Failure to respond quickly enough to illegitimate police request to "get off the fucking road" gets teenage bicyclist electrified.
A few months ago, I received a phone call from a
cyclist with an incredible story about an incident in Lawrence County,
Ohio. Because the cyclist-a guy named Tony Patrick-was in need of an
attorney, I hooked him up with Steve Magas, a contributing author to
Bicycling & the Law, and a well-known bicycling attorney in Ohio.
After hearing Tony's story, Steve took his case. More about that later;
first, let me tell you about Tony.
Weekdays, Tony runs his small construction company in Huntington, West
Virginia. Weeknights, and weekends, Tony, a Cat 2 racer, can often be
found hanging out at Jeff's Bike Shop-that is, when he's not out on a
training ride, or racing. And that's not unusual; Jeff's Bike Shop is
the center of a vibrant racing scene in Huntington, the second-largest
city in West Virginia, and the home of Marshall University.
That racing scene means regular training rides, all of which start out
and end up at Jeff's. There's a ride every other day, each geared to a
different set of riders, but the real hammerfest is the Tuesday night
ride. That's the ride where the locals try, as Tony puts it, to hurt
each other over the course of a 23-34 mile route that takes them across
the Ohio River, into the back roads of southern Ohio, before looping
back across the river into Huntington.
And that's how Tony found himself just outside of Chesapeake, Ohio, one
Tuesday night in August of 2008, heading into town to take the bridge
back across to Huntington. Tony was riding with "Ryan," a then-16 year
old nationally-ranked racer with a 4.2 GPA. ["Ryan" is a pseudonym;
I've concealed his identity because he's a minor.]
That night, Tony and Ryan were a little tired from a hard training ride
the night before, so they decided to take the shorter route. Thus, as
they headed into Chesapeake, they were separated from the peloton. Just
outside the town limits, they passed the library. Exactly what happened
from this point forward is the subject of dispute. Both Tony and Ryan
say they were the only two people on the road. But they weren't
alone-in the library parking lot was a Lawrence County Sheriff's
Deputy. Over the course of several interviews for this story, Tony and
Ryan told their side of what happened. The Deputy's account of what
happened is contained in his written report of his encounter with the
two cyclists, and in his later testimony at a hearing before a judge,
nearly five months after the events that occurred on that August
Tony and Ryan
both say that they saw a Sheriff's car in the parking lot, but did not
see anybody in the parking lot. The Deputy had a different story to
tell; in both his written report, and his later testimony before a
judge, he said that when he first encountered Tony and Ryan, he was
approaching them while traveling in the same direction; they were
riding two abreast. He noticed that there were two or more vehicles
following behind him. He reported following the two cyclists at a speed
of about 5-10 miles per hour for about three-fourths of a mile before
it was safe to pass them. He later testified that as he passed the
cyclists, Tony smiled at him; he testified that he shook his head "no"
at Tony, and then, after he had passed the two cyclists, watched in his
rearview mirror to see whether the two cyclists went single file, or if
the other cars were able to pass despite their riding two abreast.
Seeing that neither was the case, he pulled ahead, into the library
parking lot, intending to speak to the cyclists because they were
The Deputy reported that he got out of his vehicle, and as the cyclists
approached, he told Tony to pull over, and that Tony replied "I have
got as much right to the road as anyone else," and continued riding
towards town. The Deputy reported that he then got back in his cruiser,
hit the lights and sirens, and continued to follow the two cyclists,
giving commands over his public address system, and "at times out the
Tony and Ryan both recall it differently; Ryan recalls that they were
riding two abreast, at about 18 - 20 MPH, and had entered the city
limits, where the speed limit is 25 MPH. They heard a car approaching;
Tony called "car back," and they singled up. As Tony tells it:
"We were riding along, and about 300-400 meters beyond the library,
this Sheriff's car suddenly pulled up alongside me and the Deputy
rolled down his window and said 'You guys shouldn't be riding in the
road.' I responded 'We have as much right to be in the road as you do.'"
Now, this is where it gets a little complicated. In West Virginia, as
in many states, the law unequivocally states that, "Every person riding
a bicycle upon a roadway shall be granted all of the rights and shall
be subject to all of the duties applicable to the driver of a
vehicle...." But in Ohio, there is no similar declaration of a
cyclist's rights. Ohio law does define a bicycle as a vehicle, however,
and so a cyclist has all the rights applicable to other vehicle
operators, even if the law doesn't specifically say so. In other words,
Tony and Ryan DID have as much right to be in the road as the Deputy,
even if it's not explicitly spelled out in the law.
Now, this is
where it gets a little complicated. In West Virginia, as in many
states, the law unequivocally states that, "Every person riding a
bicycle upon a roadway shall be granted all of the rights and shall be
subject to all of the duties applicable to the driver of a vehicle...."
But in Ohio, there is no similar declaration of a cyclist's rights.
Ohio law does define a bicycle as a vehicle, however, and so a cyclist
has all the rights applicable to other vehicle operators, even if the
law doesn't specifically say so. In other words, Tony and Ryan DID have
as much right to be in the road as the Deputy, even if it's not
explicitly spelled out in the law.
Nevertheless, despite the fact that under Ohio law the two cyclists had
a legal right to the road, Tony and Ryan both claim that the Deputy
responded to Tony's assertion of that right by yelling "'Get off the
f-king road' several times." Months later, at the hearing, when asked
whether he had used profanity during his encounter with the cyclists,
the Deputy replied "possibly."
Both Tony and Ryan claim that the Deputy then attempted to force them off the road with his cruiser; As Ryan recalls:
"He was trying to force us off the road with his car, but there was
nowhere for us to go. The shoulder was just gravel, and dropped off
into a ditch."
Both Tony and Ryan say that to keep from being run off the road, Tony
quickly pulled ahead while Ryan braked and fell in behind the cruiser.
Ryan says that once he was behind the cruiser, the Deputy slammed on
his brakes, but Ryan evaded the imminent crash by riding around the
cruiser. As Ryan cleared the cruiser, he says the Deputy opened his
door and attempted to body-check him, but missed. Ryan caught up with
Tony but, significantly, Tony says that Ryan didn't tell him what had
just happened; unaware of what had just transpired, Tony continued
riding, with Ryan following behind him. Having failed to run the two
cyclists off the road, the Deputy got back in his car, and raced ahead.
Although he never reported or testified that he attempted to run them off the road, the Deputy did testify that:
"At one point, I get in front of them, I tried to put my car up in park
to jump out of my car at one of them or something, then they both go
around. One goes on this side, the other goes on this side of me. And
they continue on up through there."
In his written report, the Deputy stated that he pursued the cyclists for almost a mile, and that:
"On several occasions the subjects stood up and shaked their butts at me taunting me."
Asked about this, Tony confirms that on occasion, they were standing on
their pedals, and that the Deputy misinterpreted this as taunting. That
misunderstanding aside, the Deputy's observation that the cyclists were
standing on their pedals brings into doubt his observation that they
were traveling at 5-10 MPH. And in fact, as will be seen, the Deputy's
own later testimony would contradict his reported estimation of the
According to Tony, after the Deputy failed to force them off the road,
he raced ahead to the cyclists, and as he caught up with them, hit his
lights; he pulled to their right, in the parking lane, and with a
profanity-laced tirade, yelled that the two cyclists were under arrest.
Tony asked incredulously "What? What are you talking about?" Despite
what he felt was a baffling outburst from the Deputy, Tony says that he
wanted to pull over, but the Sheriff's cruiser was between him and the
shoulder of the road.
At this point, according to Ryan, the Deputy raced ahead 300 meters,
swung his cruiser around sideways across the lane, partway into an auto
sales lot, got out, and assumed a firing stance. Ryan claims that as
the two cyclists approached, the Deputy yelled out, "Stop, or I'll
With the Deputy in a shooting stance, the situation was getting
dangerously out of control, so Tony says that he and Ryan rode up to
the Deputy, intending to stop as he had ordered, "like 'you got me,'"
Tony says. They rolled to a stop. At that moment, Tony says, the Deputy
Fortunately for Tony, the officer was holding a taser, and not a gun,
as Tony at first believed. Only one of the taser's electrodes hit Tony
in the side; he was jolted, but not incapacitated, and he grabbed at
it, yanking it out. Ryan was behind Tony now, out of taser range,
watching in mounting terror as the incident unfolded. With an air of
disbelief at what had just happened, Tony nevertheless maintained his
"Dude, you just shot me with a taser! That was totally uncalled for!"
The deputy had a somewhat different story to tell; he testified that:
"I go around them again, get my car stopped, pull over, get out, pull
my Taser out of the car, tell them...to stop or I was going to tase
them, and then Mr. Patrick tries to cut through the auto parts or auto
According to the Deputy's testimony, he believed that the two cyclists
were attempting to cut through the auto lot to get to the bridge and
escape to West Virginia.
By now, Tony says he was doing his best to defuse a situation that was
rapidly spiraling out of control, but as he explains, the Deputy just
kept making the situation worse. Tony says that after the taser had
failed to have its desired effect, the Deputy pulled out his
telescoping baton, and began swinging at Tony. However, he wasn't
having any more luck with his baton than he did with the taser; Tony
says the baton failed to open fully, so the Deputy kept flailing away
at Tony while trying to grab him and simultaneously attempting to hold
up his pants-which were threatening to drop to the ground with each
swing. The scene was both comical and deadly serious.
At this point, Tony says that he told the Deputy that he was out of
control, and behaving unprofessionally, and that Tony was going to sue.
According to Tony, the Deputy, "should have said 'get on the ground,'
but he never gave me a chance," so Tony did the only thing he could to
protect himself-he raised his bike to block the Deputy's blows, while
telling him "You need to calm down." As Tony explains, he wanted to get
down on the ground to defuse the situation, but doing so, "would have
meant getting the hell beat out of me." Faced with a choice of
defending himself or taking a beating, Tony says "the situation didn't
call for me to get down."
Again, the Deputy has a somewhat different account of what happened, in his report, he wrote:
"I deployed my Tazer on Anthony Patrick and it had little effect. Both
subjects stopped at this point and I gave commands for them to get on
the ground. Both subjects did not. I attempted to grab Patrick and he
pulled away. He then moved away from me and picked up his bike to try
and throw at me or hit me. I pulled my Asp baton and ordered him to put
the bike down. At this time he did."
And then things
went from bad to worse. Sometime during the altercation the Chesapeake,
Ohio police showed up, and as Tony and the Deputy struggled, Tony was
tased again, this time, by the Chesapeake police. According to the
Deputy's report, the tasing occurred as "Patrick lunged at me," while
according to Tony and Ryan, the second tasing occurred as Tony was
resisting the Deputy's attempts to beat him. Unlike the first tasing,
however, this time, the taser connected; as Tony tells it, "I shoot up
on my toes like a ballerina, then fall over like a log." He landed on
his right elbow, and hit his head hard enough to crack his helmet. "If
I hadn't been wearing my helmet," Tony notes, "I would have cracked my
Ryan says that at this point, with Tony now laying on the ground, the
officer tased Tony a third time. In notes he made shortly after the
incident, Ryan says that Tony was tased a total of five times by
Chesapeake Police officers; Tony says we was tased "repeatedly." The
Deputy's report states that:
"He went to the ground and we kept giving him commands to stay down and
he tried to get up and he was Tazed for the second time. He finally
became compliant and he was handcuffed."
Meanwhile, Ryan had been waiting quietly nearby, watching the entire
surreal scene play out before him; now, as the officers were tasing and
cuffing Tony, Ryan tried to call his mother to let her know what was
going on. As he was making the call, somebody shouted "Watch out for
the other guy!" Taking heed of that warning, one officer kicked the
phone out of Ryan's hand, just as he connected with his mother; the
phone went flying, and shattered when it hit the pavement. The officer
then slammed Ryan face-first to the ground and handcuffed him.
At the other end of the connection, Ryan's mother heard him say,
"Mom!...Mom!..." and the sound of sirens in the background, and then
the impact of the phone hitting the pavement, before it shattered and
the connection went dead. Not knowing what had happened, Ryan says she
was absolutely terrified by the call.
Meanwhile, back at the arrest scene, Ryan complained that his handcuffs
were too tight; he says that one of the officers remarked, "You should
have thought of that before being a smart ass." That seemed to be a
common theme with the officers. As Tony recalls, the law enforcement
officers were "extremely unprofessional," making repeated remarks about
"smart asses." Tony says that he informed them that he would be suing,
and one of the officers responded, "We'll see who gets sued."
Tony was then taken to the Lawrence County Sheriff's Office for
processing, but when Ryan informed the officers that he was 16, they
took him to the Chesapeake Police Department, and removed the handcuffs
once he was there. It is still unclear why they didn't book him in
Lawrence County's office.
According to both Tony and Ryan, their bikes--Tony rides a $7,500
Specialized Tarmac SL, Ryan rides a $6,000 AeroCat--were left behind on
the pavement by the departing officers. Despite these allegations of a
total lack of care taken by the law enforcement officers involved, the
bikes weren't stolen; a bystander who recognized Tony called a mutual
friend, and the friend came and got the bikes, and then went to the
police station where Ryan was being held. Ryan's parents showed up soon
Needless to say, they were furious about what had happened to their
son, so, according to Tony, the Deputy took it upon himself to lecture
Ryan's parents about their son:
"Let me tell you what your son is about. I'm on my way to a burglary, and these guys were impeding me from getting there."
Let that sink in for a moment. The Deputy was on his way to a burglary,
but he had time to tase and beat a cyclist because he was "impeding"
the Deputy by riding on the road? That lecture didn't make sense to
Ryan's parents, but the Deputy clarified his statement, explaining that
he was on his way to investigate a burglary that had been called in
hours before, when he was impeded by Tony and Ryan. There were still a
few problems with that story, however.
First, regardless of whether one believes the Deputy's report and
testimony, or Tony's and Ryan's accounts, both sides agree that the
Deputy pulled up alongside them to express his opinion that they should
not be riding in the road. If they were impeding him, how was he able
to pull up alongside them? And if he passed them, as he claims, in what
way were they impeding him from getting to the burglary investigation?
Second, in Ohio, cyclists cannot be in violation of the impeding
traffic statute if they are traveling as fast as they reasonably can.
This principle was first established in a 2001 Ohio case called
Trotwood v. Selz, and was subsequently codified into Ohio law in 2006,
with the addition of a provision that:
"The [judge or jury], in determining whether the vehicle was being
operated at an unreasonably slow speed, shall consider the capabilities
of the vehicle and its operator."
Thus, by the time the Deputy decided to stop Tony and Ryan for impeding
traffic, it had been well-established in Ohio that cyclists who are
traveling at a reasonable speed cannot be cited for impeding traffic.
Although the Deputy would later refer to Trotwood v. Selz during his
testimony, indicating that he had finally been brought up to speed on
Ohio law-by a prosecutor, in all likelihood-it was apparent on the day
of the arrests that the Deputy was completely unfamiliar with the law
as it applies to bicycles, and in fact, he admitted this in his later
"Before this case I was not very familiar with bicycles and just the
controversy between the bicycle situation and the thing and I've
researched it and stuff and, you know, from what I can gather, as long
as they are traveling the speed limit and they're not impeding traffic,
there's not traffic behind them, then they wouldn't be impeding traffic
or if the cars can safely pass them, then they wouldn't be impeding
traffic, and in the case of up north of Troutwood [sic] it actually
goes to the point that the judge is the one to determine who
was-whether or not a bicycle was impeding traffic. So I guess it's
a-you would normally just write a ticket and the judge would decide if
they was impeding traffic. I don't know."
It's important at this point to note that even at the hearing, after he
had done his legal research, the Deputy STILL had the law wrong. In
Ohio, it doesn't matter if cyclists "are traveling the speed limit," or
"if they're not impeding traffic," or "if the cars can safely pass
them." Not one of those conditions the Deputy addressed is the law in
Ohio-in fact, the entire point of the Trotwood v. Selz case, and
subsequent changes to the Ohio code, is that the conditions the Deputy
cites have no bearing in any case of a cyclist or cyclists impeding
traffic. The only legal metric is whether the rider(s) is/are traveling
at a reasonable speed for a cyclist.
Back on the night of Ryan's booking, Tony says that the Deputy informed
Ryan's parents that he didn't know what he was going to charge Ryan
with, but he had to charge him with something, so he sat down with a
copy of the code book and looked for the appropriate statute. For the
next 30 minutes, the Deputy searched for something to charge Ryan with,
but couldn't find anything.
settled on a pair of charges. First, he charged Ryan with "Operating a
bike on the roadway." He also charged Ryan with "Failure to comply with
an order." As the Deputy later explained in his testimony, the problem
was that he wanted to charge the two riders with impeding traffic, but
couldn't find the appropriate law for a bike. This was because he
didn't understand that cyclists are subject to the same laws as other
vehicle operators, and therefore, if they were impeding traffic, they
should have been charged with impeding traffic. Instead, the Deputy
believed that the law required cyclists to obey all traffic rules
applicable to vehicles, and that busting Ryan for "Operating a bike on
the roadway" covered violations of other laws, like impeding traffic.
Ryan says that two weeks later, the prosecutor added an "impeding
traffic" charge to cover the violation that the Deputy thought Ryan had
Meanwhile, at the Lawrence County Sheriff's Office, Tony was also
charged with "Operating a bike on the roadway"; he says that later, as
the prosecutor did with Ryan, an additional charge of "impeding
traffic" was added. Due to the circumstances surrounding the arrest
Tony was also charged with failure to comply with an order, resisting
arrest, attempted assault on an officer and obstructing official
Ryan says that as his trial date approached, the prosecutor offered him
a deal--testify against Tony, and the charges against Ryan would be
dropped. Ryan says that he refused to save himself by "throwing Tony
under the bus," as he puts it. So, with the case against Ryan scheduled
to go to trial, Ryan's attorney filed a motion to dismiss the charges.
Tony's attorney did the same.
In its decision following the hearing on the motion to dismiss Tony's
charges, the Court began by noting that the state had the burden of
proving that the arrest was consistent with the 4th Amendment, but that
the state must only meet that burden by a "preponderance of the
evidence," rather than the higher "beyond a reasonable doubt" standard.
This means that the state would simply have to prove that it was more
likely than not that the arrest was consistent with the 4th Amendment;
this is the easiest burden of proof.
The central question was whether Tony had been impeding traffic. If the
state proved that it was more likely than not that Tony had been
impeding traffic, then the order to pull over was lawful, and the
arrest for failure to comply with that order was also lawful; if that
was the case, the charges would not be dismissed. On the other hand, if
the state failed to prove that Tony had been impeding traffic, then the
order to pull over was not lawful, and the subsequent arrest for
failure to comply was also not lawful, and the charges would be
This meant that the prosecution had to show that Tony was riding at a
speed that was unreasonably slow for a cyclist--a task that proved
impossible, once the Deputy testified that he estimated the cyclists'
speed at 15-20 MPH, but didn't really know how fast they were going,
and admitted that he didn't know what the speed limit on that road is,
within the city limits. There was simply no evidence that the cyclists
had ever impeded traffic, and thus, the Deputy had no reason to stop
the cyclists, and they could not be charged with failure to comply with
his orders. The charges were dismissed.
Later, at the hearing on the motion to dismiss the charges against
Ryan, the prosecutor was once again unable to prove the impeding
traffic charge, and the Court reached the same decision that it reached
following Tony's hearing, dismissing the charges against Ryan.
Now, although these issues are behind Tony and Ryan, for the rest of
us, two issues arising from this incident still remain. First, there's
a widely-held perception that if a law enforcement officer tells you to
pull over, you are required by law to comply with that order, even if
the order itself is unlawful. Second, what should cyclists who find
themselves in similar situations do?
The first issue--whether cyclists must obey the orders of law
enforcement officers--was central to the "motion to dismiss" hearings
for Tony and Ryan. As the Court held, if the cyclist hasn't broken a
traffic law, then the cyclist can't be lawfully arrested, and the order
to pull over is itself unlawful. Therefore, if the order is unlawful,
the cyclist is not required to obey the order, and can't be arrested
for failure to comply. Now, this is the law in Ohio, but it is based on
4th Amendment jurisprudence, so the jurisprudence in other states
should be similar. If somebody knows of contradictory 4th Amendment
jurisprudence in another state, please let me know.
Those legal points aside, there's another point to consider here: Were
Tony and Ryan ever actually ordered to pull over? The Deputy has
testified that he ordered them to pull over, but Tony and Ryan tell a
different story; according to Tony and Ryan, the Deputy told them (1)
"You guys shouldn't be riding in the road; (2) "Get off the f-cking
road"; (3) "You're under arrest"; and (4) "Stop or I'll shoot." If no
order was given, at what point should they have pulled over? When they
were told they shouldn't be riding in the road? When they were told to
get off the road? If they did get off the road, as ordered, what does
that say about their right to the road? Certainly, one could make the
argument that, as a practical matter and all legalities aside, they
should have pulled over when they were told they were under arrest, but
as Tony explains, at that point, they weren't given a chance to pull
And that brings
us to our second issue-what should cyclists who find themselves in
similar situations do? That's not an easy question to answer. In
Bicycling & the Law, I wrote that:
"Gaining the right to the road was the cycling cause of the late
nineteenth century; securing that right will be the cycling cause of
the early twenty-first century."
What happened to Tony and Ryan from the moment the Deputy first decided
to say something to them is a real-world example of the challenge
cyclists face in securing their right to the road. For most of us, I
suspect it's easier to just quietly comply with a law enforcement
officer's misguided attempts to enforce laws that don't exist. Sure, we
know the officer is wrong, but do we really want to go to jail to make
that point, instead of wherever it is we happen to be going at that
The problem is, if everybody acquiesces to a violation of our rights,
do we still have the right? I would argue that unless the right is
exercised, it doesn't exist. Therefore, when a law enforcement officer
is enforcing laws that don't exist, it is incumbent upon us to stand up
for our rights.
But how do we do that without triggering a beatdown and a trip to jail?
I think it will depend upon finding a middle way between disobeying an
officer's order and acquiescing to a violation of your rights. On the
one hand, cyclists shouldn't think that the lesson from Tony and Ryan's
experience is that cyclists can make an on-the-spot decision as to
whether an order is lawful or not, and thus, whether or not an order
should be obeyed. As we saw with Tony and Ryan, if an officer believes
that you are not complying with his orders, that can have potentially
deadly results, even though the officer is wrong. On the other hand,
cyclists shouldn't have to quietly acquiesce to violations of their
rights by law enforcement. Hopefully, law enforcement officers will
familiarize themselves with the laws they are enforcing, and if they
are unsure of the law, have the humility to simply accept that they
don't know what the law is-and then educate themselves on what the law
actually is, before attempting to enforce something that may not, in
fact, be the law. Likewise, cyclists can choose that middle way between
acquiescence and disobeying an order, by stopping when asked, but
standing up for their rights, respectfully but firmly, and accepting
that the price of defending our right to the road may mean accepting a
citation now and beating it in court later.
Now, as I said at the beginning of this story, Tony called me because
he was looking for a lawyer; true to his word, he intended to sue the
arresting officers. And as I said, I hooked him up with Steve Magas, a
well-known Ohio bicycle attorney. Among Steve's many accomplishments in
the practice of law, he was the attorney representing cyclist Steve
Selz, in the Trotwood v. Selz case that established that Ohio cyclists
cannot be in violation of the impeding traffic statute if they are
traveling at a reasonable speed for a cyclist. He was also instrumental
in getting Ohio's "Better Bicycling Bill" passed; this was the bill
that, among other things, codified the Trotwood v. Selz ruling into the
"impeding traffic" statute. Steve has agreed to take Tony's case, and
is currently awaiting a response while investigating a civil action in
the case. With Steve's background in establishing cyclists' right to
the road in Ohio, the case promises to be "arresting."
(Research and drafting provided by Rick Bernardi, J.D.)
Thanks to Digby