Q: On a recent group ride a car passed us just inches from our handlebars. One rider flipped the bird to the driver, who then pulled over. As a passenger tried to get out, our "bird man" pushed him back in. The passenger then struck the "bird man," breaking his helmet. All the while a teenager in the back seat was punching out of the back window while the driver spewed profanities.
I have three questions. First, although unwise, isn't it a constitutionally protected right of free speech to flip the bird? Second, was the bicyclist within his rights to push the man back into the car for fear of receiving a beating? Who assaulted whom?
Morgantown, West Virginia
A: Yes, you can flip the bird and not have to stay after school, but it might be considered a provocation. So, it's better to wave to rude and dangerous drivers—it seems to enrage them even more than a middle finger. Plus, you'll look better when the cops show up.
(How lame is this defense for the driver? "Officer, I know I shouldn't have attacked him, but he was being sarcastic when he waved to me.")
When your "bird man" initiated contact, however, he may have lost his halo. The question of who assaulted whom depends on the facts of the case. Bird Man must be able to demonstrate that he was about to be attacked. Although potentially true, it's uncertain whether a cop, jury or judge will agree with him.
Remember this basic rule: You have the right to defend yourself, but it must be in response to an imminent threat of bodily harm, and your response must be proportional to the threat. If he's coming at you with a feather, you can't counter with a bat. If you are going to get into a scrum, it's better to play by the rules and let the other guy get the red card.
Author of Bicycling and the Law, Bob Mionske represented the United States in cycling at the 1988 and 1992 Olympic Games. Email your cycling-related legal question to email@example.com.
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