Thursday, September 2, 2010

Cycling Attorney Steve Magas on Reed Bates case

  1. Steve Magas Says:

    I’ve been swamped and haven’t been keeping up as closely on this case, or this controversy inside the case, as I should I suppose.

    In Ohio, I handled the Selz case. Case came out 10 yrs ago. Steve was either riding in the middle of the lane or the right, depending on whether you believe the cop or Steve. I suppose there was some sort of “shoulder” he “could have” ridden on. There were five lanes – 2 each way, one turn lane in the middle.

    The appellate court found that the key factor was that Steve was going at a speed which, FOR A CYCLIST, was appropriate. Steve fit the definition of “traffic” under Ohio law. Steve was permitted to ride on the road and the 2-1 court of appeals decision made it clear it wasn’t going to allow Steve to be banned from riding on State Route 49 just because some folks, i.e., the judge and prosecutor, thought it was not safe.

    The roads are PUBLIC WAYS and in most states people have the right to use the public ways in a variety of ways. Some are faster than others. Slow moving vehicles include bicycles, farm equipment and, in Ohio, Amish buggies. Faster traffic is MANDATED to accommodate slower traffic. In Ohio, bicycle operators are either allowed to use to use the roadway, or they are not. There’s no rule that says “use the road, but if it’s too dangerous, or the cars are going too fast, use the shoulder.”

    I represented Tony Patrick this year. Tony is the guy who tussled verbally with a deputy who told him, and his riding partner, to “Get off the F-ing Road”. Tony chose to banter with the officer and told the officer, quite correctly, that he had just as much right to use the road as the officer… didn’t go down well.

    Deputy said Tony and his buddy were riding two abreast and “impeding traffic.” He tried to run them off the road with his cruiser, stopped in traffic almost had the kid nail him from behind and then zoomed ahead and Tony ended up tussling with the cop before he was Tasered by a 2nd cop. The “charge” was “Riding a Bicycle on the Roadway.”

    Tony beat the criminal charges – including felony charges. The judge issued an interesting decision. He said under Ohio law two riders HAVE THE RIGHT to ride two abreast. They SHOULD, but DO NOT HAVE TO move to a single file line. The court said they were not doing anything wrong so the actions of the officer were not “lawful.” The distinction is between what is a RIGHT versus what they SHOULD do.

    The point is that people who allow themselves to get shoved into an envelope by police, or even courts, end up with rights that..well… fit into an envelope. Civil rights cases are not filled with people who caved in and didn’t push the envelope…

    I don’t know enough about TX law to comment on this case. I guess on a first impression level I don’t see how you can do something that is LEGAL and be found “RECKLESS.” Under Ohio law, reckless is defined in a way that would imply that acting LEGALLY is a defense to a claim of recklessness.

    Are cyclists REQUIRED to use a “shoulder” in TX? If a shoulder is next to a road do cyclists need to use it? If not, then what’s the rub? Are we arguing what is “legal” over what is “nice” or “preferred?” In Tony’s case, he probably should have pulled over and not ignored the cop’s order to “pull over.” In general, cyclists riding two abreast SHOULD go to single file but under State v. Patrick, they are clearly not required to do so and cannot be ticketed for “impeding traffic” if they do.

    Anyway, that’s the first of my two cents…

    Steve Magas

and later

"To me, the punishment doesn’t fit the “crime.” I can understand why some might balk at supporting Reed’s behavior, but to me you have to stand up and SCREAM that jail time was ridiculous. In MANY hit/run cases involving the death or maiming of a cyclist, the motorist gets NO time in jail. In cases where people physically attack other people, there is no jail time. I don’t understand why the jail time was so excessive, but I also haven’t had time to read through all of these comments, let alone read about the case itself in any great detail.

In Ohio, right now, Michael Hart has been in jail since JULY 21 for TALKING TO government officials. He is charged with “Intimidation” and “unlawful restraint.” He was complaining to a county commissioner about the lack of enforcement of the DOG LAWS in the county. He remains jailed today. Agree or not with Michael’s aggressive and verbally confrontational tactics, he has spent more than 30 days locked up and is awaiting a hearing in OCTOBER for TALKING to someone…"


Steve A said...

Steve says it well, and plainly.

Jon said...

Here's another link, including a picture of the "perfectly rideable" shoulder: