Berkeley has become the second American city to implement an anti-harassment law to protect bicycle riders and allow victims to sue offending drivers in civil court.
“This ordinance is about educating motorists about how to be responsible users of the roadway,” said Dave Campbell, program director for the East Bay Bicycle Coalition (EBBC). ”We have roadways that have not been designed for safe bicycle usage by planners and engineers. That in and of itself encourages bicyclists to disobey the rules of the road, because the rules were never written for them, and when motorists start treating cyclists as second-class citizens, that even further encourages [that behavior]. This is about changing that.”
Los Angeles was the first city in the country to adopt a bicyclist anti-harassment law last July, after which L.A. City Council President Eric Garcetti proclaimed: “If L.A. can do it, every city in the country can do it.”
City Council member Kriss Worthington said he was inspired by the L.A. law to help address harassment complaints he’d received from his Berkeley constituents.
“A woman felt that she was being harassed and neither the police nor the district attorney were taking it seriously,” said Worthington. “When I heard that L.A. had adopted this ordinance, I was so excited. This was something that had been in the back of my mind for a couple of years, knowing that the police department is very busy and are focused on preventing violence and major crimes, so the likelihood of getting attention to this was not high, so this seemed like a wonderful idea of a tool to give people to protect themselves.”
The ordinance was passed within three months — “shockingly fast” in Berkeley, where Worthington said legislation can take as long as five or ten years to be adopted. The process was expedited with the help of the EBBC’s Campbell along with Chris Kidd, former author of the Los Angeles Department of Transportation Bike Blog, who had coincidentally just moved to Oakland after organizing the media campaign for
the L.A. ordinance.
“The fact that Dave and Chris had answers for all their questions turned it into a unanimous vote,” said Worthington. “The city attorney came back faster than I’ve ever seen on any other ordinance that we’ve ever done. I think the city attorney had based it on what L.A. had done and really looked closely at their paperwork, and that made it so much faster.”
The Berkeley City Council approved the law on January 17, and it went into effect last Thursday. Worthington said he thinks “the benefit of it is primarily going to come from the education, making people stop and think. Having it on the books might prevent some of these things from happening.”
Robert Prinz, a bicycle safety instructor with the EBBC, recalled an instance when a driver put him at serious risk on the pothole-ridden Wildcat Canyon Road in the Berkeley hills.
“As the vehicle passed I felt something sharp sting on my side and then heard the sound of laughter as the car accelerated and pulled ahead,” Prinz wrote in an email to Streetsblog. “I quickly realized that the occupants must have thrown something at me, likely small and not obviously dangerous, but on a street like that with lots of turns and potholes and with some severe drop-offs separated from the road by just a short railing, if I had lost my concentration or balance for just a moment I could easily have been injured or killed.”
Although he couldn’t make out the car’s license plate number and his call to the police was unfruitful, Prinz said he hopes “the very knowledge of the existence of such a law will make some drivers think twice before trying to take advantage of a more vulnerable road user.”
Prinz said that while he didn’t want to “escalate the situation” in his case, he did want the occupants of that car to be held accountable.
“Since I was physically unharmed I didn’t bother looking into it any further, but it still bothers me to this day that had the situation been a tiny bit different the repercussions for me might have been much more severe,” wrote Prinz. “Who knows how many other cyclists that driver may have bullied or antagonized over time, and who knows how many of them ended up with more than just a story to tell like I did?”
In the EBBC’s upcoming winter newsletter, Kidd explains how the legislation would help such victims:
This new ordinance in Berkeley allows bicyclists who are harassed or assaulted to take a driver to civil court. A bicyclist may bring suit against a driver who:
1. Assaults, or attempts to assault, a bicyclist;
2. Threatens to physically injure a bicyclist;
3. Injures, or attempts to injure, a bicyclist;
4. Intentionally distracts a bicyclist with the intent to cause injury; or,
5. Intentionally forces a bicyclist off the roadway.
Everything listed above is already illegal. This ordinance doesn’t create new crimes, but rather addresses the difficulty of seeking recourse. The burden of proof for criminal cases is high. Police officers and public prosecutors have been extremely reluctant to bring charges for what they sometimes consider to be “minor offenses”. Unless a police officer is on-hand to witness the incident, charges are almost never filed.
The ordinance adopted by Berkeley and Los Angeles is groundbreaking because it makes harassment and assault of a bicyclist a civil offense as well as a criminal offence. There is a lower burden of proof for civil cases as the penalties are financial and remedial. Making this harassment a civil offense also puts legal tools directly in the hands of bicyclists, letting them bring suit rather than having to go through the City Attorney’s office in a criminal case.
In the case of a successful civil suit for harassment of a cyclist, a driver will be required to pay:
1. Three times the damages incurred from the offending incident or $1,000, whichever is larger;
2. The attorney’s fees of the plaintiff; and,
3. Any other damages awarded by a civil judge or jury
These awards are essential in making civil suits viable, because they increase the likelihood an attorney will take the case. The awards also ask as a strong deterrent to wrong behavior on the roadway. Frivolous lawsuits are unlikely, as a harassed or assaulted bicyclist must not only have enough evidence to convince a lawyer to take a case, but also enough evidence to convince a judge or jury. In the six months since the ordinance was enacted in Los Angeles not one case has yet been brought to court.
As cities invest in better bikeways they also need to foster an environment where people will feel safe riding. An “interested, but concerned” rider out for the first time who is harassed simply because they are using the roadway is tempted to give up and not try again. That’s one more car trip that could have been replaced by bicycle, that’s one more car on the morning commute, and that’s one more parking space that is no longer available to others.
Still, not all bicycle advocates are ready to get behind bringing such a law to other cities just yet. San Francisco Bicycle Coalition Deputy Director Kit Hodge said that while the organization is “intrigued by the Berkeley ordinance, as we were with the Los Angeles ordinance, we’re not sure the law as written addresses the real problems of dangerous road users threatening and hurting bike riders and pedestrians.”
“We’re keeping a particularly close eye on the actual impact of these laws on crash rates on the street,” she said.