Case in point: It’s true that bicycles aren’t cars, and aren’t (and in my opinion shouldn’t be) always treated exactly the same as cars. But you might have had the impression that because bicycles are legally defined as “vehicles” (in Title 720 of the Code of Massachusetts Regulations paragraph 9.01*) they have the same right as cars to use our public ways – our roads. After all Chapter 85, paragraph 11B of the Massachusetts General laws state, ““Every person operating a bicycle upon a way, as defined in section one of chapter ninety, shall have the right to use all public ways in the commonwealth except limited access or express state highways where signs specifically prohibiting bicycles have been posted, and shall be subject to the traffic laws and regulations of the commonwealth and the special regulations contained in this section….”
On the state level, the Massachusetts Supreme Court has indeed ruled that bicycles “are expressly authorized by statute to use most public ways,” (Opinion of the Justices to the Senate, 352 N.E.2d 197, 200 (Mass. 1976)). However, perhaps because both common practice and common sense make the question silly, the right of a bicyclist to ride in the street has never been officially tested in a federal court. Until now.
*Please excuse the complex source citations in this blog: at least it’s better than footnotes!
TAKING THE LANE
In the _/Damon/_ case (Case 3:11-cv-30203-KPN (Document 88 Filed 08/09/13), US Magistrate Judge Kenneth Neiman of the Federal Court for the Western District of Massachusetts has ruled that “the court, in light of the plain language of the statutory provisions, has little trouble concluding that Massachusetts law requires a slower-traveling bicyclist to pull to the right to allow a faster-traveling motorist to pass when it is safe to do so under the circumstances…. Such safety, of course, would include the configuration of the roadway and its shoulders, as well as their conditions and/or states of repair.”
The most important aspect of the Judge’s decision, according to lawyer Andrew Fischer who represented the bicyclist, is that it goes further than the previous state ruling by establishing that cars do not take priority and that cyclists have a right to the full lane, and need not yield until and unless it is safe to do so. According to Fischer, this is the first confirmation of this right in any federal court. While this ruling is not binding on other Federal or state courts, it can be cited as persuasive in Federal courts around the country and used by bicycle advocates as a Federal court decision. (Full disclosure: Andy is a contributor to LivableStreets Alliance which hosts this blog).
ALLOWING CARS TO PASS, SAFELY
At the same time, if a bicycle is a vehicle then, unless explicitly exempted, bike riders have to obey vehicular road rules. This includes the provisions of Title 720 C.M.R. §9.06(5) that “the driver of a vehicle when about to be overtaken and passed by another vehicle approaching from the rear shall give way to the right when practicable in favor of the overtaking vehicle, on suitable and visible signal being given by the driver of the overtaking vehicle….” This is made explicit for bicycles in Title 720 C.M.R. §9.06(a), which prohibits bicyclists from “unnecessarily” obstructing “the normal movement of traffic” as well as M.G.L. Chapter 89, §2, which requires bicyclists to “give way to the right in favor of the overtaking vehicle” and M.G.L. c. 85, §11B that says that “[n]othing in this clause shall relieve a bicyclist of the duty to facilitate overtaking as required by section 2 of chapter 89,”
Of course, when it comes to the legal system, nothing is simple. In a confusing juxtaposition the Judge first stated that “there is nothing in M.G.L. c. 89, §2, or any other statutory or regulatory provision which indicates that the obligation of bicyclists to ‘give way to the right in favor of the overtaking vehicle’ does not apply on multi-lane roadways.” So a cyclist still has to pull over, when it’s safe to do so, when a car comes up behind even if there is an empty lane in either direction on their left.
And then the Judge also noted that M.G.L. chapter 90, §14 requires that “motorists approaching and seeking to pass a bicyclist also must ‘slow down and pass at a safe distance and at a reasonable and proper speed.’” And when it is not safe for the cyclist to move to the right, Mass Gen. Laws Chapter 89, §2, provides that “If it is not possible to overtake a bicycle or other vehicle at a safe distance in the same lane, the overtaking vehicle shall use all or part of an adjacent lane if it is safe to do so or wait for a safe opportunity to overtake.” It is not clear how future court decisions will balance these somewhat conflicting requirements.
WHEN IS IT SAFE?
By his own admission, the bicyclist regularly rode in the middle of the lane no matter who or what was behind him based on a belief that he had “the right to use public roads in the same manner as motorists”. This had already led to several run-ins with the local police. The Judge rejected the idea that state law gives any unrestricted right to the middle of the lane for any vehicle. But the Judge’s Summary Judgment Ruling deferred to a Jury’s deliberation in a future trial (should one occur) the factual question of the situational accuracy of the bicyclist’s statement that riding in the center of the lane even when cars or trucks are trying to pass “is often safer than riding closer to the shoulder of the road because motorists approaching from behind will notice him earlier, “perceive [him] as relevant and be able to react earlier if [he is] in a prominent position.”
However, in a footnote the Judge quoted the Criminal Model Jury Instruction for Use in the District Court, Instruction 5.240 (MCLE 2013), “Operating Negligently so as to Endanger”, which lists so many things that a “reasonable person” could be expected to take into account in determining the safety of an on-road situation that any defendant with a decent set of objective concerns should be able to avoid the charge.
Instruction 5.240 says, “In determining whether the defendant drove negligently in a manner that might have endangered the public, you should take into account all the facts of the situation: the defendant’s rate of speed and manner of operation, the defendant’s physical condition and how well he (she) could see and could control his (her) vehicle, the condition of the defendant’s vehicle, what kind of road it was and who else was on the road, what the time of day, the weather and the condition of the road were, what any other vehicles or pedestrians were doing, and any other facts that you think are relevant… the defendant’s subjective intent is irrelevant; the issue is whether or not he (she) drove as a reasonable person would have under the circumstances.”
On the other hand (once again), the Judge did accept the policeman’s argument that he had to confiscate the bicycle in his role as “community caretaker” because “he felt its continued operation [in the middle of the lane even when overtaking motorists wanted to pass] would be dangerous.” This very open-ended aspect of the law is usually applied to drunk drivers or situations where a “vehicle was disabled or the operator was arrested and, thus, the vehicle would otherwise be left on the roadway unattended. See, e.g., Rodriguez-Morales, 929 F.2d at 785-86; Commonwealth v.Motta, 676 N.E.2d 795, 801 (Mass. 1997). The doctrine, however, is not limited to that kind of situation; if anything, courts have defined an officer’s authority under the community caretaking role in quite broad terms. See Coccia, 446 F.3d at 238 (‘In performing this community caretaking role, police are “expected to . . . prevent potential hazards from materializing and provide an infinite variety of services to preserve and protect public safety.”’ (quoting Rodriguez-Morales, 929 F.2d at 784-85)). Moreover, the court has not found any case which establishes that an officer may not impound a vehicle (or bicycle) under this doctrine when the operator indicates that he or she will continue to operate in an unsafe manner.”
As it turned out, the Judge ruled not that the seizure of the bicycle was lawful but that the policeman should receive the benefit of the doubt if he says he thought that the seizure was lawful – which seems like a giant loophole to me. Compounding the insult is that in this case the police forced the cyclists to walk nearly two miles to the station in order to retrieve his bike – which the Judge also found acceptable.
Still, while the reliance of the judgment entirely on Massachusetts law may limit its applicability in other states, the opinion’s reasoning, language and conclusions can be cited as persuasive in other courts, particularly since it was authored by a Federal judge. And the bottom line is that the Judge said that “The statutes also create reciprocal obligations on the part of both motorists and bicyclists to ensure that passing would occur only at a time when it is safe to do so and only in a safe manner.” So, for what it’s worth, we now have federal precedent on our side!
Thanks to Andrew Fischer for bringing this case to my attention and helping me through the jargon!
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