May 26, 2016 § 59 Comments
You’ve been buzzed. Worse, you’ve been buzzed and honked at. Worse, you’ve been buzzed and honked at and screamed at. Worse, you’ve been buzzed and honked at and screamed at and flipped off. Worse, you’ve been buzzed and honked at and screamed at and flipped off and had shit thrown at you. Worse, you’ve been buzzed and honked at and screamed at and flipped off and had shit thrown at you and veered into.
“At least I didn’t get hit,” you tell yourself, shaking with terror and rage. “At least I’m still alive.”
You, my friend, are a victim. And not just any old victim. You’re the victim of a crime. In California, what happened to you is a felony and is proscribed by California Penal Code Sec. 245(a)1.
If you’re like me, after the assault you keep riding your bike — occasionally you may go into the police station and try to get them to write a report. They won’t and they don’t. Have you ever wondered why? Have you ever wondered to yourself, “Can I make law enforcement to take me seriously?”
The answer is yes. Before I tell you how to do it, I’m first going to explain why it’s so important that we begin reporting violent crime perpetrated against bicycle riders. This is going to be a long read. I hope you’ve got a comfortable toilet seat.
Reporting is key
The first reason that reporting is crucial is because regardless of what happens when you’ve been assaulted in terms of prosecution, your report may later serve to apprehend, charge, and convict the perpetrator when he does it again. So let’s say it’s your civic duty.
The second reason is that only by reporting violent crime will law enforcement and the communities that employ them begin taking felony assault seriously. Currently it is regarded as “buzzing” or “asshat drivers” or some other mild term of pseudo-endearment that doesn’t have the jail bell ring of “felony,” “crime,” and my personal favorite, “prison.” Words matter. As law enforcement, media, lawyers, and pedal pushers begin dispensing with the word “accident” to describe volitional acts by motorists to harm bicycle riders, we begin to see those acts for what they are: Choices with consequences. And guess what, Mr. Assault With A Deadly Weapon? The consequences for you are not going to be pleasant.
In the same way, by using the language of felony assault, the criminal behavior no longer sounds innocuous. “Some punks buzzed me and hit me with a sandwich” sounds almost funny, especially if you were hungry at the time and it was organic peanut butter. “Some minors committed felony assault” sounds like a very premature end to the college application process.
This shift in seriousness only happens when we use the right words. And the right words must be used where they have to be taken at face value: On a police report. This means that a jurisdiction such as Palos Verdes Estates, which prides itself on its safety — a marketing pitch to rich white and rich Asian families to justify the high real estate prices and to encourage the “right” people to live here — reported only six felony assaults with a deadly weapon in 2015. If a fraction of the cyclists assaulted in 2016 report the crimes committed against them, the number of reports will triple, quadruple, or increase by a factor of ten or more.
Which means you get this headline: “Violent Crime in Palos Verdes Estates Increases 1000% in 2016.”
Nice. Now the city manager and police chief are spending a lot of time networking on Linked-In, Monster, and the Help Wanted section of the classifieds.
Suddenly everyone is paying attention, even the crotchety old shits at the council meetings who think that PVE was invented for them alone and that the public roads are private. Another way of saying it is that we have to play the long game. By piling up the reports we create a history, a record, a stack of statistics. Bureaucrats and politicians may not care about dead and maimed people, but they live and die by statistics.
The third reason is that reporting violent crimes will absolutely result in a handful of prosecutions. It already has. Two specific cases, one of which involved a road-raging cager who hit and beat up a cyclist, and another which involved a pickup trucker who swerved and tried to hit two riders, are currently on the criminal docket in Torrance. As reports continue to be made, some will be referred to prosecution, and prosecuted, and some of those will result in convictions.
You may not like the pace, but that’s called justice. And as word gets out and law enforcement gets more adept at dealing with felony assault with a deadly weapon, i.e. car-on-bike, people will change their behavior. Mrs. Gottaget Juniortoschool will compare how she looked at the PV Pageant of Homes in her Yves-St. Laurent with how she’s going to look in a bright orange jumpsuit and a set of used manacles, and she’s gonna yield.
Finally, a successful prosecution sets you up for civil damages. When someone commits a felony and is convicted, you get to sue them for damages. The cager’s moment of rage becomes years of misery, and at the end of the whole sad story you might even get paid for what you were put through.
So the rationale is simple: Civic duty, engaging law enforcement so that they enforce the law, prosecution of bad people, and money in your pocket (maybe).
Forcing the sluggish hand of the bureaucracy
Most people think that the police are the only ones who can write a police report. They’re wrong. What the police are expert at is NOT writing police reports. The police don’t write thousands of reports a year. Why? Because it’s a lot of work and it leads to more work, which leads to even more work, resulting in the worst of all outcomes, more work.
Although it takes a surprising amount of effort to deter victims from reporting felonies, it takes even more effort to take out a piece of paper, ask a few questions, and then write a comprehensive narrative that addresses the statute of limitations, jurisdiction, criminal intent, the other elements of the crime, and identification of the applicable section(s) of the penal code.
However, not only can you write the police report, you should. No one knows what happened better than you. No one can articulate it better than you. No one remembers the details better than you. And best of all, seated at your computer with plenty of time to think and reconstruct and revise and use the dogdamned spell-check for fuck’s sake, no one can write it better than you.
Procedurally, it’s very simple.
- Write what happened.
- Take it to the police station that has jurisdiction where the assault occurred.
- Tell them you want report a crime and you’ve already written it up for them.
- Have them review it, answer their questions, and hand over the physical evidence (video, photos).
- Make sure they assign a DR Number or a file number and they give it to you.
- Get the name and email and phone number of the detective assigned to the case.
- Go home and email the report to the detective so that you have an electronic trail of having submitted the report.
- You’re done. You’ve just reported your first felony. And now someone is gonna have to work.
Practically, there are a number of obstacles you can run into. The desk officer may say it’s a traffic issue. Politely tell him you’re there to report a crime. Emphasize that it concerns an assault with a deadly weapon. If he resists, ask to speak with the watch commander. The police are obligated by law to take your report. Whether they investigate it, or think it has merit, or plan to refer it for prosecution are wholly unrelated issues. You’re there to report a crime and you’ve done their work for them.
Another issue you may run into is that you didn’t get any identifying information other than a description of the vehicle, i.e. “white pick-up.” Didn’t see the driver, don’t have a license plate number. You can still, and you should still, make a report. Why? Because that driver may be a repeat offender and your record of where-and-what could become evidence at a later date.
You may also think that because it happened last month or last year that it’s too late. There’s often a feeling that if you don’t get the cops there immediately the opportunity is lost. Not so. There’s a three-year statute of limitations in California for felony assault. If you have video of numerous assaults, you can write a report and submit each one, along with copies of the video. Of course this also brings up an important point — your case is much more likely to be investigated if you have video or witness testimony. Still, we reported a felony assault last week with only the victim’s testimony. It may not go far, but the Torrance PD now has a record of this clown and the detective has interviewed the suspects. If they ever kill or maims a bicycle rider, it’s been reported that they have already committed assault with a deadly weapon in the past.
Murders don’t require witnesses and video testimony to be reported as crimes. In fact, lots and lots of crimes never get investigated, much less solved. They are still reported as crimes, though, and they still go on the books. A community drowning in reports of violent crime suddenly comes under the microscope … everyone’s microscope.
You and your club should start thinking about how to formalize a procedure for reporting felony assault committed against cyclists, such as by developing a club clearinghouse for crime reports. Better yet, go through your video archives and pick a few cherries from PV and environs, write up a report or three with video clips, and go submit your reports.
If you do, reports of violent crime on our beloved hill are going to spike quicker than Rubbermaid punch at a frat party.
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Thank you wanky
Thanks for the instructions. Last weekend I caught the guy who buzzed me at the light on topanga and pch, banged on his window and told him about the 3 foot rule……he basically yawned. Now I know what to do!
3-foot rule is an infraction and they can’t be cited unless it’s witnessed by the police officer. Not so with felony assault with a deadly weapon. Write the bastard up.
Thanks for writing this post, this is good information to have. About your comment here, though, what is the legal basis for this claim that an infraction can’t be cited unless it is witnessed by an officer? CVC Section 40300 refers to “arrests for violations of this code without a
warrant for offenses committed in their [the officers’] presence”, but if I’m reading that right then the presence requirement is only for a _warrantless_ arrest. (When an officer pulls you over and cites you they are making a non-custodial warrantless arrest.) If you have good evidence like video footage or witnesses, then can’t the police just obtain a warrant and then issue the citation? It sounds like extra work for the officer but certainly possible.
There’s a code section that says an infraction must be witnessed by a peace officer … will find it laaaater.
Much as we’d sometimes like to throw a water bottle at a miscreant car, bang on or kick the car, etc, could THAT be considered “assault”, as asymmetrical as it sounds?
Would that weaken the cyclist’s claim of “assault”?
I’ve been sorely tempted, at times.
Yes, I think it hurts you. Get mad, get even, but don’t threaten or attempt violence or an “unwanted touching.”
>> As law enforcement, media, lawyers, and pedal pushers begin dispensing with the word “accident” <<
And Blog-bot technicians! Thanks, Seth.
Thank you Seth!
You keep getting better.
Future related topic: when the criminal is a cop.
Thanks, Serge. Next is a piece on how to form a crime reporting clearinghouse in your club or community. 12 months from now is an even bigger piece but please be patient. It’s a long war.
Thanks for this useful primer on how to get it done, Seth! Now, let’s make this happen…
Which means you get this headline: “Violent Crime in Palos Verdes Estates Increases 1000% in 2016.”
They change the definition of the statistic to “Other unimportant noise reported by non-residents we don’t like and refuse to serve: ”
LAPD is excellent at doing exactly this.
Otherwise, thank you for taking the time for posting this. It’s invaluable.
‘“Some minors committed felony assault” sounds like a very premature end to the college application process.’ No chit.
So sad. Such a promising future until he threw a wrench at a bicycle rider.
Thanks – especially for pointing out that these instances are “choices with consequences.” There are no “accidents” here – I really hate that term – whether it involves a bike or not. Drivers choose to drive dangerously, too fast or close, take risky moves, look at their phones, etc,, and sometimes the consequences aren’t so nice. Of course, they are especially not so nice if you’re the victim on a bike! I’m really appreciating all of the legal advice – a bargain at $2.99 a month!
Thanks! The consequences for the bicycle rider are terrible. It will be nice when the cager also has something to look forward to other than an uneventful ride home after ruining someone’s day/life.
Bookmarked – thank you Seth
As a 42 year cyclist, bike racer, avid commuter and an 18 year Police Officer, who gets “buzzed” by vehicles on a daily basis, I agree with the overwhelming majority of the article. And I’ve been stuck many times., so I completely get it…. However, “Intent”, is the most important element of 245 (a)(1) PC. If a person “intentionally” attempts to “strike” you, it’s not called “buzzing” it’s called ADW with a vehicle (Assault with a Dangerous Weapon). Two very separate things, albeit not necessarily to us when we are out on the road, and are the ones getting “buzzed” by irresponsible or malicious drivers. And yes, if it’s clearly intentional and falls under ADW, you need to REPORT IT, so Law Enforcement can investigate it, and take appropriate lawful action. But, people need to be cautious about using the term buzzing. And again, if you have video evidence, that will be crucial to the case, please get it to the Police. As for Police, citing someone, based on video of a traffic infraction (not including ADW) as of yet, there is no Caselaw or Precedent that allows Law Enforcement, to cite someone for buzzing, when a like infraction was not committed in the Officers presence. As unsettling as that may be to the overwhelming majority of our fellow cyclists, and contrary to the opining of some cop hating malcontents out there, Cops cannot just cite people based on one persons observation, and don’t systemically make up laws and violate people civil rights.
Now I personally have taken action, on behalf of cyclists, who have reported these Infractions and crimes…. And I am more than happy to educate drivers, in any way that I legally can, when they do not adhere to the rules of the road…. But like Seth wrote, the Police need the help of all of you Citizens out there, and cannot go educate these drivers, or take a criminal ADW report, if they are not reported. Again, as for ADW, the elements of the crime need to be there, and “Intent” is one of them. In some of these instances, a Private Persons Arrest may be applicable. And that will be facilitated through the law enforcement municipality responsible for the jurisdiction of the incident. Remember, in California, Police cannot arrest for a Misdemeanor not committed in their presence, so if a Misd occurs don’t be upset with the officers for not arresting for a crime they didn’t witness. Just request a police report, if a crime was committed. Again, Police cannot do anything about it, if it’s not reported. And please do not take matters into your own hands, thats what you pay the police for, and you don’t want to give the violator or suspect any ammunition, if you’ve been victimized.
Anyway, ride safe, and I will post some laws for cyclists to be cognizant of, both for the cyclists and the drivers. Education is power, and remember, you get further with sugar than you do with salt. Rubber side down…..Rusty
Great information – thanks for sharing this!
You’re welcome. Now let’s use it.
Thanks! Only point I’d add is that video evidence is completely admissible for felonies–but as you point out, not for 3-foot law violations, which are infractions.
What is the difference in the labels for these three crimes, or is there a difference?
(1) Screams a threat at cyclist.
(2) Throws object at cyclist, misses.
(3) Throws object at cyclist, does not miss, no injury.
(1) sounds like assault if the screamer is intending to commit a battery and has the means to do so. So, 94-y/o lady in a wheelchair = no assault. 41-y/o construction worker balling his fists and advancing towards you is assault. (2) is an assault. (3) is a battery.
I’m not a criminal defense lawyer … others might want to weigh in.
Great piece of … writing, Wanky. I’m going to have to wash my hands after reading this.
Seriously, an awesome post.
Thank you for the good work sir!
Great post, extremely helpful.
This article needs to go to every roadie club in the country.
What if I witness assault against another cyclist but I cannot make contact
with him. Would it help for me to make a report in that circumstance?
Yes. Witnesses can report crimes just as can victims. After all, murder victims rarely report the crime.
Me again the posting hog.
I found that if you go to google images and search on “police report template” you will get a plethora of examples to choose from.
Well-written with lots of actionable info. Good job, Seth.
Excellent article (as usual). The sample report was really helpful. Of course, I don’t have access to case law so wouldn’t be able to cite it in a report without the aid of a lawyer.
I wonder if better signage – other than “share the road” would help educate drivers about the rights of bicycles on the road and penalties.
Sharrows don’t educate the driver. I’d like to see more signage explaining repercussions of not sharing the road, etc. When I’m driving on the highway, those signs that tell me about the huge fines I’ll get for speeding slow me down.
They seem to say with the force of signage/law that we are entitled to be there. That’s educational for many.
Is the same reporting mechanism applicable for “dooring”?
I’m sure the great majority of dumbasses that do this are just good ol regular stupid people but if that action was also reportable and triggered a questioning from the PD perhaps next time they would look before heaving the port side door open (with all of their might which I really don’t understand)
Only if intentional, in which case it’s felony battery. Otherwise it’s a violation of the vehicle code and subjects you to a fine. However, on the civil side you can sue the person who doored you for negligence.
Again, great information. Thank you Seth
[…] in the South Bay offers a primer in how and why to file a police report when you’ve been harassed, threatened or assaulted on your bike. Even if the cops really don’t […]
So, Seth has influence even beyond the borders of South Bay and even up in Canada. Last August I was rear-ended by a car part way through a supposed to be mega ride for my 60th birthday. Hit me hard so I blacked out for a few seconds. Landed on the hood, then on the road, cracked my helmet.
Luckily, physical damage was healed within a month. Emotional issues linger.
In this case, police, fire department and ambulance were all present, so no need to report.
This month, I get a call from the Officer who attended the scene. Turns out, he himself had been hit badly by a car while on his motorcycle.
He asked me to appear in court, as the individual who had hit me was contesting the $300.00 ticket and the points on his licence. He was a new driver, so this meant he would lose his licence and when he got it back , would have to start the new driver process from the beginning.
Having read the articles by Seth on this matter, there was no doubt in my mind I would be in court.
I saw the Officer speak to the driver a few times, suggesting it was in his interest to plead guilty, to no avail.
He showed me the police report which I hadn’t seen till then, and in it several witnesses said he was driving erratically before he hit me.
The Officer asked me a few questions about my riding and my experience that day (I’m a ride leader in my club, and coach GranFondo clinics)
The driver then had his turn and tried to blame me. Asked me how long I had ridden before the incident and when I responded that I had already ridden two of the harder mountains here in Vancouver, he suggested I was tired. Nope, I replied, my plan was to do 4 more mountains as part of a 6 mountains for my 6th decade. All the Police officers in the room were suitably impressed.
Judge nailed him. This punk wasn’t even willing to take responsibility.
The police officer thanked me several times for attending and testifying.
That is awesome!
Thank you so much. We are decreasing the deaths here in new Orleans as the cycling community increases. There is little or zero driver education about sharing the road with cyclists. It;s been my first hand experience that each state allocates road and highway funds to educate and raise awareness about road related hazards. Somehow, the system improves, yet cyclists are killed because of lack of attention… or , again,awareness.
Be diligent. Be an advocate.
Thanks! We’re trying.
[…] https://pvcycling.wordpress.com/2016/05/26/report-card/ […]
Now you’ve done it. After reading this post and sharing it with everyone I ride with, I had my first experience with a criminal driver today. (a fast pass on the left followed by a right hook complicated by the fact that we were trying to move left out of a right turn only lane). What choice do I have now but to file a report? I tried right after the ride, but Albuquerque has decided it makes sense to close all its substations on the weekend. Since the driver decided to stop to rant and rave, I managed to get a picture of her and her license plate as well as the name and address of a witness who saw the driver acting like a lunatic. I expect nothing.
[…] Bicycle riders need to report dangerous driving maneuvers (Cycling in the South Bay) […]
What about criminal threats (CPC 422)?