyclists are presumed by law to be at fault; in contrast, in the United States, injured cyclists must prove that the driver who hit them is at fault. Guess which country has the more careful drivers? In the United States, the most common excuse drivers offer after colliding with a cyclist is I didnt see him. Dutch drivers dont offer that excuse, because it usually wont absolve them of liability. In that sense, the law is helping Dutch drivers to see cyclists. Reasonable human beings in other countries see the cyclist, Andy Thornley notes. How can we help drivers here to look harder? Through laws that send the right signals when drivers fail in their duties to others.
# Posted By Deb Forman | 4/30/10 4:13 PM
Deb,

In the Netherlands, in any collision between a driver and a cyclist, there is a rebuttable presumption that the driver is at fault. This means that the law presumes that the driver was at fault in the collision, unless the driver can rebut that presumption with evidence contradicting the presumption of fault.

So, for example, if a driver and a cyclist are involved in a collision, and there is evidence that the cyclist was actually the party at fault, the driver is no longer presumed to be at fault. Based on your description, this is what appears to have happened in the collision involving your daughter-- and because your daughter is considered to be at fault, the driver is demanding compensation for the damage to his vehicle.

The reason the Dutch have adopted this law is to prevent the types of problems we see in this country, where cyclists are injured and must prove that the driver was at fault. To see why the Dutch law is better, consider the following true case from the United States: A driver passes out, collides with a cyclist, who is knocked out. Neither the driver nor the cyclist can remember what happened. An eyewitness assumes that the cyclist violated a law, but can't be found for testimony at trial. The cyclist is prepared to put an expert witness on the stand who will testify that the driver was at fault. The driver's insurance company is prepared to put an expert witness on the stand who will testify that the cyclist was at fault. The jury must decide between the two expert witnesses. This is a situation that favors the driver. In contrast, in the Netherlands, it would be up to the driver to prove that the cyclist was at fault.

The Dutch have reasoned that by shifting the burden of proof to the more dangerous vehicle, the operator of the more dangerous vehicle will be more careful-- and in fact, Dutch drivers ARE more careful around cyclists than their American counterparts.

All that said, that doesn't absolve cyclists of their own responsibilities on the road, as you have discovered. If the Dutch police really have determined that your daughter violated a traffic law and thus is at fault (that is, assuming that the call purporting to be from the Dutch police was legitimate), you should discuss the case with a Dutch attorney.
# Posted By Rick Bernardi | 4/30/10 4:43 PM
Rick,
I have been searching the net for opinions and law on the matter of a person riding a bicycle against traffic in a crosswalk with the right of way when he is struck by a motorist who fails to observe the crosswalk.The officer in my case also attributed the primary cause of the accident to the cyclist.I am interested in your argument that a cyclist riding on the sidewalk is treated by law as a pedestrian. I can find no authority for your position. In fact the City where my accident occurred has an ordinance prohibiting bicycles on the sidewalk. Yet I am still interested in any authority that you may have in California for your position. I enjoyed your article. Martin simone
# Posted By Martin Simone | 10/27/10 12:49 AM
Hello Martin, and Rick,
I have been searching the net for the correct interpretation of the California Vehicle Code on whether bicyclists can ride on a crosswalk against traffic, and whether they have the right of way as if they are a pedestrian. Yesterday at a neighborhood council meeting I asked the assigned police officer this same question. He very politely told me about how bicyclists really need reflectors and about all the reflectors that must be on the bike, and how there must be lights on a bike to ride at night. When I mentioned sidewalks he went on about how you have to ride slow enough not to be a danger to a pedestrain, etc. When I finally pinned him down, and asked him about a bicyclist riding on a sidewalk, where it is allowed, and reaches an intersection, is he allowed to ride in the crosswalk, he gave me a very honest answer: "I don't know." He said that the answer must be on the Internet somewhere. I told him about this website, and how a bicycle lawyer was of the opinion that a bicyclist on a sidewalk is treated as a pedestrian, and therefore can go either way on a crosswalk, with a right of way. He said, then that lawyer must be right. But there is another bike lawyer who has on his website the exact opposite. He agrees with the CHP officer that says as soon as a bicyclist leaves the sidewalk, he must either ride with traffic, or walk the bike. Most expert bicyclists I ask or find on the Internet say that it does not matter, bicyclists should not be on the sidewalk period; regardless, if the law says they can or not. Others are under an impression that sidewalk riding use to be legal, and now it is not. In actuality the California Vehicle Code says that bicycles can ride on the sidewalk; however, cities and counties are free to pass laws, regarding bicycle riding on sidewalks. They can't pass laws regarding bicycle riding elsewhere, because the CVC limits what kind of traffic laws can be passed by cities and counties, CVC 21 and CVC 21100. I also found that there are other states, that specifically state that bicycle riders, when they are riding on a sidewalk, are a pedestrian. An there is a jurisdiction, that says that when a bicyclist is riding on a sidewalk, they still must only go in the direction that they would go on the street, e.g. on a two way street you can only ride on the sidewalk on the right side of the street. You would have to cross the street to go the other direction. Anyway Martin, to answer your question, if you are in a jurisdiction in which the local rule is that bicycles can not ride on the sidewalk, then the bicyclist must be a vehicle on a roadway: you must go in the direction of traffic, and you do not have the right of way as if you were a pedestrian.
# Posted By David Whiteman | 10/29/10 1:18 AM
In your article you state, "Generally, cyclists are treated as pedestrians while in the crosswalk," and, "However, a cyclist riding on the sidewalk is treated as a pedestrian, rather than a motorist." You use this to counter Officer Perez statement that bicyclists in crosswalks arent pedestrians. How can you justify your position legally? It appears to be counter to the following code:
CVC 467. (a) A "pedestrian" is a person who is afoot or who is using any of the following:
(1) A means of conveyance propelled by human power *OTHER* than a bicycle.

So the state of California says a bicyclist is not a pedestrian, not only Officer Perez.
# Posted By Dave Barton | 12/14/12 1:55 AM
Old thread I know but...I can't believe anyone would be advocating a position that, right or wrong, will end with people being injured or killed. There's just not enough time for a driver to react when a bike comes into a crosswalk at anything faster than a snails pace. "But he had the right of way"; great, we'll put that on your epitaph. Who just jumps out in front of a car in a crosswalk as a pedestrian? Nobody who wants to live. You look left and right, step up to it, establish your presence and right of way, then proceed if there's not a nut job in there car, on a cell phone, who doesn't even see you, coming your way. On a bike, your in the crosswalk before any of these precautions could happen. You really want to teach kids to blindly go into crosswalks and feel safe? The right of way is given to cars to PROTECT cyclists, not to punish them or because "cars rule, the hell with bikes!!" As mentioned by an earlier post, cyclists have better vision and awareness of the situation. So, who has a better chance of preventing someone from being killed? The car trying to stop at the last second after a bike enters a crosswalk between two parked cars going 15mph without looking, or the cyclist who can stop at the crosswalk and assess the situation before crossing? Only one answer, right or wrong, saves more lives.
# Posted By Jay Bruce | 5/6/13 9:29 PM