Over the years, I’ve written a number of times about incidents in Tennessee. In 2009, there was the crash that killed David Meek, a well-known and popular Chattanooga cyclist. The morning of March 5, 2009, Meek was commuting to work when he was sideswiped by a passing truck, and thrown under the wheels. He was taken by ambulance to a hospital, where he succumbed to his injuries. Although Tennessee has a 3-foot safe passing law on the books, the traffic investigator invented an imaginary standard for safe passing that let the inattentive driver who had sideswiped Meek—“he never saw” Meek, even though Meek had been “lit up like a Christmas tree”—off the hook for Meek’s death.
Three weeks later, Ed Rusk, another Hamilton County cyclist, was deliberately buzzed and hit by a driver towing a trailer. And yet the Hamilton County Sheriff’s Deputy responding to the incident said that he couldn’t ticket the driver because the driver didn’t know about the 3-foot passing law.
And when the Deputy completed the accident report, he wrote that there was no evidence that the trailer had come into contact with Rusk. Even an eyewitness statement corroborating Rusk’s account of the collision was left out of the accident report. Thus, despite having deliberately hit a cyclist, the driver was not charged with any violation.
Nevertheless, several officials, including then-Tennessee Governor Phil Bredesen, then-Chattanooga Mayor Ron Littlefield, and then-Hamilton County Sheriff’s Public Information Officer Dusty Stokes had all announced their support of enforcing the 3 foot passing law.
Then, two years ago, Gary Hooper, another Chattanooga-area cyclist,was buzzed and run off the road by a car that passed within inches of his bike. A Chattanooga Bicycle Club member got the car’s license plate number, but when the incident was reported to the Red Bank Police Department, the cyclists were told that nothing could be done because the car hadn’t actually made contact with Hooper.
And in January of this year, another Chattanooga-area cyclist was assaulted in an incident that garnered the attention of cyclists nation-wide. After first repeatedly buzzing the cyclist, two local teens returned to the scene and assaulted him with pepper spray. But when the cyclist reported the assault, the tables were turned on him, with a Marion County Sheriff’s Sergeant accusing him of committing a felony by violating an imaginary law. The County prosecutor continued with the Kafkaesque turn of events by investigating the cyclist for assaulting the teens who had pepper sprayed him. Eventually, the truth came out, and the two teens were convicted, but that may be more a testament to the power of video evidence and social media than to the willingness of local law enforcement to take crimes against cyclists seriously (note, however, that the Chattanooga Police Department DID take the buzzing and assault very seriously, and would have charged the culprits if the incident had happened within their jurisdiction).
Taken together, all of these incidents suggest a law-enforcement culture that winks at drivers who endanger, assault, and even kill cyclists.
But the story is not that simple.
Chattanooga has made great strides in becoming a bicycle-friendly community, and the Chattanooga Police department has garnered a national reputation as a bicycle-friendly police force. And Memphis is also developing a national reputation on its way to becoming a great bicycle city.
Clearly, the narrative coming from Tennessee is complex, and evolving. Recently, I had the opportunity to chat with Tennessee bicycle accident attorney Amy Benner about the state of cycling in Tennessee.
Amy Benner
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Bob: Amy, can you tell me a little bit about yourself? How did you get involved with representing cyclists?
Amy: I am litigator who practices law across Tennessee. I love to ride bikes for exercise, fun, and as a commuter. My representation of cyclists developed organically. I started commuting by bike when I was living in D.C back in 2005-2006. My work in cycling advocacy as an attorney began with transportation planning, and the administrative/bureaucratic side of the law, and was purely volunteer and pro-bono work. I drafted the bylaws for Bike Walk Knoxville, and cyclist advocates have been asking me for legal advice ever since. I have natural skill in a courtroom setting, and I started getting calls and emails when local cyclists were involved in crashes. There was an obvious need for a Tennessee Bike Law specialist. I am proud to fill that role, and was honored when Peterbrought me on board the Bike Law team. I love the work I do representing cyclists. It is a needlessly controversial area of law, but I don’t see it staying that way. From either a localized grassroots view or a large scale nationwide view, public policy is clearly moving in a cyclist friendly direction. I cannot overemphasize the importance of my knowledge base in long range bike and ped TDOT policies, or my volunteer work with Bike Walk Knoxville and Bike Walk Tennessee, and the friendships which have grown out of that, when it comes to representing a cyclist effectively.
Bob: You began bike commuting when you were in D.C.; can you tell me about that?
Amy: I was living in D.C. in 2005-2006 when I began commuting by bike. The bike infrastructure in D.C. back in ’06 was in its infancy, but I distinctly recall sharrows on a regular route of mine. I freed up a lot time that would have otherwise been spent in transit when I began using my bike to get around. My decision to purchase a low-end bike was far more momentous an occasion than I could have anticipated at the time. That first adult bike of mine, purchased at Hudson Trail Outfitters on Wisconsin Avenue, has been loaned out time and again over the years, and I recently donated it to a client who does not have reliable transportation of his own. It meant a lot to me. I used to work at the corner of 15th and M in D.C., and there was no bike infrastructure on M Street. Now, in 2014, there is a two-way protected bike lane which runs down M Street. We’ve come a long way.
I purchased my first road bike in 2007. I got into cycling for a few reasons. I was a year-round competitive swimmer growing up, and decided I wanted to get into triathlons. I’ve been competing in sprint and Olympic distance triathlons since 2006. I attend several favorite weekly group rides hosted by local Knoxville bike shops. A personal favorite is the ride from West Bikes. I also organize and lead a monthly ride for the Knoxville Bar Association cycling group. My main goal is to get more people on bikes, so I enjoy participating in women specific events, and family friendly rides such as the Tour De Lights and Bike Ride with Elected Officials in Knoxville. I had a blast and learned a lot on a women’s ride that left from Uptown Cycles when I was in Charlotte meeting with Bike Law Ann about a case. I love to meet people through cycling, and enjoy the health benefits of it as well.
Bob: What is the cycling environment like in Tennessee? Do drivers generally accept the presence of cyclists on the road, or is there some (or a lot) of hostility towards cyclists?
Amy: Open hostility towards cyclists certainly exists, and there can be a significant variance from one region of the state to the next. Take Memphis for example: one of six cities nationwide that the Green Lane Project is taking place in. That is exciting. My active Memphis cases don’t involve hostile drivers as much as they involve negligent drivers. There is still a long way to go with law enforcement writing thorough accident reports in Memphis. Until crash reports become more thorough and treat bicycles as vehicles as opposed to unavoidable obstacles, then the answer to the question of whether drivers accept the presence of cyclists on the road is no. Drivers have to learn how to operate their vehicles safely on roadways with designated bike lanes. Step one is acceptance. I think acceptance comes through education.
In Knoxville, cyclists on the roadways is a hot topic. I’ve seen a lot of hostility personally, and I’ve had cases that involve hostile drivers causing collisions in Knox County. A Complete Streets Ordinance was passed in October of 2014. The implementation process of the new ordinance should be educational for all. Additionally, grant funding was recently awarded for plain clothes officers to come into Knoxville and enforce traffic laws at crosswalks as pedestrians. I am very interested to see the results of that grant study.
Chattanooga, a city with a complete streets ordinance in effect, has a real problem with hostile drivers in outlying counties. Chattanooga recently hosted an Ironman, and the bike course was vandalized with tacks and oil.
It is an interesting time to be a cyclist in Tennessee. In general, municipalities are becoming more and more cyclist friendly, but aggressive and openly hostile drivers continue to be a real concern. Memphis and Knoxville have both developed online incident reporting systems, in an effort to curb aggressive behavior, and to collect data on problem areas.
Bob: What do you think is driving that hostility?
Amy: I think one of the main driving forces behind drivers who are hostile towards cyclists is misunderstanding. It may be as simple as this: some motorists don’t like cyclists because cyclists are different. Cyclists sharing roadways with motorists further obligates motorists to be alert and give their full attention to the roads. This may build resentment. In crowded urban settings, motorists oftentimes don’t give themselves enough time to get where they are headed. Motorists who consider themselves inconvenienced by a bike commuter exhibit road rage and can pose a real danger during rush hour.
The human psyche is fascinating thing, and the ability of the simple act of a cyclist using the roadway to generate such virulent hostility in some drivers is something that has generated a wealth of op-eds and articles on the topic, along with PSA’s and development of educational resources aimed at teaching tolerance and understanding. We may never have a cut and dry answer as to what fuels the hostility we are currently seeing towards cyclists in the United States. I do think this hostility will pass and we will see acceptance and cultural change in the coming decades.
Bob: I agree, the human psyche and social aspects of the bias against cyclists is a fascinating area for me personally. And touching briefly on motorist resentment, a study out of Wales indicates what you suggest:motorists resent cyclists out of fear that they may injure a cyclist. And I think the idea that cyclists are scofflaws is an interesting social and psychological phenomenon. Of course there are cyclists who break the law, but there are also cyclists who obey the law. And let’s not forget that drivers break the law too. In fact, the majority of drivers admit to speeding. And yet those drivers who express their anger towards cyclists say that it‘s the scofflaw behavior of cyclists that makes them angry. What’s your take on this phenomenon?
Amy: I think drivers get skittish around an unpredictable cyclist. Cyclists who alternate between the sidewalk and roadway, make sudden turns without signaling, or run red lights put me on edge when I’m driving. Some drivers allow that fear of an accident to manifest itself into anger and a sense of entitlement that their right to use the roadways is more important than a cyclist. Some drivers may also think that cyclists who disobey traffic laws have no repercussions from law enforcement.
Bob: Do you think there’s a way to resolve this conflict?
Amy: I think the solution to the cyclists viewed as scofflaws phenomenon, is education and PSA’s, along with the continued increase in cycling facilities on roadways, accompanied by law enforcement campaigns in urban areas aimed at citing cyclists who operate their bikes recklessly and violate traffic laws. All roadway users are accountable for their actions.
Bob: Let’s talk for a moment about the assault against a cyclist on Racoon Mountain earlier this year. That was a very strange sequence of events, with a Sheriff’s Sergeant threatening the cyclist with felony charges for violating a law that doesn’t exist. And then the prosecutor got in on the act, threatening to prosecute the assault victim for assault. There was a lot of speculation nation-wide that the two culprits must have been well-connected locally. Nevertheless, eventually they were convicted, and had their wrists slapped. I understand that the cyclist wants to stay out of the spotlight at this point, but can you talk about this case? It’s interesting how this case evolved in an age of “video everywhere” and the ubiquitous connections of social media. In another time, the cyclist might have ended up getting convicted, or at least pressured into dropping the charges. What do you think was happening with the combined weight of law enforcement turning their attention towards an assault victim?
Amy: Rural areas can suffer from bullying and good old boy corruption in law enforcement, absolutely. It takes nerves of steel and steadfast resilience to tackle such behavior, but it is critical for the safety of cyclists that actions such as this by law enforcement are addressed and remedied, rather than griped about in online forums.
It would take serious detective work and an investigation with active litigation which creates the power to issue a subpoena duces tecum to uncover the truth behind this incident. A subpoena duces tecum is one of my favorite tools in my legal toolbox to use to uncover the truth.
Bob: What kind of legal remedies do you think a cyclist in that kind of situation would have?
Amy: I admire members of law enforcement and think that cooperative relationships are far more productive than adversarial ones are, so I think step one is reaching out to law enforcement and attempting to resolve anything which may simply be a misunderstanding or lack of education.
When a law enforcement officer abuses their position and bullies a cyclist, the cyclists’ civil rights are being violated. Civil rights litigation against the law enforcement agency is a something I would advise in an egregious case of law enforcement bullying or collusion.
A more diplomatic approach is engaging bike friendly municipal leaders to help educate law enforcement officers.
Bob: In many of these cases I’ve written about, there was a reluctance on the part of law enforcement to ticket drivers who made blatant, and sometimes cases fatal, violations of the law. I’ve written about the failure to enforce Tennessee’s 3-foot law, even in a case where there was a blatant violation. And when we first touched base, you mentioned to me in a previous conversation that drivers who hit cyclists and leave the scene of the crash are not being charged with hit and run. Can you talk about this refusal to enforce the law when a cyclist is injured or killed? What do you think is at issue in these law enforcement departments?
Amy: The investigating sheriffs in these incidents state that cyclists run into proof issues in court. I am inclined to disagree with that position. In a recent case I’ve been contacted on, where a hostile driver edged a group of cyclists into a ditch, the officer told the cyclist that his witnesses were unreliable because they were biased, and that was the basis for failing to cite the driver.
The idea that an upstanding citizen who witnessed a crime would not be a credible witness in court just because they are familiar with the victim is laughable. Officers aren’t familiar enough with the three foot law to feel comfortable charging drivers with violations.
Bob: Contrasting what happened in Marion County, Chattanooga seems to have made great strides in law enforcement. Can you talk about what’s being done right?
Amy: Statewide, local law enforcement agencies are educating their officers on traffic laws relating to cyclists. Advocacy groups, like Bike Walk Tennessee and government based bicycle programs funded by MPO’s are inviting law enforcement to come speak to bicycle advisory committees, and are offering training and education for law enforcement officers. Relationship building and establishing regular education on cyclist traffic laws as a part of officer training is a work in progress, and I think that we will see real improvements over the next several years.
Reaching out to officers who conducted investigations in my bike collision cases goes a long way. It may not be the initial conversation that is the one where the lasting educational impact may be had, but rather the second or third follow-up conversation, where the law enforcement officer realizes that I’m more than a plaintiff’s lawyer, I am a cyclist advocate.
Bob: What do you think could be done to move towards more bicycle-friendly law enforcement in some of these other police departments?
Amy: On the ground grass roots outreach and relationship building is the solution. I recently spoke at the Governor’s Highway Safety Office Lifesavers Conference. I felt out of place at the conference where the audience was almost exclusively law enforcement and district attorneys, but I made it a point to introduce myself to officers who I did not yet know. I had to get out of my comfort zone for that, but finding common ground first, and then introducing your message goes a long way.
Bob: Building relationships with law enforcement is a great strategy for cyclists. Do you have any cases you can talk about where law enforcement, either good or bad, made a difference in the outcome of the case?
Amy: I had a hit and run case where the officer was able to help me reach a successful outcome in the civil lawsuit. The initial investigation was thorough, the officer tracked the driver down, interviewed the driver, and the officer charged the driver with a violation of the three-foot law. The officer was incredibly responsive to my communications with him. When I asked to come interview him, he instead offered to come to my office, voluntarily shared his records and the signed statement of the defendant with me, and gave me his personal cell phone number in order for me to have an easier time reaching him. His willingness to do everything in his power to help my client was a really positive aspect to that case.
Bob: We’ve focused on Chattanooga, because that is where so many of these national-interest stories happened, but Tennessee is a lot bigger than Hamilton County. Your Bike Law office is in Knoxville, for example, and Memphis is also making a name for itself as a bicycle-friendly city. Can you talk a bit about what is happening in the rest of the state (outside of Chattanooga), good or bad?
Amy: Memphis is leading the way in Tennessee right now. A.C. Wharton is active on a national scale, and recently participated as a keynote speaker at the Pro Walk Pro Bike Conference in Pittsburgh. As discussed, Knoxville just passed a Complete Streets Ordinance. Nashville has a bike share program and a bike friendly city administration. The cases I’m seeing out of Nashville have not involved openly hostile drivers, but work remains to be done. The dots need to be connected between the urban hubs across the state.
Bob: Do you see the situation for cyclists changing for the better in Tennessee?
Amy: Absolutely. The Bike Law presence in Tennessee is already making a noticeable impact. Our main advocacy organization, Bike Walk Tennessee, is in the midst of planning the 4th annual Tennessee Bike Summit for April 2015. There are lots of folks who want to be involved. The Share the Road License Plate, which benefits the Jeff Roth Cycling Foundation, is helping to educate motorists on the three-foot law.
Bob: Any last thoughts?
Amy: It takes a village, and Tennessee has an ever-growing network of advocates who are aware of the efforts being made by one another. Bike Law is a component of the Tennessee advocacy network. I think that in the near future, Tennessee will see more enforcement of the three foot law statewide, along with a correlated decrease in incidents of hostile drivers.
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Bob Mionske is a former U.S. Olympic and pro cyclist, and a nationally-known bicycle accident lawyer based in Portland, Oregon, and affiliated with the Bike Law network. A prolific advocate for the rights of cyclists, Mionske authored Bicycling & the Law in 2007, and has continued his advocacy on behalf of the rights of cyclists with his Road Rights column inBicycling magazine.
