Monday, May 11, 2015

Bicyclist on St. Claude Avenue bridge busted for obstructing traffic

St. Claude Avenue Bridge, 9th Ward New Orleans, LA

by Jack Curry Jr. 

       Each school day, twice a day, Laurence Kopelovitch, a 40-something school librarian crosses the narrow and heavily trafficked St. Claude Ave. bridge over the Industrial Canal in New Orleans as part of her bicycle commute and ferry ride to her job in Algiers, across the Mississippi River.
       The French-born cyclist has lots of company.  The area Kopelovitch lives, the Lower 9th Ward, has been slow to recover from the devastating flooding unleashed when the levees along the canal were breached during Hurricane Katrina. That was ten years ago, yet even now many residents there are forced to rely on walking or cycling for transportation as only half of those living within a five-mile radius of of the bridge have cars.  A survey of bicycle/pedestrian traffic on the bridge  by the University of New Orleans in 2012 found about 500 pedestrians and cyclists crossed the bridge the two days of the survey.
       Riding a bicycle across the bridge is considered to be the most dangerous legal half-mile bike ride in the city, cyclists who ride it say.

Bridge is a white-knuckle experience for bicyclists

      Thundering fleets of tanker trucks and other big rigs servicing chemical plants and other heavy industries lining the Mississippi River in St. Bernard Parish barrel across the bridge's narrow lanes.  There is plenty of four-four-wheel traffic too. The bridge is part of LA 46, ( most commonly known at St. Claude Ave.), a major arterial highway connecting workers in the high rise office towers and hotels of downtown New Orleans with their homes in the historic working class neighborhoods downriver.
       In an attempt to make life a little safer for two-wheelers using St. Claude Ave, the first designated bike lane in New Orleans was striped there in 2008.  Three miles long and five feet wide the bicycle lane was striped in between the right traffic lane and the parallel car parking along the curb.
       However at the narrow bridge approaches there is no room for it.  The bike lane stops leaving cyclists to fend for themselves on a bridge just wide enough for car and truck traffic alone.
       Bicycling the bridge's slender lanes with the noisy, rumbling stream of heavy traffic is a white-knuckle experience, cyclists say.   Often trucks, buses and cars pass within just inches of bicyclists riding the bridge despite state law requiring drivers pass a cyclist no closer than three feet.
       Cyclists face other hazards when crossing the 96-year-old-bridge.  Traffic lights at the beginning of each bridge approach send traffic up the approaches and across the bridge in waves: fast and bumper to bumper one minute, empty roadway the next.  At the bridge proper the roadway is a slick, steel grate patched with steel plate, a challenge wet or dry.
         (Pedestrians use a three-foot wide walkway flanking the bridge but not the approaches.  The elevated approaches to the bridge have no walkway.  Pedestrians approach the bridge ground level accessing bridge traffic lanes by climbing several flights of narrow stairs at the levee.  At the steel grating at the center of the bridge is a RTA bus stop and room for a bus to get out of the traffic lanes on the bridge.)
        Kopelovitch accepts the risk and rides her bike near the middle of the right lane, a defensive position veteran cyclists call, "taking the lane.  It forces traffic following the cyclist to move to the left lane to pass. This greatly lessens the chance a cyclist hugging the right side of the road of being hit by a driver trying to squeeze by in the right lane at high speed.  Usually a few irate motorists honking their horns are the only problem.  But one day in August of 2014,  Kopelovitch's  maneuver caught the attention of New Orleans police in a following squad car.

Bicyclist is pulled over by NOPD squad car

      She was pulled over.  Her ride resulted in a citation for impeding the flow of traffic on the bridge and additional charges for not wearing a helmet and not having a registration decal on her bicycle.  If found guilty to all three she faced over $450 in fines. As if bicycling a half mile across the busy bridge with speeding trucks and buses passing within inches were not worrying enough she is now being told it is illegal and could be expensive.   
       She wanted to fight the three charges, to be contested in New Orleans Traffic Court, but felt she needed help.  Her appeal to BikeEasy, a local bicycle advocacy group, was referred to Charlie Thomas, a New Orleans attorney and Louisiana's member of, a nationwide network of attorneys representing bicyclists in court. I interviewed Thomas, April 21, 2015 about their day in court.

Going to traffic court

          Kopelovitch's hearing was the afternoon of October 18, 2014 in Division C of New Orleans Traffic Court, Judge Mark Shea presiding.   Before appearing before the judge  Kopelovitch met with the city at attorney to determine how she would plead to the three charges.  She was one of the few traffic court defendants to have an attorney.
       From the beginning Kopelovitch's session with the city attorney was tense, Thomas said.  An adult bicycling without a helmet is not breaking the law in Louisiana but it took a computer search of Louisiana law to convince the city attorney to remove the charge, Thomas said.  (Children aged 14 and younger, on the other hand, must wear a helmet according to state law.)
        City attorneys meet with traffic court defendants prior to pleading before the judge to streamline the day's court proceedings and, from the city's point of view, to determine the strength of each case.  At these brief sessions the city attorney may offer a defendant a chance to "plea down" violations to lesser charges with smaller fines. Or, in some cases, the city attorney can drop charges altogether.
        Dropping the no helmet charge still left Kopelovitch on the hook for the two remaining violations and total fines of over $300. There are no lesser charges for impeding traffic or not having a bicycle registered with the NOPD.  So the city attorney offered her a deal: plead guilty to not wearing a seat belt--only a $50 fine--and the impeding traffic and no bicycle registration violations would be dropped.  Thomas said she looked at the city attorney incredulously and said her bicycle did not have a seat belt, how could she be guilty of not wearing one?
         Thomas said the plucky Kopelovitch dug in her heels, refusing the offer.  Bicycling on the bridge is how she goes to work every day.  He said she worried that if she let the impeding traffic violation stand she, or any other cyclist, could be ticketed any time the police saw someone bicycling across the bridge.

Bicycling in traffic: It's complicated.

        Cyclists in Louisiana are permitted to ride most all public roadways in the state--the Interstate Highway system is an obvious exception--but the law does not precisely define where on the roadway they must ride.  "As far to the right as practicable," is how the law is written, but Thomas admits that where that is depends on where a judge decides it is.
         Thomas said Kopelovitch explained that she was riding as far to the right as she felt comfortable and that she knows what the laws are.
       "If I was all the way to the right and two trucks were to pass me, there is probably a good chance I would be killed.  The safest thing I could do was take the lane, which I have a right to do," Thomas said Kopelovitch told the city attorney.
        At that point, Thomas said it was clear that Kopelovitch and the city attorney were at an impasse.  The only option was to go before the judge and plead not guilty to the remaining two violations on the ticket and let the judge settle it.
       "The city attorney was was not going to let her walk away and she was not going to plead to anything," Thomas said.
       The two opposing attorneys chatted on their way to the courtroom.  The city attorney admitted that he did not know how all the vehicle laws applied to bicyclists, Thomas said, but would press for a guilty verdict on the no bicycle registration charge--a fine of $154.  The impeding traffic charge was still in play too.

Rescued by the US Constitution

        As court was about to convene and everyone took their places, Thomas suddenly had a thought that might lead the city attorney to drop the no bicycle registration violation.  His argument would hinge on a defense based on the Fourth Amendment of the U.S. Constitution, the so-called "illegal search and seizure" amendment in the Bill of Rights, a defense he learned in law school.
         In the few minutes before court was called into session Thomas continued to discuss the remaining two charges with the city attorney.
        "Let's say you lose on pulling her over for impeding the flow of traffic.  The police should not have stopped her to start with.  She was riding on the bridge legally." Thomas argued. "It was only after the officer pulled her over to charge her with impeding traffic that he saw she had no bicycle registration sticker.  He didn't pull her over because he saw her bicycle wasn't registered, she was pulled over because the cops thought she was impeding traffic, a charge we will prove she was not guilty of.  So, the charge for not registering the bicycle is a violation Fourth Amendment guarantees against illegal searches, " Thomas said.
       Thomas argued the evidence that Kopelovitch's  bicycle was not registered--the cops seeing no registration sticker on the bicycle after the stop--was inadmissible in court because the officer's discovery was made after she was pulled over for what the police thought was a violation; impeding traffic.  In this case the evidence collected after she was stopped (the cop saw no sticker on the bicycle) would not be admissible evidence in court because she was not legally impeding traffic in the first place, Thomas hoped to prove.
       Thomas referred to a legal doctrine known in the U.S. by the metaphor, "poisoned fruit from a poisoned tree." It is described in a Wikipedia entry as "evidence obtained illegally." An illegal stop is considered in the metaphor a "poisoned tree."  Evidence from that illegal stop would also be illegal (generally inadmissible as evidence) just as a poison tree would bear only poison fruit.
       "After I spoke with the city attorney, he discussed it with the cop.  They came back and said they were going to drop all the charges," Thomas said.
       Minutes latter Thomas snapped a picture of a beaming Kopelovitch outside on the Municipal- Traffic Court steps flashing a peace sign.
       Unfortunately not all bicyclists caught in the legal system escape with such a happy ending.  The main issue is money, said Thomas, a native of New Orleans and a bicyclist since his teen years.
       "If she had to pay an attorney by the hour to help her with that, the costs would have been ridiculous," said Thomas, who represented Kopelovitch pro bono largely out of sympathy for her plight. 
         "There is a definite need for legal services at the pro bono level helping bicyclists with issues that they encounter like those Laurence recently faced,"  Thomas said.

Note:  Since this post first appeared May 11, 2015, it has been edited numerous times for clarity.  The facts were not changed.


Anonymous said...

I'm surprised they didn't mention the law regarding Limitations on Passing Bicycles which states that drivers must leave a minimum of three feet between them and the bicyclist.

On lanes which are five feet wide, no matter how far right she was, no motorist would be able to legally pass her anyway.

Anonymous said...

NOLA cops really need an education in Bicycle Law and a perspective from a cyclist. It is dangerous riding out there if you don't take the lane.

I had two different cops tell me to get out of the road. While riding, I informed them that I was completely within my rights to take the lane as there was no bike lane. They drove off without ticketing me and I kept riding. Seemed only to happen during my commute home in rush hour.

Anonymous said...

Just wanted to note that your comment that "the Interstate Highway system is an obvious exception" to legal cycling roadways isn't so obvious to all cyclists. At the very least, there are several states in the West that permit cycling on Interstates.

Justin McMurtry said...

Louisiana state law—specifically, Revised Statues §32:197(A)—does indeed contain the phrase "shall ride as near to the right side of the roadway as practicable", but it also names numerous exceptions to this rule, the most important of which is when the travel lane being used by the bicyclist is "too narrow for a bicycle and a vehicle to travel safely side by side within the lane". In practice, any lane less than 14' wide certainly meets this definition, and many even wider lanes do as well, depending on surface and traffic conditions. Therefore there is no question but that Ms. Kopelovich has every right to use the full travel lane as she did.

I don't understand why you write that bicyclists who know how to ride safely in traffic are averse to using the full lane except as a "last resort". On the contrary, using the full lane is standard operating procedure, as this is precisely what keeps bicyclists as safe as possible on city streets. Doing so maximizes their visibility to other road users as well as their own ability to see and react to what's going on around them. No experienced cyclist will sacrifice his or her own safety merely for the convenience of motorists. Bicyclists on the street do not impede traffic; they ARE traffic.

Anyhow, thanks for writing this post. I'm glad it had a happy ending for Ms. Kopelovich.

Unknown said...

Congratulations to defense attorney Charlie Thomas for a superb performance. I hope the city attorney and police feel chagrined that they wasted tax dollars harassing a law abiding citizen when they should have been working on actual criminals.

Unknown said...

Pretty amazing that the city attorney initially didn't want to drop the helmet violation given that the law clearly does not apply to adults.

Of course offering the seat belt violation is beyond stupid. I can't believe that guy has a job.

Clever way to get out of the registration violation.

The substandard width lane exception in the law should have been mentioned in the article and to the city attorney.

Anonymous said...

I'm the "unknown" who wrote "Congratulations to defense attorney Charlie Thomas." I want to be accountable for my comments, but the web site was not cooperating when I tried a Google sign-in. My name is John Schubert and you can reach me at

jcurryjr said...

Permitting or not permitting cyclists to use Interstate highway shoulders is a complicated issue, I think. Cyclists are permitted on Interstates out west because often the only road connecting Point A with Point B is an Interstate. I have bicycled them. Most have light traffic but there can be lots of debris. Services are limited and can seem very far apart to a touring cyclist. And they are boring. In the east and here in LA Interstates carry heavy traffic and it is generally understood bicycles, pedestrians, horses, anything without a motor is not permitted. There are other options here.

jcurryjr said...

I want to clarify plea bargaining in traffic court. Violations have fixed fines, some high. The city attorney has little power to discount fines. So to expedite things and help defendants out a bit a CA will often allow a defendant to plead guilty to a much cheaper offense. In the story here, the defendant was facing over $300 in fines. If money was the only issue, (it was not here) paying a $50 fine for not wearing a seat belt (ridiculous as it sounds) in exchange for dropping the two remaining charges and fines of over $300 would seem like a pretty charitable deal to many people.