Legally Speaking – with Bob Mionske: A fatal bias?
By Bob Mionske
Thank you for penning the column. I read with interest your notes on cycling deaths notes on cycling deaths . You raise an interesting point: many cycling deaths result in no criminal legal accountability. I think we all know cyclist who have died on the road. In every instance that you bring up had there been a vehicle involved instead of a cyclist I am sure charges would have been filed as a result of material damage. A question I have, is there a statistic or information on what percentage of cycling deaths result in criminal charges (or any for that matter) being filed? And as a follow up questions is there an organization that pursues this matter on behalf of cycling in general. Until cyclists are taken seriously, deaths will continue to happen and those in power (i.e. law enforcement, transportation planners, insurance companies, etc.) will continue the status quo of ignoring cyclist as not only a valid form of transportation and recreation, but as human beings. The current catch-all clause is “it was an accident,” but an accident is not being hit by a vehicle. There is a difference.
Winter Park, Colorado
Following last weeks column, I received a number of emails from readers regarding other cyclist deaths that I hadn’t mentioned in that column. The responses from my readers really do bring home the point that many of us know cyclists who have died on the road. But there’s another type of response I want to discuss in this column—the response from law enforcement and the media. In Bicycling& the Law, I discuss the institutional biases against cyclists, including law enforcement and media biases. Following the recent cyclist fatalities, we have seen firsthand some textbook examples of those biases. I will be discussing some of those cases in this column, but first, you asked if there are statistics on the percentage of cycling deaths resulting in criminal charges—not that I’m aware of, but I invite any readers who may be aware of such statistics to bring them to my attention. You also asked if there is an organization that pursues this matter on behalf of cycling in general. Again, not to my knowledge, although I am currently working to create a public interest cyclist’s rights organization.
Now let’s take a look at some of these recent textbook incidents of anti-cyclist bias.
Lloyd Clarke, 43, was a member of the Cumberland Valley Cycling Club as would be expected of an avid cyclist, Lloyd typically logged over 150 miles per week on his bike. After putting in the years of hard work to earn his Ph.D. from the Systems Engineering Department at the University of Pennsylvania, Lloyd held a faculty position at the Georgia Institute of Technology, before pursuing a career in private industry—a career that eventually brought him to Incline Village, Nevada, where he was working on temporary assignment for his company. On September 20, Lloyd went for a ride on a borrowed bike. He never returned. As he was riding along Country Club Drive, a motor vehicle approaching from the opposite direction turned directly into Lloyd’s path, killing him instantly. The driver, a 17 year old, was not cited. In fact, not only was the driver not cited, but the police department went out of its way to paint Lloyd as being “at fault.” As the local media reported,
A 17-year-old Incline Village man who hit and killed a cyclist early Thursday evening most likely isn’t at fault, police officials said Friday. According to the Washoe County Sheriff’s office, Lloyd W. Clarke, a 43-year-old Maryland native, was riding down hill on Country Club Drive at a high rate of speed when a pick up truck driven by the 17 year old pulled into the intersection of Country Club and Village Boulevard. Clarke was unable to stop, and he struck the side of the truck.
We all ride, so we all know about the infamous “left hook”—as you’re riding straight through an intersection, a vehicle approaching from the opposite direction turns left across your path, violating your right-of-way, often causing a collision. The left hook accounts for nearly 6% of collisions between bicycles and cars. And yet, if you hold a bias against cyclists, the possibility that an inexperienced driver turned into the cyclist’s path so suddenly that the cyclist was unable to stop isn’t even taken into consideration. The only possible explanation that restores some semblance of sense to law enforcement’s auto-centric paradigm is that the cyclist “must have been speeding.” And if the cyclist is an out-of-towner, and the driver is a local, it makes even more sense to blame the cyclist. In Lloyd’s case, the police went into contortions in their efforts to exonerate the driver and blame the cyclist:
“He [the 17 year old driver] was real cooperative, and we don’t expect to have any issues with him,” said Brooke Keast, public information officer with Washoe County Sheriff’s Department. “It looked like the cyclist was going too fast. It’s so hilly up there that sometimes you might not be able to stop.”“Tentatively, it looks like the cyclist was exceeding the speed limit,” [Captain Steve] Kelly said. “If you know that part of town, you know it’s pretty steep there. If speed was the main contributing factor the juvenile most likely isn’t to blame.””One thing I will say – the fact of the matter is, if we find he was exceeding the speed limit in a low-light situation, how do you expect the driver to see him?” Kelly said. “It was dark. It was probably hard for the driver to see him, he had no lights on the bicycle and he probably was not familiar with the area. Now obviously, I don’t think it was a deliberate attempt to disregard the law. We don’t have a final finding yet, but those are possible reasons why.”
Captain Kelly even “stressed it was an unfortunate accident in which no one should be blamed.” Note, however, that Captain Kelly was placing blame—on the cyclist. A Nevada Highway Patrol trooper went one step further, blaming all cyclists:
Chuck Allen, a trooper for the Nevada Highway Patrol, shared similar thoughts with Kelly. “Mostly you see bikes riding the wrong way, not stopping at stop signs – they fail to abide by laws motorists abide by,” Allen said. “I think there might be a vision put there that cyclists feel exempt from traffic laws.”
While cyclists should observe the law, this was not a case about a cyclist riding the wrong way, or failing to stop at a stop sign—it was a case about a driver violating a cyclist’s right of way.
Of course, the media reported the police account.
Which is unfortunate, because if the media had conducted any sort of independent investigation, they would have noted that:
The accident occurred before sunset, and not in the “low light” conditions the police offered as an alibi for the driver.The driver’s line of sight visibility was excellent.The road grade was about 8 or 9 percent, and Lloyd had a reputation as a skilled cyclist who didn’t take risks, and who was experienced at riding much steeper grades.Lloyd had the right-of-way at the intersection.“Left hooks” account for nearly 6% of all automobile-on-bicycle collisions.
Tracey Sparling , 19, was both a top student and a talented artist. After her freshman year at Syracuse University, Tracey, feeling homesick, had returned to Oregon to study at the Pacific Northwest College of Art in Portland, Oregon. On October 11, Tracey was returning from her apartment to school after her noon break. As she approached a red light, she stopped, waiting for the light to change. When it did change, the cement truck to her left made a right turn, across the bike path, knocking her off her bike and killing her.
Despite the fact that Tracey was in the bike lane, and therefore had the right-of-way over the cement truck, Portland police declined to issue a “failure to yield” citation to the driver. Jonathan Maus Jonathan Maus reported on Bikeportland.org Jonathan Maus Bikeportland.org that:
After the Sparling incident I asked Traffic Division Lt. Mark Kruger why no citation was given to the cement truck driver. His response was something to the effect of, “We’ve determined that there was just no way he could have seen her.”
Now, to put Lt. Kruger’s comment in perspective, it’s helpful to know what the law actually requires. ORS 811.050 is the statute governing right of way in a bicycle lane; it is clear from reading the statute that the cyclist always has the right-of-way over a motorist who is making a turn:
A person commits the offense of failure of a motor vehicle operator to yield to a rider on a bicycle lane if the person is operating a motor vehicle and the person does not yield the right of way to a person operating a bicycle, electric assisted bicycle, moped, motor assisted scooter or motorized wheelchair upon a bicycle lane.
By Lt. Kruger’s interpretation of the law, the motorist only has a duty to yield the right-of-way to a cyclist if the motorist sees the cyclist—in other words, “I didn’t see her” means no citation is issued. Now, “I didn’t see her” might be a legitimate defense to a citation under certain circumstances. However, it is not up to the police to plead the driver’s case; rather, the police have a duty to investigate collisions for possible violations of the law, and to let the driver plead his defense at trial. In this case, the law is clear that a driver making a turn must yield to a cyclist in the bike lane. There is nothing in the law that adds “if the driver sees the cyclist.” In fact, every driver owes every other person on the road a duty to keep a proper lookout, and a duty to exercise due care. Furthermore, commercial drivers owe a greater duty of care to others than do non-commercial drivers. Simply put, if the cement truck driver had been keeping a proper lookout before turning across a bike path, he would have seen Tracey. The fact that he didn’t see her indicates a failure to keep a proper lookout, rather than a defense to violating her right-of-way, as the Portland Police Bureau would have us believe.
Brett Jarolimek, 31, was both a talented artist—a graduate of the same college Tracey Sparling was attending—and an avid cyclocross racer. On October 22, eleven days after Tracey’s death, Brett was riding in the bike lane on his route in Portland, Oregon; he was passed midway down a hill by a garbage truck, which then stopped at the bottom of the hill, signaling to make a turn. As Brett approached the intersection—he had the right of way over the truck—the driver turned into Brett’s path, killing him instantly. It was a classic “bait-and-hook”—the driver stopped, with his turn signal on, preparing to turn. To an approaching cyclist who has the right-of-way, it appears that the motor vehicle is yielding the right-of-way—that’s the bait. Then, at the last second, as the cyclist is legally passing the motor vehicle, the driver turns into the cyclist’s path—that’s the hook.
Once again, the police declined to issue a citation, despite the fact that Brett had the right-of-way over the truck. And as the Incline Village police did in Lloyd Clarke’s fatal collision, the Portland Police Bureau shifted the blame to the cyclist for “speeding,” rather than placing it on the driver for “failure to yield.” And again, the police read a non-existent clause into the statute exonerating the driver of any fault. Jonathan Maus reported the police explanation on bikeportland.org :
[A]t the scene of the Jarolimek collision, Kruger once again painted a picture of circumstances that led his investigators to believe that the garbage truck driver did everything he could to avoid the collision, and therefore would not be cited. Kruger told me that not only had the truck signaled, slowed, and checked it’s mirror, but that his team believed Jarolimek’s high speed down the hill “could have been a factor.” *** KGW reporter Aaron Weiss was also perplexed by this. Yesterday, on KGW’s “Talk of the town” blog, he wrote that the law, “seemed cut and dry to me, but Portland Police see a more nuanced situation.” When Weiss asked Portland police spokesman Sgt. Brian Schmautz for clarification…Schmautz said “..yielding the right of way, and determining whether a traffic violation has occurred, comes down to a matter of perception. Basically, the driver has to perceive he has to yield the right of way.”
In response to this official misinterpretation of the law, Portland attorney Mark Ginsberg explained to Bikeportland readers:
The cops are misconstruing the law in a biased way. There’s no mental state requirement for traffic violations. You can accidentally run a red light, or purposely run a red light, either way you are guilty. What they are saying is that ‘I didn’t see him’ is a good enough defense. It is not. The police are coming in to these investigations with a confirmation bias , and they’re finding facts that back up that bias. We’ve got a system that is designed to exonerate the car driver.
In other words, the Portland Police Bureau has unlawfully inserted a non-existent requirement into the law that failure to yield must be an intentional, rather than a negligent act. This unlawful interpretation of the law is outside the bounds of police authority, and the Portland Police Bureau’s refusal to enforce the law is damning evidence that an anti-cyclist bias permeates the Bureau’s Traffic Division.
Two weeks later, on November 6, Siobhan Doyle Siobhan Doyle , 31, was riding down the same hill that Brett Jarolimek had been riding down. As she approached the same intersection where Brett was killed, a car passed her, and turned abruptly into her path—despite the fact that Siobhan was highly visible in her fluorescent yellow cycling jacket. Siobhan was somersaulted over the car by the impact. Fortunately, she survived the collision, although with several broken bones. Again, the police declined to issue a citation. As Jonathan Maus reported on Bikeportland.org.
Police Bureau spokesman Brian Schmautz said no citation was issued because the crash did not “meet the criteria for an investigation” and therefore no fault could be found (which means no citation). He also said that investigations are only performed (and citations issued) when the crash involves serious, trauma-level injuries.
This was a somewhat different explanation for why the police were coddling a negligent driver. When a negligent driver violated Lloyd Clarke’s right-of-way and took his life, the driver was not cited for “failure to yield” because the cyclist was “speeding.” When a negligent driver violated Tracey Sparling’s right-of-way and took her life, the driver was not cited for failure to yield because he “didn’t see her.” When a negligent driver violated Brett Jarolimek’s right-of-way, the driver was not cited for failure to yield because he “didn’t perceive” that he had to yield.
But how do you coddle a negligent driver when the cyclist is wearing a fluorescent yellow cycling jacket? Do you haul out that old chestnut—that the driver “didn’t see her”—anyway? That doesn’t seem very plausible, does it? Do you claim that the cyclist was speeding? When the driver passed the cyclist only a moment before turning into her, that doesn’t seem to be a very plausible explanation either. No, in Portland, you simply fail to conduct any investigation at all.
Which brings us to Kyle Egertson . Kyle is 24 years old, a student at Portland State University, and a bicycle commuter. On October 24, Kyle was hit by a motor vehicle, and based on the statements of a witness, was cited for running a red light and riding against traffic on a one-way street.
Think about that for a moment.
In most of the collisions between cyclists and negligent motorists, the police coddled the negligent motorist by talking about non-existent statutory requirements like the need for the driver to see the cyclist, or the need for the driver to perceive that he is violating right-of-way, or even by assuming that the cyclist “must have been speeding.” But in Siobhan Doyle’s collision, the police had none of these tried and true excuses available, so they simply refused to investigate, because her crash did not “meet the criteria for an investigation”—according to the Portland Police Bureau, investigations are only performed—and citations are only issued—when the crash involves “serious, trauma-level injuries.”
In Kyle’s crash, he did suffer a concussion, although it is unlikely that the responding officer knew that at the time. Nevertheless, even if the officer did know of Kyle’s concussion, it did not rise to the level of injury that the Portland Police bureau claims to be the threshold for an investigation leading to a citation.
And yet an investigation was conducted, and Kyle was cited.
Now, if the police can conduct an investigation and issue a citation in Kyle’s crash, why did the police retreat behind “department policy” in refusing to conduct an investigation in Siobhan’s crash? If the Portland Police Bureau didn’t have an institutional bias against cyclists, shouldn’t they have responded to both crashes in the same manner—either by not issuing a citation to Kyle, or by issuing a citation to the driver who violated Siobhan’s right-of-way?
Recently, Kyle’s mother contacted me, and told me his side of the story. So far, the only side of this story heard by the public has been the version reported to the media by the police: A cyclist was riding the wrong way on a one-way street, tried to beat the light—raising the obvious question about how he could have even seen that the light was changing if he was riding against traffic on a one-way street—and was hit by a pickup truck when he ran the light. As I’ve discussed in Bicycling& the Law, and now here, this is an example of the media bias against cyclists. The police conduct a biased investigation of a collision involving a cyclist, and the media dutifully reports the results of that biased investigation. It happened with Lloyd Clarke when the media reported that he had been speeding, it happened with Tracey Sparling when the media subsequently reported that she “slammed into” the side of the truck when in fact the truck slammed into her, it happened with Brett Jarolimek when the media reported that he had been speeding, and it happened with Kyle Egertson.
As might be expected, when you talk with the cyclist involved—something that we can’t do when the cyclist is killed—an account emerges that is quite different from the account reported by the police and the media. In Kyle’s case, he was riding home from Portland State, along the route he always takes. In order for Kyle to have been going the wrong way on that one-way street, he would have had to be riding away from his direction home. As he was riding home, he was hit from behind by the driver of a pickup truck, who was going into diabetic shock at the time he hit Kyle. The driver behind the pickup saw the collision, and said that Kyle must have been going the wrong way because he came out of nowhere. Note that the only eyewitness to the collision did not say that Kyle had been going the wrong way—he said that Kyle “must have been going the wrong way.” In other words, nobody saw Kyle going the wrong way.
But what about that red light Kyle ran? It’s also an assumption, based on the witness’s statement that Kyle came out of nowhere, and based on the police officer’s conclusion that Kyle must have done something wrong because Kyle wasn’t able to answer questions about the accident—something that would not be unexpected for somebody suffering a severe concussion. In other words, nobody saw Kyle run a red light.
Meanwhile, as the officer was concluding that the cyclist who couldn’t answer questions must have done something wrong, the driver of the pickup truck was also unable to answer questions, because he was on the verge of a diabetic coma. And yet somehow, the police officer did not conclude that the driver also must have done something wrong. There were two people at the scene in need of medical attention, both unable to respond to a police investigation—an investigation that is apparently against department policy—and the cyclist is once again assumed to be the one at fault. What other explanation could there be in an automobile-centric society? It made sense to the driver who didn’t actually see what happened, it made sense to the police who suddenly and unexpectedly decided that investigating accidents and issuing citations is within the scope of their duties, and it made sense to the media who reported the biased police assumptions as fact.
After hearing Kyle’s side of the story from his mother, I accepted his case, and will be telling his side of what happened if and when his case goes to trial.
When I wrote Bicycling& the Law, one of my motivations was to tackle the problem of cyclistharassment, and as I note in the book, a social bias against cyclists liesat the root of cyclist harassment. In each of the collisions I’ve discussedin this column, we’ve seen powerful evidence of police bias—one componentof the social bias against cyclists. It is up to all of us, as cyclists,to speak up for justice when bias against cyclists, operating under colorof authority, violates the rights of another cyclist.Before I close, I’d like to thank all of my readers who have contactedme to request my appearance at their event on my upcoming speaking tour.I will be speaking extensively in 2008, and will make plans to appear beforeany club, bike shop, or other engagement that is interested in hostingme. If you would like me to appear to speak at your event or shop, or toyour club or group, please drop me a line at email@example.com.I’m looking forward to meeting as many of my readers as possible.
Bob(Research and drafting provided by Rick Bernardi, J.D.)
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 firstname.lastname@example.orgBob 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.