Does The Fourth Amendment Apply To Us?

 

Seven years ago, I became one of many cyclists subjected to “phantom law syndrome:” A police officer pulled me over, claiming that I violated a law that didn’t exist. Whether he mistakenly believed the law existed (like the driver who claimed that I shouldn’t be driving on “her” street because a nearby street had a bike lane) or simply made it up, I hadn’t, in any case, violated it!

I got to thinking about that incident when I heard about another cyclist whom the police stopped.

Nearly a decade ago, Lance Rodriguez, then 20 years old, was riding his bike in Far Rockaway—a neighborhood I often ride through.  A passing cop thought he saw something “bulky” in Lance’s pants. (Make what you will of that statement. I won’t judge you for having a dirty mind!) To be fair, that “bulky” thing was indeed a gun. 

One thing was arguably unfair:  Rodriguez was arrested and served two years in prison.  In contrast, Bernhard Goetz shot four young Black men whom he claimed were trying to rob him. One was paralyzed. Goetz served eight months of a one-year sentence for possessing an illegal gun, but was acquitted of the attempted murder, assault and reckless endangerment charges.

Another unfair aspect of Rodriguez’s arrest and incarceration, according Hannah Kon, it is that they probably wouldn’t have happened had he been driving a car, or in some other space. Not to mention that, according to Kon—who represented him in his appeal—his imprisonment disrupted the career he was starting as a chef.

A majority of judges on the Court of Appeals agreed with Rodriguez’s contention that his Fourth Amendment rights (to not be searched without “probable cause”) were not respected because, in essence, he was more exposed and vulnerable to force on his bicycle than he would’ve been in a car.

The minority of judges who voted against the decision claim that it will keep police from conducting the searches that are sometimes necessary in order to prevent crime. Kon disagrees:  “Police can still pull over anyone on the road who’s violating a traffic law.  Including cyclists,” she noted. “They can pull over anyone on the road who they reasonably suspect who has committed or is about to commit a crime. The decision doesn’t change any of that.”

The decision—or more precisely, Rodriguez’s arrest and incarceration beg the questions of what “probable cause” is—and whether it means something different for cyclists from what it means for drivers or—dare I say it—for white or non-white cyclists. Or, more to the point, will police officers continue to find “probable cause” on cyclists—especially those of us of color—because they can, because we’re more exposed and vulnerable? 

Oh, and will “probable cause” continue to include alleged violations of phantom laws?

What Is A Bike—Or Bike Lane?

When asked to define “film,” the director Jean-Luc Godard replied, “truth at 24 frames per second.”

Would that New York City’s Department of Transportation would define “bike” so clearly! Then again, if the DOT would, would the city’s Police Department enforce any policy about who and what could be in a bike lane.

The cynic in me says that my question is rhetorical: Just about anyone who pedals a non-motorized bike or walks in a bike-ped lane would answer with an emphatic, “Are you kidding?”

Too many of this city’s bike lanes (and I almost) have been overrun with two-wheeled contraptions that have no pedal assist and that run by a twist of the driver’s wrist.  They, apparently, are lumped in with electric-assisted pedal bikes because they’re sold by the same dealerships.

Now the DOT wants to expand the definition of a commercial e-bike to 48 inches (122 cm) from the current 36 inches (91.4 cm) and “allow” a “maximum” speed of 20 mph (32 kph), which current e-bike riders routinely exceed.

Those behemoths would be even bigger than the delivery “bikes” UPS is trialing on city streets—and weigh 500 pounds (227 kg.).  Oh, and the “bikes” have four wheels.

In other words, they would be as wide as most bike lanes—which would effectively block everyone else—and, with their volume, mass and four wheels, could build enough momentum to maim or kill cyclists.

If such vehicles are allowed to use the lanes, are they still “bike” lanes?

A Bike Lane Bounty?

 A couple of weeks ago, I was riding northbound on the Crescent Street bike lane.  Someone steered a sports car of some kind—tuned to make as much noise and be as generally obnoxious as possible—pulled into the bike lane.  I avoided doing a flip on that car’s hood only by hopping into the sidwalk.

Another driver, in a pickup truck that looked like it was actually being used for the kind of work done by people in overalls, rolled down his window and yelled, “You outta get that piece’a shit’s license numba!”

I didn’t.  But it occurred to me, later, that I should take that guy’s advice the next time I see someone blocking a lane.

Doing such a thing would definitely be worthwhile if cycling advocates in Ann Arbor, Michigan have their way.

They are proposing something that is under consideration here in New York:  a bounty.  It would be a percentage of the fines collected from scofflaw drivers.

I am definitely in favor of the idea, at least in principle. But I wonder how aggressive either city would be about going after such drivers:  More than a few I’ve encountered were police officers having a cup of coffee or watching videos that, shall we say, aren’t job-related.

Now, I understand if cops, firefighters or first responders need to use the lanes in actual emergencies. But I object to anyone just hanging out in them, or waiting for fares or passengers.

I also wonder whether either city would be as aggressive in collecting fines or disbursing whatever percentage of them as they are about ticketing cyclists, especially if they’re darker than I am.

Yes, We Are Asking For Trouble--As She Defines It

Bicycling has heightened my sense of social justice, I believe.  Perhaps that has to do with the fact that cyclists come from literally all parts of society and ride for all sorts of reasons, whether out of necessity, for pleasure or fitness, or to make a statement.  

Likewise, being a transgender woman has, I believe, sensitized me to what some other opressed groups of people endure.  When I talk to Black people or read their accounts of being told that they're "whining" or "exaggerating" when they related the micro- and macro-aggressions they endure--or, worse, are told, openly or implicitly, that they were "looking for trouble" when they complained or "brought it on themselves" for not being, in essence, one of the "good ones"--I at least empathise with them.

In other words, I know what it's like to be told that you're to blame for whatever happens to you because you are what you are by people who would never be held to account for their indiscretions, let alone misdeeds.  To wit:   Someone can drive while texting, or gun through a red light, but the cyclist that driver hits or runs over will be blamed for the "accident."

And now we learn that on "Britain's Got Talent," English men and women have the opportunity to show that they have just as much talent as folks on the other side of the pond for clueless meanness or mean cluelessness.  Amanda Holden, who seems to be Albion's answer to one of the Kardashians (i.e., she has no talent, at least none I can discern, save for self-promotion) is a judge of BGT.  That gives her a platform for making all sorts of smug, ridiculous and simply toxic pronouncements.  

What pearl of wisdom did she impart to the world?  This:  Cyclists who wear cameras are "asking for trouble."

Let's follow the logic of her dictum:

Drivers who use dashcams are looking for trouble.

Blacks, Hispanics, Asians, non-heterosexual, non-cisgender people who record their job interviews or encounters with law enforcement or other authorities are "asking for trouble."

But people who drive intoxicated, distracted or too fast--or break some other law.  Naah, they're fine.  So are cops who lie or interviewers who tell qualified members of minority groups, "We don't feel you would be a good fit with the culture of this organization."

Yeah, we're all "asking for trouble" because to folks like Ms. Holden, people like us having the same rights as hers, and geting the same respect as human beings is "trouble," indeed!

 

Just a reminder why I wear mine @AmandaHolden @theJeremyVine. Go on, tell me it was me asking for it. 🤪 pic.twitter.com/mswxOBnbFN

— Wayne (@waynebago1) June 5, 2022

Bike Lane Mayhem: Just Don't Yell At The Cops.

I ride the bike lane on Crescent Street in Astoria only because it passes directly in front of my apartment--and I use it only to get home or to a street that will take me wherever I'm going.  

In that sense, the Crescent Street lane is actually better than some:  It not only takes me to my apartment; it also provides a direct connection between two major bridges with bike lanes: the Triborough/RFK and Queensborough/59th Street.  

For a while, I was crossing the Triborough almost every day to work, and often use it for rides to points north, including Connecticut.  But I take the Queensborough/59th Street only if I'm going to someplace within a few blocks of the Manhattan side.  If I'm going to Midtown or downtown Manhattan, I prefer to pedal into Brooklyn and cross the Williamsburg or Manhattan Bridges.  

The reason I like those bridges better is that the bike lanes are relatively wide and accessible.  The Queensborough/59th Street Bridge, on the other hand, is--like the Crescent Street lane--narrow.  How narrow?  Well, I've come within a chain link width of brushing, or being brushed by, cyclists traveling in the opposite direction.  

That problem has been exacerbated by motorized bikes and scooters.  I was under the impression that they're supposed to be limited to a maximum speed of 40 kph (about 25 mph).  But I've seen more than a few that were traveling well above that speed.  And I have seen many more of them than cyclists run red lights, make careless turns and sideswipe cyclists and pedestrians.  

Photo by Scott Gries--Getty Images

I know I'm not the only one who's noticed.  Christopher Ketcham said as much yesterday, in a New York Daily News guest editorial.  He also points out something I've mentioned:  It's illegal to operate those motorized vehicles in bike lanes.  People do it; they endanger others; cops see it and do nothing.

Ketcham described such a scenario of which he had to be a part.  Someone riding a motorized bike nearly knocked him off his bike on the Manhattan Bridge Lane.  When he stopped to complain to the cops sitting on the complain to two cops stationed on the Manhattan side, one of them said, "We're here for the bikes."

So that officer admitted what many of us know:  the police come after us because we're easy prey--and because, as former Transportation Alternatives head Charlie Komanoff said, "Cycling is everything cops are acculturated to despise:  urban, improvisatory and joyous rather than suburban, rulebook and buttoned-up."  I have noticed the hostility he and Ketcham describe even in cops who patrol on bicycles: I suspect that none of them ride when they're off the clock.

Some might say that Ketcham, Komanoff and I are paranoid or "not seeing the whole picture."  Well, if we can't see from the proverbial 30,000 feet, we certainly can look through the wide-angle lens of statistics:  In 2019, the NYPD handed cyclists 35,000 tickets for all sorts of infractions, from not having bells (more about that in a moment) to running red lights (even when, as I have described, crossing at the red light is safer for the cyclist and drivers). Truck drivers received 400 fewer tickets, although there are ten times as many trucks as bicycles on New York City streets.

When Ketcham complained to the cops at the foot of the Manhattan Bridge, they gave him a $98 ticket--for not having a bell and, allegedly, for yelling at the officers, according to the "Description/Narrative" portion of the ticket.  

I wonder how many folks driving motorized bikes were ticketed for riding illegally in bike lanes (or on sidewalks), sideswiping cyclists and pedestrians--or yelling at police officers.