Is a law to protect cyclists rendered useless when it’s not enforced?
By Bob Mionske
In July of 2000, Brian Brown, then the director of the Campus Recreation Program at the University of Tennessee at Martin, was working on an idea for a greenway, which would be a multiple use path connecting the University campus and downtown Martin. He had the idea sketched out on a map on his desk on July 18–the same day a passing truck struck and killed him while he rode his bike on the shoulder of a highway bypass in Martin. Today, his idea lives on in the Brian Brown Greenway Foundation, which aims to make the Brian Brown Memorial Greenway a reality.
Jeff Roth was an avid cyclist and exercise buff, and he put the miles in every week; he was especially fond of climbs. The physical therapist was married and the father of three young daughters. On August 11, 2006, Jeff was riding in Maryville, Tennessee, when a pickup truck struck him from behind and killed him.
In response to Jeff’s death, local cyclists worked with Tennessee Rep. Doug Overbey to create a bill that would require a minimum distance of 3 feet when a driver passes a cyclist. The bill, called The Jeff Roth Protection Act, passed the House unanimously. When it was sent to the Senate, Tennessee State Senator Roy Herron added the name of his late friend Brian Brown to the act; the bill became known as “The Jeff Roth and Brian Brown Bicycle Protection Act of 2007.” The Tennessee Legislature passed the Act, and Tennessee Governor Phil Bredesen signed it into law on May 3, 2007.
The morning of March 5, 2009, cyclist David Meek posted to the forum of the Chattanooga Bicycle Club website; in that post, titled “Bike to Work Friday 03/06/09,” Meek wrote, “No this is not an official Bike2Work event where we are inticed to ride to work by fine food and prizes. This is just ride your bike to work for fun and adventure. Tomorrow promises to be a beautiful day. Its the next day of the rest of your life. See you on the road.”
The next morning, Meek emailed a bike to work reminder to a number of area cyclists. Then, following his own advice, Meek rode to work on his bike. At around 6:40 , a passing box truck reportedly caught Meek’s pannier, throwing him into the street. He suffered severe injuries, and was taken by ambulance to the hospital, where he succumbed to his injuries. It was later reported that, contrary to the first reports by law enforcement, Meek had actually been sideswiped by the truck, and thrown under the rear wheels.
Meek, described as “one of the biggest advocates of bicycling in Chattanooga,” was a past president of the Chattanooga Bicycle Club, and the owner of Privateer Bicycles. Meek had also been active in a leadership role with the Southern Outdoor Bicycle Recreational Bicycle Association, and had worked for several years with Philip Pugliese, the Bicycle Coordinator for Outdoor Chattanooga, on bicycle advocacy issues. Meek was also involved in establishing Chattanooga’s Bike to Work program, to help Chattanooga residents take care of their health, save gas, and protect the environment.
As word of Meek’s death spread, fond memories of him poured in from all who knew him. Minya James of Outdoor Chattanooga said, “Not only was he a fabulous person but a very, very integral part of Chattanooga’s bicycling community.”
Chattanooga cyclists were also outraged, because Meek had been killed by a truck that had passed so closely to him that it sideswiped him—and under the Jeff Roth and Brian Brown Bicycle Protection Act of 2007, that close pass was illegal. If there was any consolation at all in the circumstances of David’s death, it was that there was finally a law in place that meant the driver would be brought to justice for passing so closely.
That sense of consolation would prove short-lived. The traffic investigator reported that, according to the driver, he never saw the cyclist “until he felt the thump.” The traffic investigator concluded that due to the time of day, and Meek’s lack of a reflective vest, the driver “could have seen the bike, but it is not likely that he should have seen the bike.” The driver was not cited for violating Tennessee’s three-foot passing law; instead, the traffic investigator brought the driver before the Hamilton County Grand Jury on a charge of violating the three-foot passing law. Testifying before the Grand Jury, the traffic investigator repeated his written conclusion that the driver could have seen Meek, but it wasn’t likely that he should have seen him. Following this testimony, the Grand Jury decided not to return an indictment against the driver.
The decision not to indict, and the influence that the traffic investigator’s conclusion had on the Grand Jury’s decision, raised a disturbing legal issue. Under Tennessee law, a cyclist is required to use a front light at night, and may use a rear light. If the cyclist meets this requirement, the cyclist is observing his or her duty to be seen. Meek was not only completely in compliance with the law, he had gone beyond what was required of him. Meek’s wife observed: “He did it right. Safety was so important to him. His bicycle had reflectors; his helmet had reflectors. Bicycle safety was one of the things he was such an advocate for.”
Meek’s friends agreed that he was a stickler for safety, noting that when riding at night, he was “lit up like a Christmas tree,” and was riding with “an obnoxiously bright blinking red light on the back of his bike when he was hit.”
And yet somehow, the driver still hadn’t seen him. And now, to make matters worse, law enforcement was suggesting that it wasn’t enough for cyclists to meet the letter of the law, they also had to go beyond what the law requires if they hoped to have the laws protecting them enforced. And yet Meek had in fact gone beyond what the law requires, and the law still wasn’t enforced. Law enforcement’s unwillingness to enforce the law raised what should be an obvious question: why are drivers held to such a low standard that they’re not even required to obey the law except under the most extenuating of circumstances, while cyclists are held to such a high standard that the laws protecting them won’t be enforced unless they go above and beyond what the law expects of them?
One might also ask where the law says that it must be likely that the driver should have seen a cyclist before the law will be enforced? Or for that matter, where does the law say that cyclists must now wear reflective vests if they hope to have the law enforced?
The fact is, the cyclist met his duty to be seen, and the motorist did not meet his corresponding duties to keep a proper lookout and to exercise due care. The investigating officer could easily have issued a citation based on the evidence. However, instead of enforcing the law, the officer shifted the blame for the collision away from the motorist’s failure to keep a proper lookout, and on to the cyclist’s failure to do something that the law doesn’t require.
In researching the facts of this case, I attempted to contact the traffic investigator in order to allow him the opportunity to present the facts of the investigation from his perspective; however, my calls to the Traffic Division of the Chattanooga Police Department were not returned.
On March 24, Ed Rusk, a Hamilton County cyclist, went for his regular weekend ride with friends. As they were riding, a Ford Explorer came upon the cyclists, buzzing them. Rusk reports: “And I’m yelling at him again about the 3 foot law, move over, move over… and then he proceeds to move over, on to me, pushing me into the shoulder and his trailer hits me.”
Despite being hit by the rear wheel of the trailer, Rusk managed to keep his bike rubber side down. As the driver continued down the road, Rusk called 911, and a County Sheriff’s Officer responded and stopped the SUV. The officer wrote the incident up as an “accident,” and turned the case over to an investigator. Rusk suggested to the officer that, at a minimum, the driver should be cited on the spot for violating the three-foot law; the Officer refused. As Rusk explains, “His answer was ‘they didn’t know anything about it, so how can I write them up for something they don’t know anything about.’” Surprised to learn that ignorance of the law is now a valid excuse in Hamilton County, Rusk observes, “Well, that’s a pretty good excuse. Well, gee officer I didn’t know marijuana was illegal, so don’t charge me for that.”
Commenting on Rusk’s allegations, a spokesman for the Sheriff’s Office said they would review the case. Rusk was hoping that the investigator would level charges reflecting the seriousness of the incident—something like hit and run, or vehicular assault. But given law enforcement’s refusal to cite drivers on clear violations of the three-foot law, and the Grand Jury’s refusal to return any charges against the driver who buzzed and killed David Meek, skeptics might have been forgiven if they believed that no charges would be forthcoming in this incident, either. And yet, the official response gave reason for hope.
Two days after Ed Rusk’s run-in with the driver who buzzed and hit him, Tennessee Governor Phil Bredesen was asked whether “he’d consider committing money from the Governor’s Highway Safety fund to an education and enforcement campaign.” The Governor responded, “With all the emphasis on physical fitness and getting outside and exercising, you’re going to see more people, not fewer people, riding bicycles places and inevitably they’re going to mix with cars on the road, I’ll go back and look at that, it really is a good idea.”
The next day, law enforcement committed to doing a better job of enforcing the three-foot passing law. Hamilton County’s Deputy Chief Dusty Stokes noted that “Every year we have to go through 80 hours training and in that training we’re advised of the new laws. This law is still considered a new law, it’s less than 2 years old, and they will be read the new law and made sure they understand the rules and regulations of it. The ones that didn’t know it, now know it, and we will be enforcing the law.”
That same day, Chattanooga Mayor Ron Littlefield commented that “The enforcement of the law is something people should expect that we’re going to do. We have made this a bicycle friendly community and it’s our intention to continue to be bicycle friendly.”
As it turned out, the skeptics were right—four days after these official commitments to enforce the law were made, the officer investigating Ed Rusk’s allegations reported that there was no evidence that the trailer had come in contact with Rusk. An eyewitness statement corroborating Rusk’s allegations was not even included in the accident report, apparently because the investigating officer believed that “conflicting statements” between Rusk and the eyewitness invalidated the eyewitness’ corroboration of Rusk’s account. And what were those “conflicting statements”? Rusk reported that the eyewitness was 10 feet behind him, while the eyewitness reported that he was 50 feet behind Rusk.
This failure to enforce the law was nothing new—public records indicated that not one citation for violation of the three-foot passing law had been issued by law enforcement in Hamilton County in the two years since the law had been passed. The continued failure to enforce the law, even in the face of overwhelming evidence, and despite official commitments to enforce the law, raises questions about the three-foot passing law itself—questions that I will be examining in an upcoming column.
(Research and drafting provided by Rick Bernardi, J.D.)