By Bob Mionske
Legally Speaking – with Bob Mionske: You gotta fight for your right to slooooow down
Published Jan. 30, 2004 on Veloews
In this weeks column I have chosen to highlight a critical bicycle rights case handled by fellow “bike attorney” Steve Magas. I am including Steve’s personal account of this important case for cyclists throughout the U.S. in its entirety.
In the summer of 1999 I was asked to become involved in the case of a young man who had received a traffic ticket for “impeding traffic” inTrotwood, Ohio. Little did I know that the case would ultimately garner international intention, cause countless e-mails to be sent to the City of Trotwood, and generate an appellate court ruling that is extremely favorableto the nation’s cyclists!
On May 14, 2001, the court of appeals decision in the case of Trotwoodv. Selz was officially “published” in Ohio’s law books. Virtually everylawyer in the State of Ohio had the decision on their desks with the othercases published on May 14. However, more importantly, publication of thecase greatly increases its precedential value to future cyclists who wishto challenge traffic citations.
I. THE FACTS PRESENTED AT TRIAL
On July 16, 1999, Steven Selz was operating his bicycle along StateRoute 49 in Trotwood, Ohio, a five-lane roadway with a speed limit of 45mph. He had stopped a light and was going uphill from the light when TrotwoodPolice Officer Vance, with lights and siren blaring, pulled him over. OfficerVance issued a citation to Mr. Selz for “impeding traffic” under a localTrotwood ordinance.At the February 7, 2000 trial, Officer Vance testified that Mr. Selz“…was driving in the middle of the lane…” and was going “…no more than15 miles per hour…” She further testified that “…cars had to stop and …go over to the other lane to get around him…”It should be noted that State Route 49 at this point consisted of fivelanes, two in each direction with a universal turning lane between them.It should also be noted that Mr. Selz was charged with violating TrotwoodMunicipal Code Section 333.04(a), for “impeding traffic” and was notcharged with a violation of Ohio Revised Code Section 4511.55(A),which requires cyclists to ride “as near to the right side of the roadwayas practicable…” (This ended up as a critical distinction in the eyes ofthe court of appeals, as will be discussed below.)My cross examination of Officer Vance focused on attempting to showthat Mr. Selz was traveling as a reasonable cyclist, as opposedto a reasonable motorist. She admitted that Mr. Selz was travelingat a reasonable speed “for a cyclist.” She also showed a lack of knowledgeof the law governing the operation of bicycles on the roadway. OfficerVance also admitted that there was no posted minimum speed on StateRoute 49.One of the critical exchanges on cross-examination was as follows:
Q: Now, is it your testimony that Mr. Selz was ridingat a slower speed than he could have otherwise ridden?
A: A slower speed than he — no.
Q: He was riding at a reasonably normal bicycling speed, wasn’the?
A:. Yes, sir.
Officer Vance had some vague notion that Mr. Selz was somehow in dangerbecause he was riding on State Route 49, a roadway that is, admittedlynot for everyone. Officer Vance candidly testified as follows on cross-examination:
Q: I take it your opinion is that State Route 49 issimply a dangerous place for bicycles to be?
A: Honestly, yes.
It became clear as the trial progressed that the City of Trotwood was going to take the position that if you can’t ride 45 mph then you can be chargedwith “impeding traffic.” Further, the prosecution simply felt that it was“unsafe” to ride on this stretch of State Route 49 and, therefore, wastrying to “protect” Mr. Selz from his own foolishness.Mr. Selz disputed some of the facts during his testimony. He testifiedthat he was “…going as fast as he could go…” as he chugged up the hill.He denied that he was in the “…middle of the lane…” as the officer testified.During the prosecution’s cross examination Mr. Selz admitted that sometraffic probably did slow down for him, stating “If they can’t make a lanechange, yes, they would have to slow down and not run over me!”I also tried to establish the plain silliness of the prosecution’s position.Mr. Selz testified that he had only gone 45 mph once in his entire life,and then only on a long downhill run. He testified that it was physicallyimpossible for him to travel 45 mph on a normal flat road, let alone froma standing start at the bottom of a hill!
I also presented “expert testimony” in the form of an extremely experiencedcyclist, Allan Byrum. The prosecution stipulated that the expert wouldtestify that Mr. Selz was operating his bicycle in a reasonable fashionand in a competent manner for a bicycle operator on State Route 49 at thatpoint in time. The expert also offered the opinion that Mr. Selz was travelingat a reasonable speed for a bicycle operator and that 45 mph is “…not onlyan unreasonable speed for a bicycle, it’s an unsafe speed for bicycles…” due to a variety of factors.Once the facts were before the court, the court heard the argumentsof counsel as to whether the City had proved its case against Mr. Selz.
II. THE LEGAL ARGUMENTS
The City of Trotwood Ordinance §333.04(a) states that
No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to complywith law.
The Prosecutor argued that, in essence, if you can’t go 45mph on SalemAvenue, you should not ride on the road. The argument was that it was “absurd”for bicycle operators to be allowed to “impede traffic” because they canonly go “…ten, fifteen, twenty, whatever, miles per hour and thereforebecome a danger to himself…” This concept of “protecting” the poor bicycleoperator came through loud and clear from both the Prosecutor and the Court!I argued that the most important word in the Trotwood ordinance wasthe word “traffic.” “Traffic” cannot be impeded, so just what is “traffic.”State law tells us that traffic includes far more than cars and trucksand buses. “Traffic” is defined to include “…pedestrians, ridden or herdedanimals, vehicles, streetcars, trackless trolleys, and other devices eithersingly or together while using any highway for purposes of traveling.”Thus a bicycle operator IS traffic — the bicycle operator is part of theclass of people protected by the statute. “Traffic” is a broad piece of fabric, with many different threads.Not all “traffic” goes, or is capable of going, 45mph. By includingthese slower moving objects in the definition of “traffic” the legislatureis allowing for varying speeds of vehicles on the roadways. If somethingis going as fast as it can on a roadway on which it has a right to proceed,how can it be “impeding” traffic? The trial court, of course, did not buy this argument. The courtfound Mr. Selz guilty as charged, stating
…I certainly understand the impassioned defense on this case because I do believe that bicyclists need a place to ride and it is not safe a lot of times to ride it on the streets on 49. I don’t even think I’d ride there at 2:00 a.m. just because of the traffic. I don’t think it’s safe.
Mr. Selz was convicted of “impeding traffic fined $100.00, plus costs.A discussion with Mr. Selz and various bicycling folks then ensued overthe question of whether this was a case to appeal.If the case was appealed and lost, it could be a terrible blow. A losswould mean that a community could basically ban bikes from any road onwhich a bicycle could not meet the speed limit. This would amount to virtuallyevery road in the state, since the speed limit of virtually every subdivisionin Ohio is at least 25mph. How many riders can maintain even that pace?I liked the odds of appealing the case. The Second Appellate Districthas a reputation for being fair and scholarly. I liked our case on boththe law and the facts. Checking with a friend of mine who once clerkedfor the Second Appellate District, I discovered that two of the five judgeswere avid outdoorsy/bike riding types of folks who might be sympatheticto the arguments. Of the remaining three, only one was likely to be opposedto our view. The other two would keep an open mind and look closely atthe legal arguments. Given this scenario, we decided to proceed with anappeal.This is the first time that I had cooperated so closely with an advocacygroup — The Ohio Bike Federation. Chuck Smith and the OBF were fabulousand I would do it again in a heartbeat. Chuck publicized the case, sentemails out around the world, and agreed to publish the various court documentson the OBF website, www.ohiobike.org.Further, he started a Steven Selz Legal Defense Fund that collected moneyto help cover the cost of an appeal. I agreed to handle the appeal at atremendously reduced rate. However, we still had to “buy” a copy of thetranscript and file it with the court. Further, there were other miscellaneousexpenses that go along with legal research and filing an appellate brief. I understand that the City of Trotwood was virtually inundatedwith e-mails about the case. There were various versions of “the facts”now floating around. The OBF paid for the trial transcript and we publishedthat on the OBF website. I openly invited comments, criticism and ideasfor the appeal and received dozens of emails, mostly friendly, about thecase.Ultimately, the brief was prepared and filed. This was a rather unique brief in that, in addition to typical legal arguments, I described thehistory of cycling in the United States and the impact cyclists, specificallythe League of American Wheelmen, had in paving our roadways. We added thebrief to the website.The City’s brief was also filed. This provided us with some surprises.The City virtually abandoned the view it took at trial. Rather the Citynow argued that it was Mr. Selz’s position on the roadway as describedby the officer, in combination with his “slow speed,” that made the convictionreasonable. This was quite a change from the “get off the road if you can’tdo 45mph” attitude the City had taken at trial.I requested oral argument in the court of appeals. I thought this wouldbe a good way to really push our best points. The City gave notice that its attorneys would not be appearing at the oral argument – anothersurprise and a signal that perhaps they were not going to fight toohard on this one.Oral argument was in Dayton on October 2, 2000. Chuck Smith from theOBF was in the audience. Steve Selz had to work that day. I thought itwent extremely well. I was able to toss in several historical “tidbits”about the development of paved roads without worrying about what the otherside would say, since the other side elected not to show up!On October 20, 2000, the Court of Appeals released its decision – a victory for Steven Selz. The court found a case in Georgia involving aslow moving farm combine. In that case, the Georgia court found that operatorof a slow moving vehicle, which was traveling at or near its top speed,could not be convicted of “impeding traffic” under a similar law. The Courtof Appeals compared the Georgia case to this one and stated:
In either case, holding the operator to have violated the slowspeed statute would be tantamount to excluding operators of these vehiclesfrom the public roadways, something that each legislative authority, respectively,has not clearly expressed an intention to do.
Publication of the court’s decision on May 14, 2001 gives the opinion increasedimportance and precedential value. Virtually every lawyer in Ohio had theopportunity to take a look at it when it hit his or her desk.
Our legal right to bicycle on the roadways should never be takenfor granted or it may, one day, be taken away. Steve Magas should be commendedfor devoting his legal expertise on behalf of cyclists everywhere. Steve practices law in Ohio and can be reached at firstname.lastname@example.org