Bike lawyer Bob Mionske weighs in on Santa Monica cyclist convicted of assault with a deadly weapon

June 21, 2013

Sometimes I’m surprised by just who reads this blog.

Let alone their willingness to weigh in on the issues we discuss.

Case in point: The other night, I mentioned I’d be writing a piece for LA Streetsblog about the cyclist who pleaded guilty to assault with a deadly weapon after blowing through a red light, and seriously injuring a pedestrian on the Third Street Promenade in Santa Monica.

And while I was reaching out to a handful of the area’s leading bike lawyers for comments, I invited any other lawyers who wanted to weigh in on the case to send me their thoughts.

Still, I was surprised to receive an email yesterday from bike lawyer Bob Mionske, Bicycling Magazine’s Road Rights columnist, and author of Bicycling and the Law.

I used some of what he had to say in my piece, which is now online at Streetsblog.

But his entire response is well worth reading, as it shines a light both on issues in the Santa Monica case, and the mentality facing cyclists on the road everywhere.

With regard to the “assault with a deadly weapon” charge against the cyclist in Santa Monica, it seems to me that this is overreach, and is due to a frustration with cycling in general, and scofflaw riding specifically. But as we have witnessed in the aftermath of many a cyclist death under the wheels of a culpable motorist, comments about the scofflaw straw man always emerge. This may be a version of the same mentality. When people are frustrated by some group—in yesterday’s culture, young “hotrodders,” in today’s culture, “scofflaw cyclists”—finding a member of that group who has actually broken the law and been caught may lead to a sort of collective punishment for the entire group, in which the culprit is made an example of.

Looking beyond the particulars of this case, there are two larger issues here.

First, there is the issue of disparate treatment of cyclists who break the law, and drivers who break the law. We can see this in the “Scofflaw Cyclist” meme that cyclists are tarred with. In fact, drivers break the law at least as often as cyclists do, and perhaps more often. And when drivers break the law, they are more likely to be a danger to others than when cyclists break the law. And yet, cyclists are the ones who are tarred with the “Scofflaw” meme, even when they are the law-abiding victims of negligent drivers.

When drivers are negligent and injure or kill a cyclist, are they charged with “assault with a deadly weapon”? Not that I’ve ever heard of. Often, they are coddled with “it was just an accident.” And often, law enforcement bends over backwards to shift the blame to the cyclist, when it is crystal clear that the driver was breaking the law. I have seen this happen many, many times.

Part of the problem we are facing is that we live in a culture where most people, including law enforcement, prosecutors, judges, and jury members are drivers. Prosecutors have a high bar of proof when pressing criminal charges, and if the accused was a driver who did something that every driver does, it may be difficult for the prosecutor to convince a jury made up of drivers to find the accused driver guilty of a serious charge. But when the accused is a cyclist, and the general opinion of cyclists is that they are scofflaws, it will be easier for the prosecutor to convince a jury made up of drivers to find the accused cyclist guilty.

There is nothing inherently wrong with pressing charges against cyclists who negligently injure pedestrians. But there is something wrong when we treat cyclists more harshly than we treat drivers who negligently injure cyclists and pedestrians. If as a society we want to start charging cyclists with serious violations when they negligently injure pedestrians, then we’d better get serious about charging motorists with equally serious violations when they negligently injure cyclists and pedestrians.

Second, when charges are filed, they should reflect what actually happened. This means that the incident should not be undercharged (for example, “unsafe passing” when in fact somebody was killed as a result of an unsafe pass), and the incident should not be overcharged. The question raised by the charge in this incident is whether the charge reflects what actually happened, or whether the cyclist was overcharged. From my own experience, I have never seen a motorist charged with “assault with a deadly weapon” after running a stop (yes, motorists run stops) and hitting a cyclist or pedestrian.

One other quick note.

Many of the attorneys I spoke with described the charge against the cyclist as an overreach. Meaning, yes, the cyclist could be charged with assault with a deadly weapon, but it probably wasn’t the appropriate charge in this case.

And while they didn’t say it, one that a good lawyer might have been able to get dismissed.

Which brings up one last point I’m surprised none of the lawyers mentioned.

If you get a ticket while riding, whether in Santa Monica or anywhere else, you may want to fight it — especially if there’s a question of selective enforcement, which may be the case as the SMPD plans to target violations by bike riders over the next few months.

Mionske offers a good guide to determine whether to fight or pay.

You may or may not be able to fight it on your own. But it’s always a good idea to talk with a lawyer first.

But if you’re facing criminal charges, for whatever reason, you need a good lawyer. It’s not a question of whether you can afford one, but that you simply can’t afford not to have one.

You can find a list of attorneys with experience in bike cases over there on the right. Including every lawyer I talked to for my Streetsblog story.

I don’t know if Rocky Martin had one.

But I suspect if he had, his case might have turned out differently.


Does it matter if you’re right when a wrong-headed legal system says you’re not?

February 28, 2012

A must-read from bike lawyer Bob Mionske on a failed legal case in Mississippi, in which a judge blames a cyclist for the negligence of the driver that hit her — simply because she was riding on the road.

Except it’s not just a problem down South. It’s one we all risk every time we ride.

You can do everything right on the roads, and still get blamed by a cop who thinks he knows the laws that govern bicycling, even though he’s never been trained in it.

Or failed by prosecutors or judges who misinterpret — or sometimes ignore — legal standards in place to protect all road users.

Even bike riders.

Granted, things have improved greatly in Los Angeles under Chief Beck, particularly through the efforts of bike liaison Sgt. David Krumer. We now have a voice within the department we never had before.

Although it’s still far from perfect, as it’s not hard to find officers who have seen or don’t remember the city’s highly praised bike training module.

But leave the city, and you can find yourself subject to sometimes absurd interpretations of the law.

Take last week, when I was threatened by a road-raging driver while riding on the sharrows on Hermosa Avenue in Hermosa Beach.

The cop I flagged down was more than willing to tell the driver who tried to threaten me that I had every right to ride in the traffic lane. And was happy to explain that those little bike pictures on the street mean that’s where I’m supposed to ride, and he was required to share the lane whether he liked it or not.

So far so good.

But then he followed-up by incorrectly telling me that no violation had occurred — even though it’s against the law to threaten anyone with a motor vehicle, or to pass a rider in an unsafe manner. The truth was was that there was simply nothing he could do since he didn’t actually observe the violation.

Then he went on to add that I could have been arrested for following the driver into a public parking garage to take a photo of his license plate.

If that were the case, every paparazzo in North America would be behind bars.

But maybe the first amendment doesn’t apply in Hermosa Beach.

I’ve also gotten word that the CHP says it’s against the law to ride two or more abreast, even though that’s not mentioned anywhere in the vehicle code.

And I get regular reports from cyclists about officers telling them to get out of the traffic lanes we’re legally entitled to, or to ride in the door zone or amid the broken glass and gravel in the gutters in violation of our rights under CVC.

It’s a very sad comment that cyclists often know the law better than those who are charged with enforcing it. Let alone that we have to.

But that’s the world we live in.

If you’re stopped by a cop who doesn’t know the law, don’t argue with him. You’re far better off accepting a ticket you can fight later than ending up in cuffs. You can take it up with his supervisor when you get home. Or take it up with the judge.

And hope you get a better one than the one in Mississippi.

……..

A letter writer says the Time’s recent endorsement of bikes doesn’t reflect reality. This explains why you may be more likely to be run off the road by a jerk in an expensive car; actually, I tend to have more problems with jerks in trucks and muscle cars. Workshops continue for wayfinding signage on future Bike Friendly Streets. Simple observations says more people are riding more in L.A. Gary says high gas prices could drive a further increase in bicycling. Another look at Silver Lake’s Dr. Suess-designed pedestrian plaza. That bike musical we mentioned the other day may be a good one, but not the first after all. Can fashion lead the way for bike advocacy — and am I wrong to be offended when ghost bikes are used to sell clothes? Limited closure of the San Gabriel trail for repaving has been delayed. The Claremont Cyclist gets mistaken for Lance Armstrong.

Streetsblog says it’s round two for the three-foot passing law, similar to the one vetoed by our sadly misguided governor last year. San Diego’s leading bike website will soon extend coverage throughout the county and to all kinds of bicycling. The importance of bike advocacy. A Coronado man plans to ride across the country to call attention to traumatic brain injuries. CHP in El Centro blame a suicidal cyclist for turning into a truck that desperately tried to avoid him; yeah, right. The Coachella Valley plans to spend $80 million for a 54-mile paved pathway for golf carts, e-vehicles and bikes too. A Ventura County mountain biker thanks the people who helped save his life. Four members of Lance Armstrong’s developmental team were injured in a crash at their Santa Ynez training camp. CHP stats for the County of Santa Cruz show cyclists at fault in more collisions than drivers; of course, they’re the ones assigning blame. And I doubt rumbles strip will help. Caltrain proposes assuming responsibility for a free, volunteer bike valet. A Bay Area columnist goes from hating bikes to thinking they’re the future to hating bikes, or at least the people on them. Sacramento cyclists — and unwilling drivers — enjoy the benefits of back-in angled parking.

How to go hard anywhere. Helmet hair is no longer an excuse for not riding. Bikes aren’t the reason for Portland’s transportation problems. Eight years in prison for a repeat drunk driver convicted in the hit-and-run death of a Colorado cyclist. Press reports blame the victim of a fatal collision for riding in the traffic lane rather than on the shoulder, yet fail to mention that bikes are allowed in the lane in all 50 states, and offers no further explanation for why an Atlantic City cop ran him down. New York makes improvements to Prospect Park that actually benefit riders for a change. The New York Times continues the debate over making cities safer for cyclists and pedestrians, including a remarkable claim in the comments from John Forster, the father of Vehicular Cycling, that no one has ever created a safe bike lanes; thanks to Evan G for the heads-up. Selling vintage bikes in Boston. If you’re going to ride against traffic, don’t collide with a cop.

A Canadian study shows cycle tracks and local streets mean fewer injuries for cyclists. A UK letter writer calls cyclist behavior disgusting. A bronze statue is planned for a singer killed while riding her bike in London. Far too many Irish cyclists have been killed or injured on Dublin Streets. A Dutch study says bike helmets offer virtually no benefit in moving collisions; instead of opposing helmet use, why not call for better helmets? Park your bike in the wrong Copenhagen spot, and you may find it moved — albeit very politely. What cyclist wouldn’t want to ride the Chuck Norris bike and pedestrian bridge? Breathtaking bike sculpture from China’s Ai Weiwei. Australian authorities target cyclists in an attempt to reduce trauma on the roads, rather than focus on the ones actually causing it. Brisbane bike couriers are told to stop making small talk with receptionists. A suggestion from Down Under that all car mirrors should have warnings to look out for cyclists to prevent doorings. An Aussie man is ticketed for doing 35 in a school zone — on a bike.

Finally, a pantsless woman was arrested for shoplifting at an OC bike shop, reportedly jamming parts and accessories into her somewhat lacking attire. It’s a wonder any of our bike-riding forebears survived the ‘40s, though they seem to have had a different definition of head-on in those days.

And George Wolfberg forwards a warning that the bees that tried to kill me on the bike path may be bringing in robotic reinforcements.


Universal says no to bikes, Bob Mionske points the finger, Mark Elliot intelligently refutes John Cassidy

March 29, 2011

City Watch looks at Universal’s refusal to allow an extension of the L.A. River Bike Path and river revitalization efforts through Universal City.

As far as I’m concerned, until that changes, their plans for expansion should be dead in the water.

In fact, until they become friendlier to bikes and their riders — on and off their property — they shouldn’t get the time of day from the city of L.A. And every cyclist in L.A. should oppose their plans.

.………

Bob Mionske says the official explanation for the NYPD’s over-the-top vendetta against cyclists pegs the BS meter, and points the finger squarely at NYPD commissioner Ray Kelly.

Meanwhile, New York streets may be safer than ever, but the battle rages on. The Century Road Club Association offers a form letter to fight back against New York police targeting Central Park cyclists.

And Mark Elliot of Better Bike Beverly Hills offers a very intelligent, highly detailed refutation of anti-bike New Yorker columnist John Cassidy; it’s a long read, but definitely worth the time.

.………

In the third part of her excellent bikenomics series, Elly Blue says that investing in bicycle infrastructure leads directly to increased physical activity, which leads to lower healthcare costs and reduced mortality. And the more people who are riding, the safer everyone becomes.

.………

The L.A. Business Journal says if you drive, bike or motorcycle on the streets of L.A., you probably have broken teeth or a swollen tongue from all the potholes on the street, noting that just 3% of city streets are in good condition. Why does L.A. make it so hard just to park your bike and spend a little money? A Santa Monica writer say drivers aren’t as courteous and alert as they should be, so give cyclists a little extra room. The Long Beach Post looks at the funeral and memorial services for bike advocate Mark Bixby, who “lived an extraordinary life.” KABC-7 offers advice on getting back on your bike; although I’d think advising riders to use lights after dark would be more effective than recommending reflective tape. A really crappy press release announces events around the Dana Point Grand Prix of Cycling on May 1st. A new bridge will close a gap in a popular bike path around San Diego’s Mission Bay. The Soldier Ride helps give a wounded vet hope. In typical fashion, San Mateo County releases a bike plan full of gaps and disconnected bikeways.

A team of HIV-positive riders will compete in this year’s Race Across America (RAAM). Former framebuilder Dave Moulton looks at proper leisure riding position, while a bike shop worker says maybe most roadies are riding with the wrong handlebars — or maybe the wrong bike. Steve Vance says cargo bikes are American cycling’s newest sub-subculture. Bicycling asks how you would vote on the charges alleged against Lance Armstrong if you were on the jury. Presenting the 10 most popular bike commuting cities; and no, L.A. ain’t on the list. Tucson’s second successful Cyclovia pleases everyone from 6 months to 70. After 80 years, the Empire State Building finally adds a bike storage facility. If you’re visiting New York, you need to know what transit systems you can take your bike on and when. DC’s M-street needs a road diet. Maryland moves to make negligent drivers who kill subject to misdemeanor manslaughter. A new bike safety video from LAB and the NHTSA is a little simplistic, but hits the right notes.

The UK’s Transport Minister finds £836,000 laying around for bike projects. Britain’s traffic jams decrease as gas prices rise and drivers switch to bikes and walking. London Cyclist offers a rave review of the Strida folding bike; yes, you can find one in L.A. A detailed look at the conflict between the desire for Dutch-style infrastructure and what’s actually achievable. Oxfordshire road deaths increase 20% after speed cameras are shut off. Fabian Cancellara looks like the favorite for Sunday’s Tour of Flanders. A recent Aussie study shows that tensions between cyclists and drivers result from impatience, fear and fright, levels of expectations and differing levels of awareness. A South African cyclist gets punched by a Dr. Thompson wannabe. Japan’s 9.0 earthquake shifted transportation paradigms in favor of cycling. Not every woman wants a pink bike.

Finally, a great read from the UK on why cyclists don’t own the road, we just rent it. And the European Union wants gas-powered cars gone from Euro cities by 2050, while the Brits want nothing to do with it; the UK’s Transport Minister says it’s no more likely than rectangular bananas. But before you write it off as just another pipe dream, remember a lot can happen in 39 years; in 1972 we were still listening to 8-tracks, the personal computer hadn’t been invented yet and phones were still wired into walls.


A little this, a little that — Mionske on Kornheiser, a culture change at LADOT

April 15, 2010

It’s a Bicycling Bob Mionske Tax Day double-header.

First up, the Bike Lawyer explains how — and more importantly, where — you can legally ride side-by-side; turns out it’s only illegal in three states. And California isn’t one of them.

As an aside, the new LAPD bike training module that went online at the end of last month specifies that L.A. cyclists are allowed to ride two-abreast. So if a cop tells you otherwise, either he or she hasn’t finished the training — due to be competed by the end of this month — or wasn’t paying attention. But I wouldn’t recommend arguing the point. They have full discretion to handcuff you if they think it’s warranted or feel threatened; according to the Department, that isn’t going to change.

Next up, he takes up the recent Kornheiser dust up, in which the ESPN radio host suggested that drivers rough up riders just because, well, we deserve it. You know, because we wear Spandex and run red lights and stuff.

Yeah, that’s a good reason to assault and potentially injure or kill someone. Although I’ve never heard anyone call the countless short, fat and/or middle-aged guys in Lakers jerseys you see all over L.A. Kobe Bryant wannabes.

As usual, though, Mionske gets it right.

But what if the character’s wrath is directed at a group that has historically been the target of violence? Suppose, for example, that the character expresses his dislike of women by telling listeners to go home and beat their wives? Or to go out and find a stranger to rape? Is his act still funny? Or suppose he goes on a rant about how much he dislikes gays, and tells his listeners to go out cruising with some friends looking for gay men to bash—is it still humorous? What if the rant is urging listeners to burn down a synagogue? Or suppose the target of his wrath is African-Americans, and the radio personality is urging a lynching? Is anybody still laughing? 
Of course not (or at least I certainly hope not). Nobody would consider those to be jokes or satire or entertainment, because the subject matter of the alleged entertainment is indistinguishable from real acts of violence, historical and contemporary, threatened and actual…

Daily, cyclists have drinks lobbed at them, have doors maliciously opened by passing motorists, are run off the road, and even run down, simply because they are on a bike. Sometimes, they’re even “just tapped,” as ESPN’s Tony Kornheiser recently urged. Perhaps the most common threat of violence against cyclists is one we’re all too familiar with—the buzz, where the driver passes within inches of us at high speed. Occasionally, a driver may truly have miscalculated the distance, or just plain didn’t see the cyclist. More often, I believe, the driver is intentionally threatening the cyclist. You can be sure it’s intentional when the driver checks his rear-view mirror for your reaction. In fact, I’m convinced that some “accidents” are buzzes gone awry—the driver intended to scare the cyclist, but didn’t expect that the close pass would result in a collision. And New Zealand police say that drivers are intentionally targeting cyclists. I’m convinced that’s a problem that’s not just limited to New Zealand . It happens here too.

Personally, I think Lance let Tony off way too easy.

But as Mionske points out, unless the FCC suddenly starts taking action against out-of-control self-described comedians who incite violence — or station owners suddenly grow a pair and hold their employees accountable for what they say on the air, despite the profits they bring in — nothing is going to change.

That is, until one of their listeners actually follows through on this kind of talk. And that’s when a good lawyer — hello, Bob — will go after the misguided purveyors of this kind of crap.

And maybe then we’ll put an end to it once and for all.

……..

The latest email from the LACBC has some important notes.

(Speaking of notes, maybe the Bike Coalition could try putting a copy of these emails on the website, so people like me can link to them.)

First, the LACBC has posted a petition online telling Mayor Villaraigosa it’s time for a culture change at LADOT — or whatever agency replaces and/or absorbs LADOT, given the current budget issues.

As the petition points out, the agency has a long history of favoring vehicular traffic at the expense of other road users. And it’s long past time for a new approach that puts the city and its people ahead of the countless cars that are destroying it.

I urge you to sign it.

You’ll find my signature right there at #71. And no, you don’t have to make a donation, despite what the petition host implies.

Next, the state Assembly Transportation Committee is scheduled to hear Assembly Bill 1951, which would toughen penalties for careless drivers who injure other people.  There’s still time to fax a letter in support of the measure today to committee chairperson Bonnie Lowenthal at 916/319-2154; click the link for a sample letter.

……..

The driver who hit Louis “Birdman” Deliz last December and left him laying injured in the street goes on trial in Beverly Hills on the 23rd. Damien asks if street cleaning will be LADOT’s excuse to endlessly delay bike corrals. The Anonymous Cyclist offers a reminder about Good Sam’s Blessing of the Bicycles. The second annual Bike Day LA comes up on May 2nd. More on the TranspoComm’s approval of what could be the city’s first bike corral. Changing minds via the comment section in San Diego. A detailed look at why women bike, and why they don’t. Zeke encounters a jerk on his rear wheel; I’m envious of any road where you see just three cars in five miles. An Ohio congressman blames his recent anti-bike outburst on LaTourrette syndrome. A DC video shows how not to cut off a bike, while a nearby county replaces a crappy non-standard bike lane with crappy non-standard sharrows. The DC cyclist killed by an 11,000 pound National Guard truck during the recent Nuclear Summit was ruled collateral damage. A Virginia cyclist is killed after running a red light. The University of Colorado says don’t be a DIRC — Dangerous, Irresponsible Rider on Campus. After Arizona cyclists complain about a dusty detour, they get banned from the road. A Toronto mayoral candidate calls for a $20 to $30 annual registration fee for bikes. A first-hand report from a London cyclist on a deliberate attack by a road raging driver; the result was 6 months in jail and two-year ban on driving. Make your plans now for a two-month, 4,100 mile circumnavigation of the British coastline.

Finally, a writer in the Baltimore Sun says instead of a three-foot passing rule, bikes should be banned from some roadways; yeah, no point in requiring motorists to drive safely when you can blame their victims instead.

And I don’t need a mirror to know I’ve got two-plus tons of hulking, smog-belching steel behind me, thank you.


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