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A TROUBLING CASE IN KENTUCKY

By: Steve Magas, May 1, 2014

Happy Bike Month everyone. There is just TOO much to talk about – Radio appearances, crazy City Council actions – criminal motorists… and …well… this one that “hit the fan” this week…

Jessamine County, KY – A single mom, Cherokee Schill, was ticketed for “careless driving” on her 18 mile commute. She started riding her bike to work a year or so ago. Her route takes her along US 27 from Nicholasville to Lexington. This is a busy stretch of 4 lane, 55 mph roadway, but one on which cycling is “lawful” and permitted under Kentucky law.

A ticket or two, as she has received, would have been bad enough. However, the prosecutor of Jessamine County decided to take it a step further. He sought an INJUNCTION BANNING HER FROM RIDING HER BIKE on US 27! [yes, that merits Bold Face/All Caps/Italics in my opinion]

Now, there’s no allegation that she was riding in some crazy manner, weaving in and out, slipping from sidewalk to berm to road, running red lights and riding willy-nilly… No sir -she was doing something even more dastardly… she was riding in a straight line and slowing down the cars!

Yes, friends, riding safely, in a straight line, using front and rear daytime running lights and wearing HiViz clothing is now considered “careless” in Jessamine County, Kentucky -so “careless” that the State has to seek injunctive relief banning you from the road.

Cherokee Schiff Rides to Work

 

 

So what happened? Did she cause a massive pile-up?  Did a school bus full of innocent children crash? ummm… no… there really wasn’t ANY accident – only testimony from a cop who said he “almost” had a wreck “because of” Ms. Schill.

Ms. Schill rides in the “right 1/3″ of the lane – a spot recommended for her by her friend, an LCI from Lexington, KY. If  Kentucky is permitted to prosecute cyclists who take the best and safest lane position, on a road lawfully open to cycling, then we are in for a huge set-back in the bike advocacy world.  If the prosecution can obtain a court order, before trial, banning you from riding then the legal world in KY has been turned on its head.

Aside from the blatant “WTF” response the thought of this prosecutor’s actions engenders, there are some serious constitutional concerns with his attempt to judicially impose a ban of bicycling by Ms. Schill.  The “freedom of movement” and “right to travel” have been found to exist under the United States Constitution.  In Kent v. Dulles, the US Supreme Court described this concept of  “freedom of movement” like this:

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law, that right was emerging at least as early as the Magna Carta. [Footnote 12] Chafee, Three Human Rights in the Constitution of 1787 (1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of valuesSeeCrandall v. Nevada, 6 Wall. 35, 73 U. S. 44Williams v. Fears, 179 U. S. 270179 U. S. 274Edwards v. California, 314 U. S. 160. “Our nation,” wrote Chafee, “has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.”

Now this case, and other constitutional “right to travel” cases, do not involve riding a bicycle on the road. However, this concept of a right to travel, and to use the public ways to travel, is an old one.  Way back in the 90s… the 1890s… the court in Kansas said “Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the ‘law of the road.’

Fortunately, Ms. Schill was able to obtain counsel and showed up in court this week to fight the proposed injunction with counsel and an expert witness. I have not seen the court’s order yet, but am advised that the court did NOT grant the prosecutor’s request for injunctive relief. Thus, Ms. Schill will be permitted to use U.S. 27 on her daily commute from now until the August 2014 trial date!

In 2006, the Ohio Bicycle Federation developed a package of law reforms known as The Better Bicycling Bill. This bill amended several state statutes. Once we managed to get it out of committee it passed unanimously and was signed into law.  One key change was in the section of Ohio law governing the ability of local government to regulate cycling.  Local communities have the power to regulate cycling subject to two provisos:
1. They cannot pass laws that are “fundamentally inconsistent” with state traffic laws and

2. They cannot BAN bicycles from the roads.

I do not believe there is a comparable provision in Kentucky – sounds like KY can use one!

 

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© 2014.

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