Bike lawyer Bob Mionske weighs in on Santa Monica cyclist convicted of assault with a deadly weapon

Sometimes I’m surprised by just who reads this blog.

Let alone their willingness to weigh in on the issues we discuss.

Case in point: The other night, I mentioned I’d be writing a piece for LA Streetsblog about the cyclist who pleaded guilty to assault with a deadly weapon after blowing through a red light, and seriously injuring a pedestrian on the Third Street Promenade in Santa Monica.

And while I was reaching out to a handful of the area’s leading bike lawyers for comments, I invited any other lawyers who wanted to weigh in on the case to send me their thoughts.

Still, I was surprised to receive an email yesterday from bike lawyer Bob Mionske, Bicycling Magazine’s Road Rights columnist, and author of Bicycling and the Law.

I used some of what he had to say in my piece, which is now online at Streetsblog.

But his entire response is well worth reading, as it shines a light both on issues in the Santa Monica case, and the mentality facing cyclists on the road everywhere.

With regard to the “assault with a deadly weapon” charge against the cyclist in Santa Monica, it seems to me that this is overreach, and is due to a frustration with cycling in general, and scofflaw riding specifically. But as we have witnessed in the aftermath of many a cyclist death under the wheels of a culpable motorist, comments about the scofflaw straw man always emerge. This may be a version of the same mentality. When people are frustrated by some group—in yesterday’s culture, young “hotrodders,” in today’s culture, “scofflaw cyclists”—finding a member of that group who has actually broken the law and been caught may lead to a sort of collective punishment for the entire group, in which the culprit is made an example of.

Looking beyond the particulars of this case, there are two larger issues here.

First, there is the issue of disparate treatment of cyclists who break the law, and drivers who break the law. We can see this in the “Scofflaw Cyclist” meme that cyclists are tarred with. In fact, drivers break the law at least as often as cyclists do, and perhaps more often. And when drivers break the law, they are more likely to be a danger to others than when cyclists break the law. And yet, cyclists are the ones who are tarred with the “Scofflaw” meme, even when they are the law-abiding victims of negligent drivers.

When drivers are negligent and injure or kill a cyclist, are they charged with “assault with a deadly weapon”? Not that I’ve ever heard of. Often, they are coddled with “it was just an accident.” And often, law enforcement bends over backwards to shift the blame to the cyclist, when it is crystal clear that the driver was breaking the law. I have seen this happen many, many times.

Part of the problem we are facing is that we live in a culture where most people, including law enforcement, prosecutors, judges, and jury members are drivers. Prosecutors have a high bar of proof when pressing criminal charges, and if the accused was a driver who did something that every driver does, it may be difficult for the prosecutor to convince a jury made up of drivers to find the accused driver guilty of a serious charge. But when the accused is a cyclist, and the general opinion of cyclists is that they are scofflaws, it will be easier for the prosecutor to convince a jury made up of drivers to find the accused cyclist guilty.

There is nothing inherently wrong with pressing charges against cyclists who negligently injure pedestrians. But there is something wrong when we treat cyclists more harshly than we treat drivers who negligently injure cyclists and pedestrians. If as a society we want to start charging cyclists with serious violations when they negligently injure pedestrians, then we’d better get serious about charging motorists with equally serious violations when they negligently injure cyclists and pedestrians.

Second, when charges are filed, they should reflect what actually happened. This means that the incident should not be undercharged (for example, “unsafe passing” when in fact somebody was killed as a result of an unsafe pass), and the incident should not be overcharged. The question raised by the charge in this incident is whether the charge reflects what actually happened, or whether the cyclist was overcharged. From my own experience, I have never seen a motorist charged with “assault with a deadly weapon” after running a stop (yes, motorists run stops) and hitting a cyclist or pedestrian.

One other quick note.

Many of the attorneys I spoke with described the charge against the cyclist as an overreach. Meaning, yes, the cyclist could be charged with assault with a deadly weapon, but it probably wasn’t the appropriate charge in this case.

And while they didn’t say it, one that a good lawyer might have been able to get dismissed.

Which brings up one last point I’m surprised none of the lawyers mentioned.

If you get a ticket while riding, whether in Santa Monica or anywhere else, you may want to fight it — especially if there’s a question of selective enforcement, which may be the case as the SMPD plans to target violations by bike riders over the next few months.

Mionske offers a good guide to determine whether to fight or pay.

You may or may not be able to fight it on your own. But it’s always a good idea to talk with a lawyer first.

But if you’re facing criminal charges, for whatever reason, you need a good lawyer. It’s not a question of whether you can afford one, but that you simply can’t afford not to have one.

You can find a list of attorneys with experience in bike cases over there on the right. Including every lawyer I talked to for my Streetsblog story.

I don’t know if Rocky Martin had one.

But I suspect if he had, his case might have turned out differently.

3 comments

  1. Biker395 says:

    As I said in in the comments to the original story, there is a strong odor of prosecutorial overreach in this case. I too wondered if Rocky Martin was represented by counsel.

  2. […] Bike lawyer and Bicycling columnist Bob Mionske offers some interesting insights not included here; you can read his full comments at bikinginla.com. […]

  3. Allan says:

    I disagree that the bike rider operates like cars on the road. Did the bike rider ride away after causing a collision? No. That right there puts him in a lower class. We give the drivers that can speed through our streets, cause deadly encounters, and ultimately be able to speed away our highest admiration. This biker? Nice try but you don’t rate!

    /sarcasm

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