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Road Rights – License To Ride

By October 12, 2009April 28th, 2024No Comments

By Bob Mionske

The transition from summer to autumn has been a tough time for Toronto cyclists this year. On August 31, bike courier Darcy Allan Sheppard was run down by a driver in what wasapparently a violent incident of road rage, begun when the driver—prominent Toronto politico Michael Bryant—rammed the cyclist with his car, and ended when, apparently deliberately, according to eyewitnesses, he slammed the cyclist into a mail drop off box. The mortally injured cyclist died soon after.

Two weeks later, following on the heels of what has been widely believed to be a media spin campaign to shift the blame away from Michael Bryant, and on to the victim, Toronto Councilor Michael Walker proposed legislation requiring that cyclists be licensed and helmeted. To be fair, the city had been working on the idea since May.

Nevertheless, the timing of the proposal was questionable—was Walker taking advantage of public sentiment now that anti-cyclist hysteria had been whipped up in the media? Or was he merely unaware of the raw feelings of anguish raised by the lethal act of road rage that had just been played out?

Regardless of whether Walker was deliberately playing to anti-cyclist sentiment, or just shockingly unaware of cyclists’ grief and anger, his call for licensing cyclists struck a chord with cycling’s detractors. In an op-ed piece, National Post editor Terence Corcoran took up the call for licensing cyclists, opining that it’s “time to stop giving bicyclists a free ride.” Many readers believed that Corcoran’s support of licensing was satirical—he argued that the real reason bicyclists should be licensed is to capture a fee for the “carbon footprint” of their increased metabolism. Regardless of whether Corcoran’s op-ed was serious, or satire, Walker’s proposal was serious.

Now, licensing proposals are nothing new; Toronto previously had three separate licensing proposals. And calls for licensing cyclists are not just limited to Toronto. Anti-cyclist evangelists regularly proselytize for their unholy trinity of mandatory cyclist licensing, bicycle registration, and liability insurance whenever the internet carries a news item about a law-abiding cyclist being run down by a scofflaw driver, as if clamping down on cyclists will somehow reduce drivers’ negligence.

That may not seem to be a rational response to a problem, but trying to make rational sense of their argument misses the point. The actual intent of the internet shouters who call for cyclists to be licensed, registered, and insured is punitive—they see it as a way to attack cycling. Despite their rhetoric, they don’t really look forward to a future in which they would be sharing the road with fully licensed, registered, and insured cyclists; in fact, quite the opposite. They say “until you cyclists [fill in the blank], you’re not legitimate users of the roads,” but that’s really just doublespeak for “get off the road”; for them, placing regulatory obstacles in the way of cyclists is a means to keep us off “their” roads.

Of course, official and popular support for licensing proposals attempt to appear rational. Thus, proponents argue, requiring cyclists to be licensed will ensure that cyclists will learn the traffic laws. Requiring cyclists to be registered will provide the public with a means of reporting traffic offenders, and law enforcement with a means of enforcing the law. And requiring cyclists to be insured will protect the victims of negligent cyclists.

These arguments may seem sensible if you don’t actually think about them, but they ignore reality. There’s absolutely no evidence that most cyclists don’t already know the law. In fact, in my experience, the majority of cyclists know the traffic laws, as they apply to cycling, better than most motorists, most cops and most judges. If these cyclists do violate a law, it’s because they choose to, the same way motorists choose to break the law when they speed. And in fact, there’s another issue at play here that needs to be addressed—motorist complaints about “law-breaking cyclists” are more often than not based on the ignorance of the drivers, who regularly misinterpret law-abiding cyclist behavior as being “against the law.” Many people do need to learn the law, but usually, it’s the motorists who need the refresher course.

But what about the argument that requiring bikes to be registered will help the public report scofflaws, and enable law enforcement to enforce the laws? Again, this argument is divorced from reality. To understand why, proponents should try this experiment—the next time you see another driver going 10 miles over the speed limit, or changing lanes without signaling, or not coming to a complete stop behind the crosswalk, phone it in to law enforcement, and demand that an officer come out and apprehend the miscreant. When they’re done explaining that they have more pressing problems to deal with, you’ll get a sense of what would happen if you reported that you just saw a cyclist violate a traffic law. And that doesn’t even take into account the fact that most of what drivers see as “law-breaking cyclist” behavior is actually law-abiding behavior. Furthermore, law enforcement already has the means to enforce the law—they can and already do ticket cyclists for traffic violations.

Finally, there’s the argument that cyclists should be insured (not proposed in Toronto, by the way). The fact is, cyclists with assets to protect are already insured, and cyclists with no assets to protect—a circumstance lawyers call “judgment-proof”—would see no need for insurance, and would continue to ride without it, just as judgment-proof drivers continue to drive without insurance. That reality aside, we also need to take into account the fact that cyclists simply don’t have the same potential for causing harm that motorists do—a fact that is central to why motorists are required to be licensed and insured, while non-motorists have no such requirements.

Now let’s be honest. Cyclists are capable of injuring, and even killing other people in traffic mishaps, including pedestrians, other cyclists, motorcyclists and drivers.

But let’s also be realistic—motorists are responsible for immensely higher numbers of fatalities in every category. As just one example, according to the British government,pedestrians in the U.K. are 263 times more likely to be killed by a motorist than by a cyclist:

In the last 10 years, just over 7,600 pedestrian were killed by motor vehicles while 29 were killed by cyclists. Over the same period, 364,000 pedestrians were injured by motor vehicles, almost 76,000 (or 21 percent) of them seriously while cyclists injured just over 2,600 with roughly the same proportion (22 percent) being considered serious.

And that disproportionate toll holds true across the board. There are two reasons why most fatalities are attributable to motorists. First, there is an enormous disparity in numbers—there are many times more motorists than there are cyclists, so one would expect from that fact alone that the toll from motorists would be higher. Second, motor vehicles cause more injuries because they have a much greater mass than bicycles, as well as move at a much greater velocity, and thus, have a much greater potential for causing harm. If everybody suddenly stopped driving, and started riding bikes instead, the number of fatalities in every category would drop precipitously, even though we could expect the number of fatalities attributable to cyclists to show a modest rise (due to an enormous increase in the number of cyclists).

This fact is significant, because it goes to the root of why motorists are licensed, while cyclists and pedestrians are not licensed. That differentiation between motorists and non-motorists originates in the fifteen-year span between 1887, when cyclists were first recognized to have a legal right to the road, and 1902, when it was first suggested that drivers be licensed. This was a period when bicycles were wildly popular, the first automobiles were just beginning to appear, and there were no “driver’s licenses.” Anybody could use the roads, as people had for thousands of years, whether on foot, on horseback, by carriage, by bicycle, or by motor vehicle, with the only restraint on their liberty being the requirement that they obey the rules of the road.

Until Memorial Day, 1896, when Cosmopolitan magazine sponsored the second-ever automobile race in the United States on the streets of New York City (the first race in the U.S. was held on Thanksgiving Day, 1895, in Chicago), most New Yorkers had never even seen an automobile. As the cars paraded through Manhattan to the starting point of the race, one of the entrants in the race, a Duryea piloted by Henry Wells was involved in the first reported automobile accident resulting in an injury (the first auto accident—actually, the first three auto accidents—occurred during the Chicago race, when the same car was involved in three separate crashes, none of which, however, involved any injuries). Driving north on Broadway, near West 74th Street, Wells lost control of his vehicle and crashed into cyclist Evylyn Thomas, knocking her from her bike and breaking her leg. Despite that inauspicious introduction between motorist and cyclist, one of the four Duryeas entered in the race won, and Duryea went on to produce thirteen automobiles that year; the American auto industry had been born.

Still, automobiles were an expensive luxury that few could afford. By 1900, total automobile production in the United States had increased to nearly 4,200 vehicles; nationwide, there were 8,000 registered automobiles. In contrast, in that same year there were 1.25 million bicycles in the United States.

Despite this enormous disparity in numbers, it was the automobile, rather than the bicycle, that had already acquired a reputation as the most dangerous instrument of highway carnage. How dangerous? For comparison, cyclists of the era were often looked upon with scorn, because then, as today, many were considered scofflaws with no regard for others. Despite the fact that there was considerable public ire directed at the scofflaw cyclists (called “scorchers”) of the day, and despite the fact that cyclists heavily out-numbered motorists on the roads, there were no calls to license cyclists. Public grievances against scorchers were limited to demands that traffic laws be enacted and enforced.

In contrast, there were calls to license motorists—a previously unheard of restriction on the ancient right to travel—as early as 1902. That’s how disparate the impacts were, even when there were few motorists on the roads; scofflaw cyclists may have been irritating, but motorists were deadly.

How deadly? In 1900, 115 people were killed by U.S. motorists—and since then, that number has grown exponentially. Today, roughly 43,000 people are killed by motorists in the United States alone every year—a number that is the equivalent of two jumbo jets crashing every week of the year. Responding to the automotive carnage of the early 20th century, legislatures began to heed the call to license drivers. By 1913, New Jersey had passed the first law requiring all drivers to be licensed; before a quarter century passed, every state had followed suit.

Today, motorists are universally required to be licensed, while non-motorists are not. This fact is virtually always misunderstood by motorists to mean that they have a greater right to the roads, when in fact it means the opposite—they have a lesser right to the roads, because their use of the roads is by permission of the state, and subject to revocation. In contrast, non-motorists’ use of the roads is by right, and subject only to a duty that they observe the rules of the road.

Nevertheless, the public perception that we don’t observe our duties under the law is one of the greatest dangers confronting cycling. I’ve been warning for some time now that the more problematic aspects of cyclist behavior may be addressed in ways that we will not like. Already, demands that cyclists be licensed and insured, bikes be registered, extra taxes be imposed on cyclists, and more directly to the point, new legislation be enacted limiting our rights to the road, have entered the public discourse.

These demands are not a rational response to a perceived problem; rather, they are vindictive in nature, and rooted in a deep-seated desire to remove us from the roads. Nevertheless, we should all be aware that restrictions on the rights of motorists were imposed by government in response to a problem, and those restrictions were upheld by the courts. Whether government will respond to the demands of those who would remove us from the roads remains to be seen, but it’s in our own best interest to not feed the perception that we are a problem that needs to be addressed.

In fact, we would be better served if, instead of feeding that perception, we could work to shift the public discourse to where it properly belongs. First, policies that promote the safe integration and expansion of cycling into our transportation infrastructure must not only be adopted, they must also be implemented. Second, traffic laws should be sensible, actually recognizing and reflecting that the needs of cyclists are different from the needs of motorists. Third, the traffic laws need to be enforced, by officers who actually understand the laws they are enforcing, with attention shifted away from petty violations, and focused instead on the most dangerous violations. Finally, when cyclists are injured or killed by negligent drivers, the statutes, and enforcement, should reflect the seriousness of the incident, with law enforcement attention directed to the behavior that actually caused the harm.

If we want to see a rational response to real problems, this is where we need to direct government’s attention. If instead, we want irrational vindictiveness distracting us from the real problems, Toronto Councillor Michael Walker is leading the way.


Research and drafting by Rick Bernardi, J.D.


This article, License to Ride, was originally published on Bicycling on October 12, 2009.

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 Bob 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
Important notice:
The information provided in the “Road Rights” 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.