Does the road to bike equality run through the courts?

I got an interesting email recently from a cyclist who is clearly fed up with the struggles riders face as we take our place in the streets of Los Angeles:

If this represents the state of bicycling in Los Angeles, is legal action the answer?

As I read the numerous stories about the unequal and obviously dismissive treatment of cyclists who are the victims of motor vehicle collisions, I am constantly wondering where the tipping point is?

Some of the stories are so truly ridiculous I think an equal protection lawsuit should be seriously considered against the city.  Time and time again cyclists are not treated equally under the law, and while cyclists are not considered a protected class in constitutional scrutiny terms, there may be no other alternative than to bring suit and get the city to wake up to the road warrior-esque state of depravity on our streets when it comes to treatment of cyclists.  At one end of the spectrum, I have been called names and yelled at by passing cars for riding in the bike line, which is indicative of the prevailing attitude in this (once great) city.  At the other end of the spectrum is letting a driver who just plowed a cyclist rightfully on the road go on about her day as if nothing happened (ed: here).  Clearly, this spectrum is lacking in a “good end” and it sucks for anyone riding a bike on the streets.

As long as the powers that be (cops, city attorneys and the city council/mayor’s office) continue to encourage, and, at a minimum, tolerate the unequal treatment of cyclists, so will the rest of the public and the horror stories will continue.

I almost feel like a call to the ACLU is in order.  Crazy as it seems, it might be the route that needs to be taken.

I had to admit, it was an idea that has occurred to me from time to time — and one I’ve heard from other cyclists, as well.

If we don’t feel safe, and don’t feel like the local authorities are taking our concerns seriously — and treating us equally to the motorists we share the road with — maybe we do need to start considering our options.

So I forwarded his email to an attorney of my acquaintance to get the opinion of someone who, unlike me, knows what the hell he’s talking about when it comes to the law.

Here is his response — though he reminded me to make it clear that this area of law is not his specialty, so we shouldn’t consider this the last word on the subject.

In regard to your question, I’ve thought about this as well.

Unfortunately, cyclists are NOT a “protected class” for purposes of the federal constitution and for an equal protection suit to stand.  A “protected class” is traditionally considered something like, race, nationality, religion, gender.  Some individual states have extended the meaning to include age, disability and sexual orientation for the purposes of their own state constitution.  So a lawsuit claiming that cyclists are a protected class would be dismissed pretty quickly, I think.

However, I have thought about another possibility, a class action lawsuit.  The problem with this is the technical nature of the class action laws.  Basically you’d have to show that a group of people (cyclists) have all suffered the same kind of injury from the same source.  Here is a breakdown of the elements for a federal class action:

(1) the class must be so large as to make individual suits impractical, (2) there must be legal or factual claims in common (3) the claims or defenses must be typical of the plaintiffs or defendants, and (4) the representative parties must adequately protect the interests of the class. In many cases, the party seeking certification must also show (5) that common issues between the class and the defendants will predominate the proceedings, as opposed to individual fact-specific conflicts between class members and the defendants and (6) that the class action, instead of individual litigation, is a superior vehicle for resolution of the disputes at hand.

California has its own laws on class actions, but the substantive basis for the claim follow the above elements as well.

I think the biggest obstacle here is determining the factual claims in the second element. Basically, what are we saying is the wrongful act and have all the members of the class suffered the same type of injury?  If you say the city of L.A. has put cyclists at danger with their lack of bike infrastructure, I think that’s too vague.  We’d have to point out a more specific point in the decision making process of the LADOT most likely….like treating traffic issues with an agenda to move more cars quickly, as opposed to other modes of transportation.  I think the city could still point to its on going efforts with the Bike Plan as a way to defend itself, as you’ve noted all ready.

You’d also have a real hard time finding that specific point or person within the agency to pin the wrong-doing on.  And then you still have to show a causal connection to the lack of infrastructure, crappy bike lanes in the door zone, pot holes, debris, etc. and the resulting injuries.  Unfortunately, I think we’d be all over the place with this one, and there’s still the issue of what role the motorists and law enforcement play in the injuries.  These are just some of the issues I can see off the top of my head.

There’s one more problem that adds an additional layer of complexity. In California, whenever you want to sue a public entity (state, city, school district, public works, police, public transportation) for some kind of wrongful act, you have follow the rules of the CA Tort Claims Act, which requires you to give notice to the particular agency that you are making a claim for injury no later than 6 months after the injury occurred.  No matter how you phrase the wrong-doing on the part of L.A., you still have to comply with this notice requirement first.

So, the problem then becomes finding not only a potential set of injured cyclists due to L.A. crappy streets, crappy bike lanes, lack of proper CVC enforcement, lack of thorough investigations, etc., but also that these plaintiffs fall within a 6 month window.

It’s a complicated case from the get-go, and we’d need a very serious and committed class action attorney with the desire and resources to take it.  I don’t want to say that there’s absolutely no attorney who would take a case like this, but I’m sure it’s slim pickings.

In other words, legal action may be possible, but success seems pretty unlikely.

Meanwhile, LADOT is working on revising the bike plan, the LAPD continues its new-found engagement with the cycling community, and bikes appear to be firmly on the radar of both the Mayor and City Council.

Although as Stephen Box points out, we’ve been here before.

But it’s an option to keep in mind, in case L.A.’s seemingly sudden support of cycling peters out before the next election cycle rolls around.

……….

Pasadena considers doubling the amount of bike lanes in the city as well as adding bike boulevards — or “emphasized bikeways” as they call it. A call for Bakersfield cyclists and pedestrians to do a better job of sharing the bike path. The three-foot passing law fails in the Virginia House. Advice on how to deal with a difference in leg lengths. Trek donates £20 million to the London Cycling Campaign. UK teenagers admit to brutally beating a cyclist because he “looked like a pedophile.”  In the final month of a 20-month suspension for doping, pro cyclist Riccardo Riccò dumps his girlfriend when she tests positive, too. Aussie world track cycling champ Mark Jamieson admits to four counts of sex with an underage girl. Finally, a writer in Iowa says a three-foot passing law isn’t the answer — and feels compelled to remind riders that cars “are fast and powerful.” Yeah, thanks, we didn’t know that.

3 comments

  1. TheTricksterNZ says:

    Bwahaha, just noted where the Aussie was from (Tasmania, the state to be considered where its most likely you’re mum is your sister) and the girl was from Adelaide.

    Need I say more!

  2. I figured the obstacles are great, but I have long thought about the possibility of a class action law suit, or series of individual lawsuits against the City as a means to have our issues finally taken seriously. There are places where the public infrastructure design are criminally negligent in my book.

  3. en says:

    how many more cyclists will have to die on camera before things change?

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