Legally Speaking - with Bob Mionske: A fatal bias?

By Robert Mionske JD

You raise an interesting point: many cycling deaths result in no criminal legal accountability.
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,
... As he was riding along Country Club Drive, a motor vehicle approaching from the opposite direction turned directly into Lloyd's path, killing him instantly. The driver, a 17 year old, was not cited. In fact, not only was the driver not cited, but the police department went out of its way to paint Lloyd as being "at fault." As the local media reported,

A 17-year-old Incline Village man who hit and killed a cyclist early Thursday evening most likely isn't at fault, police officials said Friday. According to the Washoe County Sheriff's office, Lloyd W. Clarke, a 43-year-old Maryland native, was riding down hill on Country Club Drive at a high rate of speed when a pick up truck driven by the 17 year old pulled into the intersection of Country Club and Village Boulevard. Clarke was unable to stop, and he struck the side of the truck.

We all ride, so we all know about the infamous "left hook"-as you're riding straight through an intersection, a vehicle approaching from the opposite direction turns left across your path, violating your right-of-way, often causing a collision. The left hook accounts for nearly 6% of collisions between bicycles and cars. And yet, if you hold a bias against cyclists, the possibility that an inexperienced driver turned into the cyclist's path so suddenly that the cyclist was unable to stop isn't even taken into consideration. The only possible explanation that restores some semblance of sense to law enforcement's auto-centric paradigm is that the cyclist "must have been speeding." ... In Lloyd's case, the police went into contortions in their efforts to exonerate the driver and blame the cyclist:
  • "He [the 17 year old driver] was real cooperative, and we don't expect to have any issues with him," said Brooke Keast, public information officer with Washoe County Sheriff's Department. "It looked like the cyclist was going too fast. It's so hilly up there that sometimes you might not be able to stop."
  • "Tentatively, it looks like the cyclist was exceeding the speed limit," [Captain Steve] Kelly said. "If you know that part of town, you know it's pretty steep there. If speed was the main contributing factor the juvenile most likely isn't to blame."
  • "One thing I will say - the fact of the matter is, if we find he was exceeding the speed limit in a low-light situation, how do you expect the driver to see him?" Kelly said. "It was dark. It was probably hard for the driver to see him, he had no lights on the bicycle and he probably was not familiar with the area. Now obviously, I don't think it was a deliberate attempt to disregard the law. We don't have a final finding yet, but those are possible reasons why."
Captain Kelly even "stressed it was an unfortunate accident in which no one should be blamed." Note, however, that Captain Kelly was placing blame-on the cyclist. A Nevada Highway Patrol trooper went one step further, blaming all cyclists:
Chuck Allen, a trooper for the Nevada Highway Patrol, shared similar thoughts with Kelly. "Mostly you see bikes riding the wrong way, not stopping at stop signs - they fail to abide by laws motorists abide by," Allen said. "I think there might be a vision put there that cyclists feel exempt from traffic laws."
While cyclists should observe the law, this was not a case about a cyclist riding the wrong way, or failing to stop at a stop sign-it was a case about a driver violating a cyclist's right of way.

Of course, the media reported the police account.

Which is unfortunate, because if the media had conducted any sort of independent investigation, they would have noted that:
  • The accident occurred before sunset, and not in the "low light" conditions the police offered as an alibi for the driver.
  • The driver's line of sight visibility was excellent.
  • The road grade was about 8 or 9 percent, and Lloyd had a reputation as a skilled cyclist who didn't take risks, and who was experienced at riding much steeper grades.
  • Lloyd had the right-of-way at the intersection.
  • "Left hooks" account for nearly 6% of all automobile-on-bicycle collisions

Tracey Sparling , 19, was both a top student and a talented artist. After her freshman year at Syracuse University, Tracey, feeling homesick, had returned to Oregon to study at the Pacific Northwest College of Art in Portland, Oregon. On October 11, Tracey was returning from her apartment to school after her noon break. As she approached a red light, she stopped, waiting for the light to change. When it did change, the cement truck to her left made a right turn, across the bike path, knocking her off her bike and killing her.

Despite the fact that Tracey was in the bike lane, and therefore had the right-of-way over the cement truck, Portland police declined to issue a "failure to yield" citation to the driver. Jonathan Maus Jonathan Maus reported on Jonathan Maus that:
After the Sparling incident I asked Traffic Division Lt. Mark Kruger why no citation was given to the cement truck driver. His response was something to the effect of, "We've determined that there was just no way he could have seen her."
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.
Brett Jarolimek, 31, was both a talented artist-a graduate of the same college Tracey Sparling was attending-and an avid cyclocross racer. On October 22, eleven days after Tracey's death, Brett was riding in the bike lane on his route in Portland, Oregon; he was passed midway down a hill by a garbage truck, which then stopped at the bottom of the hill, signaling to make a turn. As Brett approached the intersection-he had the right of way over the truck-the driver turned into Brett's path, killing him instantly. It was a classic "bait-and-hook"-the driver stopped, with his turn signal on, preparing to turn. To an approaching cyclist who has the right-of-way, it appears that the motor vehicle is yielding the right-of-way-that's the bait. Then, at the last second, as the cyclist is legally passing the motor vehicle, the driver turns into the cyclist's path-that's the hook.

Once again, the police declined to issue a citation, despite the fact that Brett had the right-of-way over the truck. And as the Incline Village police did in Lloyd Clarke's fatal collision, the Portland Police Bureau shifted the blame to the cyclist for "speeding," rather than placing it on the driver for "failure to yield." And again, the police read a non-existent clause into the statute exonerating the driver of any fault.
...Schmautz said "..yielding the right of way, and determining whether a traffic violation has occurred, comes down to a matter of perception. Basically, the driver has to perceive he has to yield the right of way."
In response to this official misinterpretation of the law, Portland attorney Mark Ginsberg explained to Bikeportland readers:
The cops are misconstruing the law in a biased way. There's no mental state requirement for traffic violations. You can accidentally run a red light, or purposely run a red light, either way you are guilty. What they are saying is that

by B' Spokes

Like most people I live a hectic life and who has the time for much exercise? Thanks to xtracycle now I do. By using my bike for daily activities I can get things done and get an hour plus work out in 15 minutes extra of my time, not a bad deal and beats taking the extra time going to the gym. In case you are still having trouble being motivated; the National Center of Disease Control says that inactivity is the #2 killer in the United States just behind smoking. ( ) Get out there and start living life! I can carry home a full shopping cart of groceries, car pool two kids or just get lost in the great outdoors camping for a week. Well I got go, another outing this weekend.
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