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Legally Speaking – with Bob Mionske: Attack of the abominable snow (plow) man

By Bob Mionske

Closer and closer and closer...

Closer and closer and closer…

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Dear Readers,
Here we are in February, deep in the middle of winter. And some of you know what all that snow and ice means…Icebiking! (see www.icebike.org if you haven’t yet). Yes, not even winter snows can keep intrepid cyclists from their rides…Which explains how a Milwaukee reader named Jeff Frings came to be on his bike one wintry night. Jeff’s experience with a snow plow that night, and the official response afterwards, is the subject of this week’s column.

On December 15th, Jeff decided to go for a ride in the snow. As always, his bike was equipped with two video cameras—one facing forward, one facing the rear. Just a simple evidentiary precaution taken by a guy who got tired of the police shrugging their shoulders when he had previously reported being run off the road.

So Jeff was riding in the snow, “as close as practicable to the right,” when a Milwaukee Department of Public Works snow plow approached from behind…and got closer…and closer…and closer…and buzzed him within inches of his bike, throwing a foot-high mound of snow and slush into his wheels. You can watch the video on Jeff’s blog.

As Jeff explains,

I was, at the time of the incident, obeying all traffic laws, and riding on a road that the law allows me to use. I had also taken many precautions so that I would be visible to others on the road. I had 2 rear facing blinking red lights on my bike and/or my person, I had one blinking and one steady headlight and I was wearing an orange jersey and boots with reflective seams. I also had a reflective band around my seat pack. I was also riding in a predictable manner.

That's close!

That’s close!

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Just to put it all in perspective, in Wisconsin motor vehicle operators are required by law to leave a minimum safe clearance of three feet when passing a cyclist. So how was it that the snow plow driver came within inches of hitting Jeff? The only statement we have from the driver is his comment when Jeff caught up with him: “Get off the road.”

Well, Jeff’s not the kind of guy who meekly acquiesces when his rights have been trampled on, so the next day, he brought his video evidence to the Milwaukee police department and made a complaint. The response of the Milwaukee Police Department?

They wanted to know why he had a video camera on his bike.

Then he was lectured on where he was riding, the Sergeant claiming—while admitting his lack of expertise on the traffic laws—that cyclists must ride in a “legal lane,” and not as close as practicable to the right, as Jeff was doing. Remember that Sergeant’s claim, because next week, we’re going to take another look at the creative interpretation and selective enforcement of the laws in Milwaukee.

Then he was accused of “staging” the close pass so he could file a complaint.
That’s not quite the response one would expect from the police, when presenting solid evidence of a life-threatening traffic violation. And here’s the thing—Jeff wasn’t reporting the incident with the expectation that a citation be issued; he just felt that, at a minimum, the police should talk to the driver, because the driver had yelled “get off the road” after the buzz. In Jeff’s view, that’s more serious than a driver who made a mistake, and thus, Jeff felt, warrants more than a talk with the driver’s supervisor.

Well, the police didn’t see it that way—they referred the incident to the Department of Public Works. After the case was referred to the Department of Public Works, the driver’s supervisor did discuss the incident with the driver. But as Jeff explained to both Milwaukee County Executive Scott Walker and his Constituent Services Coordinator,

What concerns me is that [the driver’s supervisor] repeatedly told me that I shouldn’t be riding my bike on the road under those circumstances… If the person counseling the driver shares his view that I shouldn’t be on the road, how effective will that counseling be? …I believe it is important that [the supervisor] understands that I had a legal right to be using the road that night and the plow driver was in the wrong, period. I know many non-cyclists would not understand why I would be riding my bike in bad weather. The fact is that the law allows me to do so and the law requires the plow driver and all other motorists to respect my right to be there, whether they think I should be there or not.

In response to this assertion of his right to the road, the Constituent Services Coordinator observed that:

It is important that residents are kept safe during plowing operations and that is why the State of Wisconsin has said that you should not get any closer than 200 feet of a snow plow when it is operating.

Well, yes, in Wisconsin, if you are following a snow plow, you are required to maintain a minimum 200 foot distance between yourself and the snowplow. But in this instance, Jeff was not following a snow plow, he was passed by the snow plow. And in that situation, the snow plow operator is required to pass with a minimum safe clearance of three feet. Despite the clarity in the law, the County Executive’s office was clearly attempting to shift the blame to the cyclist, even to the extent of implying that it was he who had not maintained the minimum safe distance required by law. The County Executive’s office continued:

I viewed your video and see that you were not following the plow, but you were within 200 feet of the plow when he was clearing the road. According to the State of Wisconsin, a bicyclist must obey the rules of the road. As I watched your video, I actually wondered why you did not move off of the road until the plow passed you…No one debates the fact that you are allowed to ride your bike in a snowstorm, but you have the same responsibilities as a motor vehicle would have when on the road.

So does the County Executive really believe that state law requires all motor vehicles in front of a snow plow to pull over and let the snow plow pass when the plow is closer than 200 feet from the motor vehicle? Or does the County Executive’s interpretation of the law only apply to cyclists?

Well, Jeff wasn’t getting anywhere with the County Executive, and he was beginning to feel some outrage at the blame-shifting Milwaukee’s public officials were engaging in. By this time, he began to feel that the only way the snow plow driver was going to get the message that his pass was both wrong, and illegal was if he got cited for it, so he also presented his video evidence to the City Attorney. And the City Attorney’s response?

After review and discussion, it is our opinion that it is appropriate for the police department to issue the driver a warning card for this incident. In addition, we have spoken to the supervisor at Milwaukee County to inform him of the incident and to discuss training that should be provided drivers.

While I appreciate that you may disagree with our opinion, please understand that much time was spent on this evaluation. We determined, based on the proper exercise of prosecutorial discretion and our duty of good faith, that there was not sufficient evidence upon which to prosecute the driver as a defendant in a court proceeding, and that the circumstances of the incident (the difficult weather conditions, for example) were likely to result in a court ruling adverse to the city.

If you thought that after receiving that response from the City Attorney’s office, Jeff wouldn’t back off from pursuing justice, you’d be right:

You have a video that clearly shows the plow blade being less than the statutory minimum 3 feet from my path just a half second before it was next to me. The video clearly shows a foot-high pile of snow and slush being thrown at my wheels and feet, and clearly shows my swerving away from the snow plow. You have my testimony that the snow plow was so close to me that I thought he was going to hit me. You have audio from later in the video where the snow plow driver can be heard saying “get off the road.”

You brought up the “difficult weather conditions” as a circumstance of the incident, which would make it likely to result in an adverse ruling. It seems to me that if the “difficult weather conditions” should play any role in this case, they should require the plow driver to use more care in making the pass, not less…If a driver cannot be prosecuted with video evidence and testimony from a victim for violating this statute, when would such prosecution be appropriate?

To date, Milwaukee officialdom seems determined to let the incident drop; Jeff seems just as determined not to let it drop. Despite the buzzing, and the subsequent quasi-official attempt to shift the blame for the incident to the cyclist, Jeff still found the silver lining:

“It turned out to be the best winter/snow ride I’ve done.”

Next week, we’re going to hear more about Jeff’s encounters with Milwaukee officialdom’s anti-cyclist bias, so stay tuned, it will be an eye-opener.

My thanks to everybody who has contacted me to request my appearance at their event on my upcoming speaking tour. I will be speaking extensively this year, beginning in February, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. As promised previously, throughout the year, I will be announcing my speaking appearances in this space. Confirmed events for 2008 include the following:

• San Francisco, CaliforniaFebruary 20, 2008: San Francisco Bicycle Coalition
Evanston, IllinoisFebruary 28, 2008: Turin Bicycle
Battle Creek, MichiganFebruary 29, 2008: Team Active
Philadelphia, PennsylvaniaMarch 1, 2008: SRAM’s Redbowl Benefit for the Bicycle Coalition of Greater Philadelphia
Washington, D.C.March 5, 2008: League of American Bicyclists National Bike Summit
Washington, D.C. Date To Be Announced: Sonoma Restaurant www.sonomadc.com
• Pittsburgh, Pennsylvania
March 7, 2008: Trek of Pittsburgh.

If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com. I’m looking forward to meeting as many of my readers as possible in the coming year.
Bob

(Research and drafting provided by Rick Bernardi, J.D.)


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 mionskelaw@hotmail.com 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 at www.bicyclelaw.com.

Important notice:
The information provided in the “Legally speaking” 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.

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