Hadley poised to settle federal case with bicycle advocate; agrees to pay $27,500 in lawyer’s fees

Friday, December 13, 2013
HADLEY — Town officials have hammered out a settlement with a bicyclist who challenged the Hadley Police Department in court over bicyclists’ rights on the road.

The agreement, which the Select Board is scheduled to review in a closed session Wednesday, averts a federal trial that was scheduled to begin next week involving alleged police harassment of Eli Damon, a bicycle advocate who lives in Easthampton. It also comes three months after a U.S. magistrate ruled on right-to-the-road questions Damon had raised in his 2011 lawsuit against police.

According to the terms, the town has agreed to pay $27,500 to cover Damon’s lawyer’s fees. The pact, which town officials must still sign, settles complaints of malicious prosecution, illegal seizure of property and civil rights violations that were scheduled to be heard during a jury trial beginning Monday.

It also spells out rights of bicyclists and motorists, including on Route 9 where Damon had been stopped by police on several occasions in 2009 and 2010 for riding his bicycle in the middle of the farthest right lane in a four-lane section during heavy traffic. Damon had his bicycle and a camera attached to his helmet confiscated during one of those stops and police pursued charges of disorderly conduct and illegal wiretapping.

Damon and his attorney, Andrew Fischer of Boston, said they were pleased with the settlement.

“I feel it’s a very positive resolution,” Damon said Tuesday. “The town has acknowledged my right to use defensive-driving techniques when I’m cycling and that police are not allowed to stop me unless they have a clear, objective reason that I might be doing something illegal.”

Said Fischer, “Basically, they are agreeing that he (Damon) has a right to be in the road. The town is acknowledging a bicyclist’s right to ride on Route 9.”

Fischer said the $27,500 for legal fees does not cover all of his work on the case, but added that “it’s a significant amount of money to pay for a town that didn’t do anything wrong.”

Town Administrator David G. Nixon commented little on the settlement on Tuesday, saying only that it was an agreement both sides could reach and that the town’s insurance providers would handle the payment for Damon’s legal costs. He said the town has other pressing matters to address, including developing its budget.

“We have many things that we need to do in the town of Hadley,” Nixon said.

Town officials are expected to name an acting police chief soon to step in for current Police Chief Dennis J. Hukowicz, a defendant in Damon’s lawsuit, who remains on sick leave.

Nixon said the terms of the settlement, which was also the subject of an executive session by the Select Board on Nov. 20, will be brought to the attention of the town’s law enforcement.

“It’s something our acting chief is going to look at, among other things,” he said.

The Select Board, which meets at 7 p.m. Wednesday in Town Hall, is expected to give final approval to the settlement after discussing it in another closed session. The state’s Open Meeting Law permits litigation to be discussed in executive session.

Bike rules explained

The language of the settlement mirrors a 54-page ruling in September by U.S. Magistrate Kenneth P. Neiman, who found that much of the dispute between Damon and the town came down to differing interpretations of state traffic laws.

Neither side interpreted various provisions in the state’s traffic laws correctly, Neiman wrote. “The court ... has little trouble concluding that Massachusetts law requires a slower-traveling bicyclist to pull to the right to allow a faster-traveling motorist to pass when it is safe to do so under the circumstances,” Neiman wrote.

The agreement between Damon and the Town of Hadley acknowledges that, under state law, bicyclists are entitled to ride in a position anywhere within a single lane on a road, but have a duty to allow motor vehicles to overtake them.

In other words, a slower traveling bicyclist is required by state law to pull to the right to allow a faster traveling motorist to pass when it is “objectively safe” to do so under the circumstances.

Furthermore, bicyclists are prohibited from unnecessarily obstructing the normal movement of traffic and both motorists and bicyclists may only pass “when it is objectively safe to do so and only in an objectively safe manner,” according to the settlement.

Fischer said it was “gracious” of the town to address the rights-to-the-road issues in the agreement when they had already been settled by Neiman’s summary judgement in September.

“It’s the first federal opinion anywhere that takes the time and the trouble with respect to bicyclists and motorists, and we’re pretty pleased to have accomplished that,” Fischer said. “We’re talking about a bicyclist’s right to the road and how that’s established. That’s a measure of success to the case.”

Dan Crowley can be reached at dcrowley@gazettenet.com.