Yes, even the police are wrong sometimes.
By Bob Mionske
A few months ago, I received a phone call from a cyclist with an incredible story about an incident in Lawrence County, Ohio. Because the cyclist—a guy named Tony Patrick—was in need of an attorney, I hooked him up with Steve Magas, a contributing author to Bicycling & the Law, and a well-known bicycling attorney in Ohio. After hearing Tony’s story, Steve took his case. More about that later; first, let me tell you about Tony.
Weekdays, Tony runs his small construction company in Huntington, West Virginia. Weeknights, and weekends, Tony, a Cat 2 racer, can often be found hanging out at Jeff’s Bike Shop—that is, when he’s not out on a training ride, or racing. And that’s not unusual; Jeff’s Bike Shop is the center of a vibrant racing scene in Huntington, the second-largest city in West Virginia, and the home of Marshall University.
That racing scene means regular training rides, all of which start out and end up at Jeff’s. There’s a ride every other day, each geared to a different set of riders, but the real hammerfest is the Tuesday night ride. That’s the ride where the locals try, as Tony puts it, to hurt each other over the course of a 23-34 mile route that takes them across the Ohio River, into the back roads of southern Ohio, before looping back across the river into Huntington.
And that’s how Tony found himself just outside of Chesapeake, Ohio, one Tuesday night in August of 2008, heading into town to take the bridge back across to Huntington. Tony was riding with “Ryan,” a then-16 year old nationally-ranked racer with a 4.2 GPA. [“Ryan” is a pseudonym; I’ve concealed his identity because he’s a minor.]
That night, Tony and Ryan were a little tired from a hard training ride the night before, so they decided to take the shorter route. Thus, as they headed into Chesapeake, they were separated from the peloton. Just outside the town limits, they passed the library. Exactly what happened from this point forward is the subject of dispute. Both Tony and Ryan say they were the only two people on the road. But they weren’t alone—in the library parking lot was a Lawrence County Sheriff’s Deputy. Over the course of several interviews for this story, Tony and Ryan told their side of what happened. The Deputy’s account of what happened is contained in his written report of his encounter with the two cyclists, and in his later testimony at a hearing before a judge, nearly five months after the events that occurred on that August evening.
Tony and Ryan both say that they saw a Sheriff’s car in the parking lot, but did not see anybody in the parking lot. The Deputy had a different story to tell; in both his written report, and his later testimony before a judge, he said that when he first encountered Tony and Ryan, he was approaching them while traveling in the same direction; they were riding two abreast. He noticed that there were two or more vehicles following behind him. He reported following the two cyclists at a speed of about 5-10 miles per hour for about three-fourths of a mile before it was safe to pass them. He later testified that as he passed the cyclists, Tony smiled at him; he testified that he shook his head “no” at Tony, and then, after he had passed the two cyclists, watched in his rearview mirror to see whether the two cyclists went single file, or if the other cars were able to pass despite their riding two abreast. Seeing that neither was the case, he pulled ahead, into the library parking lot, intending to speak to the cyclists because they were “impeding traffic.”
The Deputy reported that he got out of his vehicle, and as the cyclists approached, he told Tony to pull over, and that Tony replied “I have got as much right to the road as anyone else,” and continued riding towards town. The Deputy reported that he then got back in his cruiser, hit the lights and sirens, and continued to follow the two cyclists, giving commands over his public address system, and “at times out the window.”
Tony and Ryan both recall it differently; Ryan recalls that they were riding two abreast, at about 18 – 20 MPH, and had entered the city limits, where the speed limit is 25 MPH. They heard a car approaching; Tony called “car back,” and they singled up. As Tony tells it:
We were riding along, and about 300–400 meters beyond the library, this Sheriff’s car suddenly pulled up alongside me and the Deputy rolled down his window and said ‘You guys shouldn’t be riding in the road.’ I responded ‘We have as much right to be in the road as you do.’
Now, this is where it gets a little complicated. In West Virginia, as in many states, the law unequivocally states that, “Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle….” But in Ohio, there is no similar declaration of a cyclist’s rights. Ohio law does define a bicycle as a vehicle, however, and so a cyclist has all the rights applicable to other vehicle operators, even if the law doesn’t specifically say so. In other words, Tony and Ryan DID have as much right to be in the road as the Deputy, even if it’s not explicitly spelled out in the law.
Nevertheless, despite the fact that under Ohio law the two cyclists had a legal right to the road, Tony and Ryan both claim that the Deputy responded to Tony’s assertion of that right by yelling “’Get off the f-king road’ several times.” Months later, at the hearing, when asked whether he had used profanity during his encounter with the cyclists, the Deputy replied “possibly.”
Both Tony and Ryan claim that the Deputy then attempted to force them off the road with his cruiser; As Ryan recalls:
He was trying to force us off the road with his car, but there was nowhere for us to go. The shoulder was just gravel, and dropped off into a ditch.
Both Tony and Ryan say that to keep from being run off the road, Tony quickly pulled ahead while Ryan braked and fell in behind the cruiser. Ryan says that once he was behind the cruiser, the Deputy slammed on his brakes, but Ryan evaded the imminent crash by riding around the cruiser. As Ryan cleared the cruiser, he says the Deputy opened his door and attempted to body-check him, but missed. Ryan caught up with Tony but, significantly, Tony says that Ryan didn’t tell him what had just happened; unaware of what had just transpired, Tony continued riding, with Ryan following behind him. Having failed to run the two cyclists off the road, the Deputy got back in his car, and raced ahead.
Although he never reported or testified that he attempted to run them off the road, the Deputy did testify that:
At one point, I get in front of them, I tried to put my car up in park to jump out of my car at one of them or something, then they both go around. One goes on this side, the other goes on this side of me. And they continue on up through there.
In his written report, the Deputy stated that he pursued the cyclists for almost a mile, and that:
On several occasions the subjects stood up and shaked their butts at me taunting me.
Asked about this, Tony confirms that on occasion, they were standing on their pedals, and that the Deputy misinterpreted this as taunting. That misunderstanding aside, the Deputy’s observation that the cyclists were standing on their pedals brings into doubt his observation that they were traveling at 5 -10 MPH. And in fact, as will be seen, the Deputy’s own later testimony would contradict his reported estimation of the cyclists’ speed.
According to Tony, after the Deputy failed to force them off the road, he raced ahead to the cyclists, and as he caught up with them, hit his lights; he pulled to their right, in the parking lane, and with a profanity-laced tirade, yelled that the two cyclists were under arrest. Tony asked incredulously “What? What are you talking about?” Despite what he felt was a baffling outburst from the Deputy, Tony says that he wanted to pull over, but the Sheriff’s cruiser was between him and the shoulder of the road.
At this point, according to Ryan, the Deputy raced ahead 300 meters, swung his cruiser around sideways across the lane, partway into an auto sales lot, got out, and assumed a firing stance. Ryan claims that as the two cyclists approached, the Deputy yelled out, “Stop, or I’ll shoot.”
With the Deputy in a shooting stance, the situation was getting dangerously out of control, so Tony says that he and Ryan rode up to the Deputy, intending to stop as he had ordered, “like ‘you got me,’ ” Tony says. They rolled to a stop. At that moment, Tony says, the Deputy fired.
Fortunately for Tony, the officer was holding a taser, and not a gun, as Tony at first believed. Only one of the taser’s electrodes hit Tony in the side; he was jolted, but not incapacitated, and he grabbed at it, yanking it out. Ryan was behind Tony now, out of taser range, watching in mounting terror as the incident unfolded. With an air of disbelief at what had just happened, Tony nevertheless maintained his composure, saying:
Dude, you just shot me with a taser! That was totally uncalled for!
The deputy had a somewhat different story to tell; he testified that:
I go around them again, get my car stopped, pull over, get out, pull my Taser out of the car, tell them…to stop or I was going to tase them, and then Mr. Patrick tries to cut through the auto parts or auto sales lot.
According to the Deputy’s testimony, he believed that the two cyclists were attempting to cut through the auto lot to get to the bridge and escape to West Virginia.
By now, Tony says he was doing his best to defuse a situation that was rapidly spiraling out of control, but as he explains, the Deputy just kept making the situation worse. Tony says that after the taser had failed to have its desired effect, the Deputy pulled out his telescoping baton, and began swinging at Tony. However, he wasn’t having any more luck with his baton than he did with the taser; Tony says the baton failed to open fully, so the Deputy kept flailing away at Tony while trying to grab him and simultaneously attempting to hold up his pants—which were threatening to drop to the ground with each swing. The scene was both comical and deadly serious.
At this point, Tony says that he told the Deputy that he was out of control, and behaving unprofessionally, and that Tony was going to sue. According to Tony, the Deputy, “should have said ‘get on the ground,’ but he never gave me a chance,” so Tony did the only thing he could to protect himself—he raised his bike to block the Deputy’s blows, while telling him “You need to calm down.” As Tony explains, he wanted to get down on the ground to defuse the situation, but doing so, “would have meant getting the hell beat out of me.” Faced with a choice of defending himself or taking a beating, Tony says “the situation didn’t call for me to get down.”
Again, the Deputy has a somewhat different account of what happened, in his report, he wrote:
I deployed my Tazer on Anthony Patrick and it had little effect. Both subjects stopped at this point and I gave commands for them to get on the ground. Both subjects did not. I attempted to grab Patrick and he pulled away. He then moved away from me and picked up his bike to try and throw at me or hit me. I pulled my Asp baton and ordered him to put the bike down. At this time he did.
And then things went from bad to worse. Sometime during the altercation the Chesapeake, Ohio police showed up, and as Tony and the Deputy struggled, Tony was tased again, this time, by the Chesapeake police. According to the Deputy’s report, the tasing occurred as “Patrick lunged at me,” while according to Tony and Ryan, the second tasing occurred as Tony was resisting the Deputy’s attempts to beat him. Unlike the first tasing, however, this time, the taser connected; as Tony tells it, “I shoot up on my toes like a ballerina, then fall over like a log.” He landed on his right elbow, and hit his head hard enough to crack his helmet. “If I hadn’t been wearing my helmet,” Tony notes, “I would have cracked my head open.”
Ryan says that at this point, with Tony now laying on the ground, the officer tased Tony a third time. In notes he made shortly after the incident, Ryan says that Tony was tased a total of five times by Chesapeake Police officers; Tony says we was tased “repeatedly.” The Deputy’s report states that:
He went to the ground and we kept giving him commands to stay down and he tried to get up and he was Tazed for the second time. He finally became compliant and he was handcuffed.
Meanwhile, Ryan had been waiting quietly nearby, watching the entire surreal scene play out before him; now, as the officers were tasing and cuffing Tony, Ryan tried to call his mother to let her know what was going on. As he was making the call, somebody shouted “Watch out for the other guy!” Taking heed of that warning, one officer kicked the phone out of Ryan’s hand, just as he connected with his mother; the phone went flying, and shattered when it hit the pavement. The officer then slammed Ryan face-first to the ground and handcuffed him.
At the other end of the connection, Ryan’s mother heard him say, “Mom!…Mom!…” and the sound of sirens in the background, and then the impact of the phone hitting the pavement, before it shattered and the connection went dead. Not knowing what had happened, Ryan says she was absolutely terrified by the call.
Meanwhile, back at the arrest scene, Ryan complained that his handcuffs were too tight; he says that one of the officers remarked, “You should have thought of that before being a smart ass.” That seemed to be a common theme with the officers. As Tony recalls, the law enforcement officers were, “extremely unprofessional,” making repeated remarks about “smart asses.” Tony says that he informed them that he would be suing, and one of the officers responded “We’ll see who gets sued.”
Tony was then taken to the Lawrence County Sheriff’s Office for processing, but when Ryan informed the officers that he was 16, they took him to the Chesapeake Police Department, and removed the handcuffs once he was there. It is still unclear why they didn’t book him in Lawrence County’s office.
According to both Tony and Ryan, their bikes—Tony rides a $7,500 Specialized Tarmac SL, Ryan rides a $6,000 AeroCat—were left behind on the pavement by the departing officers. Despite these allegations of a total lack of care taken by the law enforcement officers involved, the bikes weren’t stolen; a bystander who recognized Tony called a mutual friend, and the friend came and got the bikes, and then went to the police station where Ryan was being held. Ryan’s parents showed up soon after.
Needless to say, they were furious about what had happened to their son, so, according to Tony, the Deputy took it upon himself to lecture Ryan’s parents about their son:
Let me tell you what your son is about. I’m on my way to a burglary, and these guys were impeding me from getting there.
Let that sink in for a moment. The Deputy was on his way to a burglary, but he had time to tase and beat a cyclist because he was “impeding” the Deputy by riding on the road? That lecture didn’t make sense to Ryan’s parents, but the Deputy clarified his statement, explaining that he was on his way to investigate a burglary that had been called in hours before, when he was impeded by Tony and Ryan. There were still a few problems with that story, however.
First, regardless of whether one believes the Deputy’s report and testimony, or Tony’s and Ryan’s accounts, both sides agree that the Deputy pulled up alongside them to express his opinion that they should not be riding in the road. If they were impeding him, how was he able to pull up alongside them? And if he passed them, as he claims, in what way were they impeding him from getting to the burglary investigation?
Second, in Ohio, cyclists cannot be in violation of the impeding traffic statute if they are traveling as fast as they reasonably can. This principle was first established in a 2001 Ohio case called Trotwood v. Selz, and was subsequently codified into Ohio law in 2006, with the addition of a provision that:
The [judge or jury], in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.
Thus, by the time the Deputy decided to stop Tony and Ryan for impeding traffic, it had been well-established in Ohio that cyclists who are traveling at a reasonable speed cannot be cited for impeding traffic. Although the Deputy would later refer to Trotwood v. Selz during his testimony, indicating that he had finally been brought up to speed on Ohio law—by a prosecutor, in all likelihood—it was apparent on the day of the arrests that the Deputy was completely unfamiliar with the law as it applies to bicycles, and in fact, he admitted this in his later testimony:
Before this case I was not very familiar with bicycles and just the controversy between the bicycle situation and the thing and I’ve researched it and stuff and, you know, from what I can gather, as long as they are traveling the speed limit and they’re not impeding traffic, there’s not traffic behind them, then they wouldn’t be impeding traffic or if the cars can safely pass them, then they wouldn’t be impeding traffic, and in the case of up north of Troutwood [sic] it actually goes to the point that the judge is the one to determine who was—whether or not a bicycle was impeding traffic. So I guess it’s a—you would normally just write a ticket and the judge would decide if they was impeding traffic. I don’t know.
It’s important at this point to note that even at the hearing, after he had done his legal research, the Deputy STILL had the law wrong. In Ohio, it doesn’t matter if cyclists “are traveling the speed limit,” or “if they’re not impeding traffic,” or “if the cars can safely pass them.” Not one of those conditions the Deputy addressed is the law in Ohio—in fact, the entire point of the Trotwood v. Selz case, and subsequent changes to the Ohio code, is that the conditions the Deputy cites have no bearing in any case of a cyclist or cyclists impeding traffic. The only legal metric is whether the rider(s) is/are traveling at a reasonable speed for a cyclist.
Back on the night of Ryan’s booking, Tony says that the Deputy informed Ryan’s parents that he didn’t know what he was going to charge Ryan with, but he had to charge him with something, so he sat down with a copy of the code book and looked for the appropriate statute. For the next 30 minutes, the Deputy searched for something to charge Ryan with, but couldn’t find anything.
Eventually, he settled on a pair of charges. First, he charged Ryan with “Operating a bike on the roadway.” He also charged Ryan with “Failure to comply with an order.” As the Deputy later explained in his testimony, the problem was that he wanted to charge the two riders with impeding traffic, but couldn’t find the appropriate law for a bike. This was because he didn’t understand that cyclists are subject to the same laws as other vehicle operators, and therefore, if they were impeding traffic, they should have been charged with impeding traffic. Instead, the Deputy believed that the law required cyclists to obey all traffic rules applicable to vehicles, and that busting Ryan for “Operating a bike on the roadway” covered violations of other laws, like impeding traffic. Ryan says that two weeks later, the prosecutor added an “impeding traffic” charge to cover the violation that the Deputy thought Ryan had committed.
Meanwhile, at the Lawrence County Sheriff’s Office, Tony was also charged with “Operating a bike on the roadway”; he says that later, as the prosecutor did with Ryan, an additional charge of “impeding traffic” was added. Due to the circumstances surrounding the arrest Tony was also charged with failure to comply with an order, resisting arrest, attempted assault on an officer, and obstructing official business.
Ryan says that as his trial date approached, the prosecutor offered him a deal—testify against Tony, and the charges against Ryan would be dropped. Ryan says that he refused to save himself by “throwing Tony under the bus,” as he puts it. So, with the case against Ryan scheduled to go to trial, Ryan’s attorney filed a motion to dismiss the charges. Tony’s attorney did the same.
In its decision following the hearing on the motion to dismiss Tony’s charges, the Court began by noting that the state had the burden of proving that the arrest was consistent with the 4th Amendment, but that the state must only meet that burden by a “preponderance of the evidence,” rather than the higher “beyond a reasonable doubt” standard. This means that the state would simply have to prove that it was more likely than not that the arrest was consistent with the 4th Amendment; this is the easiest burden of proof.
The central question was whether Tony had been impeding traffic. If the state proved that it was more likely than not that Tony had been impeding traffic, then the order to pull over was lawful, and the arrest for failure to comply with that order was also lawful; if that was the case, the charges would not be dismissed. On the other hand, if the state failed to prove that Tony had been impeding traffic, then the order to pull over was not lawful, and the subsequent arrest for failure to comply was also not lawful, and the charges would be dismissed.
This meant that the prosecution had to show that Tony was riding at a speed that was unreasonably slow for a cyclist—a task that proved impossible, once the Deputy testified that he estimated the cyclists’ speed at 15 – 20 MPH, but didn’t really know how fast they were going, and admitted that he didn’t know what the speed limit on that road is, within the city limits. There was simply no evidence that the cyclists had ever impeded traffic, and thus, the Deputy had no reason to stop the cyclists, and they could not be charged with failure to comply with his orders. The charges were dismissed.
Later, at the hearing on the motion to dismiss the charges against Ryan, the prosecutor was once again unable to prove the impeding traffic charge, and the Court reached the same decision that it reached following Tony’s hearing, dismissing the charges against Ryan.
Now, although these issues are behind Tony and Ryan, for the rest of us, two issues arising from this incident still remain. First, there’s a widely-held perception that if a law enforcement officer tells you to pull over, you are required by law to comply with that order, even if the order itself is unlawful. Second, what should cyclists who find themselves in similar situations do?
The first issue—whether cyclists must obey the orders of law enforcement officers—was central to the “motion to dismiss” hearings for Tony and Ryan. As the Court held, if the cyclist hasn’t broken a traffic law, then the cyclist can’t be lawfully arrested, and the order to pull over is itself unlawful. Therefore, if the order is unlawful, the cyclist is not required to obey the order, and can’t be arrested for failure to comply. Now, this is the law in Ohio, but it is based on 4th Amendment jurisprudence, so the jurisprudence in other states should be similar. If somebody knows of contradictory 4th Amendment jurisprudence in another state, please let me know.
Those legal points aside, there’s another point to consider here: Were Tony and Ryan ever actually ordered to pull over? The Deputy has testified that he ordered them to pull over, but Tony and Ryan tell a different story; according to Tony and Ryan, the Deputy told them (1) “You guys shouldn’t be riding in the road; (2) “Get off the f-cking road”; (3) “You’re under arrest”; and (4) “Stop or I’ll shoot.” If no order was given, at what point should they have pulled over? When they were told they shouldn’t be riding in the road? When they were told to get off the road? If they did get off the road, as ordered, what does that say about their right to the road? Certainly, one could make the argument that, as a practical matter and all legalities aside, they should have pulled over when they were told they were under arrest, but as Tony explains, at that point, they weren’t given a chance to pull over.
And that brings us to our second issue—what should cyclists who find themselves in similar situations do? That’s not an easy question to answer. In Bicycling & the Law, I wrote that:
Gaining the right to the road was the cycling cause of the late nineteenth century; securing that right will be the cycling cause of the early twenty-first century.
What happened to Tony and Ryan from the moment the Deputy first decided to say something to them is a real-world example of the challenge cyclists face in securing their right to the road. For most of us, I suspect it’s easier to just quietly comply with a law enforcement officer’s misguided attempts to enforce laws that don’t exist. Sure, we know the officer is wrong, but do we really want to go to jail to make that point, instead of wherever it is we happen to be going at that moment?
The problem is, if everybody acquiesces to a violation of our rights, do we still have the right? I would argue that unless the right is exercised, it doesn’t exist. Therefore, when a law enforcement officer is enforcing laws that don’t exist, it is incumbent upon us to stand up for our rights.
But how do we do that without triggering a beatdown and a trip to jail? I think it will depend upon finding a middle way between disobeying an officer’s order and acquiescing to a violation of your rights. On the one hand, cyclists shouldn’t think that the lesson from Tony and Ryan’s experience is that cyclists can make an on–the-spot decision as to whether an order is lawful or not, and thus, whether or not an order should be obeyed. As we saw with Tony and Ryan, if an officer believes that you are not complying with his orders, that can have potentially deadly results, even though the officer is wrong. On the other hand, cyclists shouldn’t have to quietly acquiesce to violations of their rights by law enforcement. Hopefully, law enforcement officers will familiarize themselves with the laws they are enforcing, and if they are unsure of the law, have the humility to simply accept that they don’t know what the law is—and then educate themselves on what the law actually is, before attempting to enforce something that may not, in fact, be the law. Likewise, cyclists can choose that middle way between acquiescence and disobeying an order, by stopping when asked, but standing up for their rights, respectfully but firmly, and accepting that the price of defending our right to the road may mean accepting a citation now and beating it in court later.
Now, as I said at the beginning of this story, Tony called me because he was looking for a lawyer; true to his word, he intended to sue the arresting officers. And as I said, I hooked him up with Steve Magas, a well-known Ohio bicycle attorney. Among Steve’s many accomplishments in the practice of law, he was the attorney representing cyclist Steve Selz, in the Trotwood v. Selz case that established that Ohio cyclists cannot be in violation of the impeding traffic statute if they are traveling at a reasonable speed for a cyclist. He was also instrumental in getting Ohio’s “Better Bicycling Bill” passed; this was the bill that, among other things, codified the Trotwood v. Selz ruling into the “impeding traffic” statute. Steve has agreed to take Tony’s case, and is currently awaiting a response while investigating a civil action in the case. With Steve’s background in establishing cyclists’ right to the road in Ohio, the case promises to be “arresting.”
(Research and drafting provided by Rick Bernardi, J.D.)