November 2, 2011 TESTIMONY BEFORE THE COMMITTEE ON THE JUDICIARY REGARDING BICYCLIST ENFORCEMENT, AND IN SUPPORT OF BILL 19-475,

THE ASSAULT OF BICYCLISTS PREVENTION ACT OF 2011 Chairman Mendelson & the Members of the Committee: Thank you for the opportunity to come before you again, nine months after our last hearing on bicyclist and pedestrian safety in the District. Unfortunately, we return with similar stories from bicyclists facing similar issues stemming from poor enforcement and a system that fails to adequately protect vulnerable roadway usersbut there has been some behind-the-scenes progress that we hope, with the Committees support, to turn into real improvements for the Districts cyclists. As in our prior testimony before this Committee, our primary complaint remains the police departments lack of demonstrated interest in protecting bicyclists safety. That is not a complaint about individuals, but about MPDs failure as a department to adequately undertake its responsibility to know the laws and enforce them properly to protect the 29,000 bicyclists in DC. That concern is now backed by a September 29th report from the Office of Police Complaints finding that improvements are needed in: (1) investigation procedures for crashes involving bicycles, (2) training of officers on bicycling laws, and (3) communication and engagement with the bicycling community. Each of these much-needed improvements is important; each also is a relatively easy improvement that can be made quickly. We ask that you set clear timelines for MPD to report back to you on its progress in each. Nine months having passed since we raised these issues before this Committee; MPD has had ample time to make such simple changes as correcting their crash report forms to include bicycles more effectively and allow for proper data-capture, amend its policy on crash reporting to require that injured parties have the opportunity to tell their side of the story, and appoint an officer with clear responsibility to engage the bicycling community and serve as a consistent point of contact and liaison between bicyclists and other officers. But minimal efforts have been made to do so. It is our hope that the report, along with the insistence of this Committee, will compel action. But our purpose today is not to air grievances against MPD: it is to improve the protection of bicyclists on the Districts streets. In prior testimony, we highlighted the need to make an exception to the Districts contributory negligence standard for vulnerable roadways users, including bicyclists. Unfortunately, the concerns of the trial lawyers and insurance companies have prevented progress on that systemic improvement that would make the District fairer and safer for bicyclists and pedestrians alike, and would bring the District in-line with the overwhelming majority of jurisdictions nationally. So instead, we have set our sights on a narrower legislative improvement that would address the most egregious behavior targeting cycliststhe intentional assault of bicyclistswhich is embodied in the Assault of Bicyclists Prevention Act currently before this Committee.

Assault is already illegal, but roadway assault cases with bicyclist victims are never brought by the US Attorneys office. Assault is also prohibited by civil law, but civil representation is only available to cyclists when they have been significantly injured. Thus, we cyclists are encouraged to share the roadways with motor vehicles, but are given no protection when the operators of those vehicles frustrated at being asked to share with uslash out and intentionally harm, or attempt to harm, us. Some may express concerns about the Acts fee-shifting mechanism. While there is clearly a presumption in American law that each party pays its own attorneys fees, that presumption has routinely been changed when a defined group has been confronted by a flawed system in which it was being denied justice. That is the situation here, and the Assault of Bicyclists Prevention Act is the narrowly tailored civil response to a failing system that provides no access to justice. Would we prefer the passage of a legitimate vulnerable users law with fair and adequate enforcement by MPD and prosecution by the US Attorney? Yes. Undoubtedly. But we face a system of inadequate enforcement and non-prosecution to protect bicyclists, and cyclists desperately need a tool to seek redress in the most egregious circumstances: when they have been in the comparatively vulnerable position on a bicycle, and intentionally assaulted by a driver physically protected in a motor vehicle. We do not come here simply to complain. We come seeking solutions and seeking protection. We ask that this Committee: (1) Set clear, timely deliverables for implementation of the recommendations of the OPC report. We realize that a significant culture change is needed at MPD and that it takes time. But aside from discrete interactions with officers like Lt. Breul, we have little evidence that MPD leadership has accepted its responsibility to know, understand, and fairly enforce the laws as they apply to bicyclists; (2) Ensure that the bicycling community in involved in the implementation of those recommendations, as well as in any training for officers about bicycling. While we insist that MPD accept its responsibility for enforcing laws fairly and provide equal protection for bicyclists on the roadway, the cycling community is not asking for MPD to develop this expertise on its own, andin factwould welcome the opportunity to engage in improving crash reporting and enforcement priorities. Most critically, the cycling community in general and WABA in particular should be involved in the development of proper training tools. Tools developed without the input of cyclists and sensitive to the specific laws, infrastructure, and policies of the District would be of comparatively limited value. (3) Pass the Assault of Bicyclists Prevention Act to allow cyclists access to civil justice until the criminal justice system of enforcement and prosecution can be repaired. While the passage of this law is not a magic bullet to solve the systemic protection needs facing cyclists, it provides some recourse, where none currently exists, in the most egregious circumstances. When intentionally assaulted on the roadway while in a vulnerable position, there must be access to justice. Currently, neither the criminal nor the civil systems provide such access, and this minor change would provide that access and ability to protect ones right not to be assaulted. We appreciate the work of this Committee in calling this hearing and its predecessor, and we appreciate the Committees willingness to take seriously these concerns. Just as we are beyond a point that bicycles can be treated as mere toys, we are beyond a point at which the safety of the nearly 30,000 cyclists in the District can be left unaddressed by our police department in its training, its prioritysetting, andultimatelyits enforcement of the laws that protect us. The current state of enforcement

is not working and, in many cases, leaves cyclists to fend for ourselves. Until the system is fixed, this Committee and the Council should feel an obligation to provide us with the civil tools to do so.