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Legally Speaking – with Bob Mionske: More thoughts on the bird man

Dear Readers,Last column (Deliveranceof the bird man), we had a letter from C.W. in “deepest darkestWest Virginia” asking about self-defense, after his club ride was buzzedby “the clan from deliverance.” In response to the buzzing, the club’sfearless leader extended a one-fingered salute to the offending clan, whichresulted in the car sliding to a stop across the club’s path and a confrontationbetween “the enraged and rather large passenger.” This column, we’ve gotsome follow-up questions from readers, and next column, we’re going totake a second look at whether or not “flipping the bird” is

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By Bob Mionske

Legally Speaking - with Bob Mionske: More thoughts on the bird man

Legally Speaking – with Bob Mionske: More thoughts on the bird man


Dear Readers,
Last column (Deliveranceof the bird man), we had a letter from C.W. in “deepest darkestWest Virginia” asking about self-defense, after his club ride was buzzedby “the clan from deliverance.” In response to the buzzing, the club’sfearless leader extended a one-fingered salute to the offending clan, whichresulted in the car sliding to a stop across the club’s path and a confrontationbetween “the enraged and rather large passenger.” This column, we’ve gotsome follow-up questions from readers, and next column, we’re going totake a second look at whether or not “flipping the bird” is constitutionallyprotected speech.

But first, I’d like to announce that, in conjunction with the publicationof my new book, “Bicycling& The Law,” I am planning a series of speaking engagementsacross the country. If you would like me to appear to speak at your eventor shop, or to your club or group, please drop me a line at booking information will also be included in “the fine print” at theend of this and every column. I’m looking forward to meeting as many ofmy readers as possible; hopefully, I’ll be speaking at your event soon.
Now, back to self-defense. Appropriately enough, first up is a letterin defense of West Virginia.

Wild and Wonderful West Virginia
Dear Bob,
Having attended college in Morgantown, West Virginia and riding manymiles while there, I have a few comments on your article on and foremost is that Morgantown is generally one of the more civilizedparts of West Virginia, far from the deepest, darkest, deliverance settingthat your writer portrays.   Not saying that you can’t go 5 milesoutside of town and encounter some very different cultures, but in generalthe folks are civilized.  Also, being a college town, there are alot of drivers from various parts of the country and around the world…thoughyour writer does seem to have found a bona-fide local. As you get outsideof town the roads do become narrow and are often occupied by large coaltrucks that, in my experience, don’t move over either. Your writer couldbe considered lucky that they were only buzzed by a carload of “impatient”locals and not a coal truck.  It’s unfortunate that the altercationhad to occur and fortunately that’s one part of riding in WV I never experienced,in general I’ve found that most West Virginia drivers give cyclists a widerberth than in many other parts of the country (when traffic and road conditionsallow) and are generally pretty patient when it comes to passing.I know there are a lot of generalities here, and I don’t dare try toencompass all drivers and situations, but share my experiences and thosethat I rode with to paint a better picture of cycling in the beautifulstate of West Virginia.  There are always rude, impatient, insensitive,drivers that will honk at, buzz, flip off, and spit at cyclists. I can only hope that drivers can become more patient and cyclists can staysafe.
Anonymity RequestedDear “A.R.,”
Thank you for your letter in defense of West Virginia. Although I’msure that C.W. was writing for humor, it’s good to be reminded that itwas only a caricature, and that it doesn’t fully reflect the diversityand beauty of West Virginia. In fact, if any of my West Virginia readerswould like to book me for a speaking appearance—did I mention that I’mplanning on speaking to cyclists across the country on bicycling and thelaw?—I would be glad to have a chance to meet my West Virginia readers,and perhaps even experience for myself “cycling in the beautiful stateof West Virginia.”

Who stopped first?
Dear Bob,
Interesting column. Isn’t there any legal argument to be madein this case about the fact that the car “stopped”? I mean, who was lookingto “fight,” the people who stopped their car or the cyclists who came uponthe threatening people who now have stopped? Hell, man, cars can “get away”;cyclists can’t. Are we expected to leap-frog down the road around themto run every time they stop? Or, worse, cringe when they now come up behindus even more angry – after already having buzzed us once? (And, just FYI,I like to run!)
UtahDear T.V.,
You raise a good point, T.V. As I said in that column, every singlething that happened in the “birdman” incident would be a question for ajury to consider. If we were deconstructing the facts of this case afterit went to court, the intent of the motorists would be critical and thefact that they first buzzed the cyclists, and then stopped in the roadwaydirectly in front of the group ride would certainly be relevant in thejury’s consideration of “who assaulted whom.”

Different states, different statutes
Mr. Mionske,
I know you are speaking in legal generalities in this event and soit doesn’t necessarily apply in all states I just wanted to add anotherwrinkle you didn’t cover in the following portion, it comes from my 10years as an active, full-time police officer. You stated:

“It’s only possible for one of the combatants to be engagedin self-defense; the other combatant would be committing an act of battery.However, an interesting twist to all of this centers on whether there wasan act of provocation, and the intent behind that act. If an act of provocationis made 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.”

First let me note in Pennsylvania, where I am a police officer, there isno “battery.” Simple Assault covers that and has three subsections; briefly,2701 a1 causes or attempts to cause bodily injury, a2attempts to cause serious bodily injury with a deadly weapon, and a3places another in fear of serious bodily injury through physical menace.Here’s the wrinkle. The above offenses are graded as a misdemeanor of thesecond degree. There is however a misdemeanor thirrd degree, which is “mutualfighting”. The circumstance as noted above could be seen by an officeras mutual fighting. Yes, the rednecks buzzed them, then the birdman flippedthe bird. The vehicle stopped and the man stepped out to “discuss” theissue, the birdman then pushed the redneck, the redneck then struck thebirdman. Due to the totality of the circumstances a jury could potentiallyfind them both guilty of this offense of mutual fighting as there wereclearly overt actions by all parties which directly led to the physicalencounter, especially as there is no way to legally prove the nature (intentionalor not so) of the initial buzzing which caused the bird to be flipped inthe first place.
Thank you,
J. S.
PennsylvaniaDear J.S.
You also raise a very good point, which is that while I am usuallyspeaking in generalities (did you notice I made that a generality by saying“usually”?), the actual laws cyclists are subject to will vary, and willbe specific to the state, and often the municipality, the cyclist is ridingin. In this instance, Pennsylvania has merged assault, battery, and mayheminto one offense, “Simple assault,” classifying the crime based on the“seriousness of the harm done, intended, or risked,” rather than on thecommon law distinctions between assault and battery. However, even in thecase of mutual fighting, “self-defense” is a defense to the charge. Yes,both parties could be convicted of mutual fighting, but it’s not a giventhat both parties will be convicted; one or both parties could and probablywould defend themselves in court against the charge. However, assumingthat there’s evidence to otherwise successfully prosecute both parties,only one party could successfully argue that he was either defending himself,or that he was provoked.

Rights and realities
Hi Mr Mionske,
Thank you for the article, which some of our club riders are circulatingas we speak. Your book might be an interesting read /resource as well.I do have a response to your article, and would be interested in yourfeedback. Although an interesting topic and important distinction for allriders to understand, my larger concern is not the mutually exclusiveroles of self-defense and battery, but rather the fact that a cyclist hasno chance versus a car coming from behind, and the frequent buzzing representsa constant concern for my life.  It is, of course, a choice to cycleon public roads, but the same choice for walkers does not put them in suchfrequent and intimate proximity to danger.  It is my understandingthat the vehicle code allows a cyclist to follow the same laws as a motorizedvehicle, particularly when bike lanes do not exist, i.e., occupying thelane, using turn lanes, etc.  With there seeming to be a fairly consistentmisunderstanding of this right by motorized vehicle drivers, what is thecyclist to do?  Take the entire lane, further instigating the ill-informeddriver, or as is typically the case, stay as far right as possible? In either case, a cyclist is still at the mercy of drivers from behind,and it’s clearly no contest if contact is made. This puts drivers and cyclistson uneven playing fields, and in my opinion, should give the cyclist somesort of enhanced consideration when it comes to responding to events onthe road.
Thank you,
BrianDear Brian;
I’m shocked—shocked!—to read that my book “might be” an interestingread/resource. Think of my book as the basic legal resource for cyclists—thefirst one since 1895, incidentally—and my column as a sort of continuingdiscussion of these issues, now to be enhanced by speaking engagementsacross the country, so there should be no shortage of opportunities foryou and your club members to discuss your rights as cyclists. In that vein,I think you raise an interesting point about “enhanced consideration whenit comes to responding to events on the road.” As I noted last week, thefacts of the case would be questions for the jury to consider. Let’s saythe jury is deliberating on whether the bird man was provoked into shovingthe passenger. The jury must consider that question from the perspectiveof what the “reasonable person” would do under those circumstances. Ofnecessity, that will place the issue you raised before the jury—when a“reasonable person” has a legal right to the road, and is assaulted becausehe or she is exercising that right, what would the “reasonable person”do? Would a reasonable person feel apprehension and anger upon being buzzed?How would a reasonable person respond to the car sliding across their pathand an enraged passenger getting out to confront them? These are all questionsfor a jury to consider, and while nobody should consider these questionsa sort of carte blanche to go around punching dangerous motorists, I thinkthe question you raised is the same sort of question that would be putto the jury to consider.

Is a perceived threat enough?
Dear Bob,
I really enjoyed your piece at, I have been chased down,buzzed, harassed and even sternly lectured by presumably well-meaning driverson how I shouldn’t be risking my life on the road—though fortunately notin the darkest woods of West Virginia. My question has to do with the issueof assault and the perceived situation in which a cyclist finds himselfwhen confronted by a person in a car. When a car stops to confront a cyclist,it seems to me that the cyclist is immediately in a vulnerable positionand the person(s) in the car are in a position of power.You feel very exposed and defenseless. Anything that happens from thatpoint on, such as a person exiting the vehicle, could be construed by a”normal person” as an act of aggression, or assault, because it is highlyunlikely that the car occupant is getting out to debate what just tookplace. So any act to try and keep the car occupant in the car would bejustified as self defense. I suppose this is also dependent on why thedriver stopped to confront the cyclist and the hand gestures that wereexchanged, etc. In my experience I have seen many more “birds” from driversthan I have issued, and when I have gestured it has been in response toa similar gesture. I guess that when I receive a “bird” I would be justifiedin chasing down the car and confronting them.On another subject, like most road cyclists, I have been buzzed or brushedback and cut off and the feeling after such an event is similar to post-traumaticstress since I was almost killed. Could this be a factor in what mighttake place between the cyclist and driver or car occupants? Could birdmansay that he was badly shaken by the close pass and was temporarily insane?
D. R.
Lincoln, NebraskaDear D.R.;
As we saw last week, and again this week, the facts of a case willbe a question for the jury to consider, and the issues you raise are exactlythe sort of issues that would be raised in a defense against a batterycharge. However, while insanity is a defense in all criminal cases, includingbattery, I don’t think that it’s necessary to raise temporary insanityas a defense in a situation where little more than a shoving match ensuesafter the bird is flipped, because provocation and self-defense are availableas defenses.

Hi Bob,
I just read your “Deliveranceof the bird man” article on and I had a somewhat similarsituation. For a while I got in the habit that if someone buzzed me tooclose and if they were not going too fast I would knock/slap the roof ofthe vehicle to get their attention. In the event they really didn’t noticeme sometimes they would see me and slow down. One time I did this to therear section of a pickup and the vehicle quickly pulled over and a militaryguy jumped out of his car and started yelling and cursing at me. I simplytold him he was too close and I just wanted to get his attention, but hekept
yelling so when the light changed I simply rode off he then turnedaround chased me down and followed me for several blocks yelling and swearingat me and eventually said “if you touch my truck again I’ll run you down.”I paid no attention to him and said nothing and kept riding on my commuteto work. He eventually gave up and went away. I guess I’m wondering ifit is wrong to try to get peoples attention by knocking on their vehiclesas long as no damage is done, and should that crazy military guy have reactedso violently? Thanks.
New YorkDear Jason,
A lot of drivers are kind of particular about their cars—the same waya lot of cyclists are kind of particular about their bikes—so it’s nottoo surprising that the driver reacted violently to you slapping his truck.I once represented a cyclist who, like “the birdman” in last week’s column,flipped off an aggressive motorist. The driver’s response? He swerved intomy client, running him down. Now slap that same aggressive driver’s vehicle,and what do you think his response will be? I know a lot of cyclists doit, and if you don’t actually damage the vehicle, is it wrong? From a legalperspective, as long as you’re not violating any laws, or damaging thecar in any way, it’s not legally wrong. Is it morally wrong? Weighed againstthe actions of the driver who just endangered your life, it seems unlikely.Is it safe? Possibly not—after all, once you slapped his car, he threatenedto run you down. Fortunately, he didn’t actually run you down, unlike theroad-rager who did run my client down.So what can you do to get the driver’s attention, without elicitinga violent defense of his property? I would recommend using one of the airhorns that are available for bikes. These are very loud, the driver willhear your warning, and you will not be risking retaliation for slappingthe car.

The mean streets
Hi Bob,
Great write-up on being buzzed. I liked your advice. As a 35+ yearcommuter in the mean streets of L.A. I have had this sort of nonsense doneto me too many times to count. I do have couple of comments. First, I wouldsay that no matter how obscene or threatening a driver is towards me Ido not confront them, I do not engage them (finger or words). My only thoughtis escape.If I feel the situation is serious enough I get out my cell phone andput in a call to the police. I have only had to do that once. You are correct,they may be packing heat and anyway they have a car and maybe help inside.I am surprised that you didn’t address the rest of the riders. After all,they were buzzed too and didn’t (I assume) use the finger. I would havecalled the police were I one of them.
K.J.Dear K.J.,
In “Bicycling& The Law,” I suggest that when confronted by a road-rager,the best use of your finger is to dial the police, because the road-ragerwill respond to any other response with an escalation of tactics. Thisis sometimes difficult advice for us to follow, including me, because we’reconditioned athletes being bullied by sedentary cowards hiding behind thewheels of their multi-ton facades of machismo, and sometimes the adrenalineflushing through our systems after just having been assaulted just overwhelmsour ability to respond in any way other than with an aggressive defense.Nevertheless, the best response is restraint, for several reasons. First,it completely eliminates the escalation of tactics that are the hallmarkof the road-rager—an escalation of tactics in which we as cyclists are“outgunned.” Second, some of these guys are carrying guns. For that matter,some cyclists are carrying guns too. But if you’re not carrying a gun,you don’t want to show up at a gunfight with a bike lock. And if you arecarrying a gun, you likely already know that there are serious legal consequencesassociated with its use. Third, when the police show up, you want themto find only one criminal—the other guy. For all these reasons, the bestresponse is restraint, and if you must use your finger, use it to dialthe police.

Maine shares the road
Dear Mr. Mionske,
The state legislature recently enacted some very favorable bicyclelaw changes for the state of Maine. Perhaps you assisted with creatingthem? Just a few comments about your latest column for—thethree-foot passing rule clearly shows who was wrong first when a confrontationstarts after a driver passes a cyclist too closely (when it occurs in Maine).As far as hand gestures go…I have retrained myself to use my index fingerand thumb in the shape of an “L” (perhaps tapping my forehead) to indicatemy displeasure with the driver’s prowess. That could not possibly be consideredoffensive…or could it?
Yours Truly,
 C. J.Dear C.J.,
I think the three-foot passing rule is a very favorable development,and congratulate your state legislature on adopting it. I can’t claim creditfor assisting with creating the new changes to the law, however—the creditproperly belongs to the BicycleCoalition of Maine. Nevertheless, while I can’t take credit for thehard work of the Bicycle Coalition of Maine, I will be speaking on bicyclingand the law as I travel across the country, and look forward to meetingmy readers in Maine—perhaps to Bicycle Coalition of Maine members in yourneck of the woods?Now, could the “L” sign be considered offensive? While it could certainlybe “insulting,” it’s a pretty mild insult, as far as insults go. Certainly,on a scale of insults, it ranks far below “the bird.” In Deliverance ofthe bird man, we saw that whether flipping the bird is an act of provocationthat would be a defense to a charge of battery would be a question fora jury to decide. If flipping the bird is not clearly a provocation, Ithink it’s fairly safe to say that flashing the “L” sign would not be consideredsufficient provocation to justify a charge of battery. Carrying the comparisonwith “the bird” a bit further, I think it’s also safe to say that the “L”sign is constitutionally-protected speech. Which brings us to next week’stopic: Is flipping the bird constitutionally-protected speech?
Stay tuned…
(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 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.