Written testimony of Chuck Thies Submitted to the D.C.

Council Committee on the Judiciary 2 November 2011 Following outrage in the bicycling community over a YouTube video1 depicting a biker being harassed and then struck by a pick-up truck, nine D.C. Council members cointroduced the "Assault of Bicyclist Prevention Act of 2011." Outcry over the video and other reports of harassment suffered by cyclists is understandable. However, altering our legal system in the manner sought by cycling advocacy groups such as the Washington Area Bicyclist Association (WABA) is not the solution. In the District of Columbia it is already illegal to use a vehicle to harass and assault bicyclists. It is also illegal to use a vehicle to harass and assault pedestrians or motorists. You can go to jail for such behavior. You can also be sued. WABA says2 current "criminal law fails to address the behavior because the officer was not present." If that was true, then someone murdered outside the presence of a police officer would be in the clear, right? WABA also says the "proposed law creates a civil right of action for an assaulted cyclist." There already exists a "civil right of action" available to anyone harmed by another person in the District, whether they are riding a bike or flying a kite. If someone who does not like your kite punches you in the face, you can sue the assaulter for medical expenses, lost wages and punitive damages. The Assault of Bicyclist Prevention Act goes so far as to trump a pillar of our legal system called the American Rule3. If written into law, the act would require a defendant who loses in civil court to pay the plaintiff's legal fees. Such a law would put bicyclists in an exceptional class among civil litigants in the District. Under the WABA proposal if a motorist assaults me as a pedestrian and you on a bike, I pay my attorney but the motorist pays yours. Across the hall in another courtroom, plaintiffs seeking a wrongful death award would pay their own legal fees, while the cyclist has his paid by a defendant. Does that seem fair?

Long-standing legal precedent has established the practice whereby plaintiffs and defendants pay their own legal fees. Only in rare or extraordinary circumstances does a plaintiff have the right to recover legal fees from a defendant. If an exception is granted for cyclists, it wont be long before all plaintiffs in the District seek --and in a fair system would be entitled to-- the same status. Instead of upending our legal system, the D.C. Council needs to have a frank conversation with representatives from the bicycling community and explain to them that existing laws, civil and criminal, already address harassment, assault and other forms of violence perpetrated on bicyclists by motor vehicle operators. No one questions the dangers associated with riding a bike in traffic. Crossing the street as a pedestrian is also dangerous. If someone threatens, harasses or assaults any individual no matter if they are bicycling, walking or on a pogo stick there are legal consequences, some of which can cost the perpetrators a hefty price and possibly time in prison. Yes, the behavior of the driver in the YouTube video is reprehensible. But no, we do not need new laws that create artificial incentive for lawsuits and do nothing to further protect people. 1 http://youtu.be/FQ7FSSzKkx8 2 http://www.waba.org/advocacy/anti-assault.php 3 http://www.justice.gov/usao/eousa/foia_reading_room/usam/title4/civ00220.htm