Tuesday, December 4, 2012

A Bicyclist Anti-Harassment Bill With Some Real Firepower

Bicyclists:  You want a law that protects you that actually has some teeth?  Well, check out what is going on in Washington D.C.  On November 29th, the Assault of Bicyclists Prevention Act made its way through the city council's judiciary committee on its way to the full council for consideration.  The bill was drafted to "create a civil cause of action for a person who while riding a bicycle is the victim of an intentional assault, injury, or harassment or the threat of assault, injury or harassment, and to provide for civil penalties, punitive damages, and attorney's fees."  Specifically, the proposed bill states as follows:

Irrespective of any criminal prosecution or the result of a criminal prosecution, a person who while riding a bicycle is intentionally physically assaulted or otherwise intentionally injured; threatened with physical assault or injury, whether by words, a vehicle, body part of another, or other object; or intentionally distracted, or the attempt thereof, shall have a civil cause of action in a court of competent jurisdiction for appropriate relief, which shall include: 
(1)  An injunction; 
(2)  Actual damages with regard to each such violation, or up to 3 times the amount of the actual damages or $1,000, whichever is greater; 
(3)  Punitive damages in an amount to be determined by a jury or a court sitting without a jury; and 
(4)  Reasonable attorney's fees and costs.

The bill also states that the remedies prescribed "shall be in addition to all other remedies provided by law" which already exist.

This bazooka of a bill was proposed last year after a D.C. area bicyclist recorded himself being harassed by the driver of a pickup truck who knocked him over.  The cyclist and the cycling community at large were frustrated by the lack of any real legal remedy to be pursued against the driver since no serious injuries were sustained due to the assault.

Illinois and the City of Chicago passed bicyclist anti-harassment laws last year enforcing the so-called 3 foot rule.  But those measures are flaccid compared to the proposed D.C. law.  The Illinois statute states,

The operator of a motor vehicle overtaking a bicycle or individual proceeding in the same direction on a highway shall leave a safe distance, but not less than 3 feet, when passing the bicycle or individual and shall maintain that distance until safely past the overtaken bicycle or individual. 
A person driving a motor vehicle shall not, in a reckless manner, drive the motor vehicle unnecessarily close to, toward, or near a bicyclist, pedestrian, or a person riding a horse or driving an animal drawn vehicle. 
Every person convicted [under] this Section shall be guilty of a Class A misdemeanor if the violation does not result in great bodily harm or permanent disability or disfigurement to another. If the violation results in great bodily harm or permanent disability or disfigurement to another, the person shall be guilty of a Class 3 felony.

The Chicago ordinance states,
The operator of a motor vehicle overtaking a bicycle or individual proceeding in the same direction on a highway shall leave a safe distance, but not less than 3 feet, when passing the bicycle or individual and shall maintain that distance until safely past the overtaken bicycle or individual.
Any person who violates . . . section 9-36-010 . . . of this Code, shall be subject to (i) a penalty of $150.00 or, (ii) if such violation causes a collision between a motor vehicle and a bicycle, a penalty of $500.00, for each offense.

The differences are not small.  Imagine you are harassed or assaulted by a driver in Illinois but not seriously injured.  Assuming you can get a police officer's attention, the driver is subject to a small penalty. Moreover, you will be left to your own devices with regard to convincing the local prosecutor to pursue the matter.  If the D.C. bill becomes law, cyclists there will have the ammunition needed to hire a lawyer to pursue the matter aggressively, and really hit the offending driver where it hurts.

Thanks to Washington D.C. attorney Michael Forster who made me aware of the D.C. bill via Twitter.

2 comments:

  1. The proposed DC ordinance is based on a law passed in Los Angeles in 2011, and which has been adopted by a few other CA cities in the Bay Area; it's currently being considered by Sonoma County, as well.

    Credit for the original ordinance goes to Judith Reel, a lawyer with the L.A. City Attorney's office, who came up with the idea of making harassment a civil, rather than criminal, violation. This allows cyclists to take violators to court themselves, rather than relying on police to observe the violation — and few drivers are foolish enough to commit such an act when there's a cop around. However, it does not preclude criminal charges; a cyclist can file suit regardless of whether there is a parallel criminal case.

    The key to the law is the inclusion of reasonable lawyers fees, allowing attorneys to take relatively small cases that might not otherwise be worth their time.

    However, to the best of my knowledge, there still has not been a test case filed here in Los Angeles, or anywhere else the law has be adopted. The problem is that riders still must meet the burden of proof to win theircase; it's hard to get the witnesses or physical evidence necessary to make your case when you're being forced off the road. I suspect the first successful test of the law will come through video evidence from a bike or helmet cam.

    You can read the best explanation of the law I've seen here, written by an attorney who helped shape the final ordinance: http://bit.ly/qPGi3j

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  2. Thanks so much for this additional information. Great to know.

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