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  1. #1
    Senior Member randya's Avatar
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    Legally Speaking - with Bob Mionske: A fatal bias?

    Legally Speaking - with Bob Mionske: A fatal bias?
    By Robert Mionske JD
    Filed: November 8, 2007

    Dear Bob,
    Thank you for penning the column. I read with interest your notes on cycling deaths. You raise an interesting point: many cycling deaths result in no criminal legal accountability. I think we all know cyclists 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 question 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 cyclists 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.
    K. S.
    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.

    Read the case histories at: http://www.velonews.com/news/fea/13637.0.html
    Last edited by randya; 11-08-07 at 07:02 PM.

  2. #2
    genec genec's Avatar
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    Some rather interesting reading there.

  3. #3
    Rider in the Storm
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    Portland authorities do seem to present a disturbing trend when tending to these matters...

  4. #4
    Cycle Year Round CB HI's Avatar
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    http://bikeportland.org/2007/11/06/a...on-interstate/

    Portland cops really, really suck.
    I have had differences with Honolulu Police on cycling issues, but at least they have been better than the Portland cops.

  5. #5
    RacingBear UmneyDurak's Avatar
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    I think it varies by region, and probably even by investigating cop.
    When I fell victim of left hook while riding at night (yeah I had lights, etc). Police report stated that driver was at fault for failure to yield. Not sure if she was ticketed thought, didn't follow up on it.
    I see hills.... Bring them on!!!
    Stay calm and bring a towel.

  6. #6
    Dominatrikes sbhikes's Avatar
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    Very interesting reading, with my emphasis:
    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.
    Police acting as judge and jury when an accident involves a bicycle. Yep. That sounds familiar.

    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.
    Anti-cyclist, auto-centric bias. Yep. It's rampant.

    a social bias against cyclists lies at the root of cyclist harassment. In each of the collisions I've discussed in this column, we've seen powerful evidence of police bias-one component of 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 color of authority, violates the rights of another cyclist.
    I certainly expect to hear more motorist apologies from Serge instead of anything that might counter this rampant bias.
    ~Diane
    Recumbents: Lightning Thunderbolt, '06 Catrike Pocket. Upright: Trek Mountain Bike.
    8.5 mile commute. I like bike lanes.

  7. #7
    Dominatrikes sbhikes's Avatar
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    Oh and I love this quote:

    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.
    ~Diane
    Recumbents: Lightning Thunderbolt, '06 Catrike Pocket. Upright: Trek Mountain Bike.
    8.5 mile commute. I like bike lanes.

  8. #8
    Elitest Murray Owner Mos6502's Avatar
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    He's summed up what anybody with half a brain (so obviously excluding newspaper reporters) could have figured out simply by sitting and thinking for a few minutes. Interesting.

  9. #9
    genec genec's Avatar
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    That fatal bias may not exist everywhere. I know years ago when I was hit in La Mesa Ca, the motorist was issued a "failure to yield at a stop" ticket. The police officer even visited me in the hospital.

    The flip side is that police are generally motorists too and probably tend to think like motorists.

  10. #10
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    Yikes.

    My own experience with police incident reporting, even in rural areas, has been much more favorable.

  11. #11
    Nobody mconlonx's Avatar
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    It's a sucky situation and I know that people have takens steps to address the anti-cyclist bias, but really, unless victims and victims estates introduce and win civil suits for large settlements, I don't see anything much changing.

    One thing I've always wonder...: OK it's sucky to be a minority with such obvious bias against us, but has anyone ever followed up car on car accidents to see if prosecution and leveling of fines and whatnot for rights of way infractions is any better? Is the percentage of drivers cited for rights of ways infractions in similar situations involving two cars any higher than with those involving bicycles?

  12. #12
    Dominatrikes sbhikes's Avatar
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    I think one big issue the article illustrated is how often officers dismiss the case as unworthy for investigation when the crash involves a bicyclist. They do not tend to do that when the crash involves motorists only.
    ~Diane
    Recumbents: Lightning Thunderbolt, '06 Catrike Pocket. Upright: Trek Mountain Bike.
    8.5 mile commute. I like bike lanes.

  13. #13
    genec genec's Avatar
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    mconlonx has a point... how often are motorists actually tagged for motorist/motorist accidents? Especially when a death is involved.

    Do LEOs tend to write tickets then or are we just a bit more sensitive to an ongoing situation?

  14. #14
    Senior Member maddyfish's Avatar
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    My answer would be criminal charges in every instance of traffic death. Let a judge/jury decide if a person is at fault. No difference car/car, bike/car, whatever.
    Not too much to say here

  15. #15
    genec genec's Avatar
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    Quote Originally Posted by maddyfish View Post
    My answer would be criminal charges in every instance of traffic death. Let a judge/jury decide if a person is at fault. No difference car/car, bike/car, whatever.
    Yeah I have felt that way for some time. If there is a death, there is a problem that needs to be dealt with.

  16. #16
    Huachuca Rider webist's Avatar
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    This is not meant to apply to any specific incident, police agency or class of vehicle operator. However, once dead, one's contribution to the economy ceases, one's political involvment ceases, one no longer votes or writes letters to editors. One, once dead, does not testify in court, nor furnish claims information to an insurance company. Neither does the dead victim offer their side of the story or argue with law enforcement on the scene. Couple this reality with the vastly superior numbers of motor vehicle operators compared to we who power vehicles with human power, and the bias somehow seems more natural. Not right mind you, just more natural.
    Just Peddlin' Around

  17. #17
    Senior Member Dchiefransom's Avatar
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    Quote Originally Posted by maddyfish View Post
    My answer would be criminal charges in every instance of traffic death. Let a judge/jury decide if a person is at fault. No difference car/car, bike/car, whatever.
    So if someone runs a red light and gets killed in a collision, we should arrest the person that had the green light? This would give them a permanent arrest record, and make them spend thousands of dollars needlessly.
    Silver Eagle Pilot

  18. #18
    Senior Member randya's Avatar
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    ^^and you determine how? by the testimony of the survivors and witnesses, who are not always accurate or truthful?

    perhaps in any traffic fatality a specially trained traffic investigation unit should be called in and all the evidence collected should be turned over to a specially trained standing grand jury for traffic deaths to determine fault and prosecutability. It shouldn't be up to the officers in the street, at least when they exhibit the kind of biases the article points to.

    I also think if the penalties and consequences were higher, people would tend to think twice about gunning it through yellow lights and such.

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