Legally Speaking - Mo' Birdman Fo' Y'all

Bob,

I was talking to a cycling friend today and telling him how my riding had been going and happened to mention an accident I was in while riding a couple of weeks ago. He laughed and said he was just reading a similar story and showed me the birdman case. I found it very interesting and it left me with questions about my incident. So here goes my story.
A group of five cyclists were riding outside Banner Elk, North Carolina. If you don’t know where it is, it is in the mountains of North Carolina close to Tennessee. The town is a tourist ski and college town but the locals are pretty country. It is also where the famous Beach Mountain climb starts. Anyway we were riding single file on the far right side up one of the busier roads that takes you back into town. There was no oncoming traffic and we were just minding our own business out on a training ride, when all of a sudden a large Ford truck came flying by and buzzed all five of us without slowing down at all.
We were all mad and all of us yelled, one raised his arms and I flipped the bird. The man sees this in his mirror and locks up the brakes and skids sideways to a stop in the middle of the road, blocking both lanes. The truck is about 50 feet away from us, and we stop, not knowing what he is going to do. He opens the door and gets out of the truck yelling "have y’all got something to say" and "have y’all got a problem."

He then started walking towards us while yelling at us and we then saw that he was carrying a handgun. He waved the gun around making sure we see it when he first yelled at us, but after a bit he tucked it in the back of his pants. When he got to us he started saying how he had four kids in the car and was not going to pull in the other lane (which was clear) and endanger them (saying this while the truck was blocking traffic after a curve in the road and cars had to slam on their brakes to keep from hitting his truck). He then went on about how he has been a paramedic for 20 years and knew how to drive on these roads.

He then declared "you’ve messed with the wrong mo’ fo’" and "I should lay y’all out right here and bury y’all on the side of the road". Then he looked at each of us and again asked "do you have a problem?" We said "no" and he finally walked away.

While all of this was going on I looked at the guy and realized that I had seen him before. I then realized that I had met him two days before and was supposed to observe his surgery in two days as part of my major in college.

As he pulled away I asked if any one got his tag number. One of the group did and he texted it to himself to remember it. We then rode to a safe pull off and called our coach (we are all members of the cycling team at Lees-McRae college) and asked what to do. He told us to ride on into town and go to the police station to see what we could do. We told the policeman what happened. I told him the guy’s name and the policeman ran the tags. They matched up. He said we could either go to the court house and press charges or the policeman could go talk to him.

We called our coach back to ask what he thought we should do. He told us to go home and think about it and he offered to check in with the athletic director and the college president and get their thoughts, too. We decided to press charges and everyone with the school agreed with us. We went to the court house and told the magistrate what happened. He told us that we could get the guy on five counts of communicating a threat and explained the process of what will happen. He added that while flipping him off wasn’t the nicest thing to do, it is a form of protected speech and not illegal. We just found out that the court date has just been set for April and a warrant will be issued for his arrest tomorrow.

My questions are: were we wrong in our reactions to him? Are there other charges we could press? Do you agree with us going through and pressing charges?

Thanks Bob,

Another Birdman

Dear Another,

I remember riding through Banner Elk during the Tour DuPont in the early 90’s. I was never mistaken for a climber, and by the time I finished, LeMond and Armstrong were probably reminiscing about their day at the office as the soigneurs fluidly coaxed the lactic acid out of their legs, preparing them for the next day’s stage. But no complaints from me, it was epic duking it out in the sprints with the Euro’ studs like Steve Bauer, Sean Kelly and Phil Anderson.

The climb up Beech Mountain was so brutal that I had to ride in ’S’ turns to make it up—no pride lost though, as there were plenty of big names from across the pond doing likewise. The trick was not to run into each other as we slithered up the grade.

Anyway, flipping the bird to a maniac is always legally justified, but it doesn’t always pan out for the best, and ’poking a tiger’ never makes sense.

In my Bicycling and the Law book tour/lectures, I call on all cyclists to do their part to defend our right to the road. Of course, you have to pick your battles, and you will lose police support if you go after drivers who are simply rude. Your harasser rings all the bells though—he made an unnecessarily dangerous pass that smacked of intimidation, escalated things when he slammed on his brakes and blocked the road, and he brandished a weapon as he threatened your lives.
If this guy isn’t the poster child for bad drivers who should be held accountable, I don’t know who is. So, yes, birdman, I think you are doing the right thing. If more cyclists took the time to hold law-breaking bike haters accountable, we could start improving road safety for all of us.

As far as additional charges, in North Carolina drivers are required to leave a minimum of two feet clearance when passing another vehicle. If Mr. “mo fo,” as he refers to himself, did not leave at least two feet between your bikes and his truck when he buzzed you, he can be prosecuted on that charge as well. It’s an infraction, which is less serious than the misdemeanor charge he is facing for communicating a threat, but it’s still a violation he should not be given a free “pass” on.

Good luck,

Bob

(Research and drafting provided by Rick Bernardi, J.D.)

I’d like to extend my thanks to the many who hosted me on the first leg of my speaking tour:

Turin Bicycle: Evanston, Illinois

Team Active: Battle Creek, Michigan

SRAM Redbowl: Philadelphia, Pennsylvania

Winchester Wheelmen: Winchester, Virginia

League of American Bicyclists: Washington, D.C.

It was a pleasure to be able to appear at your events, and it was equally a pleasure to meet some of the readers of this column. I look forward to meeting many more of you this year, and for those of you who were looking forward to seeing me in Pittsburgh on this trip, I will re-schedule.

I’d also like to extend my thanks to everybody who has contacted me to request my appearance at their event. I will be speaking extensively on Bicycling and the Law this year, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com. I’m looking forward to meeting as many of my readers as possible in the coming year.

This article, Mo’ birdman fo’ y’all, was originally published on VeloNews on March 27, 2008.
 

Now read the fine print:

 

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

 

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

 

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

 

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

 

Important notice:

The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.