December 13^th,
Meeting #3

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BPD MEETING #3 WITH BERKELEY CRITICAL MASS PARTICIPANTS
DECEMBER 13, 2001 8:30 AM - 10:00 AM
MINUTES BY JASON MEGGS

Present:  Sgt. Hester, Anna-Lisa Hoffman, Eryn Hughes, Jason Meggs

[Comments by Jason Meggs in square brackets.]

Abbreviations:

 H: Hester
 AL:  Anna-Lisa
 E: Eryn
 J: Jason

Transcript:

H: There's a lot of ignorance out there, on the interpretation of the law.  

[I missed taking notes on a bunch of general discussion before we started,
not sure how the above statement fits in].

[Opening up talking about the long-standing written Proposal (see below)]

H: I don't have too many problems with it, a few areas would be difficult
for us.

J: Please clarify if these meetings are the meetings the Council directed
the Berkeley Police Department to have with participants from Critical
Mass?  It was unclear last meeting.

H: My boss Bud Stone told me to set something up, so I contacted Jason.  
Yes I am serving the BPD role.

AL: Just to reiterate, Jason is not the spokesperson or leader for
Critical Mass, there is no one such person.  I think it's set up that way
so there will be no particular slant.  He doesn't speak for all of us.

H: He's said that in the past.  I'm sure with 90 people on a ride you get
90 different opinions.  We get the same on our end.  Our organization is
designed to deal with that.  It's a different form of organization.

J: From last meeting some outstanding issues are 

 a) Whether the Department could support [what you supported] for changing
    the sidewalk laws  [I should have mentioned the bail schedules and
    changing bike violations to infractions from misdemeanors!];
 b) Whether and how the General Orders (G.O.'s) for police can be changed
    to incorporate the changes suggested;
 c) Whether you've received a legal opinion on whether CM is a
    first-amendment event [Hester was going to ask].

H: Sidewalk laws and G.O.'s can be changed but I used to be with Internal
Affairs and go to the monthly PRC business meeting and it seems like that
would be a place to begin the process.  It takes a process of going
through and evaluating before changing things.  We don't have the
discretion to change laws.

J: I feel like I'm getting the runaround.  Two years ago [regarding August
13, 1999 Bike Summer event] I filed a policy complaint, with at least
eleven points on it, and the end result was the council's directing you to
speak to us here.  I'm not prepared to wait another two years to get
nowhere.  The BPD doesn't make laws but they certainly enforce them in a
discretionary manner, and they certainly can set their own General Orders,
and they certainly can support and help the process of changing a law.  
Again, I would be willing to submit a proposal on changing the sidewalk
laws to allow those with special needs who are not endangering people,
such as those with disabilities, or those who are just parking a bicycle
and getting out of traffic, to be in compliance with law.  And especially
as right now it's a misdemeanor punishable by up to a year in jail to ride
a bicycle on the sidewalk.

H: I disagree that it's a misdemeanor in practice.

J: Well if you recall, you recently charged me and I had to hire an
attorney and go to Oakland to deal with it.  There's no question it was a
misdemeanor and under Berkeley law it is currently required to be charged
as a misdemeanor.  Whether it's legal to require that could be contested.

H: We're sitting here disputing what the founding mothers and fathers were
thinking.  Two years is kinda sad, unfortunately that's politics and
government -- very slow.  Bikes on sidewalk are treacherous in downtown.  
I have seen people hit by bikes at the YMCA's steps which are heavily
used.

[I didn't mention that the main times I've seen people hit by bikes,
police were riding them -- not just at demonstration but in everyday life.  
I also didn't correct him on the idea that the sidewalk laws are so sacred
and historic as to have been set way back by the founders of Berkeley.  
Also I didn't mention that the policies were not specifically about
sidewalk riding, nor was that all I was trying to address in this meeting,
but we spent a lot of our time on it].

J: Last meeting, [as I recall] you and officer Meredith agreed that the
sidewalk laws should be relaxed.  I don't want to rehash the issue at
length.

H: I see an old guy on a tricycle downtown, clearly not able to negotiate
in traffic.  I don't mess with him.  But I don't know who it makes a
difference to, who is so disabled that they have to ride on a sidewalk.

AL: Six months ago, I suffered a really bizarre back injury which was
potentially going to become sciatica.  I couldn't walk, stand or drive.  
I didn't want surgery.  The one thing I could do was ride a bicycle
because the angle was just right to take the pressure off.  I literally
could only walk twenty steps at the most.  So I rode everywhere.  And so I
would ride a half-block on Telegraph, on the sidewalk, for example, to get
where I was going.  And I would be very careful [she is able to ride at
slower than a walking speed and would yield to pedestrians].  I didn't
look disabled.  Now things are really better but that was very scary to
me.  Now I don't ride on the sidewalk.

H: I'm a little confused.  I deal with this by warnings.  After several
warnings, I'll issue a citation.  It could be some student who just wants
to ride up to the bike rack and get on BART.  And officer can consider if
there is any disability and use discretion not to cite.  But how many
people really can't ride on the street?

AL:  Well yes, I rode on the street until I reached the block I had to go
on, and then I had to ride on the sidewalk.

J: Discretion is great if used well, by every officer, and I'm glad you
say you do that.  But I know that many officers don't, and I know you have
issued citations without giving warnings first [e.g., crossing in
crosswalk when red hand just started blinking].  That's why I'm asking for
a specific policy in law and/or the general orders.  I'm not advocating
dangerous behavior, and the proposal would reflect that.  I know someone
who was cited without warning who was just pushing his bike slowly with
one foot on the pedal and one foot on the ground, and he was doing so
because he has a back problem.

H: I know ther's a disabled placcard for cars, but I don't know if there's
one for bicycles.  I assume this requires documentation.

[more discussion]

H: Have you spoken with Eric Dibner? How would the disabled community
feel? I used to run a jail and talked with Eric a lot about ADA issues.  
Picked up on the problems with sidewalk blockages by tables from cafes and
restaurants, and signboards.  Most businesses typically comply but they
nickeled and dimed us to go after the ones that didn't.  Then there are
homeless people sleeping across sidewalks and their shopping carts, we
could probably have a separate meeting about that.

J: I have spoken with Eric Dibner before and of course the Disability
Commission would have to okay the proposal but first I'm just asking you
for whether the BPD thinks it could work, and to support it if they do.  
I should mention that I actually mentioned this idea to a woman who sits
on the Disability Commission [or at least did at the time] and she told me
she was planning to get a special bicycle which she could pedal with her
hands, probably quite slowly, and she agreed that she would want to be
able to use it on the sidewalk much as she does a wheelchair, and that the
law should be changed].

H: Best guess, we would not support it, but if we did it would probably be
an exemption in the law.  But those disabled placcards are abused.  You
see them all the time jumping in and out, coming out with their Starbuck's
coffee or Taco Bell crap and jumping in their car.

[Yes he really said "Taco Bell crap"]

AL: I have never had anyone look at me twice while riding on the sidewalk.

H: There's a lot of cops that don't know it's illegal.  My guys know cuz
they patrol downtown.  Like I wouldn't expect you to know who all the drug
dealers are at Fairview and Adeline.  I would expect any city or county to
have laws [about sidewalks] but when there are bigger problems, who cares,
y'know?  We printed and reprinted signs for the merchants as a way to
educate people.  Slowly we're distributing them.  Signs are big, hard to
carry, so we wait for rainy days when we go out in a car.  My hope is in
time, word will get out and people will begin to obey the law.

J: So moving on along our points, did you ever request clarification on
whether CM is a first amendment event?

H: I talked to the City Attorney, Manuel Albuquerque does not feel that it
is a first amendment event.  That's my impression.  [Evidently Hester did
not specifically ask after he agreed to at an earlier meeting, and is
continuing to give the same vague story].

J: Well Judge Jennie Rhine just stated it was a first amendment event, in
a critical mass red light case from July 10 of this year, where a woman
was cited.

H: [Visibly seemed upset].  That's why you go out and get Judge Rhine, cuz
she's a friendly judge.  [Note that she's been rather stern with me in the
past over CM issues, and evinced a bias against my role in bicycle
demonstrations, but has been definitely more fair than commissioner
Rantzman with the cases I've seen].

J: Well we don't historically necessarily know who we'll get when we
refuse Rantzman, but Rantzman has proven that he is unfair.  I didn't know
Rhine would say that, or that the woman would get Rhine for her case.

AL: Does a judge override the City Attorney?

H: In a specific case, yes.  The first amendment event came up in my last
complaint [Meggs and Salsbury v. Hester RE: April 13, 2001 citations by
mail].  And the PRC definitely strongly believed that CM was a first
amendment event.  That was sure. [They sustained the allegations
unanimously].

AL: When are those PRC meetings?  Jason said twice a month?

J: Their number is 644-6716.

E: I've lived in California since 1995, and never knew about the rule on
sidewalks.  What clear and present danger allows me to go onto the
sidewalk [e.g., if someone forces me to go on the sidewalk]?

H: Cars have the responsibility in my opnion to yield to anyone on the
sidewalk.  If someone causes you to deviate...but this would be like my
giving a lawyer's opinion, there isn't necessarily any clear law on that
situation.

AL: But if it was you...

[This section unclear, I wasn't sure if Hester understood what Eryn was
asking, perhaps my notes are incomplete as well]

H: I would go with that.  Look'em in the eye to see if they knew it was
illegal.  Lot of them are Cal students, they're new.  I tell them.  I did
that for a year.  It gets old.  You start to see the same people.  Or you
see them in the distance and they see you and immediately jump off and
walk their bike.  We cite them.  A lot of people have been cited like
that.

E: [Back to the issue of being forced onto the sidewalk]. I learned to
curb hop.  Probably saved my life on Bancroft once.

[Hester agrees about curb hopping in general fashion].

AL: What about taking the lane.  Cars get nasty sometimes when you do it.

H: Two of our officers, Bachman and Onciano, have taken doors and I never
want to go through that.  You're entitled to a lane as far as I'm
concerned.  [Note that this doesn't make it a BPD policy or part of their
training].  I was trained to look in the windows, while staying aware of
traffic to my left.

AL: But people can lean over with the door cracked, and then suddenly pop
up and nail you.

J: It's just not possible to look in every window, and you've got a lot
more to be paying attention to.  Where did you get that training, was that
Departmental or something else?

H: It was Departmental training.  Very brief thing.

[Discussion...]

H: Can we deviate for a second?  Is there anything special planned for
tomorrow's ride?

J: I was subject to a UCPD incident early Tuesday morning [I describe the
stop for not having a light when I had one, by UCPD officer Thieo #89, who
then cited me and confiscated the bicycle I was riding.  Hester's eyes
showed various forms of surprise, not sure if it was amusement at UCPD
incompetence or at my having to go through that...].  So I'm asking
Critical Mass participants to go by the UCPD, which would probably not be
on Bancroft but over at the entrance, to protest and have a discussion.  
I haven't heard anything from the people who wanted to do Bikes Not Bombs
last night, so I don't know if there will be a BNB contingent this month.

H: If that incident happened the way you describe, I can't believe that
officer did that.

AL: I ride in Berkeley all the time.  Do I need all three bikes
registered?

H:  State law requires bikes to be licensed if the town passes an
ordinance requiring it, this is covered in CVC 39002A I believe.  Not sure
how to interpret that. [Hester was unclear on the law].

J: Only if you live in Berkeley are you expected to register your bike in
Berkeley.  Towns can require that but they can't require any other towns
to do so.  [Don't get me started about how counterproductive and pointless
the mandatory registration program is].

AL: I have two lights and not the red blinking ones that cars seem to veer
towards whenever they see them.  If I'm licensed and have my lights, what
reason would there be to impound my bike?  I am really concerned about
that after hearing what happened to Jason, because I could not walk a mile
to a BART station and would not want to be stranded late at night like he
was.

H: I can't imagine confiscating your bike except if you had obliterated
serial numbers on the frame.  I have impounded bicycles for investigation
of stolen property.

AL: After hearing about Jason...

H: The UCPD doing this sort of thing gives us a bad name.  This is like
case law in LA due to rogue cops doing stuff there, which makes our job
harder way up here in Berkeley.  It gives all of us a bad name.  [No
comment from me regarding the illegal confiscation of Matt Dodt's bicycle
as Berkeley Mass last January].

E: I wonder how you work with the UCPD - there was a recent change in
enforcement on campus with no notice and no meeting for students to have
input about it.

H: Unclear about Campus issues.

E: They had no bike symbols which are still there even though it's now
okay to bike there.

H: If I went to Cal I would need to ride a bike just to get to class on
time, it's so big. How do we work together?  We're totally separate.  
Don't have jurisdiction on campus as a general operating practice.  
Generally we have to be specifically called.  We do have powers there.  
We have joint patrols as well.  [Was wondering if he'd mention that!]

AL:  [changing topic] Ooh!  What about crash scenes?  Is it required to
have police issue a report no matter what?

H: We regularly document non-injury cases, but we prefer not to. We're
talking about cars.  They have insurance companies and we like them to
exchange information and let the companies deal with it.  Bike collisions
are usually an injury.  In bicycle-auto [injury] collisions we'll take a
report if it's within 24 hours.  But we prefer to not document non-injury
cases.  A citizen always has the right to fill out an SR-24 form which
will eventually make it into our statistics.  AAA has the forms, BPD, CHP,
send them in.

AL: Many times injuries don't show up right away.

H: Happens all the time, but usually within 24 hours.

[So some people get locked out of making a report through BPD who have
injuries on a bicycle].

J: Can we look at the written proposal as we have less than ten minutes?

H: [Looking at the written proposal] Item 2d -- I'm wondering how to get
the statistically verified risks, is that on us?  Where does that come
from?

J: The idea is that it should be found reasonably by whatever information
can be brought to light.  There should be a formal process or study and we
can get to that, but the basic idea was that if you look at all the
violations that are happening on a regular basis in Berkeley, some are
much more dangerous than others.  Like if a bicycle runs a stop sign
compared to a car running the stop sign, the car poses a much greater risk
to the public.  From a bicyclist's perspective, we're finding we're
powerless to do anything about the hostile and aggressive and careless
behavior we're suffering everyday from motorists, behavior which can even
become physically violent.  Yet we also feel persecuted when we see
ourselves repeatedly cited for minor things that don't really endanger
anyone.  [Hester nods in evident understanding].

H: In item 3c, that's not always the case that it's assault with a deadly
weapon.  We have to deal with what can be proven in a court of law.  [No
more specifics were able to be gained due to end of meeting].

AL: Jason did you bring information about the recent case in Chicago where
a motorist who killed a messenger in road rage was found guilty of murder?

J: No, sorry I didn't but I have it on email.

H: For instance we have situations where someone's swerving just to piss
someone off that pissed them off.  [Not sure what he meant here]

[I go to restroom while discussion continues -- others please fill in if
I've missed anything].

AL: It would be nice if the awareness changed.

[END OF MEETING FOR ME -- I went to the Police Review Commission (PRC) to
give a statement about the August 10, 2001 Berkeley Critical Mass at which
there was police violence, false citations, false arrests, etc. by Sgt.
Hester's officers].


=============SUPPLEMENTAL INFORMATON

1) BPD Proposal that is referenced above:

PROPOSAL TO ENCOURAGE BICYCLING IN BERKELEY BY IMPROVING RELATIONSHIPS
BETWEEN BICYCLISTS AND BERKELEY POLICE OFFICERS
 
Reducing automobile trips has been an important goal of Berkeley's General
Plan since its adoption in 1977, and it will continue to be an important
goal in the new, revised General Plan. One way to accomplish this goal is
to encourage bicycling. It is important for Berkeley's police officers to
appreciate the many benefits of bicycling to the entire city. These
benefits can be identified both in terms of the healthful lifestyle
cyclists choose and the reduced automobile congestion in a city where a
significant percentage of the population bicycles on a regular basis and
where even more people are likely to bicycle as the numerous improvements
envisioned in Berkeley's Bicycle Plan, adopted by the City Council in
1999, are implemented. The City of Berkeley is now working actively to
implement the Bicycle Plan, and the city has allocated increased funding
in recent budgets for bicycle-related improvements. Officers can encourage
bicycling by understanding bicyclists' rights; appreciating that bicycles
are an important, helpful, and valid mode of travel; and helping to
educate bicyclists about safe behavior rather than penalizing them for
relatively minor infractions. In short, the Berkeley Police Department is
in a position to play an active and positive role in encouraging bicycling
in Berkeley. At the same time, a lack of understanding of bicyclists'
needs and rights, or outright hostility toward bicyclists on the part of
police officers, can have the opposite effect.
 
The following policies and principles are suggested as ways to improve
treatment of bicyclists by Berkeley police officers and to encourage safe,
responsible bicycling throughout the city:
 
 1. Police should strive to be in accordance with the Bicycle Plan by:
 
    a. Encouraging bicycle use wherever possible;
    b. Training officers to know and respect bicyclists' rights, and to be
       sensitive to the needs and conditions of bicyclists;
 
 2. Police enforcement should be directed by (1) above in addition to:
 
    a. Using discretion and/or diversion, such as a bicycle education
       program, rather than fines to deal with bicycle violators;
    b. Supporting the reduction of fines for bicycle infractions;
    c. Reviewing ticketing statistics, identifying officers who are being
       too hard on bicyclists, and encouraging such officers to be more
       lenient with bicyclists;
    d. Enforcing the law based on statistically verified risks to the
       public, such as generally not ticketing cyclists for responsibly
       treating stops as yields; primarily focusing attention on motorist
       behavior that endangers bicyclists, pedestrians, wheelchair users,
       and other nonmotorized vehicles; and at the same time attempting to
       curb irresponsible and dangerous bicycling, such as bikes riding
       recklessly and/or inconsiderately on sidewalks;
     e. At Critical Mass, toning down the police presence (especially the
       unseen presence); allowing cyclists to use all city streets
       including Ashby, University, and Solano; and avoiding mass
       citation/mass arrest scenarios;
     f. Allowing individuals to make a "citizen's arrest" for dangerous
       traffic violations (e.g., motorist violation of right-of-way).
 
 3. Crash scenes--fairness should be strived for by:
     a. Always allowing a cyclist to make a report even if no major injury
       or major property damage was sustained;
     b. Finding ways to be proactive and changing policy, if necessary, to
       ensure that bicyclists are afforded fair treatment.
     c. In cases where physical harassment with a motor vehicle occurs,
       that such incidents should be recognized and treated legitimately
       as an assault with a deadly weapon.
 
 Further points of study include:
 
     a. Investigate what happens at crash scenes (both in terms of policy
       and practice, including anecdotes/case histories);
     b. Find out how many tickets of what type are being issued by whom,
       tracked by travel mode, disability, gender, and race.
 
The following Resolution from the City and County of San Francisco is
included with our draft to show what they have been discussing there. The
San Francisco Board of Supervisors has just adopted it in January 2000.
 
URGING CITY DEPARTMENTS, THE SAN FRANCISCO POLICE DEPARTMENT AND THE SAN
FRANCISCO DISTRICT ATTORNEY'S OFFICE TO TAKE ALL NECESSARY ACTION TO
ENSURE EQUAL TREATMENT OF BICYCLISTS AND MOTORISTS INVOVLED IN TRAFFIC
INCIDENTS.
 
WHEREAS, Bicycling is a growing form of transportation in San Francisco;
and,
 
WHEREAS, Bicycle use is considered beneficial to the City, as the
Transportation Element of the City and County of San Francisco's Master
Plan states:  "Active encouragement of bicycle use as an alternative to
automobile use, whenever possible, is essential in light of the
continually increasing traffic congestion caused by motorized vehicles
which aggravates air pollution, increases noise levels and consumes
valuable urban space;" and,
 
WHEREAS, Bicyclists and others using non-motorized modes of transportation
are entitled to equal protection under the law; and,
 
WHEREAS, Both bicyclists and motorists are required to obey traffic
signals, respect rights of way, and operate their vehicles in a safe
manner; and,
 
WHEREAS, According to the City's Master Plan: "Traffic enforcement should
extend to protection of bicyclists' rights-of-way which are often violated
by motorists;" now, therefore, be it
 
RESOLVED, That the San Francisco Board of Supervisors urges the San
Francisco Police Department (SFPD) to examine it General Orders and
programs in order to ensure equal treatment of bicyclists and motorists in
upholding the law, and urges the San Francisco District Attorney's Office
to examine its current policies in order to ensure fairness to bicyclists
and motorists in prosecuting criminal cases; and, be it
 
FURTHER RESOLVED, That the Board of Supervisors urges the SFPD to develop
a bicycle and pedestrian component of its training program for new cadets
and continuing education for officers to ensure their understanding of the
laws pertaining to cyclists and pedestrians; and, be it
 
FURTHER RESOLVED, That the SFPD and District Attorney track the number of
injuries to bicyclists in traffic incidents as reported to the Department
of Public Health during the next six months, as well as the number of
criminal charges filed as the result of traffic incidents involving
injured bicyclists (including doorings, hit-and-run incidents, and
vehicular assaults) during those same six months, and report back to the
Board of Supervisors on the advancement of the cases; and, be it
 
FURTHER RESOLVED, That deliberate physical harassment of bicyclists or
pedestrians by motor vehicles be recognized and treated legitimately as
assault with a deadly weapon.