This article is a follow-up report to “Dangerous Neighborhood Cranks And What To Do About Them”, which described the background and initiation of prosecution of a motorist who heckled bicyclists for years on the road near his house in rural west Salem. He lived on a popular ride and repeatedly used his horn and the bulk of his vehicle to crowd and annoy bicyclists. Sometimes his tactics were alarming and dangerous, particularly when he would drive up behind a bicyclist and then, with his vehicle directly behind the rider, suddenly lay on his horn, ruining an otherwise pleasant and lawful riding experience.
In July 2007, the “Red Pickup Guy” was finally prosecuted in a “bench trial” (in front of a judge) in Polk County, Oregon. While he was convicted, the bulk of the more serious charges against him were dismissed by the judge. Nevertheless, he was found guilty of following too closely and illegal use of sound equipment and the judge imposed the maximum fine of more than $500.00 Thus, after a criminal prosecution that took one year to get to trial, a minor legal victory was achieved, but a major organizational and public safety victory was also achieved, in that: there have been no incidents since the Red Pick-Up Guy was charged last year; the prosecution averted both alarming a bicyclist who then crashes, or possible violence if an angry bicyclist decided to pull the Red Pick-Up Guy out through the drivers window of the Red Pick-Up by his ear; the sheriff’s department and District Attorney’s office were sensitized to the problem of rural harassment of bicyclists; and the Salem Bicycle Club worked together to create a peaceful and lawful solution to a long-term problem.
However, the lessons we learned in pursuing this case were important and anyone considering prosecution of a harassing motorist would be well advised to take the “long haul” approach and expect to have to cajole, manage, persuade, monitor and express appreciation for all positive contributors throughout the process
WHAT WE LEARNED:
1. Do not expect law enforcement to eagerly embrace the idea of a prosecution of harassing motorists.
Our letter to the district attorney is contained in the companion article referenced above; it was designed to place the facts before the authorities, but also to provide some polite pressure to take action. In this case, we were fortunate enough to have the district attorney’s office respond in a favorable way and assign a deputy district attorney who worked very hard on our behalf. However, motorist harassment of bicyclists should not be taken to the criminal justice system unless it is repeated, aggravated and dangerous. Harassment of bicyclists which has not yet resulted in any injury does not seem so serious to prosecutors when one realizes that district attorneys’ offices must deal with violent felonies, sex offenses and property crimes by repeat offenders on a daily basis. We felt that proceeding in the name of the Salem Bicycle Club lent credibility to our effort and we were also fortunate that long-time Salem bicyclist Grace McCabe and Doug Parrow were willing to shepherd our case.
2. Organize the victims so that the potential prosecutor is not presented with an unorganized mess of a case.
Someone needs to take charge of coordinating the case for the victims and witnesses. In our case, Grace McCabe sent out innumerable e-mails, summarized potential witness testimony and served as a go-between for the district attorney’s office.
3. Be prepared for delay.
It took one year for our case to go to trial. During that time there were multiple trial dates and the eight prosecution witnesses (at least six of whom were former victims); all had to juggle vacation and work schedules to be prepared to testify each time a new trial date was set. Because a defendant will likely either retain or be appointed a criminal defense lawyer, it is probable that delay will be used as a tool to frustrate the prosecution. Interestingly, in the most recent case, the criminal defense lawyer likely advised his client to waive a jury trial and proceed with a judge trial, probably to avoid the disgust most lay people would have with the behavior by the defendant. This tactic was a smart move because the trial judge was troubled by the level of evidence on recklessness and criminal intent, acquitting the defendant on eight of the ten charges, which included menacing, reckless driving, and disorderly conduct. The elements of these crimes are contained in the section in Pedal Power covering motorist harassment.
4. Don’t mourn, organize!
While it may be frustrating (or maddening) to serve as a witness or victim in a misdemeanor criminal prosecution, participation at this level in the criminal justice system is a good civics lesson for anyone who begrudges their state tax payments. Oregon police, judges and district attorneys’ offices are inundated with criminal cases. Tax “reform” measures have eroded the tax base to such an extent that Oregon’s court houses are overflowing with criminal cases in search of a disposition. Further, post-trial supervision is greatly overtaxed by the sheer numbers of criminal defendants and one should expect that the process for the victim will feel somewhat akin to being a piece of luggage in a trans-continental air shipment that has been diverted to a slow passenger train. The level of proof in a criminal case is beyond a reasonable doubt and if at the end of the trial, there is not a conviction on every charge, one should not conclude that the prosecution has been a failure; instead, bear in mind that the deterrent effect of a criminal prosecution has a great impact on the person forced to answer to criminal charges. Further, if there is some conviction, even on a lesser charge, the educational potential for everyone who comes into contact with the bicyclist victims creates a real opportunity to raise consciousness about bicyclists’ rights to safe use of the roadway.
5. Consider the alternative.
If there is a dangerous motorist who is harassing bicyclists or pedestrians in your community, participation in the criminal justice process is a much better alternative than merely avoiding the stomping grounds of the perpetrator or allowing oneself to be provoked into a confrontation. If the area is merely avoided by folks in the know, then it will be the occasional or tourist rider who becomes the next harassment victim, with possible disastrous consequences if a bicyclist is alarmed and runs off of the roadway into a ditch. A confrontation also presents a host of possible negative outcomes, not the least of which is injury or possible criminal charges against the angry bicyclist. In the recent case a number of the harassment victims were quite capable of pulling the offender through his driver’s window by his ear and administering vigilante justice by the side of the road to their heart’s content. However, in each case they avoided the confrontation for good reason. People who behave in a manner in which they harass others with a motor vehicle are folks who have very little left to lose. Getting involved in a confrontation with someone who has little to lose is a dangerous situation for any person; it is just not worth it to risk your life because some idiot wants to express their hostility toward bicycle riders. However, if such a situation does arise, the article “Self-Defense for Bicyclists” is contained on our website located at www.stc-law.com.
6. Use the prosecution as an opportunity to cement ties with law enforcement in your community and to strengthen your bicycle group.
The Salem Bicycle Club worked together to organize and field the prosecution of the Red Pick-Up Guy, eradicating (at least so far) a dangerous menace for area bicyclists. Personal contact with law enforcement representatives cements ties between the bicycle community and law enforcement that will serve riders in the future. Further, a criminal case can provide some organizational catalyst for a bicycle group attempting to obtain greater visibility in the community. Activism can be contagious and we need to create opportunities for folks to join us in defending our right to be on the road.