Everyone likes bicyclists, even where I reside in upper Mandeville Canyon, considered by many as ground zero in the so-called culture war between those who choose to peddle and those who opt to drive through the congested byways of Los Angeles. In 2008, the canyon was the site of a near-fatal road-rage collision between a rogue motorist and a group of cyclists.
This summer, partly in response to that incident and partly in response to the more general hazards cyclists face in their commutes and recreational pursuits, the City Council unanimously passed a far-reaching ordinance designed to safeguard bikers. But in its quest to do something positive, the Council may well have gone too far, enacting a regulation so broad and vague that it runs afoul of constitutional strictures.
By its terms, the ordinance adds a new article (5.10) to Chapter IV the Municipal Code, establishing a new basis for bringing civil lawsuits against anyone who intentionally attempts to or in fact assaults, injures or forces a cyclist off a street. To give the ordinance teeth, anyone found in a court of law to have violated the article is liable for treble the complaining cyclist’s actual damages, or $1,000, whichever is greater, plus punitive damages if warranted. In addition, a losing motorist will be held be liable for reasonable attorneys’ fees and the costs of litigation.
Although the ordinance fails to offer similar awards of costs and fees to motorists who prevail in legal actions—an asymmetry that raises issues of fundamental fairness and equal protection—the principal defect in the ordinance is that it also sweeps within the net of liability anyone who intentionally “distracts†or attempts to “distract†a bicyclist in whole or in part, because of the bicyclist’s status as a bicyclist.
Nowhere in the ordinance is the term “distract†defined. And therein lies the rub, both practically and legally. It is a settled constitutional principle that a law is facially invalid if persons of common intelligence must necessarily guess at its meaning and differ as to its application.
As a young lawyer in the early 1980s, I was a member of a legal team that brought a successful vagueness challenge before the United States Supreme Court (Kolender v. Lawson) aimed at invalidating a provision of the California Penal Code—since repealed—that permitted police to demand that “loiterers†and “wanderers†provide credible and reliable identification–terms the statute failed to define. The law had been used against an otherwise law-abiding African-American man who wore his hair in long dreadlocks and who had been arrested under the statute 15 times over an 18-month span. Writing for the high court’s majority, Justice Sandra Day O’Connor struck down the provision because it contained no standard for determining what a suspect must do to comply with the law.
Unless the City Council acts to amend the new bicycling ordinance to remove the “distraction†provision, a similar fate surely awaits. In the absence of a specific and workable definition of the term “distract,†courts will—again by well-settled legal principle—look for guidance to the dictionary, where the term is defined as “diverting†one’s attention.
Plainly, what might distract one cyclist may go completely unnoticed or excused by another. Would wagging one’s index finger (not the obscene “table for one†gesture) at a cyclist who runs a stop sign qualify? Would honking the horn to catch the attention of a cyclist dangerously weaving in and out of traffic meet the test? Or how about just shouting to slow down? Just as in the Kolender case, an otherwise law-abiding motorist will be left to guess at the ordinance’s reach and application, subject to the whims of offended cyclists and enterprising lawyers looking to take advantage of the ordinance’s generous damage provisions.
A far better approach than crafting an overly broad protection that will encourage meritless litigation and ultimately be overturned would be to redeploy the LAPD’s traffic details to problem areas such as Mandeville Canyon with instructions to ticket everyone, on two wheels or four, who violates the existing rules of the road. Doing so in an even-handed manner will do far more to promote mutual respect and end the cycling culture war than any feel-good but defective ordinance could ever hope to achieve.
Bill Blum is a Brentwood resident, a lawyer and a former state administrative law judge. He is a contributing writer to California Lawyer magazine and Truthdig.com. He is the author of three legal thrillers published by Penguin/Putnam as well as scores of non-fiction op-eds, features and reviews. Locally, his work has appeared in the Daily News, the LA Times, Los Angeles Magazine, the Daily Journal and the LA Weekly.
