The Assault of Bicyclists Prevention Act, recently introduced in the DC Council and set for hearing on November 2, is meant to be a very specific response to the specific, but not uncommon, situation in which a bicyclist is assaulted or otherwise intentionally harassed on the roadway and is unable to seek redress through existing legal means. These cases generally produce no witnesses other than the bicyclist and the driver. Thus, there is no outside witness and, in many cases, no physical evidence. So if the assaulting motorist simply leaves the scene or denies the incident, there is little possibility of overcoming the relatively high criminal burden of proof. Thus, in most cases the U.S. Attorney declines to bring suit–leaving the cyclist assaulted or harassed, but with no criminal charges filed.
This leaves the option of the civil suit, and it is true that there is an existing civil tort cause of action. However, like most torts, the ability to secure legal representation to bring such a case depends–due to the contingency fee system–on the extent of the injury rather than the egregiousness of the conduct. This law will allow egregious conduct be to be addressed in civil court by changing the economic incentive for attorneys to represent assaulted cyclists.
It is true that the fee-shifting is relatively uncommon, but fee-shifting is an available mechanism that is frequently used in cases where injunctive relief is sought. Roadway assault cases like those at issue here–in which the attacks and harassment are often enabled by the inherent vulnerability of the bicyclist as compared to the motorist–have some interesting parallels to the circumstances that led to the body of civil rights law, where such fee-shifting is most common. Certainly the situations are not the same. It would be a stretch to argue that cyclists, as a group, fit the traditional definition of a protected class. But cyclists are, in the context of the roadway, inherently vulnerable, and it is that vulnerability–combined with an element of minority–that underlies and justifies the civil rights-style remedy proposed.
Within the roadway context specifically, bicyclists as a group possess the attributes of vulnerability and minority that have traditionally made fee-shifting, the primary attribute of this proposed law, appropriate.
The bill provides a means of civil access to justice to combat egregious behavior that is already illegal, but that current legal mechanisms do not penalize. Without it we maintain a system in which cyclist-victims continue to lack access to justice and those who engage in vehicular assault and harassment face no penalty.
The District’s leaders have continually, over a period of years, stated a commitment to encouraging bicycling as a safe and viable transportation alternative in the District. This demands not just infrastructure, though infrastructure is part of the equation, but also enforcement, and fundamental fairness on our roadways such that no class of users can be routinely victimized without redress.
Those first two elements–infrastructure and enforcement–are long-term, ongoing goals that will require long-term partnerships and ongoing accountability of government officials.
A significant step toward addressing the third can and should be made now, this year, by passing the Assault of Bicyclists Prevention Act. It should be.
To add your name to the list of supporters of this law to address harassment, assault, and battery of cyclists: CLICK HERE.