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Road Diets: A Legal Review

Over the past decade, a popular and controversial trend has gained momentum in progressive cities seeking to promote local bicycle and pedestrian transportation, even at the cost of slowing down the automobile. If you’ve seen new bicycle lanes popping up on your roads, then your neighborhood has already begun to embrace the road diet.

road diet bike laneWhat Is a “Road Diet”?

Road diet is a term coined to describe the elimination of vehicle lanes on a street in order to make room for bike lanes and/or increase sidewalk space. For example, a four-lane street with two lanes of traffic in each direction may be reduced to a three-lane road with marked bicycle lanes on each side and wider sidewalks.

Proponents of Road Diets

There are many road diet proponents who welcome the step away from automobile use in favor of bicycle and foot transportation. Advocates in favor say:

  • Road diets can help build communities by getting people out of their cars and interacting with the neighborhood on-foot.
  • They promote health and exercise.
  • They protect the safety of bicyclists and pedestrians and reduce auto-accidents.
  • They help the environment by reducing auto-use.
  • Merchants may enjoy more business from increased pedestrian traffic.
  • Property values may increase from neighborhood improvement.

Opponents of Road Diets

Still, many oppose this new trend in land development – especially traditional motorists concerned with getting from point A to point B. Often, these road diets occur in high traffic downtown areas and many fear that reduced lanes will result in road gridlock. Further, some studies have indicated that road diets may not in fact do much to help local economics as proponents suggest.

Legal Issues

When a city introduces a plan for a lane-reduction, several legal issues may arise.

1. City Plans

First, although cities have broad freedom to act for the general welfare of the community, one can look to the city plan to find authority that may promote or restrict a city’s road diet plan. For example, if a city states in their plan that one of their policies is to reduce traffic congestion, a road-diet could potentially conflict with that policy.

However, the city plan may also have policies promoting public safety, environment protection, and downtown growth, which could be advanced by a road diet.

2. Environmental Impacts

Some states require that cities complete environmental impact investigations prior to engaging in any projects that may affect the environment. For example, in California, there have been many instances of citizens using the California Environmental Quality Act (CEQA) to slow down city road diet plans and require the city first undergo required environmental analysis.

However, in California, a new 2013 law now exempts bike lanes from CEQA analysis, making it easier for cities to enact road diets and add bike lanes. Still, more extensive road diets that involve new sidewalk additions may still require traditional CEQA analysis.

3. Traffic and Safety Analysis & Public Hearings

Prior to enacting any road diet plans, cities should (and may be required to) conduct a public hearing and undergo investigation and analysis of the traffic and safety impacts associated with the proposed plan. Getting input from neighborhood citizens is important step in fact gathering and assessing community attitude toward the project.

Further, depending on the traffic situation, a road diet may not be appropriate in some areas. Some studies have found that streets that carry more than 20,000 cars a day are more likely to experience traffic gridlock issues from lane reductions. Thus, before undergoing any road diet plans, cities should investigate a number of issues including:

  • Level of traffic
  • Parking issues
  • Affects on nearby streets
  • Availability of alternate routes for cars
  • Costs of the project and revenue resources

The Future of Road Diets
While the road diet trend likely isn’t going away anytime soon, public trains and digital commutes may help ease the burden off daily transportation in the future. Further, often road diets don’t lead to gridlock and still allow for normal traffic flow. In the instances when road diets fail, cities have been known to quickly re-paint the roads back to normal. In the mean time, if you’re not enjoying biking around your neighborhood already, now might be a good opportunity to embrace the road diet.

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Is Snake Handling for Religion a Crime?

Religion as a Defense to Possession of Venomous Snakes
Religion is not a defense if you are fired for drug use at work. However, it may be a defense if you are handling rattlesnakes as a means of proving your faith in God. Last November, Tennessee officials raided the Tabernacle Church of God and confiscated over 53 snakes, including rattlesnakes and copperheads. The snakes were brought to Knoxville Zoo for treatment, but more than half of them died.

snake handling salvation religionThe state also charged Rev. Andrew Hamblin with possession of venomous snakes, a misdemeanor in Tennessee if handling snakes would endanger the life of a person. The possession law was passed in 1947 after five people died due to rattlesnake handling. Although the possession of a single snake carried less than a year in jail, Hamblin faced a much lengthier sentence since he was charged with 53 counts of possession – one for each snake seized by the state.

Hamblin’s church quickly rallied to his support, making his case on Facebook and local media. The snake handlers don’t allow children near the snakes and visitors are advised to stay back. Provoking the snakes is forbidden. In essence, the Tabernacle Church of God argued that that they were not endangering the life of a person through snake handling (with the exception, of course, of Rev. Hamblin).

At the grand jury trial, however, Hamblin chose different lines of defense. First, Revered Hamblin claimed the snakes belonged to the church, so he couldn’t be personally charged with possession. Second, the First Amendment protected his right to free exercise of religion, so he was exempt from the law. The jury nullified the possession law and found the revered not guilty.

Are Religions Above the Law?
The Constitution has two contradictory clauses on religion. The free exercise clause prevents the government from prosecuting citizens for having a religious belief. The other clause, the establishment clause, prevents the government from establishing a religion.

This case is an excellent example of how difficult it is to balance those two values together. The government cannot prosecute the Tabernacle Church of God for believing that safe handling of snakes is proof that God is watching over them. On the other hand, if the government allows Revered Hamblin to walk away but punishes other people for breaking the same law, the government would be favoring a church over others. If the establishment clause means anything, it must mean that the state cannot play favorites.

One way to resolve this issue, at least in future cases, would be for the Tennessee legislature to add a religious exemption to the current possession law. It seems odd to codify a church’s religious belief when the establishment clause is in effect.

Many juries will find Christians not guilty through jury nullification, regardless of what the law actually states. However, perhaps the jurors in this case were sympathetic simply because they were all fans of Snake Salvation, the reality TV show Revered Hamblin starred in.

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Can a City Criminalize Homelessness?

Cities often pass ordinances that discourage homelessness by criminalizing activities such as panhandling and sleeping outside. Recently, the City of Palo Alto, California even passed an ordinance that will make it a crime to sleep in a car. Punishments for using a car as a “dwelling place” could include a $1,000 fine, a year in jail, or both.

homeless sleeping outsideAccording to the San Jose Mercury News, Palo Alto’s city council passed the ordinance in response to complaints about homeless people’s behavior. Palo Alto criminalized the act of sleeping in a car so the police will have a tool when responding to complaints.

This ordinance in Palo Alto seems unjustifiably harsh. How could it possibly be a crime to sleep in your own car? The Ninth Circuit Court of Appeals is currently in the process of deciding whether a similar law in Los Angeles violates the Constitution. Constitutional challenges to these types of ordinances include:

  • The Eighth Amendment’s prohibition of the cruel and unusual punishment
  • The Constitutional right to travel from the Fourteenth Amendment’s Privileges and Immunities Clause

Cruel and Unusual Punishment

The protection from cruel and unusual punishment has been applied to similar cases to protect the homeless. For example, Los Angeles previously passed a law prohibiting sleeping, lying, and sitting on sidewalks. The ACLU brought an action against the city for arresting homeless people from sleeping on the streets. The Court of Appeals determined that the law was unconstitutional because those arrested were involuntarily homeless and had no other choice than to sleep on the streets.

The Right to Travel

The other primary constitutional challenge to sleeping ordinances is the constitutional right to travel. If an ordinance criminalizes sleeping on streets or in cars, then the homeless are forced to either move on or risk being cited or arrested. Since sleeping is a vital necessity, this discourages migration and puts a burden on the person’s right to travel.

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Judge Strikes Part of Utah’s Polygamy Ban

Never underestimate the cultural influence of reality TV. The popular show “Sister Wives,” for example, recently led to a significant change in the polygamy laws of Utah.

Sister Wives is about a man, Kody Brown, his four wives, and his 17 children. The Brown family are fundamentalist Mormons who claim polygamy is part of their religion, although the Church of Latter Day Saints formally disavows polygamy today.

Sister Wives Polygamy LawThe marital status between the four women and Brown is a little more complicated than it appears at first. Brown only has a marital license with his first wife, Meri. Brown has a common law marriage with Christine and Robyn, both of whom he has been “married” to for 16 years. Brown and his latest wife, Janelle, recently held a marriage ceremony together, but Brown does not hold a marital license with Janelle. Janelle has two children from a prior marriage.

Brown challenged Utah’s polygamy ban in 2011, shortly after “Sister Wives” began broadcasting on the airwaves. Utah, like most states, prohibits individuals from holding more than one marriage license or holding a marital license with more than one person. However, due to the state’s history, Utah goes further than most states by criminalizing “cohabitation” with a person or persons which resembles a marital relationship.

Judge Waddoups, the trial judge presiding over the case and a George Bush appointee, ruled that the cohabitation clause was unconstitutional. Specifically, the judge held that the cohabitation law violated free exercise of religion and invaded the privacy and liberty rights of the Brown family. However, Judge Waddoups left the other half of Utah’s polygamy law untouched. Although it is now legal to live in Utah with a mistress as a spouse, the state won’t recognize more than one spouse.

Should polygamy be recognized by the state if all parties consent to the relationship(s)? Although proponents of same-sex marriage will deny this case has anything to do with their movement, Judge Waddoup’s 91-page decision is a product of the homosexual rights movement. Indeed, Browns’ attorney relied on the Supreme Court case which struck down homosexual sodomy laws when arguing that the cohabitation law should be overturned. Judge Waddoups compared polygamy to “an unmarried man who chooses to have intimate relationships with three women.” Although the state would not sanction the unmarried man’s relationships, the state would not punish the man, or the women, for engaging in such relations.

This is an argument for decriminalizing polygamous lifestyles, but it still is not an argument for recognizing polygamy. State recognition of polygamy will not happen, although social conservatives are still wrong to argue that ‘traditional’ marriage or protection of children is the reason. Unlike same-sex marriage, marriage with multiple partners would require complete renovation of our legal system, especially if polygamous marriages could be recognized as common law marriages. It is easy to replace the word “husband” or “wife” with “spouse.”

For polygamous relations to be recognized by the state, federal tax law, estate law, and spousal communication privileges would all have to change to make room for multiple person marriages. Completely re-engineering our legal system to accommodate polygamy would be challenging, to say the least.

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The Bikini Defense

It is a strange day when a court rules that an untied bikini is an emergency sufficient to excuse all liability for an automobile accident which resulted in a death. That is exactly what a New York Court of Appeals ruled 3-1 this week.brittany lahm emergency doctrine

In July of 2008, Brittany Lahm, then 19, was driving back to New York from a trip to New Jersey shores. Her passengers were three 19-year-old boys, including Brandon Berman and Jason Pelletier. The car was going 65 miles per hour. Berman was goofing around, opening an umbrella inside the car and sticking his feet in Lahm’s face. At some point, Berman untied Lahm’s bathing suit as she drove. That turned out to be a fatal mistake.

The teenagers would later argue about whether it took Lahm twenty seconds or one second to cover her breasts. Regardless, Lahm took her hands off the steering wheel for a moment. A moment was enough. The car veered off course, hit a guardrail, flipped multiple times in the air, crossed over into southbound lanes, and crashed upside down on its roof in the middle of traffic. Everyone inside sustained multiple injuries. Berman, who had untied Lahm’s bikini, was the only fatality.

Jason Pelletier, whose injuries delayed his football career at Yale, sued Lahm for the accident. Pelletier’s argument was that Lahm should have pulled over to cover herself after Berman untied her bikini rather than take her hands off the wheel as she drove the vehicle. However, the jury found Lahm not liable. The Court of Appeals affirmed the jury in a 3-1 decision, under New York’s emergency doctrine.

Applying the Emergency Doctrine
Some people may agree that Lahm is faultless because the accident was entirely Berman’s doing. Although that might be true, blaming Berman was, at best, unhelpful in Lahm’s case. First, Berman’s estate didn’t bring the lawsuit, the still living Pelletier did. Although Pelletier could have stopped Berman, it is questionable whether Pelletier had the legal responsibility to stop him. Second, New York is a pure comparative negligence state. This means that if the jury finds any liability for the defendant, even one percent, the defendant has to pay that one percent. The emergency doctrine, in contrast, is a complete defense: Lahm does not have to pay Pelletier a penny if the jury found in Lahm’s favor, which the jury did.

With that question out of the way, let’s talk about the emergency doctrine. The idea is that if the defendant is faced with a sudden and unexpected situation, a situation not created by the defendant herself, the defendant is not liable for any accidents. It doesn’t matter if Lahm could have pulled over after her bikini came off: any and all alternatives have the benefit of hindsight and thus don’t matter.

So what’s the problem with using the emergency doctrine when a young woman’s bikini falls off as she’s driving? The lone dissent on the appeals court believed that the bikini incident was entirely foreseeable, like a road condition such as an icy road, and thus not an emergency. Berman, who also put his feet in Lahm’s face while she was driving, had been acting like an idiot the entire trip. According to the dissent, Lahm could have predicted that Berman would have done something similarly stupid like untie her top.

Was the Court’s Decision Correct?
I don’t think society should expect a 19-year-old girl to predict that a boy her age would try to take her bikini off while she is driving. At the same time, calling an untied bikini an “emergency” seems extremely odd in comparison to other cases where the emergency doctrine was used.

Typically, the emergency doctrine is applied to cases where a child runs out into the street from between two vehicles or where a motorcyclist is suddenly thrown off his bike and into the path of an oncoming car. It’s even an emergency if a drunken man wanders onto a railroad and a train is forced to make a sudden brake. Compared to cases involving life or death, an untied bikini seems insignificant.

The Court of Appeals, and the jury, believed that the situation was more than a case of exposed cleavage. Lahm had her breasts exposed while in an enclosed environment with three young males. This portrayal of Berman’s death works extremely well given that “emergency” doesn’t include “imminent threat to life,” but compared to other cases involving emergencies, it should.

Although it is possible to view the tragedy as sexual assault, I think it’s long past due that society acknowledges that there are some things more important than sexual arousal. Here, a person is dead. Even if Berman contributed to his own demise, indecent exposure should not have warranted the man a death sentence. Of course, personal injury is about assigning blame (and giving money) after the fact, but that doesn’t mean the law has to be mutilated to preserve chastity. Instead, the law should have been decided on comparative negligence so that all sides would be assigned their rightful amount of responsibility.

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