WABA Pushing Anti-Harassment/Assault of Bicyclists Bill

When we first read it, WABA had no intention of responding to Justine Whelan’s anti-cyclist rant, published by the Ballston Patch.  For the most part, the article’s content is so similar to the random blog comments we cyclists see regularly, it hardly seemed worth responding to.  But there was one interesting thing that I’d like to highlight–not for the content itself, but for what it shows about the mental state of certain bike haters. Whelan writes:
I am SO sick of being behind some rando who thinks he’s the next Lance Armstrong in all of his official biking gear with the weird butt pants and neon outfits traveling at five miles an hour in a 35 zone.  I drive a stick shift, jerk, that too slow even for first gear.  How do I handle the situation?  I rev my engine in hopes of scaring the sheets out of the offensive biker.
The emphasis is mine, and it’s added to highlight that this behavior is assault.  Assault is, by definition, threatening or attempting to inflict offensive physical contact or bodily harm on a person that puts the person in immediate danger of, or in apprehension of, such harm or contact.  Trying to “scare the sheets” out of a cyclist by revving the engine from behind clearly counts as intentionally putting the cyclist in apprehension of harm. Now, this isn’t about Justine Whelan’s behavior per se.  But it does provide some insight into a level of cyclist hate that most people are not willing to type up, sign, and publish.  It shows that there are motorists–seemingly normal people going about their daily business–who have such hatred for cyclists as a class of roadway users that they assault us as general practice.  Given the added power of a vehicle and an engine, Justine and those of similar mindset intentionally seek to intimidate the more vulnerable cyclist. Sometimes it goes even further, however. Those who follow area cycling blogs and forums have likely come across a story from “A Girl and Her Bike” about being struck repeatedly from behind while riding a Capital Bikeshare bike.  The driver struck her twice, then tried to run her over when he learned that he had picked the wrong CaBi rider to attack. In her assessment of the driver’s rationale, she states:
I know what the driver was doing. He saw a young woman on a bicycle and thought it was be HILARIOUS to be a dick with his car. He did this because he thought there would be no consequences.
And she’s right.  Given the obvious physical differences between automobiles and bicycles, there is ample opportunity for bullying in the form of harassment, assault, and battery.  That opportunity should be curtailed by consequences for roadway bullies, but to date the imposition of consequences has been rare. Yes, there are criminal laws against roadway assault.  But the criminal burden of proof is high, available witnesses are often scarce, and police are reluctant or unable to follow up if they did not witness the act themselves. There is also a civil tort of assault, and a cyclist could, technically, bring a civil suit for assault.  However, bringing such a suit is likely to require an attorney and a fair bit of that attorney’s work.  But because intimidation, assault, and harassment do not often lead to big monetary damages (unless the cyclist is significantly injured or killed as a result), most victims cannot afford to pursue such cases. The result, currently, is a situation in which harassment and assault of bicyclists goes undeterred through the legal system.  The “A Girl and Her Bike” case mentioned above is a truly rare instance in which the motorist is prosecuted–but still there will be no sentencing for his repeated, intentional assault. Thus, we need some mechanism to impose consequences on roadway bullies who harass and assault cyclists simply because those cyclists are more vulnerable. Because we cannot change the criminal burden of proof, we need a law creating a civil right of action for assault that also provides for attorneys’ fees in order to ensure that cases can effectively be brought.  Below is a draft based on a similar bill in the City of Los Angeles.  We are at the very beginning stages of working to pass this law in the District and appreciate all support. WABA Anti-Harassment Law (draft) So while we cannot agree with much, if anything, in Justine Whelan’s cyclist-assault rant/admission, we can appreciate her honesty and use this as an opportunity to discuss the extent of the problem and propose a solution. If you support this draft bill and are willing to help us work toward its passage, please SIGN HERE.  And please remember that only your generosity enables us to continue advocating for you, so please consider joining WABA or donating to support these efforts. (Ms. Whelan’s full article can be found at http://ballston.patch.com/blog_posts/bikers-and-why-you-irk-me if you wish to bring traffic to such things.  If you don’t, you might just want to drop the editor of the Ballston Patch a line (Abigail@patch.com) and ask them to be more responsible in giving a platform to voices that treat the lives of others as a mere inconvenience.)

Learn How to Respond After a Bike Crash; For Yourself or to Help Another Cyclist

On her blog, WTOP’s Kate Ryan has a quick take on the cyclist as crime-fighter, inspired by a story in which the presence of a cyclist scared away a rapist in Montgomery Village.  She also references a case earlier this year in which a cyclist provided critical evidence in a hit-and-run in Dupont Circle. These stories show the value of “eyes on the street” and the added value of the highly mobile sets of eyes of bicyclists. We need to take advantage of this ability to provide cycling eyes on the street to help protect our fellow cyclists. Currently, one of WABA’s top priorities is to improve enforcement in the District and region–both generally as applied to cyclists and, more acutely, in post-crash situations.  Unfortunately, we have gained limited traction to date in improving MPD’s understanding of traffic laws as applied to cyclists, and we continue to receive calls each week in which a struck cyclist in wrongly cited for an infraction. We at WABA have written, called, petitioned, and testified on this issue–including before DC’s Committee on the Judiciary, where a parade of crash victims and family members told their stories of injury and, in many cases, improper follow-up and post-crash citation and investigation.  We explained that the incident report forms used by MPD do not account for bicycles and should be changed to ask appropriate questions for bike-auto crashes.  We discussed the need for greater training of officers on traffic safety, the rules for bicycle infrastructure, and the importance of enforcing rules keeping bike infrastructure safe for cyclists. We have been working with Councilmember Mendelson’s office since that hearing, but to date there has been little tangible improvement.  Our crash tracker and the many calls and messages we receive show quite clearly that the situation is not improving.  So while we will continue our efforts with Councilmember Mendelson, the Committee staff, and MPD to make improvements to the system–we also want to empower the cycling community to protect itself to the best of its ability. If we cannot immediately ensure that the officer who responds to a crash will know the law as it applies to cyclists or apply it properly, we at least want to increase the chances that the involved cyclist (if capable) or a passing cyclist can lend assistance. Nobody really wants to think about the repercussions of a crash or the legal process that comes afterward.  But more trained cyclists on the streets looking our for each other makes everyone safer.  On July 19th we’re going to do our best to explain the process and your rights, and empower all cyclists to respond appropriately in the event of a crash–whether you are the victim or a witness. We’re all safer with more eyes on the streets–especially if those eyes are trained to protect cyclists. Join us on the 19th at 6pm to learn more about how to respond in the event of a crash–whether you’re a party or a witness. RSVP here.

July 19th Discussion: “What to Do After a Crash?”

Our WABA education team spends a lot of time teaching people how not to be involved in a crash.  In fact, they would love to have you join them for a class on Confident (and competent) City Cycling. But sometimes, despite their and your best efforts, crashes do occur.  Frequently, WABA hears from cyclists seeking to understand the post-crash process.  This can be an intimidating process for anyone, and especially for those with limited familiarity with the police, insurance, and legal systems. We are available to answer your questions to the best of our abilities, and to provide referrals to attorneys when your questions become too specific or difficult for us to address in a phone call or email. But now we are going one step further.  On July 19th, WABA is offering a discussion of “What to Do After a Crash.”  Executive Director Shane Farthing and three of the regions top lawyers in representing cyclists in DC, Maryland, and Virginia–Tom Witkop, Bruce Deming, and Peter Baskin–will be available both to assist with the group discussion and to talk one-on-one with cyclists at the end of the program. We want you to know what to do if you are involved in a crash.  But additionally, we want you to know how you can help if you’ve witnessed a crash.  The information you capture could be instrumental in helping a fellow cyclist. Please join us on the 19th at 6pm.  We look forward to a frank, informative discussion that will touch on traffic safety, enforcement, and law that will empower you to protect yourself or your fellow cyclist in the event of a crash. The event is free, but we do ask that you RSVP here so that we can plan for the appropriate number. Event Location: DC Citywide Conference Center – Room 1114 441 4th St. NW Washington DC, 20001

Capital Crescent Trail Outreach April 23rd

Photo by Kevin Harber

With the return of warmer weather and increased traffic on the area’s trails, we want to remind cyclists of the importance of riding in a way that protects oneself and considers the rights and enjoyment of others. Last week’s collision on the CCT provides yet another reminder that on multi-use trails that cross roadways (another use), everyone has a role to play in keeping the interactions safe. In October, WABA met with Councilmember Roger Berliner of Montgomery County, the Coalition for the Capital Crescent Trail, officials from the relevant parks and police agencies, and representatives of trail-adjacent civic assocations to discuss ways to make trail usage safer and more enjoyable for all.  In the end, each group agreed to reach out to its membership to provide information on how to enjoy the trails safely. So WABA will be out on Saturday, April 23rd providing information on trail safety and usage, biking in the region, and the future of the CCT–in addition to answering any bike-related questions you have for us.  We will also be providing bells (while supplies last) to cyclists who lack them.  By DC law, a bike must have a bell.  And if you ride trails, a bell is a good idea even if not required in your jurisdiction. We will be near the Georgetown and Bethesda CCT trailheads and roving along the trail informally from 10am to 2pm on Saturday, April 23rd.  Stop by and say hello. And in the meantime, cyclists, remember these trail safety tips:
  • Ride right, pass left.
  • Signal audibly when passing.
  • Yield to pedestrians and oncoming traffic.
  • Be sure there is space to pass safely before attempting to pass.
  • Beware of dogs and their leashes.
  • Children may lack the coordination to keep in a straight line.  Pass carefully.
  • Stop at stop signs, and ensure that it’s safe to proceed before crossing roadways.
And to non-cyclists, we hope that you will also help us to share the trails safely by following these suggestions.
  • Walk on the right, and allow room for faster travelers to pass on the left.
  • Be sufficiently aware of your surroundings to hear an audible warning.
  • Know that “On Your Left” is a common audible warning by a bicyclist that means “I am passing you on your left.”  It does not mean you should move to the left.
  • Keep your dog controlled and on its leash.

General Assembly Passes Negligent Homicide Bill

Yesterday both houses of the Maryland General Assembly approved the amended House Bill 363, which creates a new crime of negligent homicide by vehicle or vessel. Passage of this bill culminates a 7-year effort led by Delegate Luiz Simmons (D-Rockville) and the families of victims killed by negligent drivers. Under the existing law, drivers who kill have only been convicted of vehicular manslaughter if they were drunk, drag-racing, or clearly knew that their driving might kill someone. If the bill becomes law, a driver who should know that her driving could kill can be prosecuted for negligent homicide, with a maximum term of three years. The Governor has indicated that he will sign the bill. We attribute the success this year primarily to the perseverence of Delegate Simmons and several people who dedicated themselves to ensuring that something good came out of the trajedy that befell them. We won’t try to name them all, but Adiva Sotzsky deserves credit for engaging the bicycle community. She and Ed Kohls simply would not give up.  Keniss Henry’s involvement added an extra degree of urgency to the matter within Prince Georges County after the death of her daughter Natasha Pettigrew, which is still under investigation. We also credit Senator Brian Frosh (D-Bethesda) for sharing his skepticism in a transparent fashion, which enabled proponents to address his concerns before the hearing in his committee.  Realistically, there would not have been time to address them after the hearing.  Bike Maryland and AAA have supported the effort for several years, prior to many Washington-area cyclists’ full engagement. But with all of their great work, this bill still would not have passed this year had you, our members and supporters, not stepped forward. As always, you sent emails. But this time you also called your Senators—more than once in many cases. You asked your friends to call the key Senators—and they did. You handed flyers to people in public places and spoke with them about the importance of contacting their Senators. And they did. And the Senators got the message.  They spent enough time to learn enough to be confident in supporting this bill that arrived so late in the session. That is no small accomplishment because a responsible legislator does not create a new type of homicide lightly. We can have no illusions that, by itself, making negligent homicide a crime will make our roads safe. Many forms of bad driving remain legal, many forms of illegal driving go unenforced, and many drivers are undeterred by enforcement. The subtext that enforcement is worse than the crime will continue in some places. But Maryland has removed the most offensive blemish of all from its transportation legal system—the idea that killing a human being has no legal consequence. Now it will. (Jim Titus is a member of WABA’s Board of Directors from Prince Georges County)

Frosh Amends, then pushes Bill Forward in Maryland

Here is an explanation of the Senate Committee’s amendment to House Bill 363. H.B. 363 is based on the Model Penal Code, a suggested criminal code developed by the American Law Institute.  Senator Brian Frosh (D–Montgomery) has consistently maintained that he is concerned that the proposed version of House Bill 363 might unintentionlly subject relatively ordinary behavior to criminal penalties. WABA’s testimony before his committee showed that the states that have enacted some variation of the Model Penal Code have only upheld convictions for egregious conduct resulting in death, not ordinary negligence. (Our testimony before the House focussed on the inadequacies of the existing law in Maryland.) Mr. Frosh noticed that H.B. 363 used different adjectives than the Model Penal Code. The original version of House Bill 363 included the following language
SECTION 1…. § 210 (c). For purposes of this section, a person acts in a criminally negligent manner… when… (2) [t]he failure to perceive constitutes a substantial deviation from the standard of care that would be excercised by a reasonable person. SECTION 2. AND BE IT FURTHER ENACTED, That it is the intent of the General Assembly that the term “substantial deviation from the standard of care” in § 2–210(c)(2) of the Criminal Law Article, as enacted by Section 1 of this Act, be interpreted synonymously with the term “gross deviation from the standard of care” under § 2.02(2)(d) of the Model Penal Code of the American Law Institute.
After some negotiation, the Senate Committee changed one word:
SECTION 1…. § 210 (c). For purposes of this section, a person acts in a criminally negligent manner…when… (2) [t]he failure to perceive constitutes a substantial gross deviation from the standard of care that would be excercised by a reasonable person.
Because Section 2 of the bill already defined “substantial deviation” as “gross deviation” this amendment does not seem to change the bill’s meaning. If the Senate passes the amended H.B. 363, then sponsors in the House should be able to explain that the Senate’s amendment is purely technical. Maryland Residents: Please CLICK HERE to email your state senator expressing your support for House Bill 363, as amended.

HB 363 to be Heard Monday in MD Senate

Below is an email from Edward Kohls–a lead advocate for the “Manslaughter by Vehicle or Vessel-Criminal Negligence” bill.
Hi.  I’m not sure if you are aware that this bill is one step from becoming law – against huge political odds – and we need your help.  This bill affects the safety of vehicles, vessels, walkers, runners, cyclists, bikers. There is one day left in the session, and it will be heard on Monday.  But we need action today and tomorrow.  We thought it would be voted on today, then the Senate adjourned for the day.  That provides a chance to give you a little better background on our efforts.  Please contact your members immediately and ask them to write their State Senators, or all of them.  The list is included below. We have been battling for the past seven years to have a bill passed so that there is an adequate law in Maryland to punish drivers who recklessly kill pedestrians and cyclists.  My son was one of those.  I’ve included some info from an earlier email for you, below, and my most recent message from today.  We finally got the bill through both the House and Senate Committees (everyone who was opposed is surprised) and the Senate will vote on it on Monday.  Surprisingly, there are still some people who don’t want the law and they are lobbying hard, so we are asking everyone affected to contact their groups to generate support emails to their senators. Here is a bit of background: House Bill 363 (Manslaughter by Vehicle or Vessel – Criminal Negligence) passed unanimously in the House Chamber, and in the Senate Judicial Proceedings Committee, with an amendment.  The bill now needs to go to the Senate Floor for a vote. Maryland’s current vehicular manslaughter law is extremely lenient allowing negligent drivers who kill to escape serious punishment.  Loopholes with the current law allow criminally negligent drivers “to get away with murder and often receive nothing more than a traffic ticket.”  For inistance the person who struck and killed my son was driving 65 in a 30 mph zone on a narrow road, accelerating to that speed in less than 700 feet.  He was 21 and had three suspensions prior to that for over 16 months.  He has shown no remorse.  He got 14 points, and paid $1200.  There are literally hundreds of similar cases but most often the fines are $300 to $400, with 4 or 5 points.  Maryland’s existing gross negligence law is so high a bar that these horrible cases cannot meet the standards.   HB 363 introduces a law in the middle between tickets and Gross Negligence. It would provide a monetary fine and up to 3 years in jail.  Bill information can be found at:  http://mlis.state.md.us/2011rs/billfile/hb0363.htm

Thank you.  Ed Kohls

Maryland Residents: Please CLICK HERE to email your state senator expressing your support for House Bill 363, as amended.

No Action Yet on Homicide Bill in Maryland Senate

Lead advocate Adiva Sotzsky was pleased with the hearing on House Bill 363 yesterday in the Senate Judicial Proceedings Committee. Committee staff had previously told her that the public could only submit written testimony, and that the only oral presentation would be from Delegate Simmons, who sponsored the bill in the House. But the Chairman made time for all who had submitted written testimony to make an oral presentation. It was clear from the questions that the Senators asked that they were reading the written testimony. Senator Christopher Shank (R-Washington) for example, mentioned the table of court cases in the WABA testimony. A favorable hearing does not, however, mean favorable action. The General Assembly’s web site shows that the committee passed 7 bills last night, and amended another 7 bills. But the Committee took no action on House Bill 363.

WABA’s Testimony for Today’s Senate Committee Hearing on Vehicular Homicide in Maryland

WABA’s testimony for today’s hearing in the Senate on House Bill 363 is two paragraphs plus the table of  32 cases I mentioned last Friday:
The Chairman of this Committee has raised an important question:  Is the “substantial deviation” standard in House Bill 363 an appropriate standard for criminal liability?  As with all standards of care, juries must apply this standard to facts that vary from case to case.  Judges must review their results to ensure a consistent application.  In the states that have already adopted the substantial deviation standard, minor mistakes and momentary lapses in attentiveness have not resulted in criminal convictions. The table below summarizes appellate cases applying this standard from eight of those states.  (We reviewed hundreds of cases; but the table omits cases involving intoxication, because all states uphold such convictions).  The table shows that courts have upheld convictions for extremely egregious conduct that would not be manslaughter in Maryland today, such as running a stop sign at full speed or repeatedly crossing a double yellow line.  But juries have rarely convicted for mere inattention or a fleeting lapse in the exercise of due care, and the few times they did, the convictions were reversed.  We found no case of a conviction even at the trial court level for accidents resulting from garden variety negligence.
We took the Chairman’s comments to the media at face value: that he understands that drivers who kill never go to jail, but that he is unclear whether the proposed law would go too far in the other direction, and he needs to be convinced–but he has an open mind. (Jim Titus is a member of the WABA Board of Directors from Prince Georges County)

Can we answer Senator Frosh’s Questions in Time?

Thanks to the WABA members, WABA staff, Bike Maryland,  AAA, Baltimore Spokes, Adiva, and others for all of your work on HB 363. Our initial elation of finally passing the bill in the House of Delegates quickly gave way to apprehension that getting the bill through the Senate Judicial Proceedings Committee this year is an uphill battle because there is so little time. Your efforts this week have persuaded a couple of Senators who were initially undecided. But Committee Chairman Brian Frosh (D-Bethesda) is skeptical.

Fortunately, Senator Frosh has been very open and transparent about his skepticism, making it possible for us to at least try to address his concerns. Right now, someone can only be convicted of vehicular manslaughter if they know that their driving creates a substantial risk of killing someone; under the Model Penal Code standard (which H.B 363 adopts), one could be convicted of negligent homicide if they should know the driving had a substantial risk of killing someone.  Last Wednesday’s Washington Post had the following account:

To Frosh, that new standard could be applied to the mother who fatally hits a bicyclist when she takes a glance at a crying child in the back seat of her minivan.

“When moments of inattention can kill somebody, that’s a terrible thing,” Frosh said. “You can lose your house, your job, you can lose everything you own in a civil suit, but do we want to send that mother to jail.”

I’ve read a few hundred cases on negligent homicide in 8 states that have adopted the Model Penal Code standard over the last several days, to see whether there is a basis for this concern. I am making a table (complete for 4 states so far) that shows the facts that do and do not result in a conviction for those states. That table footnotes the supporting case law. It may end up as part of written testimony we submit. I’ll keep inserting new versions of that table.

The Post also reported:

To thread the needle to Frosh’s satisfaction, the bill’s advocates need to define “precisely what their target is.”

Will that hypothetical lady in the minivan who looks back into a car seat and kills a cyclist be guilty of negligent homicide? From the case law I have read so far it depends on what else was going on. Here are a few examples. Under existing law, she would not be guilty in any of these cases.

    1. If she was driving 30 mph over the limit, or in a bike lane, or cruising down a shoulder to pass a line of cars–and then looks back at her child and hits a cyclist: probably guilty.
    2. If she sees the cyclist ahead, and then looks back at her child and hits the cyclist: probably guilty.
    3. If there is a stop sign ahead that is clearly visible, and she looks back at her child and runs the stop sign and hits a cyclist: probably guilty.
    4. If the road ahead is clear, and she looks back at her child for 2 seconds during which time a cyclist enters the road and she hits him: not guilty.
    5. If the road ahead is clear and she looks back at her child, a cyclist enters the road, she crosses the double yellow line, and hits the cyclist: not guilty.
    6. If she runs a red light just barely before it turns green and hits a cyclist in the intersection after it turns green: not guilty.
    7. If she loses control of her vehicle while driving 70 mph through a safe-turn 45 mph sign when the speed limit is 55 mph: not guilty
    8. If the road ahead is not clear, and she accidentally crosses the double yellow line and hits a cyclist who was plainly visible before she looked back at her child: not guilty in New Hampshire; guilty in Arkansas (if she is a professional minivan driver). So other states could go either way, and even Arkansas might reverse the conviction for a nonprofessional driver.

(I am assuming here that she invokes her right to remain silent and no passengers testify against her. Passengers saying that they warned her against something that she did will hurt her case–maybe the passengers should help with the child.)

A few decades of case law from the states that already have a law like H.B. 363 shows that the term “substantial risk of death” does not apply to the necessary day-to-day activities in which people engage, so those activities could not be a cause for negligent homicide.

If you know of any other possible fact patterns that concern Senator Frosh (or any other Maryland Senator) please let us know and we’ll see if we can find a case that is at least generally on point.

(Jim Titus is a member of WABA’s Board of Directors from Prince Georges County)