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Legally Speaking – with Bob Mionske: Deliverance of the bird man

By Bob Mionske

Dear Bob,
I thought you might like to address this in your column. We were ona group ride in deepest darkest West Virginia and a car passed with oncomingtraffic, mere inches from our handlebars.This yahoo move was obviously for the purpose of aggression in thatthere was a stop sign only 100 yards ahead. Our fearless leader took offenseand let loose the bird. The clan from Deliverance slid their vehicle acrossthe road and in front of our group. When the enraged and rather large passengertried to get out of the car our man, the bird man, pushed him back in.As the passenger fell back he struck the bird man, breaking his helmet.All the while his teen age son was punching from the back window and theprobable true cause of the passenger’s latent hostilities, his unfortunatewife, spewed profanities from the driver’s seat.There are two issues here. First, although unwise, isn’t it one’s constitutionallyprotected right of free speech to flip the bird? Second, was the bicyclistwithin his rights to push the man back into the car for fear of receivinga beating? Who assaulted whom?
C. W.
Morgantown, West VirginiaDear C. W.,
No subject attracts as much attention in bicycle law as the subjectof confrontation with motorists. What happens when a car buzzes you? Whatabout if the driver cuts across your path and the enraged occupant leapsout to confront you? Can you beat the tar out of the guy? Do you have towait until he says he is going to “kick your ass”?  Must you let theother guy swing first? What we need is a nice handy rule that’s easy toremember in the heat of the moment.We also need to consider whether it’s worth the risk to your life. Isthe other guy packing heat? What about you? In this day and age, thosequestions need to be added to the mix as well. With all of these questionsin mind, let’s try to figure out “who assaulted whom.”So, your group was riding along peacefully, when it was buzzed by theclan from Deliverance. Your fearless leader made a hand gesture signifying,perhaps, your club’s “Number One” standing at the race track. The driverthen slid the car across your group’s path and cut you off. The enrageddriver started to get out of the car….Let’s stop right there and talk a bit about assault, battery, and self-defense.We all probably know that if somebody punches you, they can be arrestedfor assault and battery. It’s a criminal offense, but it’s also the groundsfor a lawsuit. Here’s the thing, though—you don’t have to be physicallyinjured to sue somebody for battery. All that’s required is that the otherperson made some sort of unwanted physical contact with you that eithercaused a physical injury, or was offensive to your sense of dignity.But what does that mean, “offensive to your sense of dignity”? Basically,it means that if the average, reasonable person would have felt their senseof dignity was offended, then it’s battery. Of course, physical contactis only battery if it was intentional.Now here’s something interesting: I said that battery is unwanted harmfulor offensive physical contact with you; however, battery can also includeoffensive physical contact with something so closely related to your personthat the offensive contact is equivalent to offensively touching you. Forthat reason, in my new book, Bicycling& the Law, I argue that intentional offensive physical contactwith your bicycle while you are astride it is battery.Now what about assault? Isn’t that the same thing as battery? Well,people often use the word “assault” in that sense, but no, assault is notthe same thing as battery. Think back to the guy who punches you—that’sbattery, right? Now, suppose instead that he threatens to punchyou out right now as he’s cocking his fist back. That’s assault—theintentional creation of an apprehension of an imminent harmful oroffensive physical contact. Now, assault and battery are criminal acts,and the person committing assault or battery can be arrested, prosecuted,and incarcerated. But they’re also what we call “civil wrongs” or morecommonly, “torts,” which means you can sue somebody for assault and battery.And that brings us to self-defense. If you’re involved in a fight, youcan be arrested and prosecuted, and you can also be sued. However, “self-defense”is a legal defense to a charge of assault and battery. Remember that Isaid we need a nice, handy rule to remember in the heat of the moment?The rule is this: You have the right to defend yourself, but it must bein response to an imminent threat, and your response must be proportionalto the threat.That means that if there’s an imminent threat of battery—in other words,“assault”—you can defend yourself; you don’t have to wait for the otherperson to actually make contact. However, the threat must be real—if whatthe law calls “a reasonable person” would believe that an attack is imminent,you can defend yourself. That’s not a subjective standard; it doesn’t matterwhat you personally think is reasonable. Instead, it’s an objectivestandard of whether a theoretical “reasonable person,” as determined bya jury, would believe that an attack is imminent. Of course, you can alsodefend yourself once the other person has actually hit you.Now, if you’re defending yourself, your defense must also be proportionalto the threat. Generally, you are allowed to use the force that a “reasonableperson” would believe to be necessary to stop the threatened, imminent,or actual attack. If a guy is threatening to punch you, for example, anda reasonable person would believe that the threatened attack is imminent,you are allowed to defend yourself with a force that is proportional torepel that threat—for example, by punching him before he can punch you.You’re not allowed to respond by pulling out a gun and shooting him. However,self-defense can include lethal force, as long as you’re facing an imminentthreat of lethal force and there’s no reasonable possibility of retreat.The key thing to remember is that you can only use the force necessaryto repel the attack. And once the other person breaks off his attack, andeffectively communicates to you that he’s broken off the attack, you can’tcontinue, you must also break off your defense. So what does “effectivelycommunicates” mean? Well, it could mean the guy stops punching and, inthe immortal words of Roberto Duran, says “no more.” It could mean theguy stops punching and starts running from you. It could mean that you’veknocked him unconscious. Once the other person communicates that the attackis over, in a way that would make a reasonable person believe that theattack was over, you must also break off your defense. If you don’t, it’sno longer self-defense, it’s battery. You are allowed to use reasonableforce, however, to hold the person while waiting for law enforcement toarrive.There’s one more limitation to self-defense that we should consider:You can’t provoke somebody into attacking you so that you can retaliateand call it “self-defense.” Well, what does that mean? What exactly is“provocation”? Generally, provocation would be an act or words that provokethe other person into fighting. So does that mean that any act or wordcould be provocation, no matter how sensitive the other person? No—it wouldall depend on whether a jury considers the act or words to be provocation.Obviously, provocation would include an assault or battery; if you provokesomebody into fighting by assaulting them, you would be the aggressor,and you would therefore be unable to claim “self-defense” if you subsequentlyrespond to the other person’s act of self-defense. It could also includeother words or acts that provoke a fight, including words or acts intendedto provoke a fight.What about flipping the bird? Could that be a provocation? It appearsso—indecent gestures are considered to be the equivalent of indecent oroffensive language—what the Supreme Court has called “fighting words.”If the person uttering the fighting words or the making the indecent gestureprovokes a fight, and a jury considers the fighting words or indecent gestureto be a provocation, the person can’t then fight back and claim self-defense.What about that buzzing—could that be provocation? Yes, if that’s how ajury sees it.Now that we’ve sorted those issues out, let’s return to the scene ofthe altercation to answer your question. Who assaulted whom? You know,there really isn’t a clear-cut answer. It’s a complex question, with complexfacts, and the answer would really depend on how a jury would view theevidence and testimony. But let’s see if we can at least discern some ofthe possibilities.First, your group ride is riding peacefully on a country road in deepestdarkest West Virginia, when it’s buzzed by the clan from Deliverance. Isthe buzzing an assault? That would depend on whether the driver buzzedyour group in order to create an apprehension of imminent harmful contact.If that was the driver’s intent, then the driver assaulted everybody shebuzzed. Of course, in order to prove assault, the driver’s intent wouldhave to be proved to a jury. Alternatively, the buzzing may be an act ofprovocation, whether it was intended to provoke a fight, or if it was simplyprovocative enough that a jury would find it to be an act of provocation.So, after being buzzed, your group leader responded to this aggressionby flipping the bird. Was that constitutionally-protected free speech,or was it a provocation? Because an indecent gesture is equivalent to indecentspeech, it falls under the Supreme Court’s “fighting words” doctrine, firstput forth in a 1942 case, Chaplinsky v. New Hampshire, which holdsthat indecent speech and fighting words are unprotected speech. Thus, forexample, state law may prohibit the use of indecent speech and fightingwords without violating the first amendment right to freedom of speech.And in fact, West Virginia law does exactly that in its disorderly conductstatute:

Any person who, in a public place …disturbs the peace of othersby violent, profane, indecent or boisterous conduct or language…and whopersists in such conduct after being requested to desist by a law-enforcementofficer acting in his lawful capacity, is guilty of disorderly conduct,a misdemeanor…

Fortunately for birdman, while his “we’re number one” gesture wasnot protected speech, it didn’t violate the disorderly conduct statute,because a law enforcement officer never requested that he desist.But was his gesture “provocation”? It could be, depending on how a jurywould view the act. Was flipping the bird sufficient provocation to fight?Was flipping the bird intended to start a fight? Suppose he had made thegesture and shouted something like “come back here and fight if you thinkyou’re a man”? While proving intent is not necessary to prove that an actwas provocation, and is often difficult to prove, if intent to provokea fight were proved, it is virtually certain that birdman would not beable to claim self-defense if he was subsequently attacked and fought back.So, after your group was buzzed, birdman flipped the driver off, andthe driver responded by sliding the car across your group’s path, cuttingyou off. As your group approached, the driver was spewing profanities,the teenage passenger in the back was punching the air, and the “enragedand rather large passenger” leapt out of the car towards your group leader.Was that assault? As with the buzzing, that would depend on whether theyintended to create an apprehension of imminent harmful contact. Would areasonable person, as determined by a jury, believe that under the circumstancesa harmful or physical contact was imminent? If so, birdman was assaulted.Alternatively, a jury may view this act on the part of the driver and passengeras a provocation to fight.At this point, birdman pushed the passenger back into the car, and ashe fell back, he struck birdman, shattering his helmet. Who assaulted whom?That would depend on the answers to the previous questions. If birdmanwas assaulted by the passenger as he exited the car, then pushing the passengerback into the car would be an act of self-defense, if: Birdman did not provoke the assault with his gesture;The threat of harmful physical contact was imminent; andBirdman only used that force necessary to repel the threat;If a jury were to find those three factors, then pushing the passengerback into the car would be an act of self-defense. If the jury did notfind these three factors were present, then pushing the passenger backinto the vehicle would be an act of battery, unless the jury found thatbirdman had been provoked in such a way that it could be assumed he wouldretaliate physically.Now what about the passenger? As he was pushed back into the car, hestruck birdman, shattering his helmet. Was that battery, or self-defense?If the passenger was battered by birdman as he exited the car, then strikingbirdman would be an act of self-defense, if: The passenger and driver did not act in concert to provoke a fightby buzzing the group;The passenger was not the initial aggressor. This means that jurywould find that when he got out of the car to confront birdman, it wasnot an act of assault;He was subjected to unwanted harmful or offensive physical contact;He used only the force necessary to repel the attack.If a jury were to find those four factors, then striking birdman wouldbe an act of self-defense. If the jury did not find these four factorswere present, then striking birdman would be an act of battery.It’s only possible for one of the combatants to be engaged in self-defense;the other combatant would be committing an act of battery. However, aninteresting twist to all of this centers on whether there was an act ofprovocation, and the intent behind that act. If an act of provocation ismade with the assumption that the other person would attempt to retaliatephysically, the person retaliating in response to the provocation may havea defense against battery. For example, if the driver and passenger assumedthat they would provoke a fight by buzzing the group and then confrontingthem, birdman’s push may not be an act of battery, even if the passengerdid not commit assault by getting out of the car. Similarly, if birdmanassumed that he would provoke a fight by flipping the bird, the passenger’sresponse may not be an act of assault. As with self-defense, only one ofthe combatants can be a provocateur.So, who assaulted whom? As you can see, there really isn’t a clear-cutanswer. It would all depend on how a jury would view the evidence and testimony.There’s one sure lesson we can take from this for our next ride: You havethe right to defend yourself, but it must be in response to an imminentthreat, and your response must be proportional to the threat.
Good luck,
Bob(Research and drafting provided by Rick Bernardi-law student- Lewis and Clark)

Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad 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 Bicyclingand the Law, designed to be the primary resource for cycliststo consult when faced with a legal question. It provides readers with theknowledge to avoid many legal problems in the first place, and informsthem of their rights, their responsibilities, and what steps they can takeif they do encounter a legal problem.If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.