Cyclists who ride with a camera can provide irrefutable video evidence of criminal near miss incidents: specifically assault and reckless driving. Yet there have been cases where law enforcement, specifically the California Highway Patrol (CHP), refused to charge drivers in criminal near miss incidents because the cyclist could not positively identify the driver in the video or in a photo line-up.
Part of our mission is to identify and remove legal barriers to cycling safety by setting precedents that all cyclists can leverage to educate, and in some cases prosecute, egregiously aggressive drivers, before collisions occur. Cyclists’ video evidence contains a wealth of objective information documenting incidents as the basis for investigations that then lead to positive identifications. Alameda County Assistant District Attorney Paul Hora, who is in charge of the East County Hall of Justice in Dublin, confirmed during our Town Hall panel discussion that a positive driver identification is not required in cyclists’ video evidence.
Our Town Halls are innovative, frank, respectful and public discussions about the legal barriers to cycling safety with law enforcement, district attorneys, drivers and cyclists, all in the same panel discussion, along with audience participation. The topic of having to positively identify the driver in cyclist video evidence arose during our 6/14/18 – Enforcing Laws For Cycling Safety – A Free and Innovative Town Hall.
We began the town hall with our new compilation of criminal near miss videos from Alameda County and Marin County. Be sure to watch both videos in full screen mode. The first compilation video, “Criminal Near Misses and Cyclists’ Perceived Risk,” is eleven minutes long but it will be well worth your time investment.
The second video, “Positive ID Not Required in Cyclist Video Evidence,” is only one minute long. It features one of our panelists, Alameda County Assistant District Attorney Paul Hora, who is in charge of the East County Hall of Justice in Dublin. DA Hora said not to confuse identity with what the driver looks like. He went on to say “you can use lots of evidence to figure out who it was” and to “treat every crime as if the guy was wearing a ski mask, I don’t need to know what his face looks like, I just need to know who he is” and “was he getting gas at the Shell station five minutes before, where there is a crystal clear video of him there, even though the rider didn’t see him when he was getting mowed over by the truck?”
We are concerned that CHP demonstrated twice in our criminal near miss compilation video, in two different counties, that they believe a positive driver identification by the cyclist is required. In the Castro Valley assault by the mini-van, they refused to charge the driver because the cyclist who was cycling away in fear for his life could not identify the driver in a photo-lineup. The van had blacked out windows and was assaulting the cyclist from behind. They also required a photo line-up in the Marin County assault from behind by the Dodge 3500 pickup pulling the massive cattle trailer at over 50 mph. There was a wealth of objective video evidence in both of these incidents that could have lead CHP to interview the owners of the vehicles to determine who was driving at that day and time, or as DA Hora stated: “you can use lots of evidence to figure out who it was.”
Our town halls provide respectful channels of communication that are key to highlighting and removing legal barriers to cycling safety. Cyclists stop cycling because of wide inconsistencies in law enforcement, and academic research states the number one reason cyclists stop riding are near misses.
Has law enforcement ever rejected one of your criminal near miss incident reports because you could not positively identify the driver in your video evidence? Have you ever been forced to identify the driver in a photo line-up even with video evidence?
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Wow, District Attorney Paul Hora nailed it–thank you so very much!!! He is entirely correct. The video is only part of the evidence and the perpetrator does not need to be identified in that single piece of evidence. The CHP, the same people requiring line-ups for identification, established identity in at least 2 of the incidents documented above by interviewing the vehicle owner. They simply confessed! How much simpler can you get? Why did the CHP refuse to call or visit the owners of the orange minivan or the truck/trailer in Marin? They might have established identity with almost no work. The driving behavior was so egregious and dangerous, why not try? This was absolutely the least they could do. I am so frustrated.
The driver in the orange minivan went out of his way to chase down the cyclist and try to hit him a 2nd time. His intentions were obviously malicious because a driver does not illegally cross 2 lanes of traffic, turning left from the right turn lane, just to say hello or offer apologies, especially as he keeps yelling, “Hey asshole, hey asshole”. He made his motivations very clear yet CHP did nothing to protect the public. This driver is a classic repeat offender because he still does not understand the law. The vigilante driver still thinks the cyclist was doing something illegal, so he feels justified going after the next cyclist he sees taking the lane. CHP missed an educational opportunity at the least and contributed to future collision at the worst. Very disappointing.
All well and good, but if investigators refuse to prosecute, all the evidence in the world is useless. It’s even worse because responding officers won’t even give you the time of day when you try to file a report. And even if you get the report, again, they just flat out refuse to prosecute, always placing the blame on the cyclist because the LEO’s misunderstand the bike laws. I have had extended conversations with law enforcement officials trying to educate them about bicycle rights and the need for action, and they just seem to think that the cyclist should just get out of the way. That is my experience.
I have had my hand struck several times while signalling, not unlike in the near miss video. One was caught clearly on video and the driver later identified after followup. No charges.
I had a recent incident where a driver went road rage next to me, pull in front of me and stop and get out, all in front of two motorcycle officers who did nothing but yell at me to get out of the road and off the phone when I was calling 911 while the incident was still happening. Then the responding officer rudely tells me she wasn’t going to let me speak and refuses to take a report. Followup with complaints led nowhere.
Hypocritically, if in the course of a police chase the alleged criminal even so much as slightly swerves vaguely in the direction of an officer they are charged with assault with a deadly weapon. How are any of the incidents in the videos any different?
What needs to happen is for a lawsuit to be brought against law enforcement and the government for their inaction. Their failure to prosecute such dangerous and malicious drivers is tantamount to condoning the behavior of these drivers. Their failure to act is reinforcing the bad behavior and decreasing the safety of our streets for ALL road users.
Hi Brian,
There is a lot we can do, and have done, to hold law enforcement accountable. On our home page you can click the “Legal and Policy Precedents” button to see how we have publicly indicted law enforcement when they have not provided cyclists with equal protection under the law, as documented in our Law Enforcement Does Not Have To “On View” All Incidents post. In that post we publicly published a detailed video deconstruction and analysis, and a report, indicting the handling of the case by CHP and the Alameda County DA.
You can make change by submitting all of your criminal near miss incident reports to our free Incident Management System. Even if law enforcement refuses your incident reports, we never will! By entering your incident reports you will be able to track, analyze, and map them, and identify repeat offenders, before collisions occur. If other cyclists also have a criminal near miss with that driver then their incident reports will establish a pattern of criminally aggressive behavior. A pattern of behavior is very helpful to law enforcement.
Our work is to publicly identify and document the legal barriers to cycling safety, and to remove those barriers. Your incident reports can help us accomplish this critical goal. You can make the difference. Together, we can change how law enforcement treats cyclists, and make the roads safer for all cyclists.
Please feel free to contact us if you need assistance.
Thanks!
It’s a powerful step in the right direction. However, I will repeat until blue in the face, the safest thing for cyclists is more cyclists riding.
Hi Tracy,
Please don’t stop advocating for more cyclists!
However, our research has documented that the number one reason cyclists stop cycling, and others don’t start, is fear of cycling on the roads. We won’t get more cyclists cycling unless we can ensure that law enforcement enforces the laws, and provides cyclists with equal protection under the law.
Cyclists riding with a camera, and submitting criminal near miss incident reports to our free Incident Management System, can make the roads safer for themselves, and for their cycling community. Please help us get more cyclists to ride with cameras and let us know if we can help in your efforts in Fresno.
Thanks!