Updated: Scofflaw Behavior Is Not A “Zero Sum Game”


Background Reading:

I can usually make allowances for most of the bloggers who write about scofflaw behavior because they are not jurists. But Rick Berndari, J.D. is a lawyer and yet he persists in propagating the notion that the scofflaw behavior of cyclists is somehow a myth. It is not only not a myth but cyclists are quite proud of the work of Randy Cohen in bringing out of the shadows a long held belief that cyclists need not feel guilty for routinely running red lights or blowing stop signs.

Randy Cohen writes:

Randy Cohen

Randy Cohen

THE rule-breaking cyclist that people decry: that’s me. I routinely run red lights, and so do you. I flout the law when I’m on my bike; you do it when you are on foot, at least if you are like most New Yorkers. My behavior vexes pedestrians, drivers and even some of my fellow cyclists. Similar conduct has stuck cyclists with tickets and court-ordered biking education classes.

But although it is illegal, I believe it is ethical. I’m not so sure about your blithely ambling into the intersection against the light while texting and listening to your iPod and sipping a martini. More or less.

I roll through a red light if and only if no pedestrian is in the crosswalk and no car is in the intersection — that is, if it will not endanger myself or anybody else. To put it another way, I treat red lights and stop signs as if they were yield signs. A fundamental concern of ethics is the effect of our actions on others. My actions harm no one. This moral reasoning may not sway the police officer writing me a ticket, but it would pass the test of Kant’s categorical imperative: I think all cyclists could — and should — ride like me.

I am not anarchic; I heed most traffic laws. I do not ride on the sidewalk (O.K., except for the final 25 feet between the curb cut and my front door, and then with caution). I do not salmon, i.e. ride against traffic. In fact, even my “rolling stops” are legal in some places.

Paul Steely White, the executive director of Transportation Alternatives,an advocacy group of which I am a member, points out that many jurisdictions, Idaho for example, allow cyclists to slow down and roll through stop signs after yielding to pedestrians. Mr. White e-mailed me: “I often say that it is much more important to tune into the pedestrians rather than tune into the lights, largely because peds jaywalk so much!”

If my rule-breaking is ethical and safe (and Idaho-legal), why does it annoy anyone? Perhaps it is because we humans are not good at weighing the dangers we face. If we were, we’d realize that bicycles are a tiny threat; it is cars and trucks that menace us. In the last quarter of 2011, bicyclists in New York City killed no pedestrians and injured 26. During the same period, drivers killed 43 pedestrians and injured 3,607.

Cars also harm us insidiously, in slow motion. Auto emissions exacerbate respiratory problems, erode the facades of buildings, abet global warming. To keep the oil flowing, we make dubious foreign policy decisions. Cars promote sprawl and discourage walking, contributing to obesity and other health problems. And then there’s the noise.

Your Basic Premise Is Incorrect

Mr. Bernardi tries to make the case for his zero sum game this way:

You’ve probably seen “the comment.” It goes something like this. A news article reports that a cyclist was injured, or maybe even killed. The cyclist was following the law. The driver was not. Maybe the driver was just being careless. Maybe the driver was deliberately targeting the cyclist for harassment, or worse.

It doesn’t matter, because “the comment” always follows the same logic: “When cyclists stop breaking the law…” Regardless of what actually happened, regardless of the fact that this particular cyclist was following the law and this particular driver was not, some aggrieved motorist feels obliged to point out that cyclists break the law.

This is the myth of the scofflaw cyclist.

While I loathe the rationale Randy Cohen hands to scofflaw cyclists it is clear that he writes about something that is common enough in the experience of cyclists that even the Executive Director of Transportation Alternatives feels comfortable being quoted. So at least let us all admit once and for all time that there is no myth of the scofflaw cyclist. It is a reality and in fact the norm. If we can do nothing else let us not deceive ourselves or others with a blatant falsehood.

Cyclists routinely run both red lights and blow through stop signs. That is a well-known fact and need not be cause for prevarication.

What is much more important are the implications of this attitude in at least two arenas:

  • When we approach school-age kids how do we instruct them concerning the Rules of the Road? Is it ethical to pass on this “ethical but illegal” argument to them? And if not, then why are we unwilling to offer the reality of cycling behavior to them in a way that does not leave the adults looking like hypocrites?
  • How do we explain to motorists that we are willing to routinely breaks laws that we are counting on them to obey? If a cyclist enters an intersection on a red light (and does the “two step” crossing I have witness many times) he is counting on drivers either behind him or facing him to not also enter the intersection on a red light and try to cross. Would it not be more ethical to allow motorists to mimic cyclist behaviors in regards to both stop lights and stop signs? If not, is it merely because their capacity to cause injury is the limiting factor?

Whether anyone really understands what is being espoused by Randy Cohen rest assured that he is proposing a “zero sum game“. Kids play this whenever they get caught doing something that they know was wrong but do not wish to suffer the consequences. So when they are caught cutting class or smoking in the bathroom they immediately respond with “So did Harry, and you did not give him a detention!” or “I might have cheated on my English test, but Sally cheated on her math test and that is worse than cheating on a silly old English test!

Laws are spider webs through which the big flies pass and the little ones get caught.

— Honore De Balzac

We play this game in most facets of life. We hate it when we are stopped by cop for speeding in a 25 MPH zone and are incensed when a cop misses handing out a ticket to a guy doing 100 MPH on the freeway. It is as if we have collectively decided that only the weakest in society should ever suffer for their transgressions. And of course we do not visualize ourselves as being at the bottom of the food chain.

When Bill Clinton became the target of impeachment the schools around the country had a chance at a “teachable moment“. The phrase “Character Counts” made it to the walls and ceilings of lots of schools in Red States. But frankly regardless of your political views the behavior exhibited by the POTUS is no less important than that exhibited by a 2nd grader.

Cyclists will be watching this coming Thursday as Lance Armstrong does a “mea culpa” on the Oprah Winfrey Show.

In countries like Japan where the culture is more unforgiving of personal failures people of consequence have actually committed ritual suicide (i.e. hara-kiri) as a way of atoning for having done wrong things. In these cultures people who do not play by the rules are not only shaming themselves but their families.

Here in America we have little patience with admitting “wrong-doing“. The culture we have leaves it to your enemies to practice “Gotcha Politics“. If you photograph your penis and Tweet a picture of same to your political aide you will suffer no end of recrimination until you are forced to resign. If you head an agency which is tasked with keeping track of secrets and you are found to have an illicit affair with your biographer, the honorable thing to do is resign. And so that sort of thing happens on a fairly regular basis in Washington, D.C.

But sometimes getting caught does not have consequences. And sometimes openly declaring that your actions are definitely illegal and somehow ethical is the best way to defuse the problem for “your camp“. But take a look at what Randy Cohen does with respect to other laws that he chooses to obey but others do not:

  • He rides illegally on the sidewalk in situations where he feels he can without consequence
  • He denounces the practice of riding against traffic known in common parlance as “salmoning

Now unless you think that Randy Cohen is functioning alone in his insistence that running red lights and blowing stop signs are ethical then please understand that no less a champion of urban cycling than StreetFilms has highlighted his view in a video:

And as if to underscore his defiant stand a second video was produced:

You Are Either Naive Or Misguided

So it is imperative that I say without any hesitation whatsoever that there is no “Myth of the Scofflaw Cyclist” on the reality of same. And let it also be known that the last thing cyclists ever care about is the speed at which they travel. Confined as they are to streets where the speed limit is likely to exceed the physical abilities of all but the fittest riders, breaking the speed limit is seldom an issue.

But where Alley Cat Races are concerned there is no concern over something as trivial as the speed limit or pedestrian safety. And what is even more amazing is that most of these events (at least the ones featured in videos) are being conducted on fixed gear bikes without benefit of brakes.

So please reconsider your judgment regarding cyclist behavior. If we are to raise another generation of cyclists who are law abiding we will have to stop hiding behind the argument that our lawlessness has fewer physical consequences at the statistical level. If even one person dies (and that includes the cyclist himself) as the result of a scofflaw act, that is one person too many.