Tuesday, October 28, 2014

"...The League is working towards a world where it doesn’t take courage to ride your bike..."

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
 --Cycling attorney Bob Mionske, as quoted in Kentucky.com

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.
Solomon Curve

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.


Steve A said...

Now we know what the new League equity statement really means. They don't support female cyclists any more than male ones. For the moment, http://dfwptp.blogspot.com/2010/05/nowhere-else-to-go.html still applies. However, LAB would be well advised to review the creation of the Jaguar Enthusiast Club in the UK.

Khal said...

Is this it?


bikeolounger said...

Since I am now one of two adults to ride that road with Cherokee (her kids have ridden it with her several times), and having ridden it months before Steve Clark deigned to do so (almost on a spur-of-the-moment dare, from some of what I've read), and having also driven the road numerous times with a cyclist's eye applied to the shoulder as traffic conditions allowed, I can say without equivocation:

I would not ride that shoulder, nor should ANY cyclist be required to ride that shoulder for any distance.

The rare fifty-yard stretch of halfway decent pavement that doesn't already have driveways or cross streets to create left cross or right-hook hazards or piles of debris/glass/gravel/sand/trash/furniture that had fallen from passing trucks to make it impassable for a cyclist at road speed (i.e. more than walking pace) is only accessible via full-length rumbles AND a crack between the roadway pavement and the shoulder pavement that is sometimes wide enough to catch a bicycle wheel (AND is camouflaged with nice pretty fresh white fog line paint that magically appeared a month or so before the traffic court trial date...).

Nope. The shoulder is not a viable alternative, nor its use be required. Alternative routes add time (by a factor of two or more in some cases) and are typically two-lane roads with lots of curves (thus poor sight lines) and no good places for passing or even pulling off to allow others to pass.

Khal said...

Thank you for the details!

Steve A said...

A less "sugar coated" version is at http://www.independent.co.uk/news/jaguar-club-split-by-law-of-the-jungle-1576483.html

As in the case of LAB, there are a lot of accusations and "personalities" that don't like each other very much. I would not suggest that you substitute various LAB names for JDC ones - that'd be carrying things too far. Both clubs continue today, with the JEC generally considered as more active than the JDC.