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, NW 20004 Chairman Mendelson & the Members of the Committee: Thank you for responding to the pressing safety need among vulnerable roadway users within the District and holding this hearing on the topic of Enforcement of Pedestrian and Bicyclist Safety. Over the past weeks, I have sent to the Chair numerous complaints from individual bicyclists whose safety was compromised while using the District’s roadways, or whose ability to seek compensation for a crash was limited or precluded by lax or improper enforcement. As bike advocates, we often say that “Bikes have equal rights.” We mean that to convey that we have a right to the full use of the roadway, just as a motorist does. But it also means that those public officials—whether legislators, police officers, or traffic control officials—have an equal responsibility to understand bicycle infrastructure and law, and to protect cyclists just as much as any other roadway user. Currently, this does not happen in the District of Columbia. While bicycling facilities have improved over recent years, enforcement has not kept pace with infrastructure. Additionally, the consequences of a primarily autocentric police force have included a widespread ignorance among police officers of the realities of bicycling in urban environments and a lack of fair and proper application of traffic laws to cyclists. Systemically poor enforcement and inconsistent procedures cause significant and long-lasting harm to our roadways' most vulnerable users--often compounding physical injury with grievous financial and legal hardships. We appreciate the willingness of this Committee and the Council to consider and, we hope, quickly address these problems by ensuring that equal protection of roadway users becomes a reality. We ask the Council to: Require MPD officials to track and report on bicycle enforcement metrics, and explain significant deficiencies in citations for common infractions as part of annual oversight reporting. Mandate proper training of enforcement officers on the applicability of traffic laws to bicyclists, and on the duties of motorists and bicyclists regarding bicycle-specific facilities. Empower and require officers to protect cyclists in bicycle facilities and ensure safe riding conditions for bicyclists; and Replace the victim-blaming contributory negligence liability standard with a more appropriate and modern comparative negligence standard for vulnerable roadway users.
Thank you for your efforts to improve the safety of cyclists of the District of Columbia, and please do not hesitate to contact WABA at any time if we can help with this, or any other matter to improve roadway safety for bicyclists in the District. Sincerely,
Shane Farthing, Executive Director
Testimony of Washington Area Bicyclist Association (WABA) Executive Director Shane Farthing before the Committee on the Judiciary: Public Oversight Hearing on Enforcement of Pedestrian and Bicycle Safety As the region’s largest and longest-standing bicyclist advocacy group, WABA is known as the area’s premier resource for cyclists with safety and enforcement concerns, or who have been involved in a crash and need guidance. We average three to five calls per week during peak riding periods from cyclists struck by motorists, and dozens of complaints regarding lax enforcement of laws such as harassment and intimidation by motor vehicles, parking in bicycle lanes, and distracted driving while texting or talking on the phone. In many cases, the complaints of bicyclists are the same as those of any other roadway user. Standard traffic infractions--such as speeding, reckless and distracted driving, failure to yield, and failure to follow signs and markings--affect cyclists as well as motorists. But while motorists have the protection of their vehicles surrounding them to buffer the harm resulting from illegal behavior, cyclists have nothing but the law to protect them while sharing the roadway with larger, more powerful vehicles. Fundamentally, there are two issues that need to be addressed: (1) non-enforcement and (2) improper enforcement. Non-Enforcement: Bicycling is a vulnerable mode of transportation, so cyclists need the protection of both the law and facilities like bike lanes that dedicate a portion of the roadway for the use of cyclists. The District has made great strides in recent years in improving the facilities, but the enforcement has lagged behind. 1. Improved Enforcement of General Roadway Safety Laws
There are no “fender-benders” for cyclists as there are for motorists. We disproportionately bear the physical consequences in any crash with a motorist. And we know from countless studies that certain behaviors like speeding, and phoning or texting while driving, contribute significantly to the likelihood and severity of collisions. And this Committee and the Council know this, because they have taken steps to make these behaviors illegal due to the increased danger they pose. But these laws are not enforced systematically or diligently enough to impact motorist behavior. So to be clear, WABA supports increased and improved, even-handed enforcement of traffic laws to combat speeding, distracted driving, and other behaviors that tend to lead to collisions. 2. Protection of Bicycle Facilities
But in addition to the improved enforcement of generally applicable traffic laws, we call on this Committee to compel those charged with enforcing the laws protecting bicycle lanes and facilities to explain their utter failure to th th do so, and to immediately take steps to improve. From the bike/bus lane on 7 Street Northwest, to the new 15 Street cycletrack, to the miles of bike lanes across the city: it is nearly impossible to use any element of the District’s bicycle infrastructure without finding it illegally blocked by a motorist. And enforcement efforts to keep 1 those facilities clear are nearly non-existent. This is not a mere griping about inconvenience. Rather, it is a significant safety concern and a major barrier to broader adoption of cycling as a mode of sustainable transportation. When a cyclist encounters a blocked, standard bicycle lane, he or she must merge into already-flowing traffic in a narrowed lane. For experienced
WABA has filed a FOIA request with MPD for the number of citations written annually for violations of 18 DCMR 2405.1(g) (standing or parking in a bike lane), but has received no response to date.
cyclists this is possible, but for beginners who may have chosen a route in order to take advantage of the security provided by the bike lane, this can be a terrifying and dangerous experience. Just this week, I have been frequently on the phone with representatives of the large parcel delivery services in th response to numerous complaints of their drivers blocking the 15 Street cycletracks and thereby forcing cyclists into oncoming traffic. Fortunately, most have been responsive and are taking actions to address this illegal and unsafe behavior. But the very fact that I am calling fleet managers one-by-one in hopes of their making policy changes, rather than having this illegal and unsafe behavior controlled by law enforcement, shows the extent to which the protection of bicyclists and bicycle facilities in the District has been abandoned. This widespread lack of enforcement sends the message to roadway users that illegally blocking bike lanes is acceptable. It is not. It is unacceptable and dangerous. And as the Committee with oversight of MPD, we ask that protection of bicycle facilities be prioritized, and that MPD be required to report regularly on its strategies and plans for protecting bicycle facilities and to provide data showing the results of such strategies (e.g., number of citations issued). We recognize that the setting of enforcement priorities is an executive rather than legislative function, but oversight of the executive’s enforcement policies is the responsibility of this committee, and we ask you to take that role seriously, and press enforcement agencies to explain their failure to provide the protection promised to bicyclists under the law. Just as we have demanded fair accommodation from our transportation department, we demand protection of our safety from our enforcement agencies. Improper Enforcement: As stated above, non-enforcement creates systemic difficulties for cyclists and, viewed broadly, makes cycling less safe for all. But where an individual cyclist is involved in a crash, such that enforcement action is triggered, improper enforcement can acutely harm a cyclist precluding all financial recovery for injuries and property damage. 1. Lack of Training on and Knowledge of the Application of Traffic Laws to Bicyclists, and Lack of Understanding of the Duties of Cyclists and Motorists regarding Bicycle Facilities.
No one can deny that understanding the complexities of urban traffic practice and law is a difficult task, but it is simply unacceptable for officers charged with enforcing traffic laws—whether employed by DDOT or MPD—to be ignorant of (1) the proper application of generally applicable traffic laws to cyclists and (2) the proper and improper usage of bicycle facilities. Yet this is often the case. Cyclists are routinely wrongly faulted for legal behavior and cited after a crash, despite having followed the law. Most enforcement officers are not cyclists and have not experienced the District’s streets from the cyclist’s perspective, nor are they required to be trained on the applicability of traffic laws to cyclists or on the usage of bicycle infrastructure. Thus, they often lack the most basic understanding of cycling in the District, such as: the very fact that cyclists are rightful users of the roadways; that cyclists are not required to—and in fact should not always—stay within bike lanes; the areas in which cyclists are and are not allowed on sidewalks; the prohibition against parking in a bicycle lane; and the requirement that motorists merge appropriately when turning across bike
This most frequently occurs when a cyclist is “doored,” yet cited for “riding abreast;” when a cyclist is “left hooked” yet cited for failure to control speed when, in fact, the motorist failed to yield; when a cyclist is struck by a passing motorist in the same lane, yet cited for some version of impeding traffic; or when a cyclist is “righthooked” (often while in a bicycle lane, as in the well-known Alice Swanson fatality) yet cited for failure to yield.
lanes. The lack of knowledge is even more evident regarding the newer facilities like the Pennsylvania Avenue bike th lanes and the 15 Street cycletrack, where bikes are required to operate outside the vehicular norm. Quite simply, cyclists have the right to expect that those officials entrusted with maintaining roadway safety will know these laws. And it is a basic governmental responsibility to ensure that its enforcement officials, entrusted with protecting public safety, have basic knowledge of the application of laws to all. Wrongful citation of cyclists is unfortunately prevalent, and must be eliminated. WABA has made efforts to provide outreach to enforcement officers in the past, and even offers free memberships to many officers in order to communicate cyclists’ concerns and maintain a dialogue. But a more robust education requirement and real accountability are needed. Thus, we ask this Committee, in its oversight role, to question Chief Lanier on the requirement for and availability of trainings on bicycle laws and infrastructure. While there are some officers who understand the laws and infrastructure well, a significant increase in education is needed. And if MPD is unwilling to meet its responsibility to ensure that its officers are appropriately trained in the operation of bike laws and facilities, we ask the Council to make such training a requirement. 2. Systemic Failure to Properly Interview an Injured Party in a Crash Skews Police Reports against Nonmotorists
The problem of improper attribution of fault in police reports is frequently compounded by the failure of officers to take the statement of the cyclist—often because the cyclist has been removed from the scene by ambulance. WABA has received nearly a dozen calls in recent months from cyclists who were injured in collisions, transported to hospitals by ambulance, and were given no opportunity to contribute to the police report describing the incident. In several cases, these cyclists were also wrongly cited for violation of a traffic law, and did not receive any notice of the citation until they requested their police report for insurance purposes. This regular failure to include the statement of the cyclist clearly violates the spirit of the MPD General Order on 3 Traffic Crash Reports, which requires “locating the drivers and witnesses” and disproportionately harms nonmotorist bicyclists and pedestrians who are more likely to be significantly injured in a crash, and therefore unavailable on-scene to provide their side of the story. But in the final result, the inability of the cyclist to tell his or her side of the story results in an increased likelihood of a report indicating cyclist error, which then tends to preclude the cyclist’s recovery for injuries and property damage. Thus, we ask that the General Order be updated or clarified to apply to cyclists and pedestrians as well as drivers, and mandate that all involved in a crash be allowed to contribute to the police report before it is finalized. 3. The contributory negligence standard is fundamentally unfair and outdated, and acts to compound the harms of improper attribution of fault to vulnerable roadway users.
Underlying everything stated so far regarding improper enforcement is the sad reality that when any mistake is made by an officer to wrongly attribute fault to an injured party in the District, that injured party is unlikely to receive compensation for injuries or property damage without a long, time-consuming, and often costly battle, if at all.
GO-SPT-401.03, Sept 23, 2009. § C(2)(d) states that when a PD-10 [accident report] is required, the investigating member should conduct follow-up by “Locating the drivers and witnesses.” The Order wholly fails to account for non-motorist crashes, and is written in a manner that explicitly applies to only “drivers” and “motor vehicles.” It should be amended or clarified immediately to provide standards and procedures for traffic crashes involving people other than motor vehicle drivers and vehicles other than motor vehicles.
This is because the District maintains the common law contributory negligence standard, which denies all recovery when any level of fault is attributed to the injured party. Essentially, it allows blaming the victim for his injures for any imperfection—not matter the greater level of fault by the other party—and is especially problematic for cyclists because (1) cyclists are vulnerable roadway users more likely to be injured in a crash, (2) widespread lack of education and training of enforcement officials on the application of traffic laws to bicyclists and the regulation of bicycle facilities leads to improper placement of fault on cyclists or, in some cases, a finding of fault on both parties in an attempt to “even things out,” and (3) the substantial number of police reports in which a finding of fault is made without the cyclist’s ability to tell his or her side of the story. The result of any of these aforementioned concerns is denial of payment from insurance companies. With contributory negligence there is no inquiry into the extent of the harm or the proportion of the blame that falls on each party. And there is no obligation of the insurance company to look beyond the police report for other information. The District should immediately follow the lead of the vast majority of states and move to a more modern comparative negligence standard, which bases recovery on actual fault, rather than the current system that unfairly blames the victim and limits recovery for legitimate injuries primarily the fault of another. Conclusion So in short, we appreciate this Committee’s recognition of the need for this hearing based on the concerns of District bicyclists and pedestrians, and we want to ensure that this is a step toward meaningful, systemic solutions to improve safety for all who travel the District. So in your oversight capacity, we ask that this Committee clearly prioritize enforcement to protect vulnerable roadway users, and to ensure that MPD does the same. And as part of this prioritization, we ask the Council to require training of enforcement officials on the application of traffic laws to bicyclists and the proper use of bicycle facilities. And of course, we ask that the procedures for filing crash reports be made clearly applicable to bicycle and pedestrian crashes, and that injury victims always be given full opportunity to contribute to police reports before they are finalized. In your legislative capacity, we ask that you begin the process of replacing the existing contributory negligence standard with a comparative negligence standard—at least for traffic crashes involving vulnerable roadway users. We thank you for your attention to these important matters of public safety that so greatly impact the transportation choices made by residents and visitors to the District, and we look forward to seeing systemic improvements that will further encourage cycling and walking as safe means of healthy, affordable, sustainable transportation.
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