THE RIGHT TO BE ON THE ROAD: When Bicyclists Have To Pull Over, When Cars Can Pass

You might have the impression, as once did I, that the passage of a bill by the Legislature and it’s signing by the chief executive makes it a law.  But trial lawyers know better.  A law is just a bunch of words waiting for judicial interpretation.

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!

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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.”

POLICE POWERS

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!

Ride safely!

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Thanks to Andrew Fischer for bringing this case to my attention and helping me through the jargon!

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Related previous posts:

> Bikes Are Vehicles; But They’re Not Cars

> BICYCLING SAFETY: Preventing Injury Requires Multiple Strategies

> Time to Stop Behaving Badly on Bikes

> SAFE CYCLING – Actual, Subjective, Social; Solo or Group

> VULNERABLE ROAD USERS (VRU) PROTECTION LAWS: “Whoever Can Do The Most Damage Has To Be The Most Careful”

> IF VEHICLE MILES TRAVELED IS DECLINING, WHY DOES TRAFFIC KEEP GETTING WORSE

> CAMERAS, TERRORISM, AND TRUST: Fears and Memories Across the Generational Divide

 

 

 

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5 Responses to THE RIGHT TO BE ON THE ROAD: When Bicyclists Have To Pull Over, When Cars Can Pass

  1. mouth breather says:

    so – the take away is that there is now a federal (albeit lower court) ruling that bikes are allowed to ride in the street (at least in Massachusetts), and are only required to give way to faster moving vehicles when it is “safe to do so.”

    I ride primarily in Boston, and the only places I ever ride toward the middle of the lane is where overtaking vehicles had previously often attempted to squeeze me against parked cars by passing in the same lane. Once in a great while I get an irate motorist tailgating and honking, but I’ve found this tactic works much better in assuring that motorists pass me at a safe distance. the downside is that I hate riding in the middle of traffic like this because I feel like I need to go faster than I normally would so that I don’t upset more people. Shared lanes in the city can go up to 35 mph, I can push myself to maybe 25, but I’d much rather be able to commute in regular clothes and not strain myself like this.

  2. semiller says:

    Doobs: Yes: the key pieces are both the right to be there (in the street) and the right to not pull to the side if it is unsafe to do so, with a lot of leeway on who decides based on what criteria. The other thing that struck me about the case is the Judge’s rejection of the claim by the bicyclist that, based on the inclusion of bicycles as a “vehicle” under state law, he had an absolute right to be in the center of the lane no matter what. The judge seemed to say that this wasn’t anyone’s right, no matter what they were driving, because everyone has a responsibility to get out of the way of overcoming faster vehicles when it is safe to do so. Seems reasonable to me.

    You are also on target in your own approach to city cycling. As a matter of road courtesy, I, too, tend to stay to the right unless the lane (or the road) is simply too narrow for a car to safely pass me, or if the pavement conditions on the edge are too dangerously deteriorated, or if the threat of dooring is too high. In other words, unless its unsafe to do so. And, as you say, the downside is a feeling that I need to go faster than normal at those times –which can also make me feel either uncomfortable or unsafe (or just old). Which is one of the big reasons for separated bike facilities in heavy-traffic areas — cycle tracks, buffered bike lanes, or even “naked” standard bike lanes. It’s also a reason to push for off-road paths, such as envisioned in the GreenRoutes initiative. Steve

  3. rw says:

    Riding in the middle of the lane is most often the safest thing for a cyclist to do.

    It takes dooring out of the equation, it takes the right hook out of the equation, it makes turning safer, and it makes the biker much more visible. Since I adopted the approach that I am just another vehicle, and started biking only on roads conducive to this kind of riding, my ride has been much safer.

    When a vehicle capable of going faster wants to pass, the biker should allow this to happen, when, and as soon as, possible. It is not always safe to pull over.

    Relegating bikers to the gutters of the road, especially without a good plan in mind, is the most dangerous thing to do. On most of these roads around Boston & Cambridge, with the amount of traffic there is, and the average speed of the vehicles on those roads, a cyclist going at a good clip in the middle lane will not be impeding the flow of traffic.

  4. semiller says:

    Randy:
    Your comments don’t mention the key variable: the presence or absence of bike facilities.

    Bikes are vehicles, but they aren’t cars; and I’m in relatively good shape but my body isn’t a fossil-fueled motor capable of quick acceleration or high speeds. In places where there is no bike lane or other facility, where the side isn’t safe, and when the traffic is slow (even if its a bit heavier) as occurs on some urban streets during some hours, I uneasily move into the middle of the lane — but I’m very aware that most cyclists wouldn’t feel comfortable doing so.

    The only situations which really feel comfortable for middle-of-the-lane cycling are low traffic-stress streets, with few cars and low speeds. However, if traffic is heavier or faster, I (like most cyclists) prefer staying to the side — and much prefer having a bike lane that helps push parked cars closer to the curb and moving cars further out. (And I try to always ride on the away-from-parking side of the lane to reduce the chances of dooring.) On those busy streets, what I would really like is a traffic-separated “lane” for bicycles: a cycle track (at either sidewalk or road level) or buffered bike lane (preferably with parked cars between the bikes and the moving vehicles). And best of all would be a back-bone network of off-road “greenways” (or GreenRoutes) that allow me to get around the region and the city without having to deal with cars at all!

    See you on the road! Steve

  5. rw says:

    Good points – my comments do only apply to certain roads, and were perhaps overstated. Finding roads where this type of cycling is feasible might be difficult for some, but I’d say it’s easily worth a longer commute, if it can be done.

    Though I might be overstating the biking towards the middle of the lane issue – my larger point would be to stress the benefits of the bike as a vehicle mentality. As right hooks and dooring are probably the two biggest threats on the streets around here, it’s important for cyclists to realize they do have some measure of control over dealing with those dangers, and should never have to settle for putting themselves into harm’s way.

    Also, considering the cyclist as a vehicle suggests that we follow the rules of the road.

    I would agree the presence of bike facilities is the key, provided those facilities were designed with cyclist safety as a priority – not all bike lanes are created equal.

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