Road Rights- How Should You Respond to Road Rage?
This is the second of a two-part post about Road Rage. In the first part Bob Mionske explained road rage from a legal perspective. In Part II, below, Bob suggests how to handle it.
By Bob Mionske
So what should you do when confronted with a raging driver? The first rule is: don’t engage with rage. When that driver yells at you to get off of “his” road, it’s natural to want to respond with anger, but when you do, you become involved in an escalating battle. This fails to work to anyone’s advantage. First, the driver has the laws of physics on his side. If he decides to use his vehicle to force you off the road you’ll almost certainly be injured. Second, you don’t want to be manipulated into being the one who explodes in rage. If you are bursting with anger when the police arrive, and the driver calmly proceeds to show them his broken mirror, you will be the road rager in the eyes of the law.
I once represented a bicycle messenger in Portland, Oregon who had become involved in a road-rage incident with a driver. The messenger explained that it began with the cyclist and the driver traveling down the road side by side, in adjacent lanes. At some point, he said, the driver decided that she wanted to change lanes, and began to pull into the cyclist’s lane. However, rather than slowing and pulling into the lane behind him, as she would have done with another driver, my client alleged that the driver began muscling her car into the lane in an attempt to force the cyclist into leaving the roadway. As the messenger told his story, the problem the driver ran up against became obvious: she was attempting to intimidate an experienced urban cyclist, whose livelihood as a messenger depended upon his ability to aggressively negotiate urban traffic. The cyclist held his ground, refusing to be intimidated.
Nevertheless, the messenger explained, the driver repeatedly swerved toward the cyclist. Although she was stopping short of actually hitting him, she was endangering his life, and the cyclist admitted that he finally retaliated, cleanly clipping off her side mirror with his U-lock. Unfortunately for the cyclist, the police did not observe the driver’s repeated attempts to force him from the road, but his act of U-lock-assisted mirror removal was observed, and the police arrested him. The officers only began to understand that the driver might have been more than an innocent victim, my client explained, when she leaped from her car, slid across the hood and, thoroughly enraged, threatened to kill the now-handcuffed cyclist. Nevertheless, the officers did not see her own illegal actions, so they charged her with nothing.
When road rage erupts, a disparity exists between the impact of the encounter on a driver, and the impact on a cyclist; the driver’s life hasn’t been threatened, while the cyclist’s life has, and thus, it’s the cyclist whose emotions are showing when law enforcement arrives on the scene.
This can create a false moral high-ground for the motorist. The motorist has “plausible deniability” for his actions—he can explain what happened by calling it a “mistake,” or an “oversight,” or a “misjudgment.” “I didn’t see him” is the most common driver explanation for both hits and near-misses with cyclists. Sometimes the driver truly didn’t see the cyclist, or truly did misjudge the distance between his car and the rider. And sometimes, the driver intended to use his vehicle as a weapon, and did. Regardless, except in particularly egregious incidents, the motorist will almost always have plausible deniability. The cyclist doesn’t have the same ability to explain away his intentional actions; If you do something that makes you look like the instigator, you will lose if you are called upon to explain your actions.
In the road rage encounters I have described in which the cyclists retaliated, the cyclists allowed their emotions to be hijacked. Once you lose your temper and escalate, you have lost control of the situation, and have already been defeated. For me, this realization is often enough to deter my dark side from emerging.
To prevent this emotional hijacking, Dr. Leon James, an expert in the psychology of road rage, advises that we need to learn “emotional intelligence”:
This technique will help you reappraise that majority of negative encounters with motorists that have their origin in an anger-provoking, but unintentional act. But what of those negative encounters with motorists that have their origin in a deliberate act?
How you respond will depend upon whether your goal is mere survival, or seeking justice—but regardless of your goal, you will be better prepared to respond rationally, in control, if you plan your response in advance of the incident and either way, don’t engage with rage. It is not uncommon for road-raging drivers to use their vehicles as weapons, and some drivers are armed with more than a car. In an incident in North Carolina, when five members of the Lees-McRae College Cycling Team flipped off a driver who had buzzed them, they were confronted by the driver, who they alleged had immediately skidded to a stop, emerged from his truck with a handgun, and threatened to “lay y’all out right here and bury y’all on the side of the road.”
If your goal is simply to survive the encounter, refusing to engage in conflict should prevent it from escalating in the first place. This works if the road rager is merely giving vent to his anger, because you’re not angering him further, and it also works if the road rager is attempting to provoke a response from you, as we saw in the Lees-McRae incident, because unlike that team, you’re not giving the road rager the fuel to “justify” further aggression.
Let’s look at some examples of how this would work, using three of the real-world road rage incidents I’ve discussed. In the first incident, from part 1 of this article, the SUV driver in Oregon blared his horn as he buzzed the group of cyclists. Once he passed them, he continued down the road, checking in his mirror for a response—which he got. The pickup driver in North Carolina also buzzed the group of cyclists, and also checked his mirror for a response—which he also got. In both incidents, the response from the cyclist led to an escalation in aggression against the cyclists.
Suppose that instead, the drivers had buzzed the cyclists but failed to cause a reaction. They would have kept driving and the road rage incidents would never have occurred. Now consider the incident with the messenger in Portland. If his goal was survival, once the driver was muscling her way into the lane, he could simply slow and allow the driver in. End of conflict.
Now suppose that your goal is to bring the road rager to justice. Be calm. Remember, your goal here is justice, not retaliation. Therefore, instead of allowing your words or actions to portray you as a mutual combatant, get the contact information for any witnesses to the incident, and report the incident to law enforcement. In some instances, law enforcement will arrest the perpetrator based on investigation of your report. For example, on February 14 of this year, a rider in southern California was shot by a BB gun fired from a passing truck. He reported the incident to law enforcement, and within 5 minutes, the truck had been found with the BB gun in plain view inside the cab. The suspects were subsequently arrested and booked on felony charges. In Colorado, cyclists are encouraged to report incidents of aggressive driving to a Colorado State Patrol hotline.
Be aware that the response from law enforcement will vary by jurisdiction and the evidence available. Often, it will be a matter of the driver’s word against yours, and without confirmation from “unbiased” witnesses, law enforcement might not be able to file charges. This requirement for “unbiased” witnesses means that everybody in your paceline that just got buzzed will be considered “biased,” but a third party witnessing the incident will be considered “unbiased.” Nevertheless, even if law enforcement takes no immediate action, it is important to create a record of the road rager’s actions. Just how important became apparent last year, when a doctor used his vehicle to assault two cyclists in Brentwood, California. The doctor told law enforcement that the incident was an “accident”; however, he had been involved in a virtually identical incident a few months prior, and the two cyclists in that case had reported the doctor. Although the first event was treated as “his word against theirs,” the doctor’s actions were now “on the books,” and because of this his second attempt to hurt cyclists led prosecutors investigating his actions to doubt his “unfortunate accident” contentions, and he is now facing charges for both incidents.
In Oregon, a state law allows citizens to cite and prosecute drivers if the police will not issue a citation, and if the D.A. will not prosecute. Cyclists using this law have successfully prosecuted drivers in several incidents, and the Salem Bicycle Club is considering using the law to prosecute the infamous “red pickup driver” who has an extensive history of harassing local cyclists. However, as far as I know, this law is unique to Oregon, so it would not be an option for cyclists in other states.
What If You Are Forced to Defend Yourself?
Just because you should avoid becoming a mutual combatant doesn’t mean you can’t defend yourself. But as with any right, you are subject to legal limits. The mere fact that you’ve had an unpleasant interaction with a motorist—no matter how obnoxious that motorist is—does not give you a license to open up a can of whoop-ass on the obnoxious miscreant.
Rather, if you are either under physical attack, or if a physical attack against you is imminent you are entitled to defend yourself. Furthermore, you don’t have to wait until you’ve been attacked—you can get the first punch in if the attack against you is imminent.
However, if you provoke the other person into fighting (either intentionally, or if your actions would be expected to provoke a fight) you don’t have the right to claim self-defense.
Second, your response must be proportionate to the attack. This means that in most circumstances, you can only use the force necessary to stop the attack. For example, if the other person tries to punch you, you are entitled to use your fists to stop the attack; you would generally not be entitled to fire a gun at your assailant. If necessary, you can use lethal force to defend yourself, but only if the threat against you is imminently lethal.
Third, once your attacker has broken off his attack, or is unable to continue, you must cease your defense. You are, however, allowed to use the force necessary to detain the other person until law enforcement arrives. The limits of your right to self-defense will be determined by the laws of your state, so you should become familiar with those laws if you believe that the occasion may arise where you must defend yourself.
One final caveat on self-defense: Every aspect of your self-defense must be “reasonable”—what a hypothetical “reasonable person” would do in your situation. And that brings us back to how your words and actions will be perceived by a judge or jury. You might think your actions are justified, but will the judge, or the members of the jury, perceive your actions as being within the law, and consistent with how a reasonable person would behave in that situation?
Be an Ambassador for Cycling
Just because there’s some road rager out there who wants to mix it up with cyclists doesn’t mean that we have to dance to his tune. The most powerful things we can do to effect positive change in the road environment are proactive, not reactive. You have the power to bring a positive influence to your road environment, just as you have the power to bring a negative influence to your road environment.
First, reach out to build bridges with those who don’t cycle. In my talks, I’ve suggested that one easy way to do this is with “Uncle Leo.” Now, Uncle Leo is a real person—he’s my Uncle Leo—but everybody has an “Uncle Leo.” That’s the family member who doesn’t ride, but knows you do, and is looking at you like you’re one of “those” cyclists. If you want to turn somebody around on cycling, start with a family member who may never get on a bike, but who could potentially be an important ally to those of us who do ride. After all, my Uncle Leo may not ride, but we’re still family. And that’s the point: getting millions of people who don’t ride to think of the cyclists in their families every time they pass a rider on the roads.
Another important ally is law enforcement. There’s often antagonism between cyclists and law enforcement officers, and the faults are mutual. Cyclists contribute to the hostility when they flagrantly disregard traffic laws. Law enforcement officers contribute to the hostility when they fail to enforce laws protecting cyclists, and when they disregard cyclists’ right to the road. We need law enforcement as our allies, rather than our adversaries, and it is up to us to build those bridges.
Second, lead by example. This means getting our own house in order, and keeping it in order. The obvious place to begin is by obeying traffic laws so that the widely-held societal view that cyclists are arrogant scofflaws is no longer reinforced by our actions. We may be adept at rationalizing lawbreaking to ourselves, but such actions turn the majority of our fellow citizens against us.
Build bridges with other road users—pedestrians and motorists—by leading by example. We ask drivers to respect our rights, and our lives, and then we fail to respect the rights and lives of pedestrians. They are entitled to due care from us, just as we are entitled to due care from motorists, so lead by example—ride courteously and carefully around pedestrians.
With the relationship between cyclists and motorists so often adversarial, it’s natural that we would focus our attention on our legal rights. It’s easy for all of us—motorists, cyclists, and pedestrians—to forget the importance of the pro-social, cooperative and supportive behavior that would enable all of us to safely get where we are going. We have the power to change that, however, and we exercise that power when we lead by example.
A smile, and a thank you wave are a simple courtesy, and yet they go a long way toward fostering a positive interaction on the road. When you thank somebody for their courtesy, you are acknowledging that they did you a favor; they will appreciate that acknowledgment. By the same token, when you fail to thank somebody for extending you a courtesy, you create a negative feeling about that encounter.
And don’t think this is the same thing as abandoning our rights. Instead, it’s just acknowledging that our rights are the minimum to which we are all entitled, but that a cooperative road environment requires us to go above and beyond the minimum, by treating each other with common courtesy and kindness.
(Research and drafting provided by Rick Bernardi, J.D.)
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