Selz vs. Trotwood, OH

Taken from "Bicycle 'Right to the Road' Cases" by Fred Oswald as revised 6 Oct 2001 and published on CrankMail

On July 16th, 1999 at 7:20 p.m., Steve Selz was riding on Salem Avenue (state route 49) in Trotwood, Ohio (a suburb of Dayton). Police officer Mary Vance saw Selz riding "in the middle of the lane". She "felt that it could cause a traffic accident" so she issued a citation for "impeding traffic", in alleged violation of §333.04 of the Trotwood ordinances.

Selz was brought to trial on February 7, 2000 in Montgomery County, District Court represented by "Bikelawyer" Steve Magas of Cincinnati (case no. 99-TRD-4409, unreported). At trial, Judge Connie Price found Selz guilty and imposed a fine of $100 plus court costs. Because the case could have set a terrible precedent to deny cyclists access to arterial roads, the Ohio Bicycle Federation decided to help him appeal his conviction and established the Ohio Cyclists' Defense Fund to raise funds for the appeal and for any future such cases. In return, the OBF obtained a fascinating collection of documents about the case including: (1) The Defendant’s Trial Brief. (2) The Trial Transcript (which cost the defense $200). (3) The defense appeal brief. (4) The prosecutor's appeal brief. (5) An article by attorney Magas, "The Selz Case Revisited - an Important Decision for the Nation's Bicycle Operators".

We can learn a great deal from this case. Selz was charged with "impeding traffic" but the real issue beneath the surface was safety. The officer claimed that Selz would have caused an accident and indeed that she prevented the accident by issuing a ticket. She also testified that she had warned Selz a month before about making what was apparently a proper vehicular style left turn.

The prosecutor claimed that since the cyclist could not keep up with other traffic (speed limit 45 mph), he must get off the road any time there were vehicles behind him. Note, this is a five lane road with two lanes for each direction plus a turn lane. Delay to other traffic was minimal. Any delay that does occur is primarily because traffic "platoons" at stop lights. The prosecutor would have banned cyclists from the road anytime other traffic might be affected. He offered a useless concession: Frankly, if it's 2:00 in the morning and there's no traffic around, there's no reason why he can't be on the roadway going eighteen or twenty miles an hour…

Attorney Magas, gave an vigorous defense, arguing eloquently that cyclists are part of traffic and thus meant to be on the road. Mr. Selz wasn't impeding traffic, he was traffic ... So he now becomes one thread in the fabric of traffic, if you will, along with the horses or whoever else -- the Amish buggies, whoever else has a right to use the roadway and is lawfully using the roadway.

The defense had an expert witness to testify about safe and proper cycling methods. However, the prosecutor objected to the testimony and instead offered to "stipulate" that the witness would testify that Selz was "operating his bike in a reasonable fashion". In effect, he conceded that Selz had operated correctly but prevented the defense from exposing the ignorance of the police officer or to educate the court about correct cycling, especially lane position.

Officer Vance made several statements that implied that Selz was operating dangerously. These were not refuted by the defense. [He was riding] In the middle of the roadway and sometimes veered over to the traffic lane, the marked lanes there. Question: Now, is it your testimony that an accident was imminent had you not stopped him? Is that what you're saying? Answer: I believe so. She described an incident a month earlier where he had merged to the turn lane as follows: ... he had traveled across two lanes, the divider lane and then the northbound traffic, and it was like he was oblivious to the other traffic traveling so I pulled him over ... and tried to explain to him why it was so dangerous and to please avoid either driving on Salem Avenue or ride to the side of the road.

Statements by the police officer show that she is ignorant about bicycle operation, and particularly lane position: Yeah, I've ridden a bike. I know enough to ride to the side of the road. You have X amount of feet you're allowed from the curb. She showed a tendency to exaggerate by claiming that following traffic had to stop (rather than just slow) behind Selz when he was moving 14-18 mph and by insisting he was in the middle of the lane rather than in the right tire track. Unfortunately, her ignorance was not pointed out to the court and thus, her testimony was accepted. Thus the judge believed the superstition that cycling on this arterial road is "dangerous" and she ruled Selz guilty.

Officer Vance's testimony made Selz appear reckless and dangerous. I have three theories to explain her claims: (1) It is possible that she was correct that Selz does ride dangerously; but from other testimony, this seems unlikely. (2) The officer is clearly ignorant about cycling and afraid of traffic. This would strongly color her perception and may cause her to "see" things incorrectly. (3) She may realize that she made a mistake but lacks the courage to admit it and instead embellished her testimony to make Selz look bad.

Selz Case Appeal

With the help of the Ohio Cyclists' Defense fund, and pro bono legal services from attorney Magas, Steve Selz appealed his conviction to the Second Appellate District of Ohio (case no. CA 18207). In his appeal brief, attorney Magas set out his case as follows: THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT A BICYCLE OPERATOR CAN BE CONVICTED OF "IMPEDING TRAFFIC" UNDER AN ORDINANCE PROHIBITING A VEHICLE OPERATOR FROM "IMPEDING THE NORMAL AND REASONABLE MOVEMENT OF TRAFFIC" WHERE THE BICYCLE OPERATOR IS TRAVELING AT A NORMAL AND REASONABLE SPEED FOR A BICYCLE RIDER, WHERE THE BICYCLE OPERATOR IS NOT STOPPED OR TRAVELING AT A "REDUCED SPEED" FOR A REASONABLE BICYCLE OPERATOR, AND WHERE TRAVELING AT THE SLOWER SPEED IS "NECESSARY FOR SAFE OPERATION OR TO COMPLY WITH LAW."

Magas give a brief "history of bicycle operation on roadways", including the fact that Bicycle operators played a critical role in the betterment of the nation’s highway system. He described the police officer and prosecutor actions as attempting to banish bicycles from major roads by raising an impossible standard—riding at the 45 mph speed limit. The SOLE reason for issuing the citation was "...his slow speed..."

Magas ignored the police officer's contention that Selz was about to cause an accident. He did not attack the officer's ignorance. He apparently wanted to avoid calling attention to her claims that Selz was riding erratically, "veering toward traffic". Over a defense objection, the court allowed Officer Vance to testify about a prior "warning" which she had given to Appellant. Other than provide Officer Vance with a motive to target Appellant on the day in question, this testimony clearly lacks relevance.

The defense strategy may have invited trouble on the subject of lane position by giving the following comment without discussing the reasons cyclists should sometimes NOT ride at the edge of the road. A bicycle operator’s right to use Ohio’s roadways is clear from the inclusion of bicycles as "vehicles." Bicycles may be operated on the roadways, but must be ridden "as near to the right as practicable."

Magas summarized his primary claim: Clearly, it cannot be seriously disputed that bicycling is encouraged by the State of Ohio and State Legislature and that bicycle operators have a RIGHT to use Ohio’s roadways and a RIGHT to expect some accommodation stemming from physical limitations inherent in the vehicle! Local police authorities cannot simply unilaterally take on "parens patrie" duties out of some vague opinion that operating a bicycle in a particular neighborhood is bad, or dangerous or crazy! Here, the appellant/cyclist was at home in traffic, was riding appropriately and had every right to use the roadway in question. Appellant cannot be BANNED from the road because he was going slow for the Officer’s sensibilities. It is undisputed that he was traveling as fast as he could and traveling at a reasonable speed for a bicyclist!

Magas quoted a revealing statement by the judge followed with an interesting observation about "Parens patriae": "I certainly understand the impassioned defense on this case because I do believe that bicyclists need a place to ride and it is not safe a lot of times to ride it on the streets on 49. I don’t think I’d ride there at 2:00 am, just because of the traffic. I don’t think it’s safe." Then Magas added: Again, this is precisely the sort of "parens patriae" approach that caused cyclists to fight for being included as "vehicle operators" under state law. With all due respect to the court’s opinion, it really does not matter whether the court, the prosecutor or the arresting officer "feels" it is safe. The legislature has already determined that cyclists have the right to use the roadways.

Magas ended by defining "Parens patriae": Curiously, "Parens patriae" originates from the English common law where the King had a royal prerogative to act as guardian to persons with legal disabilities such as infants, idiots and lunacy. Black’s Law Dictionary, 5th Ed., 1003. It is submitted that this "prerogative" does not exist today to give police officers the authority to ban legal behavior they feel contains some element of danger.

The prosecutor changed his strategy for his appeal brief. Rather than continue with the untenable argument that a cyclist must travel at the speed limit or get off the road, he tried to ex post facto accuse Selz of violating the requirement to ride "as near to the right side of the roadway as practicable." He partly succeeded in this duplicity. Here are two of his statements: (1) The lower court, therefore, correctly found that by going at such a slow speed, coupled with driving in the middle of the lane rather than to the right, that the cars behind Defendant/Appellant were forced to stop, thereby unlawfully impeding traffic. (2) For argument purposes only, the City would concede that a different case might be presented to this Court if the testimony by the Officer, or the facts as found by the lower court, were that the Defendant/Appellant was driving as far right in the lane as practicable.

In a 2-1 decision the Second Appellate District of Ohio overturned the trial verdict: ...the judgment of the trial court is Reversed, and the Defendant-Appellant is ordered Discharged. Attorney Magas called the decision "a slamdunk victory for Steven Selz!" While it is certainly a victory, if you read further, it is hardly a slamdunk.

We conclude that a bicyclist is not in violation of the ordinance when he is traveling as fast as he reasonably can. Although Selz may have been in violation of R.C. 4511.55(A), requiring a bicyclist to travel as far as practicable on the right side of the roadway, he was not charged with a violation of that statute. (Note: R.C. refers to Ohio Revised Code.)

The appeals court effectively declared that Selz violated §4511.55: Selz was not charged with the violation of R.C. 4511.55(A). Had he been, the evidence in the record would be sufficient to support a conviction on that charge. There are three serious problems with this statement: (1) Since Selz was not charged with violating §4511.55(A), he did not defend himself against this charge. (2) Worse, his expert witness was not allowed to testify about bicycle technique. (3) The appeals court essentially invited Trotwood to cite Selz again but this time using §4511.55(A). The justices have no business pronouncing a violation of this law because they heard only one side of the dispute and, more importantly, they do not understand the issue.

Another troubling aspect of this case is the dissenting opinion of Judge P.J. Grady: The elements of the necessity defense implicate the greater issue of whether Selz should have been riding his bicycle on Salem Avenue at all under the conditions which then prevailed. Selz, who is a bicycle enthusiast, invokes an absolute right to do that. However, that assumes that other, reasonable alternatives were unavailable to him. It also "trumps" whatever hazard his slow-moving bicycle created for other traffic on the road, which is a legitimate concern of the ordinance. Also, what was reasonable for Selz might not be reasonable for another, less able cyclist, who might claim the same absolute right.

Conclusions:

1. The officer, prosecutor and judges were, and still are, ignorant about cycling technique and safety issues. They were not educated on these matters during the trial.
2. Attorney Magas provided an excellent defense on the overt issue, the right to use the road, although he did not address bicycle safety issues.
3. Magas's pro bono representation and the Ohio Cyclists' Defense Fund of the Ohio Bicycle Federation made the defense possible. Without such help, an ordinary citizen is at a huge disadvantage fighting the deep pockets of city hall.
4. Materials that might have been used to educate the court about lane position include: (a) Section 11-1205a of the Uniform Vehicle Code "Position on Roadway"; (b) An excerpt from p. 63 of the Ohio, Digest of Motor Vehicle Laws that says "Cyclists can travel in the middle of the lane if ... the lane is too narrow to share safely with a motor vehicle."; (c) The Pennsylvania Bicycle Driver's Manual; and (d) John Forester's books Effective Cyclingand Bicycle Transportation.
5. Police and courts assumed that cyclists have no right to delay other traffic for any reason. However, all vehicles delay other traffic at times. The effect of bicycles on traffic is explained in Bicycle Transportation, which shows that cyclist-caused delays are very minor. It might have been wise to remind the court that transportation cyclists do not burn imported oil, or generate greenhouse gasses, ground level ozone, noise or other environmental problems.