|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, pedals her bicycle across the most dangerous half-mile stretch of roadway facing cyclists in the City of New Orleans: the St. Claude Avenue drawbridge spanning the Industrial Canal in the Lower 9th Ward. The risky ride is part of her long bicycle commute and ferry ride from her home near the bridge to her job in Algiers, across the Mississippi River.
For Kopelovitch and hundreds of others who bicycle or walk across the 96-year old bridge and its narrow approaches there is little choice. The bridge is one of only two bridges crossing the canal in that part of the city. The other is a high rise bridge even more perilous than the St. Claude bridge and is too far out of the way to be useful to the car-less population using the St. Claude bridge.
One morning last August (2014), Kopelovitch was pulled over and ticketed for impeding the flow of traffic after a NOPD squad car followed her across the bridge as she bicycled to work. On the citation were also violations for not wearing a helmet and not having a registration on her bicycle. If found guilty to all three she faced over $450 in fines. As if bicycling across the busy bridge were not worrying enough she now had two new problems: it's illegal and expensive.
But the French-born cyclist knew her ride across the bridge was legal. 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 BikeLaw.com, a nationwide network of attorneys representing bicyclists in court. I interviewed Thomas, April 21, 2015 about their day in court.
Bridge serves as major traffic artery
At the bridge, traffic on St. Claude Avenue (LA 46), a major arterial highway connecting the high rise office towers and hotels of downtown New Orleans with historic working class neighborhoods downriver, is funneled into four narrow lanes, two lanes in each direction. There are no shoulders. Thundering fleets of tanker trucks and other big rigs servicing chemical plants and other heavy industries lining the Mississippi River in St. Bernard Parish, are a big part of the traffic mix on the busy 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, the next minute empty roadway. On the bridge proper there is about a 100 feet of steel grate patched with numerous thick plates. It's a white-knuckle experience, cyclists say, sharing the bridge's slender lanes with the noisy, rumbling stream of commercial truck traffic, cars and buses often passing a cyclist with just inches to spare.
(A state law prohibits traffic from passing a bicyclist closer than three feet)
Bridge is heavily used by non-motorized traffic too
Despite the risks, Kopelovitch is not alone in making the dangerous bridge crossing part of her daily ride. In 2012, a two-day survey by the University of New Orleans found about 500 pedestrians and cyclists crossed the bridge. Many using the bridge live in an area devastated by flooding when levees along the canal were breached during Hurricane Katrina. That was nearly ten years ago but the Lower 9th Ward, that part of town down river from the Industrial Canal, has been slow to recover, increasing the reliance residents there have on walking or cycling for transportation. About half of the residents living in neighborhoods within a five mile radius of the bridge do not have cars, another post-Katrina study concluded.
(A three-foot wide walkway flanks the bridge. The elevated approaches to the bridge have no walkway. Pedestrians approach the bridge ground level to the levees containing the canal then ascend several flights of narrow stairs to cross over the canal on the bridge. They then descend stairs to ground level once on the other side.)
In 2008, St. Claude Avenue became the first road in the city to get a bicycle lane. The lane, five feet wide and marked by a thick white line on the right side of the right traffic lane, runs from from Elysian Fields Avenue downriver three miles to the St. Bernard Parish line. Traffic lanes on the narrow bridge are not wide enough to stripe a bicycle lane so "sharrows," thick white arrows, are painted on the road surface to warn drivers of cyclists sharing the lane with them.
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. One of the few traffic court defendants to have a lawyer, Kopelovitch met with the city attorney to determine how she would plead to the three charges.
City attorneys meet with traffic court defendants prior to pleading before the judge to streamline the day's court proceedings and 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 drop the charges altogether.
For some reason, Kopelovitch's session with the city attorney was tense from the beginning, Thomas said. It took a computer search of Louisiana law to convince the city attorney there was no law requiring adult bicyclists to wear a helmet, Thomas said. (Children aged 14 and younger, on the other hand, must wear a helmet according to state law.)
However, Kopelovitch was still on the hook for over $300 for the remaining two violations. 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 him incredulously and said her bicycle did not have a seat belt, how could she be guilty of not wearing one?
The plucky Kopelovitch dug in her heels. She worried that if she let the impeding traffic violation stand, she, or any other cyclist, could be ticketed for just bicycling across the bridge. And riding that bridge is how she gets to work everyday, there were just not any other options, Thomas said.
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.
In heavy urban traffic, when riding a narrow road or street, experienced cyclists will often "take the lane," riding near the center of the lane, for short distances, preventing motorists from trying to squeeze by when there is not room to pass safely. The strategy is considered by some in the legal community to be "as far to the right as practicable" considering a cyclist pinned to the right white line by a solid stream of traffic with no room for error by either the cyclists or the passing traffic, is at higher risk of being killed or badly injured by passing, speeding motorists than a cyclist riding where a motorized vehicle would drive--in the middle of the lane.
But a bicyclist who "takes the lane," riding much slower than the motorized traffic, can cause a buildup of traffic as drivers are unable to pass the slow moving rider. However, when the roadway widens or a shoulder or bikeway begins, the rider moves back to the right, out of the center of the lane and normal traffic flow resumes.
Aware of the bad PR "taking a lane" can create with motorists, conscientious riders take a lane only as a last resort in situations where road conditions present a real threat to the rider. Riders return to the right side of the road as quickly as possible when conditions permit.
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 and that the only option was to go before the judge and plead not guilty to the remaining two violations on the ticket leaving the verdict to the judge.
"The city attorney was was not going to let her walk away and she was not going to plead to anything," Thomas said.
As 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, but that he would press for a guilty verdict on the no bicycle registration charge--a fine of $154.
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.
"Let's say you lose on pulling her over for impeding the flow of traffic," Thomas said he told the city attorney in the few minutes before court was to begin. "Then she shouldn't have been pulled over in the first place. It was after the officer pulled her over that he discovered she had no bicycle registration sticker. How else would the officer have known she didn't have her bicycle registered? This is a violation of her Fourth Amendment rights. He didn't pull her over because her bicycle wasn't registered," Thomas said.
The evidence that her bicycle was not registered--the officer did not see that there was no bike registration sticker until after Kopelovitch was stopped--was inadmissible in court because the officer's discovery was made after an illegal stop, Thomas argued. So the officer had no proof to present in court that the bicycle was not registered.
The legal doctrine used by Thomas is referred to in the U.S. by the legal metaphor "poisoned fruit from a poisoned tree," and 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 flashing peace signs with both hands.
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.
-30-Note: Since this post first appeared May 11, 2015, it has been edited numerous times for clarity. The facts were not changed.