Legal Defense of Cyclists' Rights

home        organization

General

There are two general areas of action: criminal defense, and judicial relief. Cyclists frequently should receive much better defenses than they receive. When I reviewed the only book of nationwide judicial opinions about bicycle law, Paul Hill's Bicycle Law and Practice, I discovered that in almost all of the cases nobody in the courtroom knew what they were considering. Not the judges, nor the attorneys for either side, nor the witnesses when testifying to bicycle matters. Some appeals opinions were contrary to man's law, others were contrary to physical law. Many were incredible. That book (1986) disclosed, to my eyes at least, the shoddy state of the practice of law as it pertains to cyclists. If BTI decides to intervene in any case, that intervention must be performed in the very best manner, lest all the effort go down the drain or, even worse, turn out to our disadvantage.

Criminal Defense

It is appropriate to assist in the defense of cyclists who were cycling properly but are being prosecuted for doing so. This can be for several reasons. One is that the police officer misunderstands the law and charges the cyclist with violating a law that does not prohibit the cyclist's action, or with violating a law that does not exist. One frequent cause of such prosecutions is that the police officer stops the cyclist, thinking that the cyclist must be disobeying some law or other, and then has to seek for a legal excuse for stopping him. For example, I was stopped for cycling on a riverfront divided highwy in Washington, DC, that was posted to prohibit trucks. The police officer stopped me because he thought that cycling was prohibited on that road, but once he had stopped me he could not find such a law. In the end, the federal prosecutor prosecuted me for cycling on a national park road without the permission of the superintendent of parks, which also was not what the federal regulation said. As I lived in California, I did not pursue any remedies in DC.

Another situation involves laws that are invalid. For example, California does not allow local authorities to enact traffic laws, except where specifically provided for. Several California cities have enacted local ordinances that prohibit cycling on particular streets, or on the roadways of particular streets. The cyclist who gets prosecuted for using such a street is not violating any law, because those ordinances are invalid. However, the first that the cycling community learns about such laws is when a cyclist is prosecuted. Then, the defense must be that that ordinance is invalidated by state law. Even when learning such, some communities keep such ordinances on the books, probably to frighten children with. Others recognize the law and repeal them.

Another type is the improper application of law. California empowers cities to require bicycle registration and to enforce such ordinances against their own residents when riding within the city. However, Huntington Beach, where cyclists congregate in summer, enforced its registration requirement on all cyclists found within it, regardless of where they lived, impounding bicycles by the hundred.

On occasion, it is appropriate to disobey an improper law, hoping that the defense against prosecution will demonstrate the invalid nature, the dangerous consequences, or the social undesirability of the law. The defense may well lose such a case, in that the legislature may have been empowered to enact such a law, but the defense, its quality, the publicity, etc., indicates to that same legislature the desirability of repealing that law. Such happened to me when Palo Alto enacted a mandatory sidepath law after California had granted permission for cities to enact some laws for bicycle traffic. Sure, I lost the case and paid a $25 fine, but the moment that my legal appeals ran out, Palo Alto repealed the ordinance.

Actual Defense

The first opportunity to defend a cyclist being improperly prosecuted is at the trial proceedings, arraignment or actual trial. Traffic courts generally shortcut standard criminal procedures; you appear at the first hearing, hear the police officer, say your few words, and are convicted. If it is decided that a particular case deserves a quality defense, it is often best, or required, to notify the prosecutor of the fact, and demand a proper trial with proper transcript of testimony. If it is decided to do this, then it is vital to do it right. The assumption may be that an appeal will result; in this case, it is vital to make sure that all the necessary items are testified to in the trial of fact. The action of the appeals court cannot be to determine matters of fact; that is the total responsibility of the initial trial of fact. Matters are submitted to it in writing, with a short hearing at which the judges may question the parties. The appeals court generally rules on how the law applies to the factual situation, saying that the action being prosecuted either is, or is not, the kind of action that the legislature intended to prohibit. The appeals court may say that the evidence is insufficient to make a determination, either letting the accused off or sending the case for retrial. It may, very rarely, rule that while the law would apply, the law does not apply because it would be unconstitutional. Therefore, almost all the argument in an appeals case is in the appeals brief, and almost all of that is legal argument. Success requires an attorney experienced in both the subject and in appeals.

Friends of Court Brief

Only the parties to the case can present prosecution and defense testimony and argument at trial. However, if the case goes to appeal (and maybe at the trial of fact?), it is possible for other interested parties to submit argument briefs as "Friends of the court." These may present any of the normal arguments for an appeals brief: insufficient evidence, lack of credibility of evidence, not what the law prohibits, contrary to public policy, unconstitutional, etc. It may well be that this is the earliest opportunity for BTI to enter a case, because this is the first time that the case has come to BTI's attention. It is also a relatively cheap way to enter one's views into a case, because, while the work is written and must be of high quality, it can be done according to a reasonable schedule and doesn't require a personal appearance.

Judicial Relief

When an arm of government (in unusual cases, a non-governmental organization) takes action that would prohibit or endanger vehicular cycling, BTI may choose to ask for judicial relief. That is, asking for a court order, declaration, or injunction. Injunctions commonly require that particular action be ceased, or started, under penalty of law. A court issues an injunction only after a hearing between the parties, and most courts are reluctant to do so without very good cause. This requires that the person requesting the injunction follow all procedures to the letter and have very good evidence and reasoning regarding the issues. A declaration is a statement by a court that some particular interpretation of an existing law is the correct one, and is rarely given without a present case, and requires that all procedures be followed.

Because the initiator of such requests must follow procedures exactly and will not succeed unless he also has very sound legal and factual arguments, it is practically useless to start such a proceeding without a competent attorney and sufficient money to finish the job. BTI is likely to take on such a case only to head off the most dangerous actions. Anything less would be beyond our ability to raise funds and support.

It may be the better decision to wait until somebody is prosecuted for violating a bad law, and then participate in the defense of that cyclist. That requires that the cyclist be absolutely pure on all other counts, and may require recruiting a good cyclist to be the victim.

Expert Witnesses

In many cases there are matters of fact to be developed by testimony, often after some initial investigation. There are, often, also matters of law that particularly apply to cyclists that attorneys are unfamiliar with. In any case sufficiently important to be considered for support by BTI, it is mandatory that a proper expert be used to both work out the facts and advise the attorney about the bicycle aspects of the law, and, to some extent, about the tactics of the trial. The expert may, or may not, testify at trial; hence such an expert is commonly called an expert witness even if, in a particular trial, he does not testify. The expert will advise on the relevant facts and how to get them introduced during trial. Some he may testify to on the basis of his knowledge, in general about bicycle affairs, or in detail from his investigation of the facts of the case. For others, he will indicate the witnesses who can testify to them, and advise on how to elicit the appropriate answers from those witnesses. He should also advise on the types of answers to be expected from adverse witnesses, and how to elicit accurate answers from them when such would be favorable.

Competent Attorneys

In any case sufficiently important to be considered for support by BTI, it is highly advisable to employ an attorney who is both familiar with the law as it applies to bicycles and cyclists, and is a competent cross-examiner during trial. So many common thoughts about cycling are contrary to fact that when they are presented to the court they are believed by judge, jury, and attorneys, even when they are incorrect. Suppose the case involves a cyclist riding along a main arterial street with heavy traffic. The police officer testifies that he thought that the cyclist was riding dangerously because of the speed and volume of traffic, and that he saw motorists almost either hitting the cyclist or hitting each other as they swerved around him. (That was the testimony of a police officer who stopped me for impeding that traffic.) The defense attorney must never let that get by. On cross examination, he must force the officer to testify that it was the motorists who were driving unlawfuly and that he, the officer, chose to stop the cyclist rather than chasing and stopping the motorists who were driving unlawfully. (I was defending myself, and green at that game. I asked the right questions, but couldn't get the answers to stick.) That's the kind of tactic that is required in the mixed-up cases that justify BTI's support. The typical traffic-court hearing officer (often not a judge at all) rarely knows much law and is usually biassed against those brought before him. The attorney has to work against this system. Even in superior court, judges rarely know much about how the law applies to cyclists.

Return to: John Forester's Home Page                                               Up: Organization