Dear Readers, 

Last column (Deliverance of the bird man), we had a letter from C.W. in “deepest darkest West Virginia” asking about self-defense, after his club ride was buzzed by “the clan from deliverance.” In response to the buzzing, the club’s fearless leader extended a one-fingered salute to the offending clan, which resulted in the car sliding to a stop across the club’s path and a confrontation between “the enraged and rather large passenger.” This column, we’ve got some follow-up questions from readers, and next column, we’re going to take a second look at whether or not “flipping the bird” is constitutionally protected speech. 

But first, I’d like to announce that, in conjunction with the publication of my new book, “Bicycling & The Law,” I am planning a series of speaking engagements across the country. 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.The booking information will also be included in “the fine print” at the end of this and every column. I’m looking forward to meeting as many of my readers as possible; hopefully, I’ll be speaking at your event soon. 

Now, back to self-defense. Appropriately enough, first up is a letter in defense of West Virginia.

Bob 

Wild and Wonderful West Virginia

Dear Bob,

Having attended college in Morgantown, West Virginia and riding many miles while there, I have a few comments on your article on velonews.com. First and foremost is that Morgantown is generally one of the more civilized parts of West Virginia, far from the deepest, darkest, deliverance setting that your writer portrays.   Not saying that you can’t go 5 miles outside of town and encounter some very different cultures, but in general the folks are civilized.  Also, being a college town, there are a lot of drivers from various parts of the country and around the world…though your writer does seem to have found a bona-fide local. As you get outside of town the roads do become narrow and are often occupied by large coal trucks that, in my experience, don’t move over either. Your writer could be considered lucky that they were only buzzed by a carload of “impatient” locals and not a coal truck.  It’s unfortunate that the altercation had to occur and fortunately that’s one part of riding in WV I never experienced, in general I’ve found that most West Virginia drivers give cyclists a wider berth than in many other parts of the country (when traffic and road conditions allow) and are generally pretty patient when it comes to passing. I know there are a lot of generalities here, and I don’t dare try to encompass all drivers and situations, but share my experiences and those that I rode with to paint a better picture of cycling in the beautiful state of West Virginia.  There are always rude, impatient, insensitive, drivers that will honk at, buzz, flip off, and spit at cyclists. I can only hope that drivers can become more patient and cyclists can stay safe.

Anonymity Requested

Dear “A.R.,”

Thank you for your letter in defense of West Virginia. Although I’m sure that C.W. was writing for humor, it’s good to be reminded that it was only a caricature, and that it doesn’t fully reflect the diversity and beauty of West Virginia. In fact, if any of my West Virginia readers would like to book me for a speaking appearance—did I mention that I’m planning on speaking to cyclists across the country on bicycling and the law?—I would be glad to have a chance to meet my West Virginia readers, and perhaps even experience for myself “cycling in the beautiful state of West Virginia.”

Bob

Who stopped first?

Dear Bob,

Interesting column. Isn’t there any legal argument to be made in this case about the fact that the car “stopped”? I mean, who was looking to “fight,” the people who stopped their car or the cyclists who came upon the threatening people who now have stopped? Hell, man, cars can “get away”; cyclists can’t. Are we expected to leap-frog down the road around them to run every time they stop? Or, worse, cringe when they now come up behind us even more angry – after already having buzzed us once? (And, just FYI, I like to run!)

T.V., Utah

Dear T.V.,

You raise a good point, T.V. As I said in that column, every single thing that happened in the “birdman” incident would be a question for a jury to consider. If we were deconstructing the facts of this case after it went to court, the intent of the motorists would be critical and the fact that they first buzzed the cyclists, and then stopped in the roadway directly in front of the group ride would certainly be relevant in the jury’s consideration of “who assaulted whom.”

Bob

Different states, different statutes

Mr. Mionske,

I know you are speaking in legal generalities in this event and so it doesn’t necessarily apply in all states I just wanted to add another wrinkle you didn’t cover in the following portion, it comes from my 10 years as an active, full-time police officer. You stated:

“It’s only possible for one of the combatants to be engaged in self-defense; the other combatant would be committing an act of battery. However, an interesting twist to all of this centers on whether there was an act of provocation, and the intent behind that act. If an act of provocation is made with the assumption that the other person would attempt to retaliate physically, the person retaliating in response to the provocation may have a defense against battery. For example, if the driver and passenger assumed that they would provoke a fight by buzzing the group and then confronting them, birdman’s push may not be an act of battery, even if the passenger did not commit assault by getting out of the car. Similarly, if birdman assumed that he would provoke a fight by flipping the bird, the passenger’s response may not be an act of assault. As with self-defense, only one of the combatants can be a provocateur.”

First let me note in Pennsylvania, where I am a police officer, there is no “battery.” Simple Assault covers that and has three subsections; briefly, 2701 a1 causes or attempts to cause bodily injury, a2 attempts to cause serious bodily injury with a deadly weapon, and a3 places another in fear of serious bodily injury through physical menace. Here’s the wrinkle. The above offenses are graded as a misdemeanor of the second degree. There is however a misdemeanor third degree, which is “mutual fighting”. The circumstance as noted above could be seen by an officer as mutual fighting. Yes, the rednecks buzzed them, then the birdman flipped the bird. The vehicle stopped and the man stepped out to “discuss” the issue, the birdman then pushed the redneck, the redneck then struck the birdman. Due to the totality of the circumstances a jury could potentially find them both guilty of this offense of mutual fighting as there were clearly overt actions by all parties which directly led to the physical encounter, especially as there is no way to legally prove the nature (intentional or not so) of the initial buzzing which caused the bird to be flipped in the first place.

Thank you,

J. S., Pennsylvania

Dear J.S.

You also raise a very good point, which is that while I am usually speaking in generalities (did you notice I made that a generality by saying “usually”?), the actual laws cyclists are subject to will vary, and will be specific to the state, and often the municipality, the cyclist is riding in. In this instance, Pennsylvania has merged assault, battery, and mayhem into one offense, “Simple assault,” classifying the crime based on the “seriousness of the harm done, intended, or risked,” rather than on the common law distinctions between assault and battery. However, even in the case of mutual fighting, “self-defense” is a defense to the charge. Yes, both parties could be convicted of mutual fighting, but it’s not a given that both parties will be convicted; one or both parties could and probably would defend themselves in court against the charge. However, assuming that there’s evidence to otherwise successfully prosecute both parties, only one party could successfully argue that he was either defending himself, or that he was provoked.

Bob

Rights and realities

Hi Mr Mionske,

Thank you for the article, which some of our club riders are circulating as we speak. Your book might be an interesting read /resource as well. I do have a response to your article, and would be interested in your feedback. Although an interesting topic and important distinction for all riders to understand, my larger concern is not the mutually exclusive roles of self-defense and battery, but rather the fact that a cyclist has no chance versus a car coming from behind, and the frequent buzzing represents a constant concern for my life.  It is, of course, a choice to cycle on public roads, but the same choice for walkers does not put them in such frequent and intimate proximity to danger.  It is my understanding that the vehicle code allows a cyclist to follow the same laws as a motorized vehicle, particularly when bike lanes do not exist, i.e., occupying the lane, using turn lanes, etc.  With there seeming to be a fairly consistent misunderstanding of this right by motorized vehicle drivers, what is the cyclist to do?  Take the entire lane, further instigating the ill-informed driver, or as is typically the case, stay as far right as possible? In either case, a cyclist is still at the mercy of drivers from behind, and it’s clearly no contest if contact is made. This puts drivers and cyclists on uneven playing fields, and in my opinion, should give the cyclist some sort of enhanced consideration when it comes to responding to events on the road.

Thank you, 

Brian

Dear Brian;

I’m shocked—shocked!—to read that my book “might be” an interesting read/resource. Think of my book as the basic legal resource for cyclists—the first one since 1895, incidentally—and my column as a sort of continuing discussion of these issues, now to be enhanced by speaking engagements across the country, so there should be no shortage of opportunities for you and your club members to discuss your rights as cyclists. 

In that vein, I think you raise an interesting point about “enhanced consideration when it comes to responding to events on the road.” As I noted last week, the facts of the case would be questions for the jury to consider. Let’s say the jury is deliberating on whether the bird man was provoked into shoving the passenger. The jury must consider that question from the perspective of what the “reasonable person” would do under those circumstances. Of necessity, that will place the issue you raised before the jury—when a “reasonable person” has a legal right to the road, and is assaulted because he or she is exercising that right, what would the “reasonable person” do? Would a reasonable person feel apprehension and anger upon being buzzed? How would a reasonable person respond to the car sliding across their path and an enraged passenger getting out to confront them? 

These are all questions for a jury to consider, and while nobody should consider these questions a sort of carte blanche to go around punching dangerous motorists, I think the question you raised is the same sort of question that would be put to the jury to consider.

Bob

Is a perceived threat enough?

Dear Bob,

I really enjoyed your piece at velonews.com, I have been chased down, buzzed, harassed and even sternly lectured by presumably well-meaning drivers on how I shouldn’t be risking my life on the road—though fortunately not in the darkest woods of West Virginia. My question has to do with the issue of assault and the perceived situation in which a cyclist finds himself when confronted by a person in a car. When a car stops to confront a cyclist, it seems to me that the cyclist is immediately in a vulnerable position and the person(s) in the car are in a position of power. You feel very exposed and defenseless. Anything that happens from that point on, such as a person exiting the vehicle, could be construed by a “normal person” as an act of aggression, or assault, because it is highly unlikely that the car occupant is getting out to debate what just took place. So any act to try and keep the car occupant in the car would be justified as self-defense. I suppose this is also dependent on why the driver stopped to confront the cyclist and the hand gestures that were exchanged, etc. In my experience I have seen many more “birds” from drivers than I have issued, and when I have gestured it has been in response to a similar gesture. I guess that when I receive a “bird” I would be justified in chasing down the car and confronting them. On another subject, like most road cyclists, I have been buzzed or brushed back and cut off and the feeling after such an event is similar to post-traumatic stress since I was almost killed. Could this be a factor in what might take place between the cyclist and driver or car occupants? Could birdman say that he was badly shaken by the close pass and was temporarily insane?

Thanks,

  1. R., Lincoln, Nebraska

Dear D.R.;

As we saw last week, and again this week, the facts of a case will be a question for the jury to consider, and the issues you raise are exactly the sort of issues that would be raised in a defense against a battery charge. However, while insanity is a defense in all criminal cases, including battery, I don’t think that it’s necessary to raise temporary insanity as a defense in a situation where little more than a shoving match ensues after the bird is flipped, because provocation and self-defense are available as defenses.

Bob    

Smack

Hi Bob,

I just read your “Deliverance of the bird man” article on VeloNews.com and I had a somewhat similar situation. For a while I got in the habit that if someone buzzed me too close and if they were not going too fast I would knock/slap the roof of the vehicle to get their attention. In the event they really didn’t notice me sometimes they would see me and slow down. One time I did this to the rear section of a pickup and the vehicle quickly pulled over and a military guy jumped out of his car and started yelling and cursing at me. I simply told him he was too close and I just wanted to get his attention, but he kept yelling so when the light changed I simply rode off he then turned around chased me down and followed me for several blocks yelling and swearing at me and eventually said “if you touch my truck again I’ll run you down.” I paid no attention to him and said nothing and kept riding on my commute to work. He eventually gave up and went away. I guess I’m wondering ifi t is wrong to try to get peoples attention by knocking on their vehicles as long as no damage is done, and should that crazy military guy have reacted so violently? 

Thanks.

Jason, New York

Dear Jason,

A lot of drivers are kind of particular about their cars—the same way a lot of cyclists are kind of particular about their bikes—so it’s not too surprising that the driver reacted violently to you slapping his truck. I once represented a cyclist who, like “the birdman” in last week’s column, flipped off an aggressive motorist. The driver’s response? He swerved into my client, running him down. Now slap that same aggressive driver’s vehicle, and what do you think his response will be? I know a lot of cyclists do it, and if you don’t actually damage the vehicle, is it wrong? From a legal perspective, as long as you’re not violating any laws, or damaging the car in any way, it’s not legally wrong. Is it morally wrong? Weighed against the actions of the driver who just endangered your life, it seems unlikely. Is it safe? Possibly not—after all, once you slapped his car, he threatened to run you down. Fortunately, he didn’t actually run you down, unlike the road-rager who did run my client down. So what can you do to get the driver’s attention, without eliciting a violent defense of his property? I would recommend using one of the airhorns that are available for bikes. These are very loud, the driver will hear your warning, and you will not be risking retaliation for slapping the car.

Bob

The mean streets

Hi Bob,

Great write-up on being buzzed. I liked your advice. As a 35+ year commuter in the mean streets of L.A. I have had this sort of nonsense done to me too many times to count. I do have couple of comments. First, I would say that no matter how obscene or threatening a driver is towards me I do not confront them, I do not engage them (finger or words). My only thought is escape.If I feel the situation is serious enough I get out my cell phone and put in a call to the police. I have only had to do that once. You are correct, they may be packing heat and anyway they have a car and maybe help inside. I am surprised that you didn’t address the rest of the riders. After all, they were buzzed too and didn’t (I assume) use the finger. I would have called the police were I one of them.

K.J.

Dear K.J.,

In “Bicycling & The Law,” I suggest that when confronted by a road-rager, the best use of your finger is to dial the police, because the road-rager will respond to any other response with an escalation of tactics. This is sometimes difficult advice for us to follow, including me, because we’re conditioned athletes being bullied by sedentary cowards hiding behind the wheels of their multi-ton facades of machismo, and sometimes the adrenaline flushing through our systems after just having been assaulted just overwhelms our ability to respond in any way other than with an aggressive defense. Nevertheless, the best response is restraint, for several reasons. First, it completely eliminates the escalation of tactics that are the hallmark of the road-rager—an escalation of tactics in which we as cyclists are “outgunned.” Second, some of these guys are carrying guns. For that matter, some cyclists are carrying guns too. But if you’re not carrying a gun, you don’t want to show up at a gunfight with a bike lock. And if you are carrying a gun, you likely already know that there are serious legal consequences associated with its use. Third, when the police show up, you want them to find only one criminal—the other guy. For all these reasons, the best response is restraint, and if you must use your finger, use it to dial the police.

Bob

Maine shares the road

Dear Mr. Mionske,

The state legislature recently enacted some very favorable bicycle law changes for the state of Maine. Perhaps you assisted with creating them? Just a few comments about your latest column for VeloNews.com—the three-foot passing rule clearly shows who was wrong first when a confrontation starts after a driver passes a cyclist too closely (when it occurs in Maine).As far as hand gestures go…I have retrained myself to use my index finger and thumb in the shape of an “L” (perhaps tapping my forehead) to indicate my displeasure with the driver’s prowess. That could not possibly be considered offensive…or could it?

Yours Truly,

  1. J.

Dear C.J.,

I think the three-foot passing rule is a very favorable development, and congratulate your state legislature on adopting it. I can’t claim credit for assisting with creating the new changes to the law, however—the credit properly belongs to the Bicycle Coalition of Maine. Nevertheless, while I can’t take credit for the hard work of the Bicycle Coalition of Maine, I will be speaking on bicycling and the law as I travel across the country, and look forward to meeting my readers in Maine—perhaps to Bicycle Coalition of Maine members in your neck of the woods? Now, could the “L” sign be considered offensive? While it could certainly be “insulting,” it’s a pretty mild insult, as far as insults go. Certainly, on a scale of insults, it ranks far below “the bird.” In Deliverance of the bird man, we saw that whether flipping the bird is an act of provocation that would be a defense to a charge of battery would be a question fora jury to decide. If flipping the bird is not clearly a provocation, I think it’s fairly safe to say that flashing the “L” sign would not be considered sufficient provocation to justify a charge of battery. Carrying the comparison with “the bird” a bit further, I think it’s also safe to say that the “L” sign is constitutionally-protected speech. Which brings us to next week’s topic: Is flipping the bird constitutionally-protected speech?

Stay tuned…

Bob

(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

This article, More Thoughts on the Birdman, was originally published on VeloNews on September 20, 2007.  

Now read the fine print: 

Bob 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.comBob 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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