Local lawyer Mark Ginsberg just shared an interesting decision by the Oregon Court of Appeals today on a case involving a ticket given to a cyclist during a Portland Critical Mass ride back in September 2004.
Joseph Rowe (who represented himself) was standing on the sidewalk next to his bicycle as the monthly Critical Mass ride went by (he had been riding with the group moments earlier). Police officer David Sessum and his partner approached Rowe and, according to the official decision,
“The officers were concerned that the sidewalk was being blocked by pedestrians and bicycles. Sessum told defendant to “move along, please, because we need to keep the sidewalk clear.” When defendant asked why, Sessum responded that, if defendant did not move along, he would be cited for failure to obey a police officer. Defendant did not move, and Sessum cited him for violation of ORS 811.130 and ORS 811.535.”
811.130 is “impeding traffic” and 811.535 is “failing to obey a police officer”.
The lower court upheld the decision so Rowe appealed his case and today the State Appeals Court reversed the decision saying that the law says you must be actually “driving a vehicle” in order to impede traffic,
“ORS 811.130 has no potential application to a person–like defendant–who merely stands next to a bicycle that is not moving. We agree. Consequently, the trial court erred in concluding that defendant violated ORS 811.130(1).”
And as for failing to obey a police officer. Well, turns out that you only have to obey if the officer is enforcing an actual law. Again, from the decision,
“The state further acknowledges that, in light of its concession that defendant was not impeding traffic, it can identify no authorization in substantive law that would apply to the officer’s order that defendant “move along.” Again, we agree and accept the concession.”
Check out the full text of the official decision.
A nice victory for a guy standing next to his bike, who just happened to be near a Critical Mass ride.
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Update:
Read this comment from defendant Joseph Rowe for more details on the case, including excerpts from the official transcript where Officer Sessum says, “I hate critical mass” and “it’s an illegal procession”.
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That’s really awesome! Way to Joseph!
My god, that’s just beautiful.
I was beginning to wonder why rules are bothered to be written down as our lower courts act so willfully without regard to them.
My only question now is after such a plain misapplication of law (“driving a vehicle” seems like kinda an easy call to make) by the lower court, what is done by the higher court to keep that from happening again? Our System doesn’t seem to be self-correcting, Other than outright fraud, what gets your average tired and mean judge fired?
THANK YOU JOSEPH ROWE
Awesome!!!
“Well, turns out that you only have to obey if the officer is enforcing an actual law.”
Bloody brillant. I am not a big fan of civil disobedence, but that is a gem. I get so tired of authority types just making crap up.
Coyote
Wow. What a perfect, perfect story. Thanks for sharing, Jonathan.
I haven’t met Joseph Rowe yet, but he is my new hero! Patience and persistence can pay off. Thanks for standing up for our rights and following through on this, Joseph!
He should have still listened to the police officer and moved. At the time, he was breaking the law, and doing so at or near critical mass just helps spread a negative image of cyclists.
Well done, sir. Well done.
Critcal Mass in general helps spread a negative image of cyclists, and should be stopped.
That aside, good job on this case, Mr. Ginsberg.
crud! that is the exact ticket i got about 4 years ago during a critical mass. i was filming the cops arresting people, standing next to my bike. naturally, cops dont like you filming them and came over to me and actually discussed, in front of me, what to give me a ticket for. this (impeding traffic) is what i ended up with.
i didnt have the luxury (time?) to pursue it…
so, from years back, i say: thanks for settting this precedent!!
Anonymous, first of all you have no legal authority to state that Joseph Rowe was breaking the law at the time. The judge who saw the case has more knowledge of law in general and that case in particular, and he decided that Joseph was *not* breaking the law.
Secondly, you lack spine for writing the comment anonymously. I am not surprised, though, because you also lack the spine to question “authority”, even when “authority” is in the wrong.
By the way,
When I am stopped by the police, I ask what it is I have done wrong.
When I realize I have done nothing wrong, I explain to them that I have done nothing wrong. Then I leave. I have done this many, many times in my life.
It works very well. Just walk away. Or ride away as the case may be.
They generally will realize you know you are innocent if you articulate it properly.
We pay them to uphold actual laws, and only when you break them, are you held accountable.
I have only once been stopped doing this.
The police were supposedly protecting me from someone they had pulled over by tackling me off my bike. Three of them tackled me to protect me. It hurt bad.
Then, after acknowledging I had had only one beer, and that they had no reason to stop me, or hold me, they took me to the Cheir’s center for drunks.
I was sober. I was surrounded by puking drunks. I had to go to the hospital from the tackling after I got out. But my bike was ruined, so I had to walk.
All because they were protecting me from someone they had pulled over.
Stand up for you rights……. Now…
i got sent to hooper one night for asking what they would give me a $500 fine for. After them refusing to tell me what for and a few officers callin gme “fucking stupid” and to shutup, I started asking for badge numbers. Then I got put in cuffs and “escorted” to Hooper, where I was for 30 minutes before I was let out for not being drunk.
“anonynous” –
I find it mildly amusing that those who object ti this decision are “anonymous” when u no 4 a fact that we are rigth…you care to identify you?
or should you keep silent?
mildly? you can reach me if you want to…do you? I did not think so.
They said they would not let me out till morning because I had never been there. Unknown entity…
I said of course I have never been here, why would I be here.
But they did acknowledge that I was sober.
Still wouldn’t let me do the crossword though…
Hi.
First I’d like to thank all the people who are active in the bike, independent news, and law communities. I did not win, this was a win for “the rule of law” and the freedom of everyone to assemble without “restraint’. See Section 1, article 26 of the Oregon State Constitution.
I’m not a lawyer so I can’t give legal advice. Everything I say is just my own opinion about myself. My case sets a precedent much like the recent and famous ACLU case: State v. Ausmus. The rule of law is plain and simple: Nobody can tell me what to do if I am walking on a sidewalk, protest or not, police or not. End of story. They can’t ticket me for “impeding traffic”, “failure to obey” ( State v. Rowe ) and they can’t use “Disorderly Conduct” ( State v. Ausmus ). In other words, if I want to protest I should do so on a sidewalk and on foot.
Here are the very narrow times when police can order me to do something:
——————————–
1) I’m breaking any law
2) I’m interfering with an investigation
3) I’m a safety risk to others or myself
Otherwise, there is no law allowing cops to order me to do anything. In my case the Appellate court said: “no authorization in substantive law that would apply to the officer’s order that defendant “move along.”
I’ll be writing an article on this because the truth has been twisted so many times in the last 2 years. It will be hard to keep the press from using this to put a negative light on cyclists, critical mass, protesting (assemblies), or their scapegoat of the day.
The City leadership and Police Department continue to waste taxpayer money with a wide variety of bad policies:
……………………………………………………………………
– Massive and undocumented overtime to monitor peaceful and lawful protests
– Falsely labeling protests as illegal
– Failure to train leadership and police on Oregon Laws.
– No process to track abusive officials, judges or officers nor expel the worst.
– Not rewarding the majority of police who know and follow the law
– Putting restraints on where, when and for how long protests can happen
– Attacking protesters, homeless, you name it, with excessive or deadly force
– False arrests and ticketing of protesters, homeless, you name it
– Illegal searches
– Telling witnesses to police abuse that they will be arrested if they don’t go away
– Low income people paying greater penalties ( time, money, or death ) due to inequity in legal resources
– Fewer police on the streets because many are in court defending false citations
– Expensive legal costs in court and payback after victims win appeals
– Knowing all of the above is going on, denying it, and making no corrections
I would like to end this by trying to clear up some things, all on public record and transcripts. I was part of critical mass that day. I did follow all legal orders. I had been walking my bike for at least 15 minutes because some of the polite cops reminded people they did not have legal lighting. I had legal lighting but I walked my bike to stay together. Officer Sessum approached me and his first and only words demanded only that I show him my ID. When I kindly refused and mentioned the law, he cuffed me within 10 seconds and proceeded to go into my pockets and ask me about drugs. They told witnesses to go away or they would be arrested too. He then made threats about my employment. That day I witnessed him use his motorcycle as a weapon against cyclists with excessive force. I saw him drive in excess of 20mph on downtown sidewalks in rush hour. I saw him drive against the direction of legal car and bicycle traffic.
What happened in lower court was equally appalling. When the day of court came 6 months later, Sessum could not recognize me. He started his testimony with blatant lies or total confusion because he had no notes or memory. He opened by trying to lie that I was riding my bike. Rather than deal with the law, both he and the Judge tried to paint me as blocking a doorway to a local restaurant, when in fact I was nowhere near any door. The Judge kept interrupting my oral statements and went so far to say “Let me clue you in here”. Judge Larson finished with “(I) suggest to you, Mr. Rowe, that you figure out a way to comply with the orders of police officers and not argue so much with them. You’re going to do a lot better with the officers if you just simply obey what, I think, can be reasonably characterized as reasonable requests. If you’re on the sidewalk, and you not moving, and you’re part of a big group, you need to move along when they say, “Move along.” Or you’ll be back. I’d hate to see you be back.”
To this I replied: “I have never actually argued with officers in the past, nor did I argue with Sessum. It was my opinion not to argue with them.
Judge Larson: “Did he argue with you?”
Sessum: “He just didn’t do what I asked, That’s argument.”
Other segments of the official transcript: Sessum: “I hate critical mass” and “it’s an illegal procession”.
There are only a few checks and balances that remain in our country, and I was lucky to have access to the Appellate court. Protesting is not a tool for everyone but it must be something that everyone protects. I ride my bike more than my car because I know I’ve got to exercise for the much larger fight against the corporate takeover of the house, senate, media and president and who lie to us and cover for each other with ignorance.
Peace, Joe
Section 8 and 26 of the Oregon Constitution Article I
http://www.leg.state.or.us/orcons/orcons.html
S.8 “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.
S.26 “No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good.
Joe,
THANK YOU! For taking a stand for everyone’s constitutional rights, for not backing down to threats and attempts at intimidation from people in positions of power, and for showing that the legal system can be navigated by someone with the interest and the diligence to persevere.
It is time for everyone to start questioning why the City and Police insist on the variety of bad policies Joe sites above. This is our government to lead.
We all must write to the City demanding the resignation of Officer Sessum. He has amply demonstrated that he cannot competently enforce the law and that he is hopelessly and dangerously biased against bicyclists.
Joe,
You deserve mega kudos for your actions in this case. As a high school teacher that stresses the importance of the rule of law and respecting the Constitution, I applaud your tenacity in defending your/our civil liberties.
Thanks.
Officer Seesum apparently didn’t learn any manners from his high school football coach.
I am generally a fan of service police provide to the community but, this Officer Sessum is a complete tool and Judge Larson clearly fails the impartiality and measured application of law that we expect from court officers.
If it wasn’t you, Sessum could have busted some busboy or barista leaving work by bike assuming he was a Critical Mass troublemaker. Instead of building trams and “visioning” (whatever that is), perhaps Mayor Potter (a former police chief) should be spending more time insuring the cops actually do vital police work and know the laws they are paid to enforce? A super-duper pretty and gleaming city of art galleries, chi-chi retailers and condos means jack squat when citizens won’t go out for fear of arrest. There is something wrong in Puddletown when you can’t arrest meth heads, vandals, or suspected illegals due to PC policies but pedaling a bike makes you Public Enemy #1.
Loving the ‘burbs more and more.
Joe wrote:
“this was a win for ‘the rule of law’ and the freedom of everyone to assemble without “restraint’.”
Despite the fact that many people seem to believe that what makes this country great is a strong military, cheap consumer goods, the right to vote, or (insert your own choice here), I think it’s the Rule of Law that Joe stood up for. It takes a long time, it’s messy & unpleasant, but we seem to usually / eventually get it right.
thanks, Joe.
Thanks Joseph! Really.
I don’t know whether to be happy, because of the way this particular case ended, or angry because of what it represents. Actually I do know. It just makes my blood boil.
I have had more than one occasion where I have had to deal with the “few bad apples” in the PPD.
Being insulted and having my education level questioned, having a finger pointed in my face because I had the gall to ask why the motorist who had just run a red light and hit ME was not being ticketed, and most recently having an interaction with an officer begin with being threatened with arrest when I hadn’t even done anything. Note, maybe next time you could start with “Hi.”
What is the common denominator? These guys (and ALL of them have been men) are insecure bullies who take advantage of the threat of arrest or citation, to force someone to sit there and take it. And more often than not we do, because at the end of the day, it’s their word against ours.
Hey cops, I’d like to like you guys, but you sure don’t make it easy.
Joseph, you’re not just my new hero, you’re my new role model. Next time, I’m taking the bully to court.
And “Anonymous,” you’d have made a great little German back in the 30s.
Thanks, Joe!!!
it could be said that he was Standing Up for his Rights?
I cannot get a ticket in this town! arrggghhh.
my favorite was the theory that he was some sort of undercover agent?!….
By the way,
Critical Mass is neither peaceful nor lawful, and should be abolished.
This is the event that does the most damage between the cycling community and the city of Portland.
The last thing we need cyclists doing is making the wrong statement, and Critical “Ass” is the wrong statement.
Get a clue, and stop Critical Mass…
No need to get your panties all in a twist over a little civil disobedience. And BTW, CM is quite lawful these days, almost to the point of being painful…
Hey Dabby,
If you think Critical Mass is the wrong statement, THEN STAY HOME!
If you think Critical Mass is not lawful, then you obviously don’t know the law. It’s still legal to ride your bike on the street, no thanks to you. And we have not yet reached the point where fascists such as yourself can “abolish” our constitutional right to peacefully assemble. YOU need to get a clue.
And remember, We’re not blocking traffic, WE ARE TRAFFIC!
dabby is just messenging with you. in SF, the mASSengers would snear at us as “weekend warriors”. I would remind them that it was friday, not the weekend, and, I always ride but they were usually stoned and tired…
having said that, I think we should rally all the people who want to be traffic with us. check out the website. maybe, this blog could even get people out?
I am neither a fascist, nor messing with you.
Critical “Ass” is a mistake that has gone on too long.
Hop on the band wagon and ruin cycling for everyone.
I tell everyone, especially if they tell me they ride critical mass. I hate critical mass.
As a long term messenger, I can plainly see that it has done nothing more than bring cycling to the eyes of the public in a bad light.
You ride that way once a month, and we deal with the residual effects for more than three weeks later.
And cycling in general pays for years.
Clue, rent one.
there are a couple points to consider here about the merits of CM:
1: to my eyes, the most relevant and important success of CM is not actually the ride itself, but the legal accomplishments, like Joe’s, that help to clarify the rule of law, and provide for more and greater successes in the future. This is in the grand tradition of civil disobedience, where the fight is in the courts, and not actually in the streets.
2: however, this doesn’t actually mean that anything will legitimately change on the street. as far as street-level cops are concerned, the courts are the courts, and only matter as long as one is physically inside a courtroom. If precedent actually mattered to beat cops, police brutality and harrassment would have already ceased. As it clearly has not, one can only deduce that street cops don’t care.
3: despite arguments on this site, indymedia, and others, it is hardly arguable that critical mass is much more than preaching to the choir. the people that support it probably already ride in it, and those that don’t ride in it probably don’t support it. I’m usually quite averse to agreeing with dabby, but he has a point – critical mass is a monthly event that helps a few people’s
senses of community building, but greatly aggravates the already tense situation on city streets in which everyday riders, especially messengers, are constantly involved.
I won’t say to stop CM. I have my personal opinions, and allow those to dictate my personal actions, but i will ask that those who so staunchly defend this and other actions to “keep portland weird” remember that the larger population doesn’t want weirdness, they want their quaint little lives to remain undisturbed. When a group of well-meaining activists disturb these lives, this larger population has little sympathy.
Wow, what a huge cognitive dissonance I am having with this!
The police are only permitted to enforce actual laws? But, they can attempt to enforce their whims of convenience and do so if not challenged, sometimes even arresting and jailing and fining people? People who don’t have the time and/or money to fight it get screwed? People who have time and money get justice?
I thought the police were government employees. And that meant they worked for us, the citizens who pay them. Is that not true?
Why do we singly, and with our own sometimes too meager individual resources have to fight the collective might of the government? Again, I thought “they” were “us.” When did that change?
Did not someone famous once say something like ours was a “government of the people, by the people, for the people”??? Did I just dream that up?
When did our government become a outside force that we citizens must either fight or submit to?
let us also remember that portland “adopted” the keep it weird idea from Austin, which, also has a great CM ride which I have ridden.
I love CM. come try it. if you hate your first 10 minutes, leave. really, it is simple. come, bring your lights and be ready to have some fun. you never know what will happen…
dabby – a lyric from a song for you.
“Hate is what got me here
but I know that love sweet love is gonna set me free
all the hatred in the world is what got me here today
but I know that love is gonna set me free”
come out next friday! your first beer is on me…please try not to throw it in my face!
I have to agree with Dabby.
I think of it this way. CM is more likely to motivate some Pearl District “activist” to rally against us and get draconian measures passed against us than it is going to motivate them to ride OR treat us well from the seat of their Land Rover.
“You never know what will happen…”, but I can guess it will be along the lines of civil disobedience for disobedience’s sake. BLDZR and Dabby are right on target when they say CM is preaching to the choir and does more harm than good.
As a bike ride it seems to have little to do with riding, and as activism it is ineffective.
CM is to biking what drinking is to high school students – a big to-do over a cheap buzz.
Go ahead and ride it, but don’t kid yourself about it being the catalyst for a car-free world.
pushkin, riding CM and being a car free advocate are different things.
like being a messenger and being an asshole are different things. come ride the next ride. I would be happy to have you there. not that anyone can invite or disallow you, you have to do it yourself. your kind of thing, I ass u me?
adam, you’re not listening (or reading, or whatever).
nobody is disputing that CM is enjoyable, or community-building, or even marginally successful (though not in the way originally intended, i feel). The points here are that it’s a “feel good” thing to do, the costs of which outweigh the benefits.
By simply encouraging people who disagree with the ride to just “come try it”, you are backing up that very argument. Show me an example where CM causes drivers to get rid of their cars and/or dramatically change their driving habits for the better, and I’ll be convinced. But I have tried it. I did it for years in DC, New York, and Portland. And my experience has shown me it’s a waste of time.
The problem that I see with CM is that a good idea soon gets co-opted by others. This seems to happen with nearly every protest movement here and elsewhere. A bunch of bike activists ride to be seen as traffic. It gets larger and larger until it becomes something the police need to be involved in. (Traffic control and the like)
Unfortunately, once the police come out to insure some order and safety, a small number of self-styled “anarchists” dust off (or steal) their Huffys and join the fray for one reason: to piss off the establishment and the police. They don’t give a damn about cycling, car-free living, safety, clean air, less energy consumption, or anything else most CM riders want. They just want a confrontation with the cops because that is how they measure themselves “rebels” that they are.
Remember the WTO riots in Seattle? Lots of environmental and union groups with a serious message to spread and then once the punk kids started smashing store windows and looting it all got lost in the mayhem and all protesters got painted as vandals, miscreants, or worse.
How do we want cycling portrayed in PDX? Passionate people advocating for healthier lifestyles, safety, and less traffic or stoners, drunks, and brats giving the finger, fighting with cops, and screaming obscenities at folks just trying to get around town?
My experience at the street level has been that many more motorists who encounter CM are supportive than not. The negativity surrounding CM has almost all been generated by the media and ongoing police efforts aimed at making CM ‘cease and desist’.
Thank you BLDZR, Brad, Tonyt, and Pushkin for echoing my sentiments.
I actually rode one Critical Mass, the very first one to happen in Vancouver, Washington.
While small, it had a diverse group of people.
Ranging from, but not limited to, the punks just disturbing stuff to be disturbing (sadly, these were some of my friends), to older cyclists like me.
I was actuallly yelled at by one of the older cyclists to move out of the bike lane so the car that was honking at me could go by.
I was in no manner in the wrong, or in the cars way.
It was the first one in town, and like one person even knew why they were there.
I left the ride part way.
But I did have a nice ride home.
I appreciate your offer Adam to come jump on the bandwagon, and drink a beer, but I must turn it down.
Ride by the XV though, and I will give you a nod from the sidewalk as the police herd you down the street.
nice! dabby, I will tip my hat to the XV. only people who are much better cyclists than me hang out there. and, I have ridden over 50 masses in 5 cities(these are facts, not bragging…)
and, yes, I listen. “Having Fun” is all I want to do no matter the cost. The benefit of me having fun is worth alot to me.
ask anyone on the ride, I spend at least half the time antagonizing the cops. yelling at them about their stops. I am not afraid of them. I have only turned on my lights a few times at the mass – I tell the cops they are off, they still don’t ticket me. This dance will review again in 7 days.
on the halloween ride, one of the cops said, “people like you are the reason we don’t like being here”. I said, “no one invited you”. it goes on like that the whole ride. and, yes, I find it very amusing.
if you messengers are being mistreated, then get together, stand up, and demand better. do it. post the results.
that is all. anyone else?
tonyt – if you think that any of those “pearl activist” or range rovers want to take me on, please let me know.
CM is just one of many rides. it is not ruining anything for anyone. you may get a ticket if you want to – but you dont have to pay it. you can just go to court and beat it, if you want to. I would recoomend a tie and some shoes without clips on them.
you have met me, you think I am afraid of some punk in a suv?
happy holidays.
“you have met me, you think I am afraid of some punk in a suv?”
Congratulations Adam, you’re not afraid of a punk in an SUV. CM really is about you. I think you just made our point.
Happy Holidays!
“I encourage you all to go shopping more.”
– G.W. Bush
this is tired.
yawwwwn, I agree.
however, I am afraid of SUVs. they outweigh me by an order of magnitude, at least. so, I ride in groups or keep my head up, keep up with traffic, use bikelanes, bikeroutes, max, whatever.
glad to have made your point. see you friday! when do you guys get to XV, I would like to stop by before cm starts at 6pmish. will you be the one in those funny hats and shorter than needed pants?
Adam truly likes to stir the pot… a true troll under the bridge 😉 Seems that the comments went awry a bit considering the original subject, but I suppose that’s par for the course when the comments are unmoderated. Adam, I just have one question: You claim “No Fear” from the cops during the mass, but do you regularly goad cops when not participating in CM?
ian – stop capitalizing the first letter of my name. the point here, Ian Hopper, is to be precise.
so, no, I don’t go out of my way to “goad” cops. when I see them wasting our time and money(pointless fixed gear harrassment, revphil’s problem, cm patrol) or picking on a homeless person, yes, I get right in their face and demand to know what they are doing and why. However, I stay within the bounds of right or wrong. I am not trying to provoke the cops. I don’t know any other job where killing an innocent man gets you a few weeks paid vacation then a promotion/transfer.
if you want some more(education), Ian, come and get it this friday.
So, to sum up:
(1) Joe is a gentleman and a patriot.
(2) Sessum is a knob.
(3) People opposed to CM should stay home. Further, they should understand that their argument to the effect of “you’re not going to change anything by riding in CM, so you should stop” is equally applicable to them: Your unwarranted pessimism is not going to stop us from riding, so you’d might as well save it.
well, I guess case closed?
anyone else? haha. thanks AO.
and, lastly Ian Hopper, I don’t have time to point out all of the flaws in your various comments, but, I know. for a fact.
that comments are moderated. please do your homework in 07. until then, carry on your way. happy holidays!