Road Rights- An Illegal Bike Ban- And The Fight Against It
By Bob Mionske
43,000. Each year, that’s how many Americans are killed by motorists.
For obvious reasons (size, speed, weight) automobiles carry an extremely high potential for causing lethal damage when negligently operated. Because motor vehicles are so dangerous, they are the only form of personal transportation for which the operator must be licensed and insured. And yet, despite the licensing and insurance requirements, and the gradual introduction of a substantially beefed up vehicle code and increasingly stringent vehicle safety standards, motorists still kill thousands of people every year. Of course, without the legal regimen we’ve enacted to regulate motorists, the annual death toll would be much higher, so from that perspective, we have actually made substantial progress.
In contrast, although cyclists do occasionally inflict lethal injuries, cyclist-inflicted fatalities are in fact so rare an occurrence as to be a negligible factor in evaluating overall traffic fatalities. In reality, motorists inflict virtually all fatal traffic injuries; cyclists inflict virtually none of them.
Clearly, motorists remain the greatest hazard on the roads, just as they were over a century ago. So what can society do to minimize the potential risks of mixing automobile, pedestrian and bicycle traffic?
Cities across the United States have struggled with this question. Portland, Oregon was confronted with this issue in 2007 following three right-hook crashes, two of them fatal, within the space of three weeks. Portland’s response was to create infrastructure, including bike boxes at some of the city’s most hazardous intersections. The following year, there were no cyclist fatalities in Portland, and although there were a few in 2009, the city’s attention to its most hazardous infrastructure problems clearly had a positive influence on traffic safety.
Portland is not alone.
Across the country (and indeed, across the world), cycling is growing. As an era of economic meltdowns, environmental catastrophes, and rising obesity rates reintroduces more people every year to the simple joys of riding. And as people continue in ever-increasing numbers to take to the road on two, human-powered wheels, other cities from coast to coast have begun to make some room for non-motorized modes of traffic.
Then there’s the City of Black Hawk, Colorado. In January the city banned bicycles on most of its streets. Fines were enacted, and signs were erected, and on June 5, the city began enforcing its ban. But if you missed the signs, you might not even know that it was now illegal to ride a bicycle through Black Hawk. That’s how Jamie Webb and three friends were ticketed the day enforcement began—they simply didn’t know about the new law, or see the new signs. They weren’t the only cyclists ticketed; altogether, eight cyclists received $68 citations for riding their bikes in Black Hawk that day.
And it wasn’t only cyclists who were caught off-guard. Most Black Hawk business owners did not know about the ban. But Black Hawk’s casinos—the city’s lifeblood—did know about the ban, and supported it. The obvious connect-the-dots conclusion is that the ban was enacted for the benefit, and perhaps at the behest of, the casinos, whose clientele presumably prefers to arrive by automobile. In fact, City Manager Mike Copp observed that the City Council “believe their actions are what’s best for its citizens in Black Hawk, which are casinos and their patrons.”
He was serious about whose interests the City Council serves. With one casino for every 6.2 residents, the actual residents of the city are lost in a sea of casino patrons. And with the city’s economy based entirely upon the casinos, it doesn’t take long to figure out who calls the shots in Black Hawk.
Remarkably, the bicycle ban was enacted despite the fact that not a single crash between a motorist and a cyclist had occurred. Instead, the City Council was concerned about the potential for collisions between motorists and cyclists—a concern that followed on the heels of a surge in motor vehicle traffic after the city enacted a law raising the maximum betting limit from $5 to $100. With the new higher limits, gamblers flocked to Black Hawk in droves, and suddenly the city’s narrow 19th-century streets were clogged with motor vehicles.
As Copp noted, “If you go down Main Street there is not much room for a bicyclist, a bus or a car, a truck.” Fearing that a tour bus or delivery truck “must move into oncoming traffic” in order to give cyclists the required 3 feet of space when passing, the solution to Black Hawk’s self-inflicted traffic problems seemed obvious to the City Council—ban bicycles. “We are trying to promote safety,” Copp explained.
If safety was the goal, one might ask if it doesn’t make more sense to “promote safety” by banning motor vehicles. After all, they are the source of the problem. But of course, casino patrons arrive by motor vehicle, and casinos have kept the city alive, so banning motor vehicles wouldn’t do. But what about addressing infrastructure problems? What about requiring motorists to share road space with cyclists? What about requiring motorists to safely operate their vehicles while sharing the roads? That’s the approach that other cities across America have taken as they confront their own traffic safety problems.
Where the roads are dominated by the automobile, it is because they have been usurped. Many motorists—specifically, those who refuse to share the roads—mistakenly believe that their possession of a driver’s license gives them a superior claim to the road. These are the motorists who exclaim that, “Until cyclists are licensed and insured, they don’t have a right to the road.” In fact, the right to travel is an ancient right, now recognized as one of our constitutional rights, and the roads are the commons, open to all for travel and other uses. Rather than signifying a superior claim to the road, a driver’s license merely grants the holder the revocable privilege of operating a motor vehicle on the commons. Because other road users are not required to be licensed (and that tacitly means this right cannot be revoked) their right to use the roads is in fact superior to that of the motorist.
Thus, as cycling has continued to increase in popularity, the trend has increasingly been for cities to reverse the automobile’s usurpation of our roads by making room for cyclists and other non-motorized uses. Black Hawk is clearly on the wrong side of history.
But are they also on the wrong side of the law? In Colorado, local authorities are authorized to regulate the operation of bicycles, consistent with the Colorado revised statutes. This means that cities have the authority to regulate how you operate your bicycle, as long as that regulation is consistent with state law. Thus, for example, a city may regulate where you may ride on the road (how far from the shoulder, for instance), as long as the local ordinance does not contradict state law. Cities do not have the authority to regulate whether you may operate your bicycle.
In short, the City of Black Hawk is flagrantly flouting state law, and because the bike ban is unlawful, it has no legal effect. This means that although Black Hawk police might conduct traffic stops (and if a Black Hawk police officer orders you to stop, for your own safety, you should comply with the order) and issue citations, the citations should not be upheld in court, because the underlying ordinance can have no effect under state law. Now, a local traffic court judge may or may not agree with that assessment, but it seems to me to be fairly obvious that higher courts would not allow convictions under a law that the city is not authorized to pass or enforce.
The real danger here is not the occasional handful of tickets issued to unsuspecting cyclists passing through town on the Great Parks Bicycle Route (now severed by the City of Black Hawk); of greater concern is where the slippery slope leads if local authorities are given free reign to flout state law. Will other Colorado cities follow suit and ban bicycles in their towns?
That is the concern raised by Dan Grunig of Bicycle Colorado, who says, “The danger here is the precedent. We don’t believe it’s right or legal and we want to make sure it’s addressed before it’s spread any further.”
In immediate response to Black Hawk’s bike ban, Bicycle Colorado is mobilizing Colorado’s cyclists to rally on the steps of the State Capital next Tuesday, June 29 (more info on this, below). This rally is just the beginning; Bicycle Colorado is developing a legislative and legal campaign to overturn Black Hawk’s ordinance. In addition to this campaign, Bicycle Colorado has also offered to help Black Hawk with road safety alternatives.
Bicycle Colorado’s campaign is vital in protecting the interests of cyclists, and mounting a legal challenge is an essential component of that campaign. In fact, legal challenges are one of the greatest powers we have to overturn unjust laws. Seen from that perspective, a traffic citation for riding through Black Hawk is not a misfortune, but a blessing, because it gets the cyclist into the courtroom, where the law can be challenged.
This is a nation of laws, and just as we cyclists are subject to the law, so are the authorities who make and enforce the laws. When they overstep the bounds of their authority, we have the power, through the courts, to stop them. Today, Black Hawk believes that it is holding all the cards; commenting on cyclists’ reaction to the ban, City Manager Copp said, “At this point the council has no intention of repealing the ban.” Jamie Webb and her three friends have a response of their own: they will be challenging their tickets in court. The City of Black Hawk is about to be reminded that it is the law, and not the city, that holds all the cards, and that in a nation of laws, even the city is subject to the law.
To follow this developing issue, or to get involved, visit:
Bicycle Colorado on Facebook
Bicyclists and Tourists Boycott Black Hawk Colorado on Facebook
Connect with Bob on Facebook!
(Research and drafting provided by Rick Bernardi, J.D.)
This article, An Illegal Bike Ban- and the Fight Against It, was originally published on Bicycling on June 24, 2010.
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