Time to 'claim the lane' on bike safety

With the momentum of new legislation in Oregon and a new bicycling mayor in Seattle, Washington needs a bold new "vulnerable user" law for cyclists.
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Virtual Ironman competitor Himanee Gupta-Carlson biking home from work on Martin Luther King Way South

With the momentum of new legislation in Oregon and a new bicycling mayor in Seattle, Washington needs a bold new "vulnerable user" law for cyclists.

The prospect of Mike McGinn pedaling into the Seattle mayor's office is heartening to those of us who get around the metropolitan area on two wheels, but how much difference will it make out on the roads?

It wouldn't have made much a few years ago, when I was riding my bicycle up a steep, twisting two-lane road on Vashon Island. I heard a car coming up the hill behind me. It was broad daylight. I was riding a red bike. One can't drive very fast up that road. The sound wasn't especially worrisome — until I heard the squeal of tires on pavement as the driver locked up his brakes, and felt the impact as his car hit the rear wheel of my bike. It knocked the bike out from under me. I landed on my feet, then fell forward, waiting for the car to hit me, too. It didn't. The hill was so steep the car couldn't slide far, and it stopped in the scant space between my rear tire and my body. I walked back to yell at the driver. I recognized a young man who was — or was widely regarded as — the neighborhood drug dealer. He was someone I had known since he was a little kid (small communities are like that), and we got along just fine. He was so upset that I didn't bother yelling at him. 'ꀜI just looked up,'ꀝ he said, 'ꀜand there you were.'ꀝ

Just looked up! Where had he been looking before, as he drove up a winding road fast enough to skid when he slammed the brakes on? At his radio? His dog? His cigarettes?

But hey, there's no law against simple negligence behind the wheel. There's not even any law against negligently injuring or killing a cyclist or pedestrian. Really.

'ꀜOn the morning of September 27, 2006,'ꀝ Judge Mary Kay Becker wrote recently for a unanimous three-judge panel of the Washington State Court of Appeals, a Seattle driver named Clinton E. Wilson 'ꀜtraveling southbound, was waiting at an intersection for northbound traffic to clear so he could make a left turn. He was not intoxicated. He began his left turn when the last northbound vehicle had cleared the intersection. A northbound bicyclist, Susanne Scaringi, emerged from the shadows of buildings on the east side of the street. Though she was clearly visible, Wilson did not see her until just before impact. She struck Wilson's van and was thrown to the ground. Despite having the protection of a helmet, Scaringi incurred a head injury from which she died later that day.'ꀝ

Under a Seattle ordinance, anyone committing a traffic infraction that resulted in death or serious injury was guilty of a crime. A municipal court judge found Wilson guilty. He appealed. A superior court overturned his conviction, ruling that the Seattle ordinance violated a state law that decriminalized traffic offenses unless they fell under a long list of specific exceptions. The appeals court agreed.

'ꀜSeattle is a densely populated city and its streets are busy with traffic,'ꀝ Becker wrote. 'ꀜThe operation of motor vehicles in close proximity to bicyclists and pedestrians sometimes results in appalling carnage. The Seattle ordinance appears to be an effort to lower the priority that motor vehicles presently enjoy in the competition for use of the public streets. By enhancing the risk of criminal liability a driver faces for merely getting behind the wheel, the city perhaps anticipates a future day in which an automobile is regarded as a dangerous instrumentality justifying the imposition of strict liability. We do not judge the policy choices embodied in the ordinance. Our task is only to determine whether it conflicts with state law.'ꀝ They determined that it did.

The Cascade Bicycle Club's advocacy director, David Hiller, says he wasn't surprised by the ruling, but he still found it 'ꀜone of the most offensive things I've ever read.'ꀝ

The Wilson decision implicitly invited anyone who really cared about the underlying policy issue to change the law, and Hiller will try with renewed vigor to do just that.

Last year, the Cascade Bicycle Club tried and failed to pass a 'ꀜvulnerable user'ꀝ law that would enhance penalties for anyone who strikes a cyclist or pedestrian. It wasn't the club's first try. And it won't be the last. A vulnerable-user law tops the club's legislative agenda for 2010. Hiller says that the bike geeks in spandex won't be going it alone. It can't hurt that Seattle has just elected McGinn, but Hiller says that even under the more sedentary old regime, the city has been a staunch ally. The whole Association of Washington Cities backs a vulnerable user law.

Explaining the legislative agenda on its website, the Cascade Bicycle Club says it's 'ꀜtired of hearing about terrible 'accidents' where a motorist kills or grievously injures a vulnerable roadway user by failing to drive in a safe and lawful manner with the only consequence for the motorist being a traffic ticket that doesn'ꀙt even require a court appearance and includes no license suspension or driver retraining.'ꀝ

The organization encourages people to 'ꀜtake action.'ꀝ We'll see.

Despite all the local preening about greenness and bike-friendliness, Washington isn't ahead of this particular curve. That honor would go to Oregon, where a vulnerable-user law passed the Legislature in 2007 and went into effect last year.

The Oregon legislation isn't exactly draconian. Oregon cycling advocates had envisioned something that imposed criminal penalties for killing or injuring a cyclist, but the reaction in Salem convinced them that such a bill would never pass; lawmakers were looking for ways to cut the state's prison population, not increase it. 'ꀜWhen we first introduced the idea of an enhanced penalty for careless drivers who hurt vulnerable users,'ꀝ wrote Portland lawyer Ray Thomas, 'ꀜkey legislators told us that any effort to create new crimes and inmates for our already overburdened state court and corrections system would face widespread resistance.'ꀝ Figuring that half a loaf was way better than none, the Oregon bike advocates dropped the idea of criminalizing the negligent killing of cyclists. They settled instead for heavier civil penalties. 'ꀜWhile some in the bicycle community saw the penalties as insufficient," Thomas wrote, 'ꀜwe felt it was a great improvement on the status quo.'ꀝ

It's too early to tell what effect, if any, the Oregon law will have on the behavior of motorists or the safety of cyclists and pedestrians. Nevertheless, it is now regarded as a national model. Bicycle advocates in other states are trying to pass similar legislation. In Texas, both houses of the Legislature voted for a 'ꀜsafe passing'ꀝ law earlier this year, but — to the surprise of bicycle advocates — the governor vetoed it. The Austin City Council then passed an ordinance applying the same standards within Austin's city limits. The Austin ordinance requires a driver to yield the lane to a vulnerable user when there are two or more lanes in each direction, and to give the user a least three feet when there aren't. Trucks must stay at least six feet away.

Washington and Oregon have already enacted safe passing laws that don't set a specific distance, but require a driver to leave enough room for safety. In this state: 'ꀜThe driver of a vehicle approaching a pedestrian or bicycle that is on the roadway or on the right-hand shoulder or bicycle lane of the roadway shall pass to the left at a safe distance to clearly avoid coming into contact with the pedestrian or bicyclist.'ꀝ Hiller suggests that Washington has one of the best safe-passing laws in the country. But of course, it won't be enforced unless a driver actually hits someone.

So far, Washington legislators haven't leapt at the chance to add a vulnerable-user law. In working the Oregon Legislature, Thomas found that 'ꀜthe testimony of families and victims was critical in creating legislative support.'ꀝ There's nothing like having one's nose rubbed in the human consequences of society's failure to protect cyclists and pedestrians. Hiller says that legislators who have had constituents killed or maimed by negligent drivers tend to be the most enthusiastic supporters of a vulnerable-user law. Having a constituent creamed by a careless motorist 'ꀜseems to make believers out of legislators,'ꀝ Hiller says. But some other legislators clearly harbor doubts. Some doubt that people should be penalized, criminally or otherwise, if they have acted without malicious intent, without the mens rea that is necessary for a crime. Do we really want to criminalize simple negligence?

Of course, in other contexts, we already do. A driver who endangers a highway worker can be charged with a gross misdemeanor, which carries a sentence of up to one year in jail. A driver who kills a cyclist by, say, failing to yield the right-of-way cannot.

Still, 'ꀜwe may decide that criminal penalties aren't the way we want to go,'ꀝ Hiller says. He says he's willing to look at enhanced civil penalties, if — as in Oregon — that's what the Legislature will pass. Some of his allies were not — in fact, some said they'd oppose a bill that did not carry criminal sanctions — but he says that since the start of November, they've changed their minds. Some people who want a bill have said all along that they'd rather not destroy the driver's life, as well as the victim's. In general, Hiller says, 'ꀜpeople are looking for justice, not vengeance.'ꀝ

They're looking for a modicum of legal protection, too. 'ꀜIf the justice system isn't about protecting the vulnerable,'ꀝ Hiller asks, 'ꀜwhat is it about?'ꀝ


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.