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Posts Tagged ‘law’

WABA needs your help to make a compelling case to the DC Council that more effort is needed to improve bicyclist safety.

In February, WABA–along with many of you–testified before the DC Council’s Committee on the Judiciary regarding the need for better enforcement of traffic laws to protect bicyclists.  The stories told that day were compelling and, in some cases heartbreaking,  and led Councilmember Mendelson to refer the issue to the Office of Police Complaints for investigation.  Earlier this month, the Office of Police Complaints released its reports verifying our claims and finding that, indeed, the DC Metropolitan Police Department (MPD) is in need of improvements to its crash reporting and response systems and training regarding bicyclists.

Now, on November 2nd, we have the opportunity to appear before the Committee on the Judiciary again on the issue of bicyclist safety with this report in-hand to demand on-the-ground improvements and accountability and better protection of bicyclists on the District’s roadways.

This November 2 hearing gives cyclists who ride in the District the opportunity to address two separate, but deeply related, safety issues: (1) overall bicycle safety enforcement by DC MPD, and (2) the proposed Protection of Bicyclists from Assault bill that will help provide a civil cause of action allowing cyclists to fight back against those who intentionally attack and harass us on the roadways.

If you have a story to tell about either issue and want to help ensure that cyclists are protected on DC’s streets, we need you to come and tell that story to the Committee on the Judiciary on November 2nd.  We have put in many hundreds of hours of work to get this far, with a report officially stating that the police need to do more and a bill introduced by over half of the members of the Council.  But without a strong showing at the hearing, that progress can come to a hault.  The report can be filed on the shelf with others from the past.  Bills can die in committee.

If you want better enforcement, or if you want a better civil cause of action for assaulted cyclists, we need you to join us in saying so.

Those wishing to testify in person should contact Jessica Jacobs, either by telephone (202.724.8038) or via email (jjacobs@dccouncil.us).  Written testimony can also be submitted until November 16–though in-person testimony is likely to be more impactful and effective.  Full details for providing in-person or written testimony are available HERE.

If you do plan to provide testimony, we would appreciate your taking a moment (in addition to contacting Jessica at the Committee Office) to let us know by CLICKING HERE so that we have a sense of the likely turnout of bicyclists.

And finally, for those who would like to testify but would appreciate assistance in telling their stories more clearly and within the rules and time limits of the Council, WABA will be holding open-house sessions to help cyclists to testify more effectively.  Please email us at advocacy@waba.org to let us know if you would like our assistance in crafting your testimony.  The sessions will be scheduled once we have a better sense of the number of cyclists seeking this support.

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.

Official notice from Councilmember Phil Mendelson (At-Large) announcing a public hearing on Enforcement of Pedestrian and Bicycle Safety and Bill 19-475, Assault of Bicyclists Prevention Act of 2011 on Wednesday, November 2, 2011.

COUNCILMEMBER PHIL MENDELSON, CHAIRPERSON
COMMITTEE ON THE JUDICIARY
ANNOUNCES A PUBLIC OVERSIGHT HEARING

on

Enforcement of Pedestrian and Bicycle Safety

and

Bill 19-475, Assault of Bicyclists Prevention Act of 2011

on

Wednesday, November 2, 2011
11:00 a.m., Hearing Room 412, John A. Wilson Building
1350 Pennsylvania Avenue, NW
Washington, DC 20004

Councilmember Phil Mendelson, Chairperson of the Committee on the Judiciary, announces a public oversight hearing on the enforcement of pedestrian and bicycle safety and on Bill 19-475, the Assault of Bicyclists Prevention Act of 2011. The public oversight hearing will be held at 11:00 a.m. on Wednesday, November 2, 2011 in Hearing Room 412 of the John A. Wilson Building. This hearing notice has been revised to include consideration of related legislation.

The purpose of this hearing is to hear testimony from the public on continuing issues surrounding the enforcement of pedestrian and bicycle safety. The Committee held a hearing on February 4, 2011 on this subject but continues to hear complaints about enforcement, particularly regarding bicyclists. Concerns reported to the Committee include a lack of understanding and enforcement of the laws as they pertain to bicyclists, the failure to obtain a bicyclist’s side of the story when an accident occurs with a motorist, and improper citations of bicyclists who are obeying the law. The hearing will explore steps
taken to improve enforcement in this area, particularly in light of a report by the Office of Police Complaints on pedestrian and bicycle enforcement issues expected to be released during the month of September. The Committee also invites testimony on Bill 19-475, the Assault of Bicyclists Prevention Act of 2011, the stated purpose of which is to provide for relief including: up to three times actual damages; punitive damages; and attorney’s fees for a person who while riding a bicycle is the victim of an intentional assault, injury, harassment, or the threat thereof.

Those who wish to testify should contact Ms. Jessica Jacobs, Legislative Counsel, at (202) 724-8038, by fax at (202) 724-6664, or via e-mail at jjacobs@dccouncil.us and provide their name, address, telephone number, organizational affiliation and title (if any) by close of business Monday, October 31, 2011. Persons wishing to testify are encouraged, but not required, to submit 15 copies of written testimony. If submitted by the close of business on Monday, October 31, 2011 the testimony will be distributed to Councilmembers before the hearing. Witnesses should limit their testimony to five minutes; less time will be allowed if there are a large number of witnesses.

If you are unable to testify at the hearing, written statements are encouraged and will be made a part of the official record. Copies of written statements should be submitted either to Ms. Jacobs, or to Ms. Nyasha Smith, Secretary to the Council, Room 5 of the Wilson Building, 1350 Pennsylvania Avenue, N.W. Washington, D.C. 20004. The record will close at 5:00 p.m. on Wednesday, November 16, 2011.

Download the complete announcement in PDF

In February, WABA and many District cyclists testified before the Committee on the Judiciary regarding concerns about enforcement of roadway laws and the protection of bicyclists on DC’s streets.  Following that hearing, Councilmember Mendelson forwarded those concerns to the Office of Police Complaints (OPC) for review.  Today, OPC released its report on the matter.

We thank Councilmember Mendelson for referring these issues to OPC, and we look forward to the follow-up hearing on November 2, where he will have the opportunity to question MPD about the systemic issues raised in this report.

Police Complaint Board MPD-Bicyclist Report & Recs

By now, many of you have seen the video of a cyclist being intentionally struck by a pickup truck in DC.  WABA shared this video in order to highlight the danger of assault that cyclists face on the District’s roadways and to push for a law creating an improved civil cause of action to allow assaulted and harassed cyclists to seek justice.

In response to this bill (now introduced in the DC Council as the “Assault of Bicyclists Prevention Act of 2011″) some skeptics have stated that the law is unnecessary because this sort of behavior is already a crime, and that the criminal system will ensure proper punishment of the driver.

Try telling that to the cyclist who shared that video with us.

Despite having clear video evidence documenting the assault–including the threatening language prior to the attack, an independent witness who stated that the collision with the cyclist was intentional, and excellent police work by MPD in locating the driver of the vehicle and completing the necessary reports, no assault charges will be brought.

The authorities saw the video.  That was their answer.

If criminal assault charges are not pursued in a case like this one, where the entire incident is videotaped, corroborated, and well investigated, it is difficult to imagine a time when these criminal laws would be used to provide justice after a bicyclist is assaulted.

To those who say that current criminal laws provide the needed protection: you are incorrect.  This decision  makes that abundantly clear.

Please join us in working for the prompt passage of the Assault of Bicyclists Prevention Act of 2011 to provide cyclists with a means of redress.  If you have a story of being assaulted or harassed on the roadway, please share it with us here. To join the list of supporters of this law and receive updates as it progresses, please sign up here.

We look forward to the opportunity to testify in support of this bill and hope that the Committee on the Judiciary–chaired by Councilmember Mendelson–will take the bill seriously and hold a hearing on the law very soon.

(***Note that the Committee on the Judiciary is holding a hearing on enforcement practices related to bicyclists and pedestrians on November 2nd.  This is also an important hearing, but it is separate in nature.  The Committee must also hold a hearing on the Assault of Bicyclists Prevention Act in order for it to be voted on by the full Council and possibly go become law.)

On Tuesday, Councilmember Wells–along with Councilmembers Cheh, Evans, Alexander, Bowser, Graham, Michael Brown, Barry, & Chairman Kwame Brown–introduced the “Assault of Bicyclists Prevention Act of 2011.”

This bill is based on WABA’s proposed anti-assault law, which is in turn based on a Los Angeles ordinance passed earlier this year.  The bill has been referred to the Committee on Environment, Public Works, and Transportation chaired by Councilmember Cheh.

We appreciate the support of the many WABA members and local cyclists who have helped us get this far by sharing their stories and the efforts of the DC Bicycle Advisory Council to pass a unanimous resolution in support of the bill.

The next step toward passage of this law will likely be a hearing before the Committee to discuss the bill and its merits.  WABA will, of course, testify at the hearing, but we also need individual cyclists to tell their stories and explain how this law will both send an important message about the rights of cyclists on the roadway and provide meaningful access to justice in real-life cases of assault and harassment.

If you have been intentionally assaulted or harassed while biking in the Washington area, we need your story.  We have updated our crash tracker tool, which we have been using to gather data on crashes and enforcement procedures, to include information on assault and harassment so that we can gather the data we need to make a compelling case to the Committee, the DC Council, and eventually other legislative bodies.

Please take a moment to tell us your story using the crash tracker, and forward this tool to your cycling friends, neighbors, and colleagues.

Bicycle anti-harassment law would close loophole, give cyclists rights after assault
WABA seeks law to protect bicyclists from driver assault and harassment

A Los Angeles law could provide a roadmap to justice in DC.

In the District of Columbia, exact statistics on this type of anti-cyclist harassment are hard to come by. Most incidents go unreported. And when the police are summoned to the scene the result is invariably “There’s not much that we can do.” Worse than this response, however, is the knowledge that there is little a cyclist can do after being attacked.

But the Washington Area Bicyclist Association (WABA) and its allies are working to change that.

“There are criminal laws against roadway assault. But the criminal burden of proof is high, available witnesses are often scarce, and police are reluctant or unable to follow up if they did not witness the act themselves,” says WABA executive director Shane Farthing, adding that a civil suit is also possible, but “is likely to require an attorney and a fair bit of that attorney’s work. But because intimidation, assault, and harassment do not often lead to big monetary damages (unless the cyclist is significantly injured or killed as a result), most victims cannot afford to pursue such cases. This law would provide for attorneys fees and allow cyclists who otherwise could not afford legal representation to seek justice and compensation.”

In July, the city of Los Angeles passed the nation’s first bicycle anti-harassment law. This law states that “existing criminal and civil laws do not effectively prevent the unlawful harassment of bicyclists” and provides harassment victims with the ability to recover damages in addition to any legal fees. WABA’s proposed DC legislation would use similar language to close the loophole that allows drivers to harass and assault bicyclists without repercussion. Everyone has the right to not be harassed while going about their daily lives.

This law will give bicyclists a way to defend that right in a court of law.

Watch the assault video & read the proposed legislation online at http://www.waba.org/antiassault

Thank you to everyone who attended WABA’s “What to do After a Crash” discussion on Tuesday evening, and special thanks to Peter Baskin, Bruce Deming, and Tom Witkop–our trio of bicycle lawyers–for sharing their wisdom with us.

Everyone who attended received a copy of the revised “Pocket Guide to Washington, DC Bike Laws” and advice from attorneys who represent cyclists in Virginia, Maryland, and the District.

For those who were unable to attend, the basics are covered in the RESOURCES section of our website HERE.

We look forward to hosting more of these informational events in the future and hope to see you there.

When we first read it, WABA had no intention of responding to Justine Whelan’s anti-cyclist rant, published by the Ballston Patch.  For the most part, the article’s content is so similar to the random blog comments we cyclists see regularly, it hardly seemed worth responding to.  But there was one interesting thing that I’d like to highlight–not for the content itself, but for what it shows about the mental state of certain bike haters.

Whelan writes:

I am SO sick of being behind some rando who thinks he’s the next Lance Armstrong in all of his official biking gear with the weird butt pants and neon outfits traveling at five miles an hour in a 35 zone.  I drive a stick shift, jerk, that too slow even for first gear.  How do I handle the situation?  I rev my engine in hopes of scaring the sheets out of the offensive biker.

The emphasis is mine, and it’s added to highlight that this behavior is assault.  Assault is, by definition, threatening or attempting to inflict offensive physical contact or bodily harm on a person that puts the person in immediate danger of, or in apprehension of, such harm or contact.  Trying to “scare the sheets” out of a cyclist by revving the engine from behind clearly counts as intentionally putting the cyclist in apprehension of harm.

Now, this isn’t about Justine Whelan’s behavior per se.  But it does provide some insight into a level of cyclist hate that most people are not willing to type up, sign, and publish.  It shows that there are motorists–seemingly normal people going about their daily business–who have such hatred for cyclists as a class of roadway users that they assault us as general practice.  Given the added power of a vehicle and an engine, Justine and those of similar mindset intentionally seek to intimidate the more vulnerable cyclist.

Sometimes it goes even further, however.

Those who follow area cycling blogs and forums have likely come across a story from “A Girl and Her Bike” about being struck repeatedly from behind while riding a Capital Bikeshare bike.  The driver struck her twice, then tried to run her over when he learned that he had picked the wrong CaBi rider to attack.

In her assessment of the driver’s rationale, she states:

I know what the driver was doing. He saw a young woman on a bicycle and thought it was be HILARIOUS to be a dick with his car. He did this because he thought there would be no consequences.

And she’s right.  Given the obvious physical differences between automobiles and bicycles, there is ample opportunity for bullying in the form of harassment, assault, and battery.  That opportunity should be curtailed by consequences for roadway bullies, but to date the imposition of consequences has been rare.

Yes, there are criminal laws against roadway assault.  But the criminal burden of proof is high, available witnesses are often scarce, and police are reluctant or unable to follow up if they did not witness the act themselves.

There is also a civil tort of assault, and a cyclist could, technically, bring a civil suit for assault.  However, bringing such a suit is likely to require an attorney and a fair bit of that attorney’s work.  But because intimidation, assault, and harassment do not often lead to big monetary damages (unless the cyclist is significantly injured or killed as a result), most victims cannot afford to pursue such cases.

The result, currently, is a situation in which harassment and assault of bicyclists goes undeterred through the legal system.  The “A Girl and Her Bike” case mentioned above is a truly rare instance in which the motorist is prosecuted–but still there will be no sentencing for his repeated, intentional assault. Thus, we need some mechanism to impose consequences on roadway bullies who harass and assault cyclists simply because those cyclists are more vulnerable.

Because we cannot change the criminal burden of proof, we need a law creating a civil right of action for assault that also provides for attorneys’ fees in order to ensure that cases can effectively be brought.  Below is a draft based on a similar bill in the City of Los Angeles.  We are at the very beginning stages of working to pass this law in the District and appreciate all support.

WABA Anti-Harassment Law (draft)

So while we cannot agree with much, if anything, in Justine Whelan’s cyclist-assault rant/admission, we can appreciate her honesty and use this as an opportunity to discuss the extent of the problem and propose a solution.

If you support this draft bill and are willing to help us work toward its passage, please SIGN HERE.  And please remember that only your generosity enables us to continue advocating for you, so please consider joining WABA or donating to support these efforts.

(Ms. Whelan’s full article can be found at http://ballston.patch.com/blog_posts/bikers-and-why-you-irk-me if you wish to bring traffic to such things.  If you don’t, you might just want to drop the editor of the Ballston Patch a line (Abigail@patch.com) and ask them to be more responsible in giving a platform to voices that treat the lives of others as a mere inconvenience.)

On her blog, WTOP’s Kate Ryan has a quick take on the cyclist as crime-fighter, inspired by a story in which the presence of a cyclist scared away a rapist in Montgomery Village.  She also references a case earlier this year in which a cyclist provided critical evidence in a hit-and-run in Dupont Circle.

These stories show the value of “eyes on the street” and the added value of the highly mobile sets of eyes of bicyclists.

We need to take advantage of this ability to provide cycling eyes on the street to help protect our fellow cyclists.

Currently, one of WABA’s top priorities is to improve enforcement in the District and region–both generally as applied to cyclists and, more acutely, in post-crash situations.  Unfortunately, we have gained limited traction to date in improving MPD’s understanding of traffic laws as applied to cyclists, and we continue to receive calls each week in which a struck cyclist in wrongly cited for an infraction.

We at WABA have written, called, petitioned, and testified on this issue–including before DC’s Committee on the Judiciary, where a parade of crash victims and family members told their stories of injury and, in many cases, improper follow-up and post-crash citation and investigation.  We explained that the incident report forms used by MPD do not account for bicycles and should be changed to ask appropriate questions for bike-auto crashes.  We discussed the need for greater training of officers on traffic safety, the rules for bicycle infrastructure, and the importance of enforcing rules keeping bike infrastructure safe for cyclists.

We have been working with Councilmember Mendelson’s office since that hearing, but to date there has been little tangible improvement.  Our crash tracker and the many calls and messages we receive show quite clearly that the situation is not improving.  So while we will continue our efforts with Councilmember Mendelson, the Committee staff, and MPD to make improvements to the system–we also want to empower the cycling community to protect itself to the best of its ability.

If we cannot immediately ensure that the officer who responds to a crash will know the law as it applies to cyclists or apply it properly, we at least want to increase the chances that the involved cyclist (if capable) or a passing cyclist can lend assistance.

Nobody really wants to think about the repercussions of a crash or the legal process that comes afterward.  But more trained cyclists on the streets looking our for each other makes everyone safer.  On July 19th we’re going to do our best to explain the process and your rights, and empower all cyclists to respond appropriately in the event of a crash–whether you are the victim or a witness.

We’re all safer with more eyes on the streets–especially if those eyes are trained to protect cyclists.

Join us on the 19th at 6pm to learn more about how to respond in the event of a crash–whether you’re a party or a witness. RSVP here.