Did the League throw Cherokee Schill under the bus? Or Not?
Cherokee Schill has lost in her day in court. Now, whither to appeal and where to go? From the discussion on both the
LAB site and in
Keri Caffrey's long
post, which I bookmarked a couple days ago, it seemed that even the prosecution's expert witnesses in Cherokee Schill's trial supported assertions on why she rides like she does on some pretty shitty Kentucky roads. LAB Bicycle Friendly Communities guy Steve Clark says it well
here:
"...Her route? Highway 27, a road with a 50 mile-per-hour speed limit, and a
shoulder strewn with debris, gravel and rumble strips that make it very
difficult, if not impossible, to ride on safely..."
Note to readers: Read Bikeolounger's comment on the state of this road, which is appended to this post.
Steve Clark asserts that the LAB education program tells cyclists to do what Schill has been ticketed, tried, and convicted of doing in practice.
In his discussion, though, League President Andy Clarke says that the League, after discussions with its law team, has decided not to support Schill's appeal, which basically means she has been run off the road by some potentially spurious interpretations of law (see Keri's and
Ken McLeod's posts). That said, the League will work to improve conditions for KY cyclists via legislative and regulatory means. That second part is good news. Not so sure about the first part.
 |
| I'm actually kinda sympathetic to Andy's position....its a bit like Cherokee's, politically speaking |
I'd really like to have seen the members of the LAB
legal team, including LAB and BCNM Board
member Diane Albert, Esq, and Schill's defense attorney
Steve Magas (who won the Selz vs. Trotwood appeal and discusses the Schill case
here) publish individual opinions so that we could see the legal
details for this decision laid out rather than Mr.Clarke's summary of the League's
position. It seems that by publishing a summary,
we see a shitstorm of protest in response to Andy's discussion. But without knowing the details as laid out by the legal panel, I'm not willing to opine on whether this was a good or bad move, although a decision by a panel of the League's lawyers should not be dismissed lightly, even for the skeptical.
"When people get into it and look at it a little closer, they realize it's a complicated case,"
"..."I ride on the shoulder in a case like that. ... I'm sympathetic to her as a person, but it's a messy case."
Read more here: http://www.kentucky.com/2014/09/19/3437785/woman-charged-for-biking-on-us.html#storylink=cpy
Read more here: http://www.kentucky.com/2014/09/19/3437785/woman-charged-for-biking-on-us.html#storylink=cpy
Sometimes one doesn't take a
case on appeal because one doesn't want to lose, and end up in a worse place than
where one started--if the trial judge did not err, then the decision is reinforced at a higher level. Indeed,
Kentucky.com states that the judge in this case only required Schill do ride on the shoulder when it was safe to do so. Interesting. But I wonder how a judge who doesn't ride a bike would know when it is safe to do so? Sometimes one takes a case because it is the best
way to force the issue in the direction we want, and that includes better laws. Sometimes one takes a case to refute a miscarriage of justice. On points 2 and 3, this seems to fit the bill. But Steve Magas, the defense lawyer in this case, has opined that even the landmark Selz vs Trotwood, OH case could have gone either way. Indeed, it was a split decision; had it gone the other way, Ohio cyclists would be worse for it. But so too, as John
Schubert, an expert witness at the Schill trial, asked, "...“She (Schill) is the bellwether for: ‘Do we have the
right to use the road[way] or not?’ Not when it’s fashionable, not when
it’s yuppies in Portland, but when it is a single mom who needs to get
to her job."
I'm no fan of taking a lane on a 55 mph road if there is a decent
shoulder, but often enough, there is not a rideable shoulder and you gotta do what is just and legal--use the travel lane. For example, the heavily trafficked commuter section of NM 4 between White Rock and East Jemez Road is posted 50 mph, is nearly shoulderless, and is an unavoidable portion of road for anyone doing the
Bandelier Loop or riding without a Dept. of Energy badge between Los Alamos and White Rock. Indeed, living in a place where my own state (New Mexico) has
destroyed numerous roadway shoulders through inadequate maintenance paving in the name of financial
expediency, I really do think we have to push back on cases like this, whether in court, the court of public opinion, or in the legislatures of the land. Whether KY
or NM, the state must provide good roads and fair treatment.
With few exceptions,
every road should be a bikeway. Cherokee Schill should be able to ride on the roads that KY provides without going to jail, without the League asserting that it takes "a special act of courage" to ride there and thus invoking that terribly patronizing idea of the "few and fearless" Type A rider, and without KY demanding the rider be as far right in the
highway right of way as is practicable, i.e., off the traveled portion of the right of way. Also, if there is something in Andy's post that troubles me, it is the suggestion that this special act of courage "...is not normal..." and seems to put Ms. Schill outside the mainstream, and somehow easier to decide to not defend. Indeed, Cherokee doesn't ride on shit roads for the love of taunting fate or the state. She does it because there ain't a better option.
Bottom line is what Andy says, even if an appeal would be successful, this will still be a grim ride under present conditions. Plus, one cannot predict what the KY legislature might do. Bottom line is the facility sucks. If there is only one reasonably direct route between towns and it is a high speed, heavily used road, it should have good, paved, unobstructed shoulders or some other contextually-correct, thoughtfully built and efficient way to accommodate cyclists. There are data, FWIW, (e.g., the
Solomon Curve) suggesting that very large speed mismatches on highways increase the chances of collisions, hence the problem here. Thus why we require slow moving vehicles to keep right and in some states, require slow moving vehicles to use flashers. It makes sense for cyclists to have a safe place to ride to the right of high speed traffic on busy highways, so why don't we provide such? Of course, that means careful treatment at intersections where turning and crossing countermeasures are needed, etc., etc. But until these roads are improved, we still should have the right to ride on them, warts, potholes, and all, without being relegated to a crap or nonexistent shoulder.
If there is good news, its that perhaps LAB and the cycling community can change the law, if not the road, in KY. Not to mention, most of us are fortunate that we don't ride our bikes under such lousy conditions.
But whether LAB should underwrite an appeal? I don't know. LAB needs to lead the way in doing something constructive. What that is? Stay tuned.
Bikeolounger comments here as another expert witness.
