Wednesday, November 10, 2010

deconstructing joe rose

i sometimes wonder if there is some way to find out how many unique hits joe rose actually gets on his blog, "hard drive," on

maybe there is only some small handful of people who actually read the thing, and i am wasting my time monitoring the blog to correct misstatements he makes as he constantly stirs the "cars versus bikes" pot. and if i could somehow confirm this, maybe i could just let it go.

maybe i should just let it go anyway, like television and processed food and the consumerist culture generally.

but here is yet another case in point. a little over a week ago, rose posted what purported to be a reader's question about a supposed uptick in incidents of cyclists "slapping cars with their hands to get a driver's attention when things get tight in traffic."

rose calls this "the impolite and ubiquitous 'yo, i'm here' slap," as though it were a common practice, and as though it would be used in a situation where politeness could be even a marginal concern. the questioner says "i've seen a fight break out. is this legal? what can i do if a bicyclist damages my bmw x5?"

for purposes of discussion, let's suppose this is an actual question from an actual reader, though as a writer i will suggest that there are fairly clear indications that it has at least been edited, if not created from whole cloth, to set up what rose wants to get across.

things get tight. fight breaks out. x5. gimme a break.

rose begins by pretending to identify himself with the cyclist, saying he has been "mightily tempted" to use the technique "when i've encountered a space-case driver while pedaling downtown." not to mention a motorist who crowds you intentionally.

but then he immediately undercuts this by saying "we've evolved beyond such primal communication, right?" and "when you start abusing a stranger's property," etc., "don't expect it to change any hearts or minds."

well, let's hold up a minute here, joe.

first of all, let's make it clear to your handful of readers that we are talking about a serious threat to the cyclist's safety. this is nowhere mentioned in your summary, and of course it is completely ignored in the comments posted by the owners of x5s.

and "primal communication"? "abusing a stranger's property"? how is slapping a car any more "primal" than sounding a horn? [and how is it that the latter has become so accepted in this culture that someone parking at the curb and walking away from his x5 just touches his key fob and the horn blares. oh, i was just locking my car. b*llsh*t.]

you attack me with your x5, you can expect to hear someone knocking on the panels. the "stranger's property" is at that moment an immediate threat, a weapon.

and who said anything about "hearts and minds"? a hundred years ago, it was the stranger operating one of these killing machines on the public right of way who was stigmatized, not those whom he was threatening. somehow we have gotten this turned around.

then rose takes it a step further by actually encouraging motorists to escalate the situation. "it's not illegal" to slap an x5, he quotes the traffic division captain todd wyatt as saying, "but it's a good way to incite some serious road rage."

excuse me? the guy threatens my life because he is not paying attention, i give him the ubiquitous "yo, i'm here" slap, and somehow it is i who is inciting him? again, we are turned around here.

but wait, it gets worse.

"if an angry bicyclist leaves a dent and rides off," rose continues, "that's vandalism. and oregon law gives the victim of a crime the right to use 'reasonable force' to make a citizen's arrest."

leaves a dent? what is your x5 made of? a minute ago we were talking about the ubiquitous "yo, i'm here" slap, and now we seem to be talking about hammers or u-locks or something.

okay, so now we are saying to the motorist, go ahead, chase the cyclist down, and feel free to use "reasonable force" to detain him. this is how we share the roads. thanks, joe.

and it is not even good legal advice. oregon law does not in fact give a motorist whose x5 has been slapped by a cyclist he nearly ran off the road a right to use force, reasonable or otherwise, to effect a citizen's arrest.

this is a close question, so bear with me a minute. but it has everything to do with what kind of society we want to live in.

ORS 161.205 says you can use reasonable force to defend your property, "as hereafter prescribed," and the relevant "hereafter" is ORS 161.229, which says only as necessary to "prevent or terminate" a theft or "criminal mischief."

we are not talking about theft here, so let's look at "criminal mischief," which is what rose is apparently talking about when he uses the word "vandalism."

ORS 164.345 defines third degree criminal mischief, a class C misdemeanor, as "tampering" or "interfering" with someone' property "with intent to cause substantial inconvenience," and without "reasonable ground to believe" you have a right to do it -- as in, y'know, warning someone he is about to kill you through inattention.

second degree criminal mischief, ORS 164.354, a class A misdemeanor, is where you do more than five hundred dollars damage, and first degree, ORS 164.365, a class C felony, is where you do more than a thousand dollars damage. these x5s are delicate beasts.

in any event, if we are talking about chasing the cyclist down after the damage is done, we are not talking about "preventing" or "terminating" anything, so let's look at the actual citizen's arrest statutes.

ORS 161.255 says a private citizen can use physical force only as reasonably necessary to make a citizen's arrest or to prevent the escape of the person arrested, per ORS 133.225. that statute, in turn, permits a private citizen to arrest someone for a "crime" committed in his presence, where he has reasonable cause to believe the person he is arresting committed the "crime."

ORS 161.515 defines "crime" as "an offense for which a sentence of imprisonment is authorized." so is a class C misdemeanor a "crime"? well, yes, under ORS 161.615 the maximum sentence is thirty days.

so, let's review:

you nearly run me off the road with your x5, i slap the fender to get your attention, you imagine that i have left a dent. you chase me down to detain me, i resist, you wrestle me to the ground.

you had better be careful not to use more force than "necessary," and you had better be reasonably certain not only that i intended to cause you "substantial inconvenience," but that i had zero reasonable ground for doing what i did.

in other words, you have to know a lot about what was going on in my head. whereas a minute ago, you didn't even know i was there.

you might also want to look at ORS 163.275, which makes it a class C felony to detain someone under threat. "coercion," or what they used to call "false imprisonment." the punishment for a class C felony is a bit more than that for a class C misdemeanor. five years and a $125k fine.

anyway, my point is.

the guy has a platform that he could be using to persuade people to behave with some consideration toward one another on the roads. weirdly, that was actually the frame of this particular column. the anniversary of brett jarolimek's death, and why can't we all just get along.

but the default point of view on the blog is that of the beleaguered motorist asking "why do i have to put up with these g*dd*mn cyclists, and within what limits might i retaliate against them." not "how can we get motorists to wake up and pay attention."

if a motorist calls or writes in saying "i had thus and such a negative interaction with a cyclist the other day," instead of always stirring the pot, rose could use his platform to suggest "maybe you could think of doing things differently. the age of the complete dominance of the private automobile over absolutely everything else is fading."

if i slap your car to get your attention because you are about to run me down, is this not also "self-defense"? why are we even talking about whether you can then chase me down and beat me and get away with it?