FROM:  STEVE MAGAS, The Bike Lawyer

TASERED CYCLIST SETTLES LAWSUIT

On August 19, 2008, bicyclist Anthony Patrick, from Huntington, West Virginia, was Tasered by Lawrence County, Ohio Deputy Charles Hammonds and Chesapeake Police Department Dennis Gibson.  Patrick was riding his bicycle with another rider when Deputy Hammonds told Patrick to get off the road.  Patrick told Hammonds he had as much right to be on the road as the deputy.  A series of events unfolded thereafter which ended with Patrick be Tasered, arrested and charged with a series of “crimes” including “Riding a Bicycle on the Roadway,” resisting arrest, failing to obey a lawful order and other crimes.

Patrick retained a criminal lawyer and fought the criminal charges, filing a Motion to Dismiss.  After a hearing at which Deputy Hammonds was the only witness, the court issued a written opinion holding that the Deputy’s order to stop was “unlawful” as Patrick had done nothing wrong.  The court pointed out that cyclists have the right to use the roads and are permitted by law to ride side by side.  While the court stated that cyclists should act courteously towards other traffic, cyclists riding two abreast do not legally have to move to a single file line or otherwise give way to motorized traffic and it was improper for Deputy Hammonds to order Patrick off the road.  The Court also reaffirmed the landmark holding of Trotwood v. Selz, finding that a bicycle being operated at a reasonable speed for a bicycle is not “impeding traffic.”  After the Court’s ruling in Patrick’s favor, the Prosecuting Attorney dismissed all charges against Patrick.

Steve Magas, The Bike Lawyer, represented Tony Patrick in a civil rights lawsuit filed against Deputy Hammonds, Officer Gibson, the Sheriff, the Police Chief and the City of Chesapeake in the United States District Court, Southern District of Ohio, Western Division.  This case, Patrick v. Lawless, et al., included claims of excessive force, negligence, assault and battery, false arrest and false imprisonment, seeking compensatory and punitive damages.  Defendants denied liability and discovery proceeded, including the taking of several key depositions, and it was learned that key evidence – including a videotape from the scene of the Tasering -  had never been provided to Patrick’s criminal or civil lawyers.

All parties reported to the United States Federal District Courthouse in Cincinnati for a Settlement Conference with Judge Barrett on July 1, 2010.  Following several hours of negotiations, a settlement was reached.  While the settlement figure is confidential, Tony Patrick was very pleased with the outcome and feels justice was done.

Well, they don’t come right out and say that … but… let’s look at the numbers.

First, 716 deaths across the country.  Is that a lot?  Of course – ONE is a lot.  However, compared to the 1005 deaths in 1975, that figure is pretty good.  Further, there are a LOT more cars on the road today than 1975 so we’re seeing significantly fewer deaths [30% fewer] despite significantly higher “traffic density” [i.e., more cars per square inch]

Second, of those 716 deaths, some 40% occur in THREE states.  The Big Three are Florida [125], California [109] and Texas [53].   In Ohio, we had 17 deaths, or 2% of all cycling deaths nationwide.

Third, alcohol impairment was reported in more than ONE THIRD of all cycling fatalities.  By not drinking and riding, your risk of a fatal bike crash goes WAY down.

Further, most [69%] fatal crashes occur in urban, not rural areas.

So, if you get on your bike in Ohio, take some time to enjoy some of the thousands of miles of great rural cycling roads throughout Ohio and don’t have a few drinks along the way your risk of a fatal crash is approaching single digits, I suspect.

ENJOY THE ROADS

Be Careful!

Good Luck and Good Riding!

Steve Magas, The Bike Lawyer

Ann called me last week to be on her BIKE MONTH show.  The show was great.  We talked for an hour, had callers lined up to ask questions and didn’t have time to say everything there was to say.

You can download the show from iTunes!

Enjoy!

Steve Magas

The Bike Lawyer

That’s changed now.

Ray LaHood, U.S. Transportation Secretary, is officially a “friend” of cycling in my book.

In an era when politicians expect high praise for giving lip service to dedicating a 2 mile trail for cycling which real bike advocates struggled for 10 years to build LaHood is a breath of fresh air.  His comments at the National Bike Summit were truly incredible.  He stood on top of a table and told more than 500 bike advocates that the federal government was actually interested in BIKES.  What a thing!

Here’s what LaHood had to say on his BLOG [- yes, the US Transportation Secretary has a blog!]

“Somewhere in the frenzy, I managed to thank summit-goers for being such effective advocates for livable, sustainable, bike-friendly communities.

Well, that was fun, but the dust has settled and I have news. The crowd’s enthusiasm was so contagious, the idea of introducing a major policy revision in that setting quickly evaporated.

Today, I want to announce a sea change. People across America who value bicycling should have a voice when it comes to transportation planning. This is the end of favoring motorized transportation at the expense of non-motorized.”

These comments from Sec. LaHood did not go unnoticed.  Opponents of cycling quickly mounted an attack.  However, the “sea change” announced by LaHood is under way. The “major policy revision” discussed above is a Policy Statement on Bicycle and Pedestrian Accomodations which was signed on March 11 and announced at the Summit on March 15.  I’ve reprinted it below.

Opponents quickly jumped to attack LaHood’s comments.  THey ridiculed the words “sea change” and argued that there was no way cars and trucks and busses could be treated “equally” with mere bicycles.  LaHood quickly countered by noting that the POINT is NOT “Bikes Rule/Cars Drool” but rather that bikes should have a seat at the table of transportation policy discussions… “After all I didn’t say they should the the only voice… just a voice”

According to the National Association of Manufacturers, the “sea change” announcement is “dumb and irresponsible” and “nonsensical.”

I like LaHood’s comeback –  According to CBS News, he said “I’m not going to apologize for any of it . . .I think this is what the people want.”

You Go Ray!

Keep on Riding!

Steve Magas

The Bike Lawyer

+++++++

United States Department of Transportation
Policy Statement on Bicycle and Pedestrian Accommodation
Regulations and Recommendations

Signed on March 11, 2010 and announced March 15, 2010

Purpose

The United States Department of Transportation (DOT) is providing this Policy Statement to reflect the Department’s support for the development of fully integrated active transportation networks. The establishment of well-connected walking and bicycling networks is an important component for livable communities, and their design should be a part of Federal-aid project developments. Walking and bicycling foster safer, more livable, family-friendly communities; promote physical activity and health; and reduce vehicle emissions and fuel use. Legislation and regulations exist that require inclusion of bicycle and pedestrian policies and projects into transportation plans and project development. Accordingly, transportation agencies should plan, fund, and implement improvements to their walking and bicycling networks, including linkages to transit. In addition, DOT encourages transportation agencies to go beyond the minimum requirements, and proactively provide convenient, safe, and context-sensitive facilities that foster increased use by bicyclists and pedestrians of all ages and abilities, and utilize universal design characteristics when appropriate. Transportation programs and facilities should accommodate people of all ages and abilities, including people too young to drive, people who cannot drive, and people who choose not to drive.

Policy Statement

The DOT policy is to incorporate safe and convenient walking and bicycling facilities into transportation projects. Every transportation agency, including DOT, has the responsibility to improve conditions and opportunities for walking and bicycling and to integrate walking and bicycling into their transportation systems. Because of the numerous individual and community benefits that walking and bicycling provide — including health, safety, environmental, transportation, and quality of life — transportation agencies are encouraged to go beyond minimum standards to provide safe and convenient facilities for these modes.

Authority

This policy is based on various sections in the United States Code (U.S.C.) and the Code of Federal Regulations (CFR) in Title 23—Highways, Title 49—Transportation, and Title 42—The Public Health and Welfare. These sections, provided in the Appendix, describe how bicyclists and pedestrians of all abilities should be involved throughout the planning process, should not be adversely affected by other transportation projects, and should be able to track annual obligations and expenditures on nonmotorized transportation facilities.

Recommended Actions

The DOT encourages States, local governments, professional associations, community organizations, public transportation agencies, and other government agencies, to adopt similar policy statements on bicycle and pedestrian accommodation as an indication of their commitment to accommodating bicyclists and pedestrians as an integral element of the transportation system. In support of this commitment, transportation agencies and local communities should go beyond minimum design standards and requirements to create safe, attractive, sustainable, accessible, and convenient bicycling and walking networks. Such actions should include:

• Considering walking and bicycling as equals with other transportation modes: The primary goal of a transportation system is to safely and efficiently move people and goods. Walking and bicycling are efficient transportation modes for most short trips and, where convenient intermodal systems exist, these nonmotorized trips can easily be linked with transit to significantly increase trip distance. Because of the benefits they provide, transportation agencies should give the same priority to walking and bicycling as is given to other transportation modes. Walking and bicycling should not be an afterthought in roadway design.
• Ensuring that there are transportation choices for people of all ages and abilities, especially children: Pedestrian and bicycle facilities should meet accessibility requirements and provide safe, convenient, and interconnected transportation networks. For example, children should have safe and convenient options for walking or bicycling to school and parks. People who cannot or prefer not to drive should have safe and efficient transportation choices.
• Going beyond minimum design standards: Transportation agencies are encouraged, when possible, to avoid designing walking and bicycling facilities to the minimum standards. For example, shared-use paths that have been designed to minimum width requirements will need retrofits as more people use them. It is more effective to plan for increased usage than to retrofit an older facility. Planning projects for the long-term should anticipate likely future demand for bicycling and walking facilities and not preclude the provision of future improvements.
• Integrating bicycle and pedestrian accommodation on new, rehabilitated, and limited-access bridges: DOT encourages bicycle and pedestrian accommodation on bridge projects including facilities on limited-access bridges with connections to streets or paths.
• Collecting data on walking and biking trips: The best way to improve transportation networks for any mode is to collect and analyze trip data to optimize investments. Walking and bicycling trip data for many communities are lacking. This data gap can be overcome by establishing routine collection of nonmotorized trip information. Communities that routinely collect walking and bicycling data are able to track trends and prioritize investments to ensure the success of new facilities. These data are also valuable in linking walking and bicycling with transit.
• Setting mode share targets for walking and bicycling and tracking them over time: A byproduct of improved data collection is that communities can establish targets for increasing the percentage of trips made by walking and bicycling.
• Removing snow from sidewalks and shared-use paths: Current maintenance provisions require pedestrian facilities built with Federal funds to be maintained in the same manner as other roadway assets. State Agencies have generally established levels of service on various routes especially as related to snow and ice events.
• Improving nonmotorized facilities during maintenance projects: Many transportation agencies spend most of their transportation funding on maintenance rather than on constructing new facilities. Transportation agencies should find ways to make facility improvements for pedestrians and bicyclists during resurfacing and other maintenance projects.

Conclusion

Increased commitment to and investment in bicycle facilities and walking networks can help meet goals for cleaner, healthier air; less congested roadways; and more livable, safe, cost-efficient communities. Walking and bicycling provide low-cost mobility options that place fewer demands on local roads and highways. DOT recognizes that safe and convenient walking and bicycling facilities may look different depending on the context — appropriate facilities in a rural community may be different from a dense, urban area. However, regardless of regional, climate, and population density differences, it is important that pedestrian and bicycle facilities be integrated into transportation systems. While DOT leads the effort to provide safe and convenient accommodations for pedestrians and bicyclists, success will ultimately depend on transportation agencies across the country embracing and implementing this policy.

Ray LaHood, United States Secretary of Transportation

APPENDIX

Key Statutes and Regulations Regarding Walking and Bicycling

Planning Requirements

The State and Metropolitan Planning Organization (MPO) planning regulations describe how walking and bicycling are to be accommodated throughout the planning process (e.g., see 23 CFR 450.200, 23 CFR 450.300, 23 U.S.C. 134(h), and 135(d)). Nonmotorists must be allowed to participate in the planning process and transportation agencies are required to integrate walking and bicycling facilities and programs in their transportation plans to ensure the operability of an intermodal transportation system. Key sections from the U.S.C. and CFR include, with italics added for emphasis:

• The scope of the metropolitan planning process “will address the following factors…(2) Increase the safety for motorized andnon-motorized users; (3) Increase the security of the transportation system for motorized and non-motorized users; (4) Protect and enhance the environment, promote energy conservation, improve the quality of life…” 23 CFR 450.306(a). See 23 CFR 450.206 for similar State requirements.
• Metropolitan transportation plans “…shall, at a minimum, include…existing and proposed transportation facilities (including major roadways, transit, multimodal and intermodal facilities, pedestrian walkways and bicycle facilities, and intermodal connectors that should function as an integrated metropolitan transportation system…” 23 CFR 450.322(f). See 23 CFR 450.216(g) for similar State requirements.
• The plans and transportation improvement programs (TIPs) of all metropolitan areas “shall provide for the development and integrated management and operation of transportation systems and facilities (including accessible pedestrian walkways and bicycle transportation facilities).” 23 U.S.C. 134(c)(2) and 49 U.S.C. 5303(c)(2). 23 CFR 450.324(c) states that the TIP “shall include …trails projects, pedestrian walkways; and bicycle facilities…”
• 23 CFR 450.316(a) states that “The MPOs shall develop and use a documented participation plan that defines a process for providing…representatives of users of pedestrian walkways and bicycle transportation facilities, and representatives of the disabled, and other interested parties with reasonable opportunities to be involved in the metropolitan planning process.” 23 CFR 450.210(a) contains similar language for States. See also 23 U.S.C. 134(i)(5), 135(f)(3), 49 U.S.C. 5303(i)(5), and 5304(f)(3) for additional information about participation by interested parties.

Prohibition of Route Severance

The Secretary has the authority to withhold approval for projects that would negatively impact pedestrians and bicyclists under certain circumstances. Key references in the CFR and U.S.C. include:

• “The Secretary shall not approve any project or take any regulatory action under this title that will result in the severance of an existing major route or have significant adverse impact on the safety for nonmotorized transportation traffic and light motorcycles, unless such project or regulatory action provides for a reasonable alternate route or such a route exists.” 23 U.S.C. 109(m).
• “In any case where a highway bridge deck being replaced or rehabilitated with Federal financial participation is located on a highway on which bicycles are permitted to operate at each end of such bridge, and the Secretary determines that the safe accommodation of bicycles can be provided at reasonable cost as part of such replacement or rehabilitation, then such bridge shall be so replaced or rehabilitated as to provide such safe accommodations.” 23 U.S.C. 217(e). Although this statutory requirement only mentions bicycles, DOT encourages States and local governments to apply this same policy to pedestrian facilities as well.
• 23 CFR 652 provides “procedures relating to the provision of pedestrian and bicycle accommodations on Federal-aid projects, and Federal participation in the cost of these accommodations and projects.”

Project Documentation

• “In metropolitan planning areas, on an annual basis, no later than 90 calendar days following the end of the program year, the State, public transportation operator(s), and the MPO shall cooperatively develop a listing of projects (including investments inpedestrian walkways and bicycle transportation facilities) for which funds under 23 U.S.C. or 49 U.S.C. Chapter 53 were obligated in the preceding program year.” 23 CFR 332(a).

Accessibility for All Pedestrians

• Public rights-of-way and facilities are required to be accessible to persons with disabilities through the following statutes: Section 504 of the Rehabilitation Act of 1973 (Section 504) (29 U.S.C. §794) and Title II of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§ 12131-12164).
• The DOT Section 504 regulation requires the Federal Highway Administration (FHWA) to monitor the compliance of the self-evaluation and transition plans of Federal-aid recipients (49 CFR §27.11). The FHWA Division offices review pedestrian access compliance with the ADA and Section 504 as part of their routine oversight activities as defined in their stewardship plans.
• FHWA posted its Clarification of FHWA’s Oversight Role in Accessibility to explain how to accommodate accessibility in policy, planning, and projects.

I think the short answer is a resounding YES!!!

Do you remember 1975?  I do.  I was a high school senior.  I worked for a buddy of my dad, drilling holes in marble rectangles that would eventually be used to make bowling trophies. I got a Penny per hole.  I saved enough to buy my first “real” bike – a yellow Schwinn Continental.  I think I spent $110.00, plus tax, on that bike – or more than 11,000 holes drilled [not counting the ones I got docked for because they broke during the drilling process!]

Back in 1975 there was a huge BIKE BOOM underway.  People were riding – a lot.  KIDS were riding a lot.  Before my 10-speed Continental, I had a big, heavy bike with those Sturmey Archer 3-speed shifters and the huge, metal “paper boy” rear baskets.  I took that bike all over the little town of Mansfield, Ohio.

Statistics for that era reflect those memories.  In 1975, there were 1003 cyclists killed on U.S. roadways.  Of those, it was a 50/50 split between urban and rural settings. Men were killed 7 times more often than women.  However, I think word “men” is inappropriate.  You see, in 1975, 67%  of the cyclists killed on U.S. roadways were under the age of 16!

Yes, 2 out of every 3 cyclists killed were kids in 1975.

Statistics for bicycle crashes show us that since 1975 the demographics for bicycle crashes have completely flip-flopped.  In 2008, NHTSA published its “Traffic Safety Facts for Bicyclists and Other Cyclists,” taking a close look at more recent trends.  NHTSA’s numbers show that 716 cyclists were killed in 2008 – slightly more than 2007, but in line with a 10 year trend of less than 800 cyclists killed each year since 1998.

Cyclist fatalities still accounted for 2% of all highway deaths in 2008.  That number has been between 1-2% ever since the first statistics started being kept in the 1930s.

The Kids vs. Adults comparison is most interesting.  In 1998 the average age of a cyclist involved in a fatal crash was 32.  In 2008, the average age was 41.  Compared to 1975, when 2/3 of all cyclists fatalities involved kids under the age of 16, it is clear that the entire cycling demographic has changed.

You see it everywhere, I’m sure.  In your neighborhood – with your kids.  Do you kids wander around town on their bikes?  Probably not.

For me, as a teenager in the mid-1970′s, it was nothing to leave the house in the morning on the bike and MAYBE come home for lunch.  My and my buddies would be riding all over – from ball diamond to park to ice cream stand.  For, I am certain, a variety of reasons that just doesn’t happen any more.

One downside of this is that kids miss out on learning the absolute JOY that comes with the freedom of being on a bike.  Kids miss out on being able to MOVE from place to place without a play date and without waiting for Dad or Mom to take them.

Can we develop a SAFE way to encourage kids to ride again without exposing them to the statistical population of cycling fatalities? I guess that is one of the many challenges facing the bike industry, bike safety experts and those encouraging our country to RIDE.  Those 1975 cycling fatality statistics were littered with dozens of “dart out” cases – kids jumping from sidewalk to roadway, without paying attention to traffic. Safe Riding means teaching everybody – Kids & Adults – about the Rules of the Road and how to ride safely in traffic.

I wonder if, in ten years, the average age of cycling deaths will go up to 52?  Does that mean our aging population is still riding, but we’re losing the newer, younger riders?

Is cycling SAFE?  YES!  Millions of safe miles are ridden every year.  Fatallities are trending DOWN from the mid-1970′s highs.  Considering Ohio’s 88 counties, dozens of clubs, tens of thousands of miles of roads and millions of riders, those are pretty good numbers.

Good Luck and Good Riding!

Steve Magas
The Bike Lawyer

To read more check out the following from NHTSA:

2008 Crash Stats STATE by STATE

Here’s a story from ABC News about some recent TASER incidents.

Steve Magas

====== ABC NEWS STORY ======

Two Cops Suspended for Allegedly Slapping and Tasering Boy

Captain Allegedly Smacked and Tasered 10-Year-Old Boy at Day Care Center

By CLEOPATRA ANDREADIS and SARAH NETTER

April 1, 2010—

Two Indiana police officers, including a captain, have been suspended for slapping and tasering a 10-year-old boy at a day care center.

A statement by the Martinsville Police Department today said it “will not condone the unnecessary treatment of any subject, regardless of age,” but would not comment on the incident any further until an investigation is complete.

The two officers, Capt. William Jennings and Officer Darren Johnson, have been suspended with pay, the department said.

The officers were called to the Tender Teddies Day Care Center on Tuesday over reports that a boy was out of control.

When they arrived, according to Johnson’s field report obtained by ABC News, he “observed an adult female on the porch of the residence attempting to restrain a male juvenile. The juvenile was hitting and kicking at the female.”

Johnson wrote in his report that he warned the boy to stop.

“I had my department issued X26 Taser out and displayed the arc for the juvenile to see,” Johnson said in his statement. “I advised the juvenile that if he didn’t stop then he would be tazed.”

In response, the boy lunged out at one of the day care staffers, screaming profanities, the officer’s report claims.

Johnson said that the captain stepped in at that point, ordering the boy to apologize.

“The juvenile shook his head no, and Capt. Jennings smacked the juvenile in the mouth, causing the juvenile to hit the back of his head on the house. The juvenile than began crying and then lunged toward the female again out of control and began hitting her,” the report continued.

The officers then intervened forcefully, Johnson said in his report.

“At this time Capt. Jennings and myself attempted to gain control of the juvenile who was in a rage. I then administered a one to two second drive stun to the juvenile’s left shoulder area. It was at this moment the juvenile finally calmed down and was more compliant. I advised that juvenile that if he began to be combative again then he would again be tazed,” Johnson wrote.

Boy’s Tasering Is Latest Stun Gun Controversy

The Martinsville Police Department statement also noted this wasn’t the first time they had to respond to calls about the boy’s out of control behavior.

Nevertheless, Martinsville Police Chief Jon Davis told the Associated Press, “The two officers could have restrained the 94-pound boy after being called to the home to help control him on Tuesday.”

The investigation has been turned over to the Morgan County Sheriffs department. The Tender Teddies Day Care Center, Captain Williams and Officer Johnson could not be reached for a comment.

The incident at the Tender Teddies Day Care Center was the latest controversy involving police use of the stun guns.

Pregnant Woman Refuses to Sign Ticket and Gets Tased

A Seattle federal court ruled Monday that two officers were justified in tasering a woman who was seven months pregnant and refused to sign a speeding ticket back in 2004.

Malaika Brooks was driving her 12-year-old to the African American Academy in Seattle when she was pulled over on suspicion of speeding. The child left the car for school and a verbal spat with the police resulted in the woman receiving three, 50,000-volt shocks, first to her thigh, then shoulder and neck while she was in her vehicle.

“To inflict pain on a person if that person is not doing what the police want that person to do is simply outrageous,” said Eric Zubel, the woman’s attorney to the Associated Press. “I cannot say that loud enough.”

Great-Grandma Gets Physical

A routine traffic stop got off to a bad start for 72-year-old great-grandmother Kathryn Winkfein. After being pulled over in Travis County, Texas, in May for driving 60 mph in a 45 mph zone, Winkfein, captured on the officer’s dashboard camera, refused to sign her ticket. She then got out of the truck, telling Officer Chris Bieze to “give me the f—ing ticket now.”

Bieze can then be seen shoving the woman, something he said was to keep her away from oncoming traffic.

“You’re going to shove me? You’re going to shove a 72-year-old woman?” Winkfein demanded. Bieze can be heard on the tape warning the woman about a half dozen times that he would tase her if she didn’t stand back, to which she replied, “Go ahead, tase me.”

So he did.

Winkfein was charged with resisting arrest and taken to jail. Bieze’s boss later told reporters that his officer did everything by the book.

Man’s Naked Plunge Supposedly Leads to Cop’s Suicide

Police in New York City didn’t get off so easily in September 2008 when a naked man plunged to his death in Brooklyn after being tased.

Inman Morales, 35, died at a hospital after falling 10 stories. Police had been summoned to the building because Morales had threatened suicide.

When they arrived, Morales crawled out a window and onto a ledge, thrusting an 8-foot-long fluorescent light at officers as he went.

A video of the incident shows an officer raising his stun gun at the man who toppled head first off the ledge, prompting gasps and screams from the crowd below.

The officer who fired the electric shock was placed on desk duty while the NYPD investigated and the lieutenant who ordered the use of the stun gun was relieved of his gun and badge.

That lieutenant, Michael Pigott, shot himself in the head a few days later on Oct. 2.

An NYPD official said after Morales’ death that department guidelines specifically prohibit the use of Tasers when the suspect is in danger of falling from an elevated surface.

No criminal charges were filed in the case.

Cop Obliges Partygoing Teen’s Request for Tase

A rookie Florida cop got a little too Taser-happy at a birthday party he hosted where adults and minors mingled over alcohol.

Eustis Police Department officials said former officer Dan NeSmith, 22, tased 15-year-old Taylor Davis in the back in September 2008 after the teen wanted to know what it felt like.

The stunt was caught on camera with the crowd cheering NeSmith on as he placed the Taser along Davis’ spine and counted down. Even as visible electrical currents shoot into the boy, NeSmith holds the Taser on his back until Davis falls forward onto the floor.

NeSmith was found to have violated department policy and on Oct. 8, he was fired from the post he’d held for just 13 months.

Officer Shocked to Find Tasered Lady Pregnant

An Ohio police officer came under fire back in 2007 after a confrontation with a pregnant woman led to the officer tasing the woman in the back of the neck.

Valreca Redden, then 33, had come to the Trotwood Police Department to ask police to take custody of her 1-year-old son, telling officers that she was “tired of playing games” with the baby’s father.

When Officer Michael Wilmer told her she needed to provide more of an explanation, Redden attempted to leave. Wilmer then held the child with one hand and pushed Redden down with the other.

As officers attempted to put handcuffs on the woman, she resisted. That’s when, Trotwood public safety director Michael Etter told ABC News at the time, Wilmer fired a stun gun into the woman’s neck.

It wasn’t until Redden, who was wearing a heavy coat, was examined by jail staff that officials realized she was pregnant.

The Ohio chapter of the Rev. Al Sharpton’s National Action Network later called for an investigation by both police brass and the FBI.

According to a follow-up article by the Dayton Daily News, Wilmer was found at fault for the incident. He was dismissed from the force in December 2007 after violating department policy unrelated to the Redden incident.

The paper also reported that Redden was found not guilty on the charges of resisting arrest and obstructing official business.

Father, Newborn Hit the Ground After Taser Strike

New father William Lewis claimed his newborn daughter suffered head injuries in April 2007 after a hospital security guard tased him while Lewis was still holding his little girl.

According to The Associated Press, Lewis and his wife had tried to leave the hospital after becoming upset with the staff, but a wristband on the baby prevented the elevators they were using to leave from operating.

In a video of the incident, Lewis can be seen holding his daughter at the Women’s Hospital of Texas in Houston, pacing while his wife and two security guards stand nearby.

A few moments later, one of the guards — later identified as off-duty Houston Police Officer David Boling — tases Lewis off-camera, causing him and the baby to fall to the ground.

The baby was later placed in state custody because of prior domestic problems between Lewis and his wife, according to the AP, and state officials said she showed no signs of trauma from the incident. The hospital defended the guard’s actions, saying in a statement that they followed proper procedure.

The Tase Heard ‘Round the World

It’s arguably the most famous use of a Taser. University of Florida student Andrew Meyer yelled out “Don’t tase me bro!” as he was tackled by university police during a September 2007 speaking engagement by U.S. Sen. John Kerry, D-Mass.

Meyer had rankled the crowd by refusing to stop firing questions at the senator, including whether or not he’d been a member of the Yale secret society Skull and Bones.

Meyer’s tasering prompted a student protest at the University of Florida and the then 21-year-old became a viral hero after video of the incident hit the Internet. “Don’t tase me bro!” became a popular rallying cry and an instant pop culture staple.

The officers, according to the AP, were eventually cleared of any wrongdoing.

The “Don’t tase me bro!” video has nearly 4 million views on YouTube.

By, Steven M. Magas, The Bike Lawyer

In the summer of 1999 I was asked to become involved with a young man who had received a traffic ticket for “impeding traffic” in Trotwood, Ohio.  Little did I know that the case would ultimately garner international intention, cause hundreds emails to be sent to the City of Trotwood, and generate an extremely favorable appellate court ruling that is cited all over the country today!

The case, Trotwood v. Selz, made Steven Selz a household name – at least among that small core of cycling advocates who regularly fight to protect YOUR right to ride on our nations highways.  Let’s take a detailed look at Steve’s case to see what all the fuss is about!

I.                  THE FACTS PRESENTED AT TRIAL

The trial of this case, like most traffic matters, was quick and to-the-point.  The Selz case was on the docket with dozens of other matters, but  was the only serious trial of the evening on the Area One docket of Judge Connie Price.  When Judge Price finally called the case for trial, the prosecution presented only one witness  -the officer who gave Steve his ticket.  I presented Steve Selz and an expert witness, Allan Byrum.

On July 16, 1999, Steven Selz was operating his bicycle along State Route 49 in Trotwood, Ohio, a five lane roadway with a speed limit of 45 mph.  He had stopped a light and was going uphill from the light when Trotwood Police Officer Vance, with lights and siren blaring, pulled him over.

Officer Vance issued a citation to Mr. Selz for “impeding traffic” under a local Trotwood ordinance.  At the February 7, 2000 trial, Officer Vance testified that Mr. Selz “…was driving in the middle of the lane…” and was going “…no more than 15 miles per hour…” She further testified that “…cars had to stop and … go over to the other lane to get around him…”

It should be noted that State Route 49 at this point consisted of FIVE lanes, two in each direction with a universal turning lane between them.  It should also be noted that Mr. Selz was charged with violating Trotwood Municipal Code Section 333.04(a), for “impeding traffic” and was not charged with a violation of Ohio Revised Code Section 4511.55(A), which requires cyclists to ride “as near to the right side of the roadway as practicable…” This ended up as a critical distinction in the eyes of the court of appeals, as will be discussed below.

My cross examination of Officer Vance focused on attempting to show that Mr. Selz was traveling as a reasonable CYCLIST, as opposed to a reasonable MOTORIST.  She admitted that he was traveling at a reasonable speed “for a cyclist.”  She also showed a lack of knowledge of the law governing the operation of bicycles on the roadway as she testified that Steve had to stay “X feet from the curb.”  Officer Vance also admitted that there was no posted minimum speed on State Route 49.

One of the critical exchanges on cross-examination was as follows:

“Q. Now, is it your testimony that Mr. Selz was riding at a slower speed than he could have otherwise ridden?

“A. A slower speed than he — no.

“Q. He was riding at a reasonably normal bicycling speed, wasn’t he?

“A. Yes, sir.”

Officer Vance had some vague notion that Mr. Selz was somehow in danger because he was riding on State Route 49, a roadway that is, admittedly not for everyone.  Officer Vance candidly testified as follows on cross-examination:

Q:I take it your opinion is that State Route 49 is simply a dangerous place for bicycles to be?

A:Honestly, yes.

It became clear as the trial progressed that the City of Trotwood was going to take the position that if you can’t ride a bicycle at a speed of 45 mph then you can be charged with “impeding traffic.”  Further, the prosecutor simply felt that it was “unsafe” to ride on this stretch of State Route 49 and he, and the great State of Ohio, were trying to “protect” Mr. Selz from his own foolishness by ticketing him and encouraging him not to ride this stretch of roadway.

Mr. Selz disputed some of the facts during his testimony.  He testified that he was “…going as fast as he could go…” as he chugged up the hill.  He denied that he was in the “…middle of the lane…” as the officer testified, but was rather towards the right half of the lane. During the prosecution’s cross examination Mr. Selz admitted that some traffic probably did slow down for him, stating “If they can’t make a lane change, yes, they would have to slow down and not run over me!”

I also tried to establish the plain silliness of the prosecution’s position.  Mr. Selz testified that he had only gone 45 mph once in his entire life, and then only on a long downhill run.  He testified that it was physically impossible for him to travel 45 mph on a normal flat road, let alone from a standing start at the bottom of a hill!

I also presented “expert testimony” in the form of an extremely experienced cyclist, Allan Byrum.  The prosecution stipulated that the expert would testify that Mr. Selz was operating his bicycle in a reasonable fashion and in a competent manner for a bicycle operator on State Route 49 at that point in time.  The expert also offered the opinion that Mr. Selz was traveling at a reasonable speed for a bicycle operator and that 45 mph is “…not only an unreasonable speed for a bicycle, it’s an unsafe speed for bicycles…” due to a variety of factors.

Once the facts were before the court, the court heard the arguments of counsel as to whether the City had proved its case against Mr. Selz.

II.               THE LEGAL ARGUMENTS

The City of Trotwood Ordinance §333.04(a) states that

“No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.”

The Prosecutor argued that, in essence, if you can’t go 45 mph on Salem Avenue, you should not ride on the road.  The prosecution claimed that it was that was “absurd” to allow bicycle operators to “impede traffic” because they can only go “…ten, fifteen, twenty, whatever, miles per hour and therefore become a danger to himself…” This concept of “protecting” the poor bicycle operator came through loud and clear from both the Prosecutor and the Court!

I argued that the most important word in the Trotwood ordinance was the word “traffic.”  “Traffic” is what cannot be impeded under the ordinance, so just what is “traffic” under the law?

State law tells us that traffic includes far more than cars and trucks and buses.  “Traffic” is defined to include “…pedestrians, ridden or herded animals, vehicles, streetcars, trackless trolleys, and other devices either singly or together while using any highway for purposes of traveling.”  Thus a bicycle operator IS traffic  — the bicycle operator is part of the class of people PROTECTED by the statute.  The bicycle operator is one of those elements of traffic whose movement cannot be “impeded” under the law!

“Traffic,” I argued, is a broad and colorful piece of fabric, with many different threads.  Not all “traffic” goes, or is capable of going, 45 mph.  By including these slower moving objects in the definition of “traffic” the Ohio legislature [and the legislatures of virtually all 50 states] recognizes that vehicles of various capabilities and speeds are permitted on the roadways.  If a vehicle is going as fast as it can on a roadway on which the operator has the legal right to use, how can the operator be “impeding” traffic?

I also argued that bicycles were a unique type of vehicle.  Unlike motorized vehicles, the bicycle has an “engine” that tires and has a limited physical capacity.  Further, wind and weather impact the speed a bicycle can safely travel, as do potholes, debris and other road hazards.  No human on the planet can get a bicycle moving 45 mph uphill and it would be ridiculously unsafe to do so.  The legislature is presumed to know the limitations of bicycles [and huge farm equipment and Amish buggies] and, yet, permitted such vehicles to use to the roadways. Their slower speeds are not to be condemned and ticketed – they are to be accommodated!

The trial court, of course, did not buy this argument.  The court found Mr. Selz guilty as charged, stating

“…I certainly understand the impassioned defense on this case because I do believe that bicyclists need a place to ride and it is not safe a lot of times to ride it on the streets on 49. I don’t even think I’d ride there at 2:00 a.m. just because of the traffic. I don’t think it’s safe.”

After so “protecting” Mr. Selz from his own self, Judge Price found him guilty  of “impeding traffic” and fined Steve $100.00, plus costs.  A discussion with Mr. Selz and various bicycling folks then ensued over the question of whether this was a case to appeal.

If the case was appealed and lost, it could be a terrible blow.  A loss would mean that any community in Ohio could, in essence, ban bikes from any road on which a bicycle could not meet the speed limit.  This would amount to virtually every road in the state as how many of us can maintain a 25 mph pace  — the speed limit of virtually every subdivision in Ohio?

I liked the odds of appealing the case.  The Second Appellate District has a reputation for being fair and scholarly.  I liked our case on both the law and the facts.

There were five judges on the Court of Appeals.  Only three would hear an appeal, but you did not know WHICH three you got until you showed up for oral argument.  Checking with a friend of mine who once clerked for one of judges on the Second Appellate District, I discovered that two of the five judges were avid outdoorsy/bike riding types of folks who might be sympathetic to our arguments.  Of the remaining three, only one was likely to be opposed to our view.  The other two would keep an open mind and look closely at the legal arguments.  Given this scenario, we decided to proceed with an appeal.

This was the first time in my career that I had cooperated so closely with an advocacy group — The Ohio Bike Federation.  Chuck Smith and the OBF were fabulous and I would do it again in a heartbeat.  The OBF publicized the case on the webpage, which caused emails critical of Trotwood’s handling of the case to be sent from all over the WORLD to Trotwood.

I also provided the various court documents to be published on the OBF website, www.ohiobike.org.  This included my trial brief, the entire trial transcript, my appellate brief, the city’s brief and, ultimately, the court’s decision.  Further, the OBF started a Steven Selz Legal Defense Fund that collected money to help cover the cost of an appeal.  I agreed to handle the appeal pro bono.  However, we still had to “buy” a copy of the transcript and file it with the court.

Before we published all the material online, there were various versions of “the facts” of the case floating around.  Publishing the trial transcript allowed the true “facts” of the case to be known.  Further, I openly invited comments, criticism and ideas for the appeal and received dozens of emails, mostly friendly, about the case.  I had a number of email exchanges with cyclists from all over the country on the case, strategy, arguments and other issues.

Ultimately, the brief was prepared and filed.  This was a rather unique brief in that, in addition to typical legal arguments, I described a bit of the history of cycling in the United States and the impact cyclists, specifically the League of American Wheelmen, had in paving our roadways.   I wanted the court to understand that cyclists have a 100+ year history of using the roadways and were included in the very first “vehicle codes” ever published.  We added the brief to the website.

The City’s brief was also filed.  This provided us with some surprises.  The City virtually abandoned the view it took at trial.  Rather the City now argued that it was Mr. Selz’s position on the roadway as described by the officer, in combination with his “slow speed,” that made the conviction reasonable.  This was quite a change from the “get off the road if you can’t do 45mph” attitude the City had taken at trial.

I requested oral argument in the court of appeals.  I thought this would be a good way to really push our best points.  The City gave notice that its attorneys would NOT be appearing at the oral argument - another surprise and a signal that perhaps they were not going to fight TOO hard on this one.

Oral argument was in Dayton on October 2, 2000.  Chuck Smith from the OBF was in the audience.  Steve Selz had to work that day.  Our three judge panel consisted of one of the “outdoorsy” judges we wanted, one of the “fair/scholary” judges and the one judge we thought would oppose our arguments.  I thought the argument went extremely well.  I was able to toss in several historical “tidbits” about the development of paved roads without worrying about what the other side would say, since the other side elected not to show up!

On October 20, 2000, the Court of Appeals released its decision - a 2-1 victory for Steven Selz. The dissenting judge was the judge we thought would oppose our viewpoint while the other two felt Steve was wrongly convicted.

The court did a good bit of its own research and cited a case in Georgia involving a slow moving farm combine.  In that case, the Georgia court found that operator of a slow moving vehicle, which was traveling at or near its top speed, could not be convicted of “impeding traffic” under a similar law.  The Court of Appeals compared the Georgia case to this one and stated:

“In either case, holding the operator to have violated the slow speed statute would be tantamount to excluding operators of these vehicles from the public roadways, something that each legislative authority, respectively, has not clearly expressed an intention to do.”

The court DID note, though, that had Steve Selz been charged with violating Ohio’s “AFRAP” law [as far right as practicable] the court would have had to uphold a conviction.  An “AFRAP” violation is based on lane position.  SInce there was disputed evidence as to Steve’s lane position, the appeals court would have been required to accept the facts as found by the trial court.  Thus, if the trial court would have believed the officer over Steve as to where on the roadway he was riding, the appeals court would have been bound by such a finding.

In Steve’s case, though, the court was NOT bound by the trial judge’s legal conclusion that Steve was “impeding traffic.”  Since Steve’s case turned on an interpretation of law the appeals court was able to say that the trial court simply misinterpreted the “impeding traffic” law.

The appellate decision was picked for official publication and, on May 14, 2001, the case hit the desk of every lawyer in Ohio.  This publication gives the opinion increased importance and precedential value.

The appeal was not without risk. However, a reasoned analysis of the risk was undertaken and, with perfect 20-20 hindsight, it looks like we made a smart move. I hope this review of the case helps out someone considering a trial on their bicycling traffic matter! In a future column, I will discuss some tactics, techniques and tricks you can use in fighting bicycle traffic tickets.

If you search for “Trotwood v. Selz” on google, you can find citations and discussions of the case all over the country during these past 10 years or so.  What started out as a dinky little traffic ticket has become one of the important victories in the world of “Bike Law!”

]]> http://ohiobikelawyer.com/uncategorized/2010/02/trotwood-v-selz-a-great-victory-for-cyclist/feed/ 1 http://ohiobikelawyer.com/uncategorized/2010/02/update-on-florida-cyclists-death-singer-in-jail-held-without-bond/ http://ohiobikelawyer.com/uncategorized/2010/02/update-on-florida-cyclists-death-singer-in-jail-held-without-bond/#comments Tue, 09 Feb 2010 18:22:48 +0000 Steve Magas http://ohiobikelawyer.com/?p=512 Carlos Bertonatti, the pop singer charged with drunkenly running into, and killing,Florida bicycle rider Christopher LeCanne, is facing some new problems – relating to his passport, or more accurately “passports.”

According to the Miami New Times, prosecutors filed a motion to return Bertonatti to jail after he had posted a $100,000.00 bond.  The reason, according to the report, was that Bertonatti ”lied to Judge David Miller” about possessing only a Venezuelan passport and because he has a history of missing court appearances in traffic cases.

The New Miami Times reports, “…According to prosecutors, Bertonatti has “an additional passport issued by Argentina,” which he didn’t see fit to mention during his bond hearing.   What’s more, prosecutors say that Bertonatti has missed court hearings on four separate occasions in the past on traffic charges.  Strangely, prosecutors also testified in court that they have reason to believe that Bertonatti may actually hold a third passport that he didn’t mention in his bond hearing, from Romania, of all places…”

In this case, Bertonatti is charged with being over the 0.08% BAC limit [he reportedly blew a 0.122%] and with hitting, and killing, a bicycle operator and then leaving the scene, dragging the  man’s bicycle for miles while the cyclist lay bleeding to death on the side of the road.

On January 8,2010, he received a speeding ticket for going 80mph in a 50mph zone.  Nine days later, he allegedly struck and killed the cyclist.  This crash occurred in the morning.  He is facing charges of felony DUI manslaughter, vehicular homicide, driving without a license, leaving the scene of a fatal accident, and resisting arrest. He has entered a Not Guilty plea.

On February 8, 2010, SunSentinel.com reported as follows:

“Miami-Dade Circuit Judge David Miller ruled that Carlos G. Bertonatti, 28, should be held without bond after prosecutors alleged he was not entirely truthful when he told the court he had only a Venezuelan passport.

Bertonatti holds another passport from Argentina, which federal agents discovered. Bertonatti has also listed himself as a citizen of Romania, in addition to residential-alien status in the United States.

Armed with evidence of Bertonatti’s multiple citizenships, Miller granted the wish of prosecutors, who feared the suspect might flee the country to evade prosecution.

“The web of deceit has caught up with him,” State Attorney Katherine Fernandez-Rundle said. “He can’t bond out and now he’s got to sit there, in jail, and wait.”"

In Mason, Ohio, two officers were confronted with a tough choice in dealing with a struggling man on December 14.  They ended up TASER-ing him, and he ended up dead.

The original story on Channel 5′s website can be viewed here.  I’ve reprinted below.  The latest development is that the two officers have been “cleared” by the prosecutor of any wrong doing – criminal mischief, I suppose.  I’m sure a civil rights case will follow.  The article on cincinnati.com is also posted below or you can read it here.

I’ve been posting a lot of TASER stuff since becoming involved in Tony Patrick’s civil rights case against the officers who TASER-ed him for riding his bicycle on the roadway.  More on that case in a later post.  For now, here are the two stories about the Mason Taser death.

—–From WLWT- Channel 5′s Webpage—–

Posted 12/14/2009 by

A man died Sunday night after Mason police shocked him with a Taser stun gun, officers said.

Investigators said 39-year-old Douglas Boucher had gone to Speedway gas station Saturday night and verbally attacked a cashier, and returned again the following evening and began yelling at her again.

Officers happened to walk into the Reading Road gas station around 11:15 p.m. as Boucher yelled obscene requests at the woman, 20-year-old Christina Hicks, and she asked them to escort him outside.

“He verbally accosted Miss Hicks and in a profane manner, sexual requests being made in profane terms,” said Chief Mike Kelly, of Mason police.

Police said Boucher, who was suspected of being involved in a hit-and-run crash earlier Sunday evening, refused to cooperate and began fighting with officers as they attempted to handcuff him outside.

“The officer attempted to control him by cuffing his wrists,” Kelly said. “In the process, with only one cuff on, Mr. Boucher wrestled away from the officer and struck him in the head with his cuffed hand.”

—–From CINCINNATI.COM———-

Posted 1/27/2009

MASON – Two Mason police officers have been cleared of any wrongdoing in the death of a man who fell and died of a skull fracture after police shot him with a Taser in December.

Warren County Prosecutor Rachel Hutzel determined that a state investigation and evidence in the death of Douglas Boucher of Mason indicate that Officers Daniel Fry and Sean McCormick did not commit a criminal act during the Dec. 13 incident.

In a letter to Mason police dated Jan. 22, Hutzel said her office was closing the case.

Police alleged that Boucher, 39, ran his vehicle into a parked car at his apartment complex, then drove about a mile to the Speedway gas station at Tylersville Road and U.S. 42, where he was harassing a female clerk.

When police arrived because of the disturbance, they said Boucher refused to leave the store and struggled with them.

Boucher was struck with the stun gun after he tried to go after the clerk and hit an officer with a cuffed hand, officials said.

The rider, Bret Taylor, apparently had a handlebar-mounted camera that snapped pix along the way.  He set up a six minute slide show of the ride, with a great soundtrack, and put it out there for the world to see.  Its’ VERY cool!  Makes you wonder where those hundreds of millions of people are living!

The route he took was The TransAmerica Trail.  Adventure Cycling put the route together and sells the maps as part of its Adventure Cycling Maps collection.  You can buy all or part of the route.

The route goes from Virginia to Oregon along a well-researched path that takes you through Kentucky, over the Mississippi at Chester, Illinois,  and into Missouri, Kansas and Colorado before heading north.  You’ll crest the Continental Divide at the Hoosier Pass and head down towards Yellowstone before passing through Adventure Cycling’s headquarters in Missoula, Montana on your way to the west coast.  Make sure to stop in and have Greg Siple take your picture!

Apparently, Bret Taylor did well – he raised $25,000 for the fight against M.S.  Congratulations!  What a cool thing!!