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Tuesday, February 16
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About Me
- Steve A
- I get grumpy once in a while. I do a little bike riding. It's the next best thing to skiing, but there's not a lot of that around NE Tarrant County.
39 comments:
Any signs of the man yet?
PM made it here.
Gotta go!
Does that mean Chip was found?
Yes
I'm assuming either nothing is happening yet or you can't update from the court room.
It is out to the jury.
Are they still deliberating?
It's done - Chip lost. 0-3.
So the jury decided without the written laws? They just made up what they wanted to be their law?
Rod,
The jury was presented only the law pretaining to the illegality of "impeding the normal and reasonable flow of traffic", and was told that ANY slowing of traffic was impedence. They belieived that erroneous interpretation primarily because the idea of a bicyclist as a legal vehicle operator was totally alien to them. I was excluded from the courtroom by a motion from the prosecutor (only being allowed in for my testimony), so I cannot comment on how Reed's self-defense went, other than it took too long and the jury appeared irritated at the length of the trial.
Very telling is the progressive fines that were were assessed: First Offense: $25, $100 for second, $200 for third offense. In other words: "Ehat part of 'Stay off our streets in you can't keep up!' do you not understand?"
No, the jury seemed to follow the instructions they were given. They were told to find him guilty if the evidence showed he was going so slow so as to impede traffic. There was no consideration for the fact that he could not go any faster, and that finding him guilty is tantamount to eliminated his right to ride in the roadway. Other (appellate) courts have ruled that's incorrect. I would not blame the jury here - they were following their instructions.
Correct, the narrow interpretation resulted in the verdict.
I found it interesting watching the arresting officers (outside of the courtroom) go over the parts of the Texas vehicle Code they didn't have (as supplied by ChipSeal)... the section allowing a cyclist to take the full lane if the lane is less than 14' wide. They were surprised. An appellate court should/would make quick work of this. Now it's just a matter of raising the ChipSeal Defense Fund.
I think it's important to understand that riding in that manner IS impeding per the generally accepted legal meaning of the term. In other words, if someone on a normally operating 500cc motorcycle was riding at that speed in that position he would definitely be in violation of the law. Not that someone driving a Ford Mustang at 15 mph on that road would also be in violation.
But here's the key... someone driving farm equipment like a corn combine at the same speed and roadway position as the Ford Mustang would not be in violation for essentially doing the exact same thing, IF he was traveling as fast as he reasonably can.
In other words, you can't be guilty of not going fast enough if you're already going as fast as you can, even if you're impeding others at that speed, because that would remove your right to be on the road in the first place.
It's not apparent to me that this crucial point was even made to the court.
Ugh, typo: "Not that someone driving a Ford Mustang at 15 mph on that road would also be in violation." SHOULD BE: "NOTE that someone driving a Ford Mustang at 15 mph on that road would also be in violation.
Any way to get a transcript?
I think it would be a good idea to set up a defense fund for an appeal, perhaps with a paypal ability to donate. We can all post a link on our blogs.
PP said: "In other words, you can't be guilty of not going fast enough if you're already going as fast as you can, even if you're impeding others at that speed, because that would remove your right to be on the road in the first place."
A difference here is that there were two lanes, and "traffic" could easily move around the SMV, thus traffic was not impeded from the reasonable flow. As presented to the jury, any bicyclist could be ticketed for riding on any street significantly slower than the posted speed limit.
Chip repeatedly brought up the concept of traffic not all traveling at the same speed, even citing a Texas law restricting the max speed of some farm equipment. The point was naturally not on the prosecutor's list of things to say and those broad shoulders caused the jury not to consider it important. It is impotant to understand that in rural Texas, most vehicle opertors move over onto the shoulder (mostly nice and wide) as faster traffic approaches, despite the fact that it is illegal for most vehicles (bikes being one exception) to do so. It shocked me the first times I encountered such behavior from pickup trucks I was overtaking. THAT is the place the jury lives.
"A difference here is that there were two lanes, and "traffic" could easily move around the SMV, thus traffic was not impeded from the reasonable flow. "
I suggest that's a view held only within a tiny part of the cycling community. You know which one. I don't know of anyone who has ever successfully argued this in any court anywhere. Do you?
The crucial legal wording is this: " so slowly on a public road as to impede the normal and reasonable movement of traffic." The generally held view, whether we like it or not, is that the sudden slowing and/or lane change required by slow moving traffic is not "normal and reasonable movement". That's a judgment call to be decided by judges and juries, and I know of none that agree with our perspective. It is folly to try to argue this point, and it is unfortunate Chipcom seemed to base his entire case on this.
There is no point in actually conceding that point, but you certainly can argue that even if his behavior was impeding (which they view it is), he is STILL not guilty because he was not capable of going any faster and he has a right to be there. Finding him guilty and fining him is a violation of that right. That should have been the argument to the judge about the jury instructions before the jury was selected.
Frankly, I'm more than a little annoyed this point was apparently not pursued at all, since the case should have been based on it. Sheesh. That's why Mionske put so much emphasis on Trotwood v. Selz in his book.
A battle is lost but the WAR continues. It's us against them.
PP said: "I suggest that's a view ("A difference here is that there were two lanes, and "traffic" could easily move around the SMV, thus traffic was not impeded from the reasonable flow.") held only within a tiny part of the cycling community. You know which one. I don't know of anyone who has ever successfully argued this in any court anywhere. Do you?"
Well, all traffic engineers I know understand that point, as their work deals with the flow of many different vehicle types at different speeds through the road network. I guarantee you the City Traffic Engineer for Ennis, Texas understands that principle, even if it most often applied to turning vehicles. It's one of the primary justifications for urban multi-lane roadways.
Anyway, most judges and juries are not traffic engineers, and that's whose opinion about what constitutes "normal and reasonable movement" matters in the context of a case in court.
A traffic engineer might be able to persuade them that a 55 mph Prius is not impeding a 75 mph Mustang, because the slowing and changing of lanes required for that kind of overtaking is not unreasonable (and the Mustang should be in the fast lane while the Prius in the slow lane anyway); but a 60 mph semi having to move out of the slow lane into the fast lane, in front of 75 mph Mustangs, to overtake a 15 mph bicyclist (or a 5 mph one as the jury apparently heard without objection), or a corn combine for that matter, is quite another. Trying to convince them that that is not impeding is probably impossible.
"...there were two lanes, and "traffic" could easily move around the SMV, thus traffic was not impeded from the reasonable flow. As presented to the jury, any bicyclist could be ticketed for riding on any street significantly slower than the posted speed limit."
Yes, and that is what makes this so frightening. This ruling can later be used as a basis for prohibiting bicycle touring on country roads, cycling on the city roads instead of bike lanes, etc. I hope he is able to appeal this and take it as high as it needs to go.
To Principled Pragmatist - If the "2 lanes" defense is so easily discounted, how then are any cyclists allowed to be on the roads at all, especially recreational cyclists?
If it is required to say that only not being able to go any faster justifies moving at 15mph on a public road, then wouldn't the next step of prosecutor be to go after all recreational cyclists or cyclists who own a car? After all, they are intentionally choosing a vehicle that will limit their speed and thereby intentionally impeding traffic, when there is a perfectly good Jag/Ford/Toyota or two in their driveway.
I don't know, but in my view the"couldn't go any faster" defense is a dangerous one in terms of the doors it opens.
Velouria, the fact that not being able to go any faster should protect you from being found guilty of not going faster (because that would be a violation of the right to use the mode of travel in question) does not open the door for legally requiring someone to use a car instead of a bike, because that too would violate the right to choose to travel on the roadways using a bike. That's the right at stake here, and what should have been argued more clearly. This kind of citation and finding of guilt effectively violates his fundamental right to travel by bike on the roadway (of which the shoulder is not part).
Most states have figured this out and their impeding laws apply only to drivers of MOTOR vehicles, but a handful of states, including CA, TX and OH, still have laws that in principle apply to bicyclists too.
Don't you think that if he was casually riding along at 5 mph as apparently was claimed and unchallenged in court, and they could prove that he could easily go 15 mph, that a finding of guilt would be appropriate?
I don't think we want to argue that anyone on a bicycle can ride as slow as they want, no matter how that affects others, especially on a high speed highway. That would almost certainly lead to a backlash. Let's be reasonable.
By the way, another reason the "2 lanes" defense is weak is the existence of roads with more than 2 lanes in the given direction. If 2 lanes is enough to eliminate the possibility of impeding, why the need for a 3rd lane? The reason? High volume in and of itself impedes traffic, and more lanes reduces the amount of impeding. If high volume is enough to be "impeding" on a 4 lane highway, than certainly a 15 mph bicyclist in the slow lane can be too.
For homocide we have a separate term for when it's unjustified: murder. We don't have a separate term for "unjustified impeding", but the concept is there, and it's different from merely impeding, and is not necessarily unlawful, just like killing is not necessarily unlawful (an act has to be unjustified to be unlawful).
In general (but maybe no in a specific court case), let's not be afraid to admit we bicyclists do impede traffic on occasion, even when there is a passing lane, for we clearly do. That's not the issue.
The issue is only whether that impeding is justified or not. And if the only way to avoid the impeding is to give up our right to travel on bikes on public roads, then it is justified by that fact alone.
All this has been established in important legal contexts, in state appellate courts (Ohio, Georgia) with persuasive authority over courts in other states.
This outcome must be challenged. Please post up when a legal defense fund has been established for an appeal so we can contribute. I wonder how many charity rides can be boycotted that use Ennis roadways and benefit Ennis.
Well, there's an Ennis Rally that is put on in the Fall. I intend to have a chat with their director some time soon.
The fundamental error was in the jury instructions, and it is my understanding that this was never pointed out to them. Given the way the legal situation was explained in the jury instructions, the right verdict was reached.
You can't blame these guys, much less all of Ennis, for not reinterpreting "impeding normal and reasonable movement" to be favorable to bicyclists.
A boycott makes no sense. An appeal based on reasonable and proven-to-be legally-effective arguments does.
PM or Richard, or anyone else who knows:
Can we get some names: Prosecutor, Police Chief, City Manager, other key people. This would not be to rant - I don't do that --, just ask fair, honest questions on how they view cycling in the City Limits of Ennis, and what their intent is down the road. The is Warren, and I think you both have my email address!
Folks, you have to understand that all the people involved here - the police, judge, DA, the jury, are typical non-cyclists in that that they don't care about cycling or cyclist rights nearly as much as bicyclists do, naturally and understandably, and so haven't thought about all the ramifications as deeply as we might like. None of this is unique to Ennis or even Texas. I'm in California and it is all too familiar and understandable.
It's hard to get non-cyclists interested enough to fully understand our perspective, but when we do it effectively our arguments can be conveyed and understood.
"Don't you think that if he was casually riding along at 5 mph as apparently was claimed and unchallenged in court, and they could prove that he could easily go 15 mph, that a finding of guilt would be appropriate? "
What if I am a weak cyclist and can only go 12mph even if my bike can theoretically go 20mph? How do I prove that I wasn't going slowly on purpose?
From what I saw, PP actually understates the situation, in that not only were all the people typical non-cyclists, but they were typical non-cyclists in a rural Texas area in which even pickup trucks move over and drive on the shoulder when faster traffic is coming up from behind, despite it being illegal to do so. I never saw THAT in California!
Good point, Velouria. Ideally, the impeding law should not apply to bicyclists at all, because in practice there is no significant difference, especially with respect to how others are affected, between how fast someone is riding and their maximum reasonable speed.
I suspect that if the main point was understood and appreciated - that a bicyclist who is moving as fast as he or she reasonably can cannot be guilty of impeding - bicyclists would not be cited for impeding.
Steve... how much time have you spent on rural roads in California? I don't think the experience is much different in CA rural cities/town like Bakersfield, Brawley or Burney.
Slower traffic yielding to faster traffic, in whatever safe and reasonable fashion is feasible, is typical behavior not only in the U.S., but worldwide. This is true to the point that it's expected, and that's why bicyclists who don't appear to be cooperating (from that perspective) engender animosity.
Velouria, motorists are notorious for underestimating cyclist speeds. They'll think you're going at 5mph whether you are really going 12 or 20. You're actually safer going 12 because you are going closer to the speed they THINK you're going. That misjudgment is one reason cyclists get clipped when motorists merge back in too soon after passing. They forget how much the cyclist goes forward while they're passing.
Suppose, however, you are accused of dawdling. Presuming they do one of those videos, it'd be easy to prove your actual speed of 12mph. You don't have to be going at absolute flat out speed on the verge of bringing on cardiac conditions. All you have to show is that you were going at a reasonable pace for your vehicle. 12mph is reasonable, particularly for a roadster-style bike. On the other hand, if you were chatting on a cell phone and drinking a latte while pointing out sights as you progressed and occasionally just stopped in the middle of the street, you'd have a tougher story.
As you have noted in your own blog, there are definite experience differences between a path and a street.
they were typical non-cyclists in a rural Texas area in which even pickup trucks move over and drive on the shoulder when faster traffic is coming up from behind, despite it being illegal to do so.
Incorrect:
545.058. DRIVING ON IMPROVED SHOULDER. (a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:
(5) to allow another vehicle traveling faster to pass
It's pretty clear cut that it is legal for pickup trucks to move over and drive on the shoulder when faster traffic is coming up from behind. That's why they call the shoulder the Aggie passing lane.
Thanks for that clarification, Doohickie. While it is common for slow moving motorists to use shoulder space to allow faster traffic to pass, it is not legally required, nor is it for bicyclists.
Shoulders are often problematic for bicyclists for many reasons that do not apply to motorists.
That said, I often use shoulders if they are wide and in good pavement, especially on long rural stretches without any intersections,
I guess I'd quarrel with the notion that it was "necessary" unless the overtaken vehicle was having some kind of unexpected problem, or the overtaking vehicle had some sort of emergency. If that was not the case, then why would (c) of that same section feel it necessary to add:
"A limitation in this section on driving on an improved shoulder does not apply to:
(1) an authorized emergency vehicle responding to a call;
(2) a police patrol; or
(3) a bicycle."
I guess our legislators and their conglomeration of laws are partly why we need as many courts and judges as we do. Texas is no better or worse than most States in this mishmash.
Regardless, out in the rural areas of Texas, the custom is EXACTLY as Doohickie states - a pickup would usually move onto that shoulder even if it were a police vehicle that was overtaking. The police in the overtaking vehicle would take it as courtesy and nobody would be worrying about what all those words REALLY meant. They'd probably wave to each other. And it works, even if a Yankee/Westerner like me or Doohickie runs into it for the first time in his 40+ years of driving (I still have trouble with the idea that a Washington native is a Yankee).
Of course, all this should not divert us from the point that Chip's stops were not in such situations. In fact, the officer in the first stop indicated that he would not have pulled Chip over had not a shoulder suddenly appeared, making him feel "contact" was necessary. That is beyond what I'd expect of a Texas pickup truck driver. Even Aggies don't pull over where things are changing. Aggies pull over in the vast areas in between events. It's one reason there are so many Aggies around.
I use shoulders on occasion, where my judgment suggests it is wiser than asserting lane ownership. Based on what I read, I think I assert the lane more often than Doohickie, but not as much as Chip. When I DO assert lane ownership, my lane position is much closer to Chip's than I would have imagined before I saw the court videos. I think, however, that both Doohickie and PP would agree that such a decision should normally reside with the one most affected - the cyclist. The cyclist bears the consequences of a bad decision, regardless of any legal stuff his/her heirs may pursue afterwards. I, for one, am very reluctant to infringe on the call of a cyclist ON THE SCENE, absent compelling evidence to the contrary. What's more, I don't shrink from assuming that respoonsibility when I ride. It comes with the turf.
My advice to Doohickie - drive around Chip's neighborhood and imagine doing it on a bike without a car option. It's pretty brutal. It makes his attitude more understandable. Email me if you want a driving tour route. My advice to PP - Texas really IS different than California or Washington. That's true, even if we're talking about outside Redding, Fresno, or Twisp.
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