What Most People Don’t Understand About the Cherokee Schill Case

“She 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.” — John Schubert

In May, we shared the case of Cherokee Schill, a single mom in Kentucky whose only means of transportation is a bicycle, and whose only viable route to work was a nasty U.S. Highway. Cherokee has been systematically targeted by Jessamine County law enforcement. She was charged with careless driving for operating her bicycle in the right-hand travel lane. Her case went to trial in September. Despite the fact that all four expert witnesses (two for the prosecution and two for the defense) testified that the shoulder was unsafe and that the way Cherokee was riding on that road was the safest way to ride, the judge sided with the prosecutor and upheld the citations for careless driving.

There are important issues in this case that are not well understood, and that have been further obscured by a vocal faction of detractors. This post will discuss those issues.

First, for some background, listen to the Outspoken Cyclist radio interview with expert witness John Schubert. John recaps the trial beginning at 10:20 in the podcast.


FACTS & ISSUES

1) Statutory definitions are important.

Kentucky definitions for the key terms used this case are consistent with other U.S. states.

highway

[learn_more caption=”Highway”]KRS 189.010 (3) Highway means any public road, street, avenue, alley or boulevard, bridge, viaduct, or trestle and the approaches to them.[/learn_more]

[learn_more caption=”Roadway”]KRS 189.010 (10) Roadway means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.[/learn_more]

[learn_more caption=”Vehicle”]

KRS 189.010 (19)

(a) Vehicle includes:

  1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and
  2. All vehicles passing over or upon the highways.

(b) Motor vehicle includes all vehicles, as defined in paragraph (a) of this subsection except:

  1. Road rollers;
  2. Road graders;
  3. Farm tractors;
  4. Vehicles on which power shovels are mounted;
  5. Construction equipment customarily used only on the site of construction and which is not practical for the transportation of persons or property upon the highways;
  6. Vehicles that travel exclusively upon rails;
  7. Vehicles propelled by electric power obtained from overhead wires while being operated within any municipality or where the vehicles do not travel more than five (5) miles beyond the city limits of any municipality; and
  8. Vehicles propelled by muscular power.

[/learn_more]

In summary: A bicycle is a vehicle. A bicycle is not a motor vehicle. The roadway (which, in the case of U.S. 27, consists of travel lanes and turn lanes) is the part of the highway intended for vehicles to use. All vehicles, not just motor vehicles.

2) Sloppily written statutes can be exploited to abuse citizens.

The following three statutes were used by the prosecutor to make his case.

[learn_more caption=”Slow vehicle statute language is inconsistent with definitions”]

KY 189.300

(2) The operator of any vehicle moving slowly upon a highway shall keep his vehicle as closely as practicable to the right-hand boundary of the highway, allowing more swiftly moving vehicles reasonably free passage to the left.

See the diagram and definition above. The right-hand boundary of the highway is the edge of the public right-of-way. It seems unlikely the KY legislature expected slow vehicles (including motor vehicles) to be operated in the grass berm, or on a sidewalk. The more common language for a slow vehicle law is found in the Uniform Vehicle Code:

UVC 11-301 (b) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road, alley, or driveway. The intent of this subsection is to facilitate the overtaking of slowly moving vehicles by faster moving vehicles.

Slow vehicles are to use the right lane or drive as close as practicable to the right edge of the roadway. The latter applying only to roads without lanes. Unfortunately, KY has not adopted the UVC, or at least not a recent version of it, and remains among a handful of states that use language that is inconsistent with statutory definitions of highway and roadway. We know of no other cases where such language was used to selectively discriminate against a bicyclist or driver of any other slow vehicle using the roadway.

[/learn_more]

[learn_more caption=”Bicyclists MAY use the shoulder”]

Kentucky Administrative Regulation (KAR) permits, but does not require, bicyclists to use the shoulder.

Section 9. Operation of Bicycles. A bicycle shall be operated in the same manner as a motor vehicle except the following traffic conditions shall apply:

(1) A bicycle may be operated on the shoulder of a highway;

(2) If a highway lane is marked for the exclusive use of bicycles, the operator of a bicycle shall use the lane whenever feasible;

(3) Not more than two (2) bicycles shall be operated abreast in a single highway lane.

The use of “may” in statute is permissive, not mandatory. A requirement to use the shoulder would be worded as “shall.” Nonetheless, this permission was used against Cherokee. The prosecutor argued that because 189.300 (2) required slow vehicles to be kept as close as practicable to the right hand boundary of the highway AND bicyclists are allowed to use the shoulder, the bicyclist is then required to drive on the shoulder.

[/learn_more]

[learn_more caption=”Requirement to drive carefully”]

KY 189.290 Operator of vehicle to drive carefully.

(1) The operator of any vehicle upon a highway shall operate the vehicle in a careful manner, with regard for the safety and convenience of pedestrians and other vehicles upon the highway.

Cherokee wasn’t charged with a simple traffic ticket, she was charged with careless driving. The case was built upon the purported careless behavior of other drivers reacting poorly to her presence on the road. Yes, this woman on a bicycle was failing to operate with regard for the safety and convenience of people enclosed in multi-ton vehicles because motorists’ careless behavior, driven by incompetence or aggression, might endanger other motorists. I have no idea how anyone could argue that with a straight face, but there you go.

[/learn_more]

In summary, Cherokee was found guilty of careless driving because the law allows her to use the shoulder. In choosing not to use the shoulder, she disregarded the “safety and convenience” of people who are incapable of simply changing lanes to pass a slower vehicle without having a temper tantrum.

3) A bicyclist’s decisions about her own safety are subject to being overruled by people who know nothing about bicycling safety.

Click to enlarge.

Even if we accept the notion that slow vehicles are required to keep off the roadway, the statute says “as closely as practicable…” Practicable means capable of being done within the means and circumstances present. You might think that when safety is at stake, the person most at risk would be given the latitude to decide what is practicable.

But the prosecutor insisted, and the judge agreed, that the police should determine what was practicable. For the purpose of the citations, the police officers’ assessments that the shoulder was “just fine” at the time and place of the citations was the only acceptable testimony. All the testimony about the risks and conflicts to be found on that shoulder from four expert witnesses (including the prosecution’s own two expert witnesses) was for nothing.

Apparently, Cherokee was expected to ride in the shoulder, only leaving it for every single immediate hazard and then returning to the shoulder, crossing the rumble strip each time after yielding and waiting for traffic to clear.

Click on the image to explore the frequent hazards and conflicts of the U.S. 27 shoulder.

4) Operating on the shoulder is not just inconvenient, it eliminates your right-of-way and legal protection.

[learn_more caption=”Right-of-Way at Intersections”]

KY 189.330 (10) The operator of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.

Definition of Right-of-Way

KY 189.010 (9) “Right-of-way” means the right of one (1) vehicle or pedestrian to proceed in a lawful manner in preference to another vehicle or pedestrian approaching under such circumstances of direction, speed, and proximity as to give rise to danger of collision unless one grants precedence to the other.

[/learn_more]

A shoulder is not like a bike lane or even a sidewalk. In most states, including Kentucky, it is an operational no man’s land (because it is not intended for vehicular operation). It is off the roadway; therefore a bicyclist using it has no right-of-way. She must yield to all traffic making conflicting movements at intersections and driveways. If someone hits her, she has no legal protection. There’s nothing practicable about operating in a space where you are both vulnerable and subservient to every vehicle on a conflicting path.

U.S. 27 is not a limited access highway. It has clusters of commercial development along it where there are frequent intersections with streets and driveways.

[tabs slidertype=”simple”] [tab]

shoulder_row_issues_roadway_obst

It is a fundamental rule that a roadway user has the right of first come, first served. Faster vehicles approaching from behind are required to yield and pass only when it is safe to do so. In the case of U.S. 27, there is a passing lane available for that purpose.

[/tab] [tab]

shoulder_row_issues_shoulder_obst

Every surface hazard or obstruction that necessitates leaving the shoulder requires the bicyclist to wait for traffic to clear. Moving in and out of the shoulder makes the bicyclist unpredictable. Motorists who are not paying attention, may detect her in the shoulder, then turn their attention to something else, assuming she’ll stay there.

[/tab] [tab]

shoulder_row_issues_roadway_dwy

The right of first come, first served also includes other vehicles making conflicting movements. The roadway bicyclist has priority over vehicles turning left or entering the road. She also has the ability to encourage drivers who are turning right to wait and turn behind her rather than pass and turn across her path. This maneuver violates a roadway bicyclist’s right-of-way, though motorists often do it to edge-riding bicyclists).

[/tab] [tab]

shoulder_row_issues_shoulder_dwy

The bicyclist on the shoulder has no right-of-way. She is not on the roadway and must yield to all traffic on the roadway, including cars turning onto or out from a cross street. A driver can legally pass her and turn right across her path. A resulting right hook crash would be the motorist’s fault if she was on the roadway, but not if she was on the shoulder. She is required to yield, even when the motorist is coming from behind her. Likewise, drivers entering from the cross street do not have to yield to her because she is not on the roadway. A driver turning left from the opposing lane not only does not have to yield to her, he may not even see her if she is hidden by passing vehicles or the heavily crowned road surface.

[/tab] [tab]

shoulder_row_issues_roadway_int

When right turn lanes form, the shoulder stays to the right of them, or disappears altogether. A bicycle driver in the roadway can continue in a predictable straight line, maintaining her vantage and visibility through a complex intersection.

[/tab] [tab]

shoulder_row_issues_shoulder_int

When turn lanes divert or replace the shoulder, the bicyclist has to yield to all traffic on the roadway before she can proceed to the through lane. If she stays in the shoulder all the way to the intersection, she is even more vulnerable because she is in an unpredictable, low-visibility position. And she has no right-of-way. She must yield to all conflicting traffic.

[/tab] [/tabs]

5) The scales of injustice favor the majority, no matter how absurd.

911-crybaby-01So let’s review.

Cherokee, after trying to use the shoulder and suffering its many hazards, did some research and learned that the safest, most predictable (and most efficient) way to drive her bike is to control the right lane and make herself visible and predictable.

Some motorists were incensed at having to change lanes, and possibly slow down for a few seconds, to pass her. So they abused the 911 system to complain about a bicyclist on the road.

The authorities responded by repeatedly ticketing Cherokee for careless driving. Not only that, they ignored the dangerous behavior of motorists. Once, when she called for help because a motorist was assaulting her, an officer showed up, waved the motorist away and gave her a ticket!

This case was absurd. Yet the judge sided with the prosecutor and decided that her safety is subservient to the tender convenience of motorists AND that her presence on the road endangers them. Seriously, a woman on a bicycle “inconveniences” and “endangers” motorists (in plush climate-controlled cocoons—surrounded by 4,000 pounds of steel cage, crumple zones and airbags—propelled forward at high speed by the delicate press of the driver’s toe upon a pedal). The hardship. The horror. To have to lift that toe for a few seconds to change lanes and pass a bicyclist.

scales of injustice-01Here’s how it stacks up:

The court says Cherokee must ride on a shoulder, where she has no legal right-of-way; faces numerous crash hazards and likely flat tires; must constantly stop and wait for traffic to clear in order to pass obstructions, driveways and intersections; and must endure rough, loose pavement that robs several miles per hour from her cruising speed. Beyond the safety issues, we’re talking about adding significant time (measured in fractions of an hour, not seconds) to a commute that was already over an hour… rain or shine, blistering heat or freezing cold.

All this to save motorists (in their plush climate-controlled cocoons) 20 seconds of having to drive under the speed limit, for a delay of even less than 20 seconds. Time which would easily be absorbed by the next red light or traffic jam of other motorists.

A motorist who momentarily loses less than 20 seconds can choose to step on the gas and get it back. A bicyclist who loses 20 minutes has no way to make that up.

To make this even more ridiculous, the sources of delay on this road include traffic lights, traffic congestion (of cars), motorists slowing to look for destinations, vehicles slowing to turn, vehicles entering the road, and school bus stops (which stop traffic in both lanes). But a few seconds of driving slower to pass a moving bicyclist? Well, that’s just unacceptable.

6) What kind of a society are we?

What we have here is a single mom trying to get back on her feet after escaping domestic abuse. She lost her license for financial reasons (she couldn’t afford insurance). She didn’t give up. She didn’t go on welfare. She got on a bicycle — at first, a delta trike — and rode to the only full-time job she could get. Those early commutes took her three hours each way. Three hours. She was out of shape and weighed 90 pounds more than she does today. She gutted it out. She lost weight. She got stronger. She got a faster bike. She learned how to ride safely and successfully. She was pulling herself up by her bootstraps, dammit!

Now she’s stuck. Since the trial, the police have upped the ante. A few weeks ago, they arrested her for wanton endangerment — a criminal charge — for not riding in the shoulder. And the shenanigans are getting worse. She is on parole for the violations that caused her to lose her license — driving without insurance and while her license was suspended (for failure to pay a speeding ticket in NY). Jessamine County is now trying to make her parole conditional upon not driving her bike on the roadway on U.S. 27. In other words, if she gets caught in the roadway on U.S. 27 again, she violates her parole and goes to jail.

Alternatives to U.S. 27 include adding significant distance and using a 55mph, winding, hilly, 2-lane state highway (where motorists can’t pass safely or easily) to get to U.S. 68, which is just like U.S. 27. Any alternatives to the U.S. Highways add an additional hour to a 75 minute commute into Lexington — on 2-lane roads.

She recently completed a certification course to become a Cardiac Electrocardiogram Technician and is looking for a full time job in that field. Yet, she’s basically hamstrung. There are very few jobs in Nicholasville and she has no reasonable way to get to Lexington. In addition to problems with the police, shock jocks from the local radio station have been fomenting hatred on air. As a result, militant motorists regularly go out of their way to threaten her with their vehicles. She’s even been followed by a carload of men and had to divert from her route and hide.

Appeal Fund for Cherokee SchillNo one should have to live like this.

The good news is that many generous people in the bicycle driving community have been supporting Cherokee, emotionally and financially. If you would like to pitch in, you can donate to her legal fund and share this story.

To hear Cherokee’s story in her own words, listen to her interview with Diane Lees on the Outspoken Cyclist.

Overcoming Obstacles & Finding Freedom

The following story is a speech given May 7, 2013 by Michie O’Day at the Active Communities Conference in Waterville, Maine.

I am honored to publish it here with her permission. Michie is an inspiration to me and a heroic example of what it means to be antifragile. Her journey on the tricycle confirms everything we are trying to do here at I Am Traffic—from education, to legal equality and informed law enforcement to inclusive facility design.

victory

Recreational Opportunities for People With Disabilities (breakout session)

Today I’m going to tell you how I became disabled and how I make the most of it.  I hope you’ll see that despite the hurdles, I’m an active and contributing member of my community.  What I want is for you to return to your communities  – all fired up to include more people like me –  so that together we can enhance both the social and economic well-being of Maine’s cities and towns.

First, some background.

I wasn’t always the way you see me today.  My deafness and trouble walking stem from a rare genetic condition known as neurofibromatosis.  I’ll repeat that for you.  neuro-fibroma-tosis.  Let’s call it NF.  There’re several strains of it.  I have the one known as NF2 – which means that I grow benign tumors in my brain and around my spinal cord. I was diagnosed with this when I was 26 years old. Since that time I’ve had too many MRI scans to count, radiation treatment and 6 major neurosurgeries for a total of 36.5 hours on the operating table. I consider this bragging rights, but I’m determined not to let it become a way of life for me.

Fortunately, I’m optimistic, and I’m pragmatic. So when my hearing went kaput in my 39th year and I had to give up my career in nonprofit fund raising, which I thoroughly enjoyed, I seized the opportunity to follow my heart and start fresh as a painter in Stonington, Maine – which I loved even more.

Balance has been an issue since my first neurosurgery when I had a tumor removed from my acoustic nerve 30 years ago.  As a result, I became deaf in one ear and my vestibular function was compromised. I had to give up skiing and cycling at that time. There were other losses and adjustments along the way, but things didn’t get bad until 2008, when further neurosurgery left me with a paralyzed right leg.  Wasn’t supposed to happen. With a lot of work and rehab, I was able to regain most of the use of that leg – and I was glad to get out of a wheelchair. But recovery wasn’t 100%, and power walks – which I’d loved since I was a teenager – are now only a memory. Today, I use trekking poles – or sometimes a walker – to make sure that I stay upright.

Three years ago when it was clear that my poor coordination was affecting my driving, I gave that up and got rid of my car. Stonington is simply the most beautiful place on earth, and I’d be there still, but it’s remote and not a good place to live without a car. So I moved to Portland, and that’s where my cycling story begins….

I used to walk past Gorham Bike & Ski on my way to the Rite Aid store on Congress St. One sunny day almost two years ago as I was plodding along with my walker I looked at all the shiny new bikes in the window and thought, “Hmmmmm…. I wonder if they sell trikes for grown-ups?” Then I thought, “Nah… even if they do, it would be expensive and I’m still recovering from moving costs.”  So I kept walking. I got about 10 feet past the shop….stopped.   Turned around and went back. It couldn’t hurt to ask.

bridge

Fast forward about six weeks, and – thanks to a generous friend – I’m riding home from the shop on my brand new Sun EZ Tadpole 21-speed Recumbent Trike. I cannot describe my excitement to you!  It’s great fun to ride  – like a go cart, only better – and it’s something I can DO!  After giving up skiing, snow-shoeing, swimming, hiking, cycling, power walking… the trike opened up a whole new world for me.  It was so wonderful, that I upgraded to an ICE trike last summer.  ICE stands for Inspired Cycle Engineering, and they do make beautiful trikes. I named mine Ruby, and she’s simply the best….

But cycling gives me more than just gratification….  I’ve made wonderful friends through my adventures. The guys at my bike shop are tops – and have come to my rescue when I had a flat tire. Some of you may know Fred Robie and John Brooking – leaders in the cycling community and friends & mentors to me. Paul Niehoff and Jim Tasse, who will lead bike audits later today, went to bat for me last year when I had a little run in with the police.  As civic leaders, this incident might be of interest to you.  Here’s what happened:

I explained that I’m deaf and couldn’t understand what he was saying. He was still agitated. I remained calm on the outside, but inside I was shaking. Probably because his holster and gun were in front of my nose

I was cycling home from Higgins Beach (south of Portland)… happily pedaling along Highland Avenue, which is a main road that goes through some nice farmland and rural areas in Scarborough. That section of the road has a paved shoulder, but it’s not marked as a bike lane. It was sandy and cluttered with recycling containers, so I was riding in the right portion of the travel lane. Cars had to pass me carefully, and a few did. No big deal. Traffic was light that day.

Next thing I know, there’s a car pulled up beside me and the driver had slowed down to my speed. I look over… It’s a police car. His lights are flashing, including the red light on top. If his siren was going, I didn’t hear it.  (I don’t hear anything.) But I saw that the passenger window was open and the cop driving the car was looking at me and yelling. I pulled over and stopped. The patrolman stopped his car in the middle of the travel lane, lights still flashing of course.  He got out, ran around the his car, stood in front of me and started shouting at me again.

deaf cyclistI explained that I’m deaf and couldn’t understand what he was saying. He was still agitated. I remained calm on the outside, but inside I was shaking.  Probably because his holster and gun were in front of my nose…. Through pointing and gestures, he made it clear that I was supposed to be riding IN the shoulder lane, and that no part of my 36”-wide trike should be in the travel lane.

I said no, that was not correct and that I had a legal right to use the roadway. Thanks to CyclingSavvy, which I’ll tell you more about in a minute, I knew what I was talking about. But he wasn’t buying. He continued to insist and I continued to refute.

Eventually, two other cyclists rode by.  I flagged them down to help.  They stopped and talked to the patrolman.  Soon enough everyone calmed down, and I rode on home.

End of story? Absolutely not. As far as I was concerned the unpleasant incident was over, but I saw two important training opportunities and wanted to make sure that both happened.  I wrote a letter to the police chief who agreed to meet with Jim and Paul to discuss Maine state laws for cyclists.

Isolation is one of the biggest challenges of disability. While my art gives me another means of communication, cycling gets me out there and involved – part of the world.

The other issue, which was equally important to me personally, and which I am qualified to address, is how to identify a hearing impaired person and communicate with them effectively.  A few weeks later, I was able to address a staff meeting of the Scarborough Police Department on these topics. My presentation was only 15 minutes long, but that’s all it needed to be. I made my point.

Back to the big picture…. Frankly, isolation is one of the biggest challenges of disability – especially for me due to the combination of deafness and mobility issues. While my art gives me another means of communication, cycling gets me out there and involved – part of the world.

Personal independence is another challenge of disability.  I gotta tell ya, I love doing my own grocery shopping on my trike and coming home with two big bags of groceries in my rear baskets. It’s great to be able to shop or go out to lunch on my own schedule, get some exercise, and contribute to Portland’s economy.  So yes, it may take an entire morning for me to do something that most of you can do in a few minutes… But I do it because I can.

groupSo what do I wish for? This is where you come in.

I want to be able to cycle safely on roads and designated bike paths. This means better signage & road markings.

I want better education for both cyclists AND drivers. This includes – but is certainly not limited to – bike-law education for law enforcement officials.

I want standards and best-practices, so that planners and engineers can design roads and bike lanes that are consistent with the rules of traffic movement and safety.

And, I want these lanes & paths to be safe and accessible to all – not just to those who ride bikes but also those us who ride trikes.

A good example is the Eastern Trail, south of Portland.  It’s a lovely trail… especially that stretch through the Scarborough Marsh. But the bollards – those yellow posts to keep out the bigger vehicles  –  are too close together for my trike. When I took the trail to Old Orchard Beach last fall, my companion had to lift the 40 lb. trike over the posts so I could continue on the ride. Otherwise, I would’ve had to turn around and go back home. What a disappointment that would have been!

Last, I’d love for more people who can no longer ride a bike – for whatever reason – to discover trikes. I want company!  As you heard from Eric, Maine Adaptive has an excellent program for that.  I ride with them in the summer.  It’s great to go with a group at my speed.  I only wish they rode more often and went more places.

I want to suggest some resources for you.

If you’re not familiar with the Bike Coalition of Maine, they’re here today.  The Coalition is a highly effective organization, and a strong advocate for cyclists.

CyclingSavvy is an excellent course on safe cycling, which is available here in Maine. John Brooking is the instructor.  I took it soon after I bought my first trike and it still helps me to be a safer and more responsible cyclist.

And there’s a new organization being formed, whose working name is I Am Traffic.  Their mission is education, and their vision is a world where motorists expect to see cyclists on the road and consider them a normal part of traffic.  Likewise, cyclists ride responsibly, making their movements and intentions visible to drivers.

I’ve got brochures from all three of these resources for you.  And I have my own brochures too. They include my website address if you’d like to see my paintings.

by the waterSo, as you can see, cycling has done many good things for me. It’s made me stronger physically. That’s no small thing for a person with my medical history. It’s made me more independent. I love not owning a car and using my trike to get to the beach or store and other places I want to go.  And, it’s led to new friendships.  When communication is challenged by deafness, it takes time to meet new folks and some friendships never gel, but a shared passion for cycling is a nice basis for mutual respect and support.

I want to conclude by sharing my outlook with you. To counter each loss caused by NF, I’ve always sought to benefit — to learn from it and to become a better, stronger, and more loving person for it. With deafness, the benefit was easy: my art. With the mobility loss in 2008, it was harder, and I’m still coming to terms with that.  But I can tell you this:  If I could still take my long, brisk walks, I never would have ventured into Gorham Bike and Ski asking about trikes.

For years I’ve said when I’m painting I’m not deaf. Now I can add: when I’m cycling, I’m not disabled. When I’m cycling I feel a sense of freedom and empowerment that I haven’t known in years….. I’m out there, a part of nature, and alive. 

The reason I’m willing to stand up here and speak about something as personal as my health and related challenges is because I want you to see that disabled people have much to offer. Look at us. See us. Make us a part of your world.

And if you’re on the road near Portland, and it’s a sunny day, you just might see me riding “Ruby.”  Give us a wave.

Thank you for listening to me today.

painting

You can visit Michie’s website and enjoy her paintings at michieoday.com

 

The Stories We Tell – Part One

This is the first in a series of posts highlighting the challenges for encouraging bicycling in America.

Part 1: Origin & Influence of Our Stories

The stories we tell are a product of the experiences we have. Our experiences are the product of our choices and behavior. There’s a saying popular among pilots: “Good judgment comes from experience. Unfortunately, the experience usually comes from bad judgment.” In bicycling, the journey to good judgment is complicated by inhibiting beliefs and social norms.

Test Your Recognition of Potential Conflict

The image below is similar to one we use in the CyclingSavvy course. It’s a participation exercise to engage students in spotting conflicts they have just learned about in a previous section on crash causes and prevention. Test yourself in Tab 1. Tab 2 shows the potential conflicts faced by the cyclist in red (practicing edge behavior). Tab 3 shows the potential conflicts faced by the cyclist in green (practicing driver behavior).

[tabs slidertype=”top tabs”] [tabcontainer] [tabtext]Spot the Potential Conflicts[/tabtext] [tabtext]Edge Bicyclist[/tabtext] [tabtext]Driver Bicyclist[/tabtext][/tabcontainer] [tabcontent] [tab]

iat-hazardspot_spot

click images to enlarge

Count the conflicts faced by each of the two cyclists on the left side of the picture, then click the tabs above or below for highlighted conflicts and explanations.

[/tab] [tab]

iat-hazardspot_red-hazards

There are numerous mid-block conflicts:

  • Door zone: every parked car is a potential dooring conflict.
  • Parking pull-out: every parked car has the potential to pull out when there is a gap in traffic. The edge-riding bicyclist may be in the drivers’ blind spots.
  • There is a wrong-way bicyclist weaving in and out of parking spaces. He will be a head-on conflict for an edge-riding bicyclist.
  • Beyond the intersection is a pinch point where the lane is too narrow for a bicyclist and a truck or bus to fit.
  • Buses entering or leaving the bus stop are a problem for the bicyclist. He is likely to be in the blind spot of the bus drivers.

The driveway offers several crossing conflicts:

  • The driver of the green truck could suddenly decide to turn right into the driveway.
  • The driver of the yellow car may pull out and go in any direction—if he is working a gap, to turn left or get to the left-turn lane, he will be focused on the cars and unlikely to look at the edge of the road.
  • The driver of the turquoise SUV is looking for a gap to make a left turn. The green truck screens the edge bicyclist from view.

The main intersection offers several crossing conflicts:

  • The pedestrian may try to cross before the light changes. He will step into the edge of the lane before proceeding.
  • The tractor trailer might turn right. It will look as if it is going straight because the driver needs to steer wide. He will need to navigate the turn slowly to avoid off-tracking over the sidewalk, allowing plenty of time for the edge-riding bicyclist to enter his blind spot.
  • The driver of the red truck wants to turn right on red. He may jump the light, or be looking for a gap.
  • The driver of the yellow car is planning to turn left. If the red cyclist is fast and that driver runs the stale yellow, they would be on a collision course and invisible to one another.

The frequency of potential conflicts on the edge requires managing multiple threats at once… and that’s if the bicyclist even recognizes the conflict potential. Many bicyclists who ride this way don’t. They suffer constant close calls. Their trips are full of unpleasant surprises because they are frequently invisible or irrelevant to other drivers. But unlike the pilot, most don’t have the training to recognize the root cause of their bad experiences or how to eliminate them.

[/tab] [tab]

iat-hazardspot_green-hazards

The green bicyclist is clear of all of the mid-block edge conflicts. She is well outside the door zone. She’s easily seen by drivers pulling out of parking spaces. She also has plenty of space to avoid them. She won’t be bothered by the wrong-way bicyclist.

Drivers of all vehicles face potential conflicts at driveways and intersections. Like a motorcycle driver, this bicyclist has positioned herself for the best vantage and visibility—she can see conflicting drivers and they can see her. She simply needs to be aware of a potential moving screen: cars to her left screening her view of left-turning drivers.

With only a few potential conflicts to monitor, the driver bicyclist has a virtually stress-free ride. She prevents most right-of-way incursions just by being visible and relevant. She knows where to place her attention and the value of communicating with others. She encounters almost no surprises.

[/tab] [/tabcontent] [tabcontainer] [tabtext]Spot the Potential Conflicts[/tabtext] [tabtext]Edge Bicyclist[/tabtext] [tabtext]Driver Bicyclist[/tabtext][/tabcontainer][/tabs]

To learn more about the types of bicyclist behavior and how they influence crash risk, see Bicyclist Behaviors & Crash Risk in the Engineering section. In this post, we will explore the cultural influences and social implications of bicyclist behavior. 

The Distorted Lens

The two bicyclists above not only have vastly different personal experiences, but the people with whom they interact also have a dramatically different experiences. For better or worse, we are all ambassadors. A close call or crash involves two people: the bicyclist and the motorist. They both leave the encounter affected by it. They also influence their families, friends and co-workers with the stories they tell about bicycling and bicyclists. Those stories become the lens through which the people around them view bicycling.

Anyone who has spent any time on bike blogs, forums and comment sections has encountered many, many “motorists are idiots” stories. These are predominantly stories of the unsuccessful bicyclist practicing edge or pedestrian behavior. He gets buzzed and cut off frequently. He wants new laws requiring motorists to move over, or yield to him when he’s passing on their right. He loves PSA campaigns that tell motorists to look for bicyclists, but it hasn’t occurred to him that there are things he can do better. He’s riding the way he believes he is expected to. Good thing he’s tough. Bicycling on the edge of the road is only for the fearless, fast and thick-skinned warrior.

Under the bravado is a disempowered, unsuccessful road user who needs other people to change so bicycling can be less frustrating. Most of us know this guy, or we’ve been him. He has been the face of American bicycling for decades.

If he never learns there’s a better way, he gives up and goes back to driving a car.

obstacle-course

The Stories of the Unsuccessful Bicyclist

I’m a second class citizen.
I’m at the mercy of others.
Most motorists are careless and mean.
Bicycling is difficult and frustrating and won’t be safe until other people change and we have special facilities.

The majority of American bicyclists are locked into this cycle of conflict and frustration. In fact, the beliefs of our culture are designed to hold them there.

Get Out of the Way or Be Killed

Throughout history, dominant cultures have held their norms in place with stories, symbols and ideas designed to discourage deviation. This is called control mythology. It is insidiously woven into the culture so that it is not recognized as anything other than “the way it is and always has been”—an unchangeable fact of life. It is the underpinning of beliefs, customs and laws. It is the root cause of many intractable problems throughout the world. Tragically, it is often held in place most strongly by the subordinates it is intended to suppress.

The plight of the unsuccessful bicyclist is the product of the control mythology by which motordom, and its culture of speed, came to dominate our public roadways. Our current beliefs about the road date back only to the 1920s. As the motorcar entered our cities, it quickly ran up against the dominant pedestrian culture—a culture that had believed for thousands of years that streets were for people. The speed of the motorcar was incompatible with that culture’s customary use of the streets for socializing, commerce and movement of people and goods by human and animal power. The resulting clash—and death count—threatened to curtail the usefulness of the motorcar.  So began a deliberate effort by a wealthy minority of motoring interests to reframe the purpose and preferred users of our streets.

The Great Reframing resulted in the creation of a control mythology designed to clear the roads of anything that slows motorized traffic. To control by fear, it changed the perception of cars from vehicles being driven by people who are responsible for safe and competent operation into traffic—a faceless force of nature which must be avoided. That alone has had repercussions for safety, civility and justice for all road users. The reframing dissociated higher speed from greater responsibility, foisting upon us the utterly false belief that it is dangerous to be slow. But fear alone isn’t enough. Being slow and in the way is also socially unacceptable. Thus, if you shake off the imposed irrational fear, your peers will try to keep you in your place.

safe-and-unsafe-post

After almost 100 years, the beliefs that inhibit successful behavior have been accepted unquestioningly by most people. The forces that deliberately reframed our roads are long gone. Tradition now holds their legacy in place. Worst of all, the mythology is now so thoroughly perpetuated by the stories of unsuccessful bicyclists, the status quo would seem to have little to fear.

We Shall Overcome

Understanding these beliefs is essential to the task of encouraging bicycling in America. These beliefs are the root cause of why bicycling seems difficult, dangerous or impossible to most people. These beliefs have inhibited bicycling for decades.

These beliefs are a false construct that can be overcome by individual bicyclists. Even with all the imperfection of motorist behavior, the physical issues of land use, street design and other ills of our culture’s diversion into motor-centric transportation priorities, the individual can be empowered to thrive as a human-powered vehicle driver… right now. Not just the strong, brave, fearless….whatever. Anyone.

The green-shirted bicycle driver in the illustration at the top of the page is not unique by any physical characteristic, age or gender. That bicyclist is simply someone who has learned the same defensive driving skills taught to the drivers of another common narrow vehicle: the motorcycle. What’s less simple is that she had to overcome the baggage of the control mythology before she could learn the behaviors that allow her to have a successful and conflict-free experience. A future post in this series will discuss strategies for belief change.

diana_3The reward for the bicyclist is tremendous: empowerment for unlimited travel. But the reward for those of us wanting to encourage bicycling is also significant. This bicyclist tells stories, too. She tells stories about all the places she goes on her bike, how much better she feels when she arrives at a destination, how easy and rewarding it is to use a bike for transportation and how courteous her fellow road users are. She’s positively connected to her community. Her enthusiasm is infectious. It inspires her friends to dust off their bikes and try a trip to the park or the store, too. If they implement her style of riding, they, too, will be empowered by success. New positive stories will begin to edge out the old negative ones.

The Stories of the Successful Bicyclist

I’m a first class citizen.
I’m in control of my safety.
Most motorists are safe and courteous.
Bicycling is safe, easy and a great way to connect with the community. I don’t need special infrastructure, but there are some ways better infrastructure could enhance my travels.

Imagine a community where this is the dominant story. At I Am Traffic, we believe we can make it so. But first, there are some common advocacy strategies we need to reexamine. That will be the topic of part two.

Back to the Future

OC Banner art rgb-01

We must go back to the future — we must reclaim our heritage as drivers and the truth that streets are for people.

Dan Gutierrez joined Diane Lees on the Outspoken Cyclist this evening.

In the interview, Dan gives an overview of the I Am Traffic Colloquium and shares the origin of the Six Es. He articulates the importance of equality and education, and how I Am Traffic intends to fill a void in those areas of advocacy.

Diane asked about the video technique he and Brian DeSousa pioneered. Dual Chase video has had a tremendous influence on many of us. It formed an essential part of the vicarious modeling we use in the CyclingSavvy curriculum. You can see some of their videos on Dan’s youtube channel.

Enjoy the show, and subscribe to The Outspoken Cyclist to keep up with all the latest news in the cycling world!

The Enforcement of Imaginary Laws

chance_gotojail

This story was originally published on CommuteOrlando, January 26, 2010. It has been updated here.

The Judge Mirandizes us as a group, then brings us forward one at a time to hear our plea, and the setting of a bond, etc. Those of us waiting are close enough to hear most of what is said.

When I approach his raised dais, he opens a folder, and then looks up in surprise. He says, “Are they serious? Operating a bicycle on the roadway?”

And as absurd as it sounds, my friend ChipSeal went back to jail that same night, arrested again on his way home from jail for operating on the roadway. What an incorrigible scofflaw! Read his story, beginning with While Minding My Own Business… I have great admiration for his gracious attitude toward those who detained him unfairly.

The right to travel by human power

ChipSeal’s case is a clear violation of his civil rights. The charge is unsupported by TX statute, and yet he was convicted of reckless driving and sentenced to time served (20 days).

When Eli Damon encountered an officer who didn’t want him on the roadway, he found himself charged with disorderly conduct. Eli maintains that he was calm and courteous in the encounter, but the officer was angered by his assertion that he was riding legally. The charge was prosecuted for four months before the prosecutor dropped it a week before the scheduled trial.  You can read Eli’s story here.

In 2009, Bob Mionske covered the story of Tony Patrick, who was tasered and arrested for disorderly conduct in Chesapeake, OH for refusing an unlawful order to get off the road. His lawyer, Steve Magas, has more links to the story and the judge’s dismissal of charges here.

Being arrested for asserting your right to drive your bicycle on the road is an extreme violation of civil rights. But living under the specter of choosing between riding unsafely to avoid hassles and risking constant citations is also a violation of your right to travel by human power. In 2009, Fred U. experienced this in Port Orange, FL. The harassment ended when his lawyer got pretrial dismissals of all of his citations. Fred provided documentation for other cyclists who might face a similar predicament.

Cultural bias can be blinding

Nowhere is the bias more glaring than when an officer pulls a cyclist over for using one lane on an empty six-lane road on a Sunday morning. Then, during the stop the officer repeatedly asserts that the cyclist is failing to share the road by not riding at the far right of that lane. This might raise the question, with whom exactly is he failing to share the road? (See Red & Blue in the Rear View… Again?)

A few months ago, Mighk Wilson was pulled over for riding in one of three lanes on South Street. This is a one-way street, downtown, with a 30mph speed limit and plenty of traffic lights to prevent movement anywhere near that fast. Of course, when there are lots of motorists, traffic moves slower still. Agitated with Mighk’s knowledge of traffic law, the officer huffed that he was “one of those people who just doesn’t care about others.”

Bias denies basic human equity to its target. Bias is impervious to logic and reason. Bias is blind to its own absurdity, no matter how glaring. As much headway as we’re making with law enforcement, stubborn anti-cycling bias can still be encountered among the ranks of the most enlightened department.

These stories are infuriating to transportation cyclists in particular, but they cut even deeper for those who are car-free. When the cops are lying in wait for a cyclist who must pass through their jurisdiction, they are essentially violating that person’s right to use a public utility. By insisting, under threat of arrest, that a cyclist ride in a place not required by statute, these officers are abusing their authority.

Strategies for the chance encounter

Prompted by an Ask Geo email, I thought it might be a good idea to collect some wisdom on how to deal with uninformed police officers. I have not been pulled over or otherwise hassled by any of the many, many police officers who have passed me in my metro area travels. My interactions with them always consist of a friendly wave. But I know others who have been pulled over or ordered over the PA to ride far right. So I wondered, what’s the best way to conduct myself in a traffic stop? And how would/should I handle an officer giving me an unlawful order over his PA?

The unwarranted traffic stop

I think Richard Moeur’s story is exemplary in both his handling and its outcome. I got several good take-aways from it:

  • Ask the officer’s intentions. Find out what he is requesting (ride on the sidewalk, ride on the edge of the road, ride on a different road).
  • Resist the urge to discuss the law right away, and ask for a name and badge number.
  • If the opportunity arises, be armed with a copy of the statutes.
  • If the officer asks why you were riding where you were, present the pertinent talking points (know your talking points).

In my opinion, it’s better to not get a citation than to have to deal with one in court (even if you win). In the event that the officer does not respond favorably to your roadside defense, the best course may be finding a way to comply without compromising your safety, then deal with educating the officer via contact with the department.

The drive-by command

In the case of the cyclist who was told over the PA to get on the sidewalk, there is little recourse for dealing with the individual officer unless the officer stops.  I’ve heard from several cyclists that deputies have told them over the PA to ride far right. This puts the cyclist in a predicament: comply and put her safety at risk (with no way to identify the officer); not comply and have an angry officer loop back around and pull her over; or flag the officer down and attempt to discuss it before he’s agitated by non-compliance.

There’s risk in that last option, too, depending on the officer’s attitude, as Brad Marcel in Tampa found out. When an officer ordered him to ride farther right in a narrow lane, he tried to flag her down to talk to her. She thought he’d flipped her off. He ended up receiving a citation and the officer has claimed that he was antagonistic (which he denies). In court the officer claimed he was impeding traffic (a statute which does not apply to non-motorized vehicles in Florida). He read the statute governing bicyclist lane position and explained that the lanes on road met the exemption of a “substandard” width lane because they are less than 14ft wide. The officer replied that no lanes in Tampa are 14ft wide, so that made no sense. The judge found him guilty.

So, I think Richard’s advice serves well here, too. If I could, I’d flag the officer down, ask him/her for clarification of the request and get a name and badge number. Depending on the officer’s demeanor, I might leave it at that and deal with unlawful demands higher up the chain of command.

Departmental bias

As far as I know, there are no systemic bias problems within any of the Orlando metro area police departments. As long as the source of the problem is an errant officer, it seems easiest to get the name and badge number and make nice till he goes away. Then I can deal with him through his supervisors. I also have the luxury of finding alternative routes and/or using my car until the situation is resolved.

Unfortunately, what ChipSeal and Eli are dealing with appears to be departmental. This was also the problem Fred encountered in Port Orange. He tried to go up the chain of command after the first encounter, to no avail. It took a swift pretrial dismissal of his citation to put a stop to his troubles. In the meantime, he faced harassment whenever he needed to travel through Port Orange to conduct business.

In December of 2009, Chipseal missed an appointment (after traveling a heck of a long way) because he was stopped three times for riding legally. We all thought that was over the top until he spent two nights in jail!

In one post, ChipSeal says

As it stands now, I am in under threat of arrest any time I travel, for slow vehicles like bicycles will, by their nature and in the strictest sense of the word, impede all other more powerful vehicles. How can I get to work? The grocer? Make appointments? Make any plans considering I could be jailed simply for using the public road? For leaving my driveway on a bicycle? Am I being subjected to a de-facto house arrest?

Eli’s saga is equally distressing. He’s been detained, had his bicycle confiscated and been arrested. His range of travel has been severely limited. He told me:

I have been on near virtual house arrest for the past several months. I am on bail because of the pending criminal charge so if I have another encounter, even with a different cop in a different town, before the case is resolved I could be put in jail until it is.

Of course, he’s learned a lot through his experience. Here’s some advice from him that I’ll keep in mind:

  • Know the law (of course).
  • If the officer asks for an explanation of your riding style, keep your answer concise (never too much information at once).
  • Use formal, respectful language and don’t interrupt.
  • “If the officer lets you go, do not ride away from the officer if you can help it. Let the officer leave first. You might have to walk to someplace that is a comfortable distance away but where you can still see the officer and wait awhile.”
  • A suggestion Eli plans to use with potentially volatile officers in the future: ask, “Are you going to write me a ticket?” It could potentially end the encounter quickly and prevent arrest. A citation is certainly less inconvenient than going to jail.
  • After the encounter, document everything that happened ASAP, contact appropriate authorities and assisting organizations. In Florida, contact George Martin.
  • Again, get the name and badge number. Get it first, before you get distracted!

George Martin offers similar advice in his Ask Geo post today.

Correcting the cultural problem

Ultimately, these incidents are a manifestation of the bigger problem — what Steve Goodridge describes in America’s Taboo Against Bicycle Driving. The problem must be tackled from a number of directions. We are working very hard to build a mutually beneficial relationship with law enforcement and to create a program that will give them knowledge of the laws and help them understand how we protect ourselves on the road. But law enforcement officers are a part of our general culture. They’re people. They’re just as influenced as anyone else by the biases of the society in which they live.

The fundamental rule of the road is First Come, First Served (FCFS). The distorted rule of the Culture of Speed is All life yields to faster traffic. When the roads are governed by FCFS, pedestrians and bicycle drivers are people using public roads. When governed by the Culture of Speed, they are merely objects in the way.

As has been noted before, the Culture of Speed causes some police to enforce traffic flow vs safety. Worse, they often don’t even realize that their concepts of protecting safety are stealthy manifestations of the Great Reframing. Almost 100 years ago, traffic engineers began to manage the steady flow of automobiles at the expense of non-motorized users. The notion that speed differentials and lane changes cause safety problems resulting from the presence of a slow vehicle rather than the incompetent or aggressive behavior of faster drivers is a result of 100-year-old propaganda campaigns which removed pedestrians and bicyclists from the roads by dissociating safety from behavior. This is why most people, police officers included, don’t realize their ideas of safety are so badly skewed.

With this understanding, my friend ChipSeal’s graciousness is not only admirable, it is necessary to solve the problem. We have work to do. We need grace, understanding and cooperation. And we need those in law enforcement to be our allies.

Since the original publication of this post in 2010, Chipseal was charged and convicted of reckless driving (for what was essentially defensive driving). Eli has continued to face harassment from police departments in two Massachusetts towns. He has won his court cases and filed a lawsuit against one police department. In Florida, Fred U has faced repeated harassment from several police departments. Each time, he has won in court, but it has cost him hundreds of dollars in legal fees — to defend defensive driving.

Achieving a Vision

Presentation at CNU20:

In the video presentation above, I explain the root cause of the beliefs that inhibit bicycling in America, why the prevailing strategy can’t fix it, and offer a strategy that can. In addition to teaching people to be successful anywhere, this strategy includes many progressive infrastructure ideas that are cost-effective, versatile, expandable and supportive of successful bicyclists.

For more on this topic:

Strategy for a Cyclist-Friendly Community by Keri Caffrey