Wednesday, August 18, 2010

In Ellis County TX, is bicycling a jailable offense?

Second update. Attorney Steve Magas, who won the Selz vs. Trotwood appeal, has written a review of the Selz case here.

Update: Here is the League of American Bicyclist's statement on the Reed Bates case.

Hard luck cyclist Reed Bates has been jailed for reckless driving in Ellis County, TX. His crime was riding his bike in the road (shading to the left side of the right lane) instead of the "improved shoulder" (see Reed's web site for pics of the road shoulders in Ellis County, which range from quite nice to horrible to nonexistent).

I'm a little concerned that this is a legal overreach meant to deal with Bates once and for all "by any means necessary".

Here is our Los Alamos statute, which is similar to the Ellis statute (after all, the UVC requires some uniformity).

Sec. 38-296. Reckless driving.
(a) Any person who drives any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving.

As applied to a cyclist who is not able to keep up with traffic but who is otherwise obeying the relevant laws such as "as far right as is practicable" and other onerous but relevant details, this potentially sets a precedent for criminalizing bicycling. I've read the TX laws as they apply to bicycling, and its not at all obvious that one could charge reckless behavior on the part of a cyclist who is obeying all of the TX bicycling laws. Nothing in this TAMU site says these laws apply except when a judge says they don't. I'm confused.

As Steve Averill posts on his blog, the judge's decision suggests we can be cited or arrested simply by riding slower than other traffic, in direct contradiction to Selz vs. Trotwood (of course a TX court can ignore a precident from elsewhere). Note that nowhere did the judge call into question AFRAP, which to me is the main question here, and it appears from TX law that a cyclist has a choice to to take a substandard width lane or to ride on the shoulder, but is not obligated to ride on the shoulder.

"...The judge began by noting that it was fine for a cyclist to ride on the roadway, but it must be in a safe manner. He indicated that Reed may well have actually BEEN safer riding in the lane on Highway 287. He then cited the high level of concern on the day in question and the defendant’s disregard of the officer’s request. He further noted that road safety included not only the defendant, but the other road users who might be unfamiliar with cyclists riding on a road such as the one in question. As a result, he was presenting a hazard and was guilty...."

So other people's ignorance or indifference of bicycling makes a cyclist a criminal? What were the total facts of the case? I emailed fellow blogger Steve Averill at his blog asking for details as he has posted on this topic.

In general, I would have a hard time instructing anyone to ride their bike in the middle of a lane on a high speed (65 mph according to Steve Averill) rural highway unless they had to, i.e. there was not a decent shoulder. Riding as Bates was, a motor vehicle would be overtaking at very high net speed difference, possibly 40-50 mph. In heavy traffic, this can potentially lead some to unsafe passing. Not to mention, I hope no one is texting while closing on Bates. But in general, because humans are after all fallible, traffic engineering principles try to minimize drastic speed mismatches, i.e. from the Bureau of Transportation Statistics, "...Posting a minimum speed limit was and still is motivated by the desire to reduce speed variability in a traffic stream and its attendant consequences in efficiency and safety of traffic operations. Numerous studies have documented the negative effects of speed variability...."

Now, obviously a bicyclist cannot keep up with a car on any moderate speed to high speed road, which is why all states exempt bicyclists from "impeding traffic" laws as long as one is following all relevant bicycle-specific laws such as referenced in the TAMU link. That was also the outcome of Selz vs. Trotwood, i.e, Steve Selz could not be convicted of impeding merely by riding a bicycle as a bicycle is intended to be operated. And it seems self-evident that neither Selz nor Bates were behaving recklessly, i.e., 38-296.

Recent AASHTO guidelines (see my sidebar link) provide some official guidance in general about AFRAP, suggest riding approximately in the right tire track or on a narrow lane, taking the lane. That is good to know if the shoulder sucks or is non-continuous. On NM 502 in the Rio Grande valley, a 55 mph road, all cyclists I've ever observed use the shoulder which is continuous and wide. But if there is no shoulder or a dangerous shoulder, such as on NM-4, then the cyclist's right to ride trumps concerns about low speeds. One has to mitigate the hazard as much as is possible by means at your disposal and so does everyone else. Anything further flies in the face of Selz vs. Trotwood and our rights.

Back to the legalities. I recommended to League of American Bicyclists President Andy Clarke that LAB have a legal counsel to advise on things like this and whether to get involved in these sorts of cases. Someone like cycling attorneys Bob Mionske or Steve Magas. Here was what I sent Andy, which I posted a few months back.

There are four issues (and probably more) to the Reed Bates case (or any other case) that I would ask about before diving into it and a case would have to pass muster on most or all of these.

One, is it a critical case about cycling rights requiring national resources and of strategic importance to cyclists? One such case was Selz vs. Trotwoood, where a cyclists right to ride on the road was affirmed to not be dependent on being able to keep up with cars.

Two, is the case strong enough and winnable so it makes sense to throw resources into it? Aside from the bare facts of the case, one needs to know if the battle can be won by looking at the totality of the situation. Texas is not the bastion of judicial liberalism. Bates was poking the cops in the eye by applying the letter of TX bike law. This is a judicial game of chicken. If LAB thinks he can win, then LAB needs to shake down the deep pockets we are aligned with, i.e., Bike Industry and go into court loaded for bear. But I'm not sure he can win. See #3.

Three, has the case been handled well or poorly? (see Steve Magas comments on the Steve Selz case) Has it been severely compromised such that an appeal would be fruitless or possibly make things worse for cycling? From what I have read, the Bates case has been a fiasco from the get-go. I don't know what kind of damage control would be needed and even in Selz vs. Trotwood, Mr. Magas was taking a chance. As he has said, the judges could just as easily have voted 2-1 the other way.

Four, is litigation the best long term solution? For Reed Bates, he needs to get outa jail and get a misdemeanor off his record and it seems to me there was enough bad law practiced here that this case should be overturned on its merits (or lack thereof). But for the long term, we need to fix the underlying problems, which include that Reed's present options are often sub-optimal, as they are for many cyclists, due to prejudice, bad engineering, ignorance, and an often inept legal system. Other options available for the long haul include improved laws and legislation, better rural highway design, informed cops and judiciaries, and some means of getting the engineers, cops, judges, motorists, and politicians in the same room with the cyclists.

I have not, frankly, followed the Reed Bates case closely until now and only now because the reckless driving charge caught my attention. But so does the fact that twenty five 911 calls came in. Uh..what the hell happened down there? Its hard to get twenty five 911 calls if someone is being stabbed in the street.

I don't really know much about TX other than what I saw when I was being recruited by UT Austin last winter and at any rate, we stayed here. My surprise and outrage at Reed being charged and convicted for reckless driving, which to me seems utterly outlandish and potentially a dangerous precedent, is tempered by my need to hear the details of the case history from legal counsel that has been briefed and understands it and is experienced in bike law, such as a TX version of Magas or Mionske. I understand that Steve Magas has commented on this case on his Facebook page.

As with all these cases, its important to win the war, not just a battle. That long term goal falls not only to cycling organizations, but to individual cyclists and the decisions we make every day. Sometimes winning means taking half a loaf today and coming back for the other half tomorrow. My criticism of Reed Bates is that sometimes when you play chicken, you crash.


John said...

FYI, here is the Texas statute he was convicted of breaking.

Pretty simple: "A person commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property."

Then some more details about where it applies and maximum penalties.

Jon said...

I would hope Preston would have something to say about this, although maybe he's avoiding commenting until the League has taken a stand (or not.)

I really wish LAB would pour a LOT more into defending right to the road cases. They've taken legal action over infrastructure before.

online traffic school said...

some of the rules need to be revised to get these type of circumstances down. interesting to know and thanks for the stop.

Khal said...

If Reed is expected to use a shoulder, it has to be a smooth and continuous one. Right now it seems that it is the rock to the west, and the hard place to the east. Someone needs to work this issue in a constructive way.

Steve A said...

Since Khal posted this, I have published my extended account of the trial and sent a draft copy of it to Khal. He has my permission to use all or any elements of it as he sees fit.

Khal said...

Steve, I linked to your notes and included a section on my post, which I revised.

Greg Kendall said...

The lab partial paved West Jemez again and it looks terrible. In many places it looks like we will be force into the traffic lane as the shoulder bike lane is worthless being all cracked and warn out.

Khal said...

The LANL project engineer has told me that they expect to put a smooth overlay on the shoulders.

Anonymous said...

Just heard a rumor that the County Administration is considering asking the council to pass an ordinance similar to the one Black Hawk, CO, came up with to ban bikes on major thoroughfares in town or maybe just banning them from the downtown area. Anyone else heard this?

Khal said...

In Los Alamos? I seriously doubt it. Or are you talking about Ellis County?

Khal said...

County Administrator and Council Chair say no truth to that rumor.

I had seriously doubted that rumor anyway. Los Alamos may be a lot of things, but daft is not one of them.