Insufficient Evidence

I'm not sure what is needed.

Hersh, an avid cyclist on his Sunday morning ride, was apparently following traffic laws by pedaling east in the right travel lane - not the turn lane - on Shore Drive near Starfish Road in the early light shortly before 6 a.m., when a Ford Explorer struck him from behind. He was wearing a helmet and a bright yellow windbreaker with reflective strips, Bryant said.
The driver of the Explorer told police she never saw Hersh, and authorities found no evidence to support potential charges to allege that she hit him willfully or through negligent or reckless driving, Bryant said.

How is "not seeing" a cyclist in front of you, one who is wearing a bright yellow windbreaker, not negligent? She won't even lose her license.

Comments

[Eric_W.]

The Bob Novak defense seems to work every time for drivers.

Maybe I'll say that when I am stopped for a rolling stop. Shouldn't that get me off as well? I just did not see it?

[Scott F]

Looks like it's okay to kill people, as long as the person you kill is riding a bicycle at the time.

So I'm going to try to get people I don't like riding. I'll talk up the benefits, and when they fall for it, WHAM!

There could definitely be a bright side to this.

[guez]

I'm not a lawyer, but my understanding is that "criminal negligence" is a technical term. A quick internet search suggests that it is most often invoked in cases where a motorist is impaired by alcohol or drugs. One website (http://criminal.lawyers.com/traffic-violations/Driving-Deaths-Negligence-and-Criminal-Liability.html) specifically notes that "Criminal liability can't be based on any careless act merely because it results in another person's death."

I believe that the fact that the driver was not found to be *criminally* negligent does not mean that there is no *civil* liability. Perhaps a lawyer could elaborate.

[guez]

Sorry to follow up my own post, but I did a little additional research and it appears that inattentive driving that leads to severe injury or death is typically not prosecuted as negligent. Prosecutors typically look for specific evidence of "more than ordinary" carelessness. I imagine that this might include intoxication, talking/texting on a phone while driving, speeding, running a light, etc. The article to which you link suggests that police were able to find any such factors.

[Contrarian]

Drivers rear-end other vehicles on the road all the time. Not just cars, but big stuff like buses and trucks too. I've done it myself (to a car) -- both on a bike and in a car. Those drivers don't get prosecuted, they don't even lose their licenses.

We want equality, right?

[Brendan]

How is a fender bender equal to a man's death? Don't explain it to us. Explain it to his kids.

I don't want equal rights, I want bicycle rights.

[Washcycle]

No. I don't want equality. I want to be given greater responsibility than pedestrians and less than drivers. There is a reason we license drivers and no one else. It's because they're given so much power. This is why pedestrians always get the right of way. John Pucher advocates that we "Revise traffic laws to place burden of proof on motorists, with the assumption that motorists are guilty unless it can be shown otherwise." Which is how they do it in many European countries. That's what I want.

If I screw up at my job I get fired. If I were a PE (licensed Professional Engineer) and I screwed up, I could go to prison - and people do. This women was a licensed driver, she passed tests showing she had the skills and knowledge to drive without killing someone, and then she didn't live up to her responsibility.

[Contrarian]

I actually feel that driving is way under-regulated and walking and cycling are way over-rated from a public policy standpoint.

My point is that we shouldn't be targeting careless drivers who hit cyclists, we should be targeting all careless drivers.

[Brendan]

But if you can't even target careless drivers who kill, the most obvious targets for enforcement, how are you ever going to get to the mass of careless, non-killing drivers?

Priorities.

Punish the killers and maybe the careless masses will take heed and be less careless.

[guez]

Contrarian and I are in rare agreement on this. My understanding is that this incident is not being treated any differently than if the motorist had killed another motorist. The point bears repeating: if carelessness does not exceed a certain threshold, it does not rise to criminal behavior. Criminal law deals not just with actions, but "mens rea" or moral state of mind.

I agree, however, that drivers are under-regulated. Since the Anglo-American tradition of criminal law is unlikely to change, perhaps courts should have more latitude in revoking the driving privileges of careless drivers.

[Washcycle]

My point isn't to criticize the prosecutors here. You're probably right about the law and the way it's being enforced. My point is that the law is bad.

In Georgia, for example, all vehicular homicides without intent to kill that involve any other violations of the laws governing the operation of motor vehicles are classified as second degree vehicular homicide. Second degree vehicular homicide is a misdemeanor, punishable by imprisonment or other confinement for up to 1 year, a fine of up to $1,000.00, or both. However, at the judge’s discretion, punishment may be suspended or a probation sentence may be received.

In this case, the driver was clearly following too closely, which I'm pretty sure is illegal, and would be guilty of second degree vehicular homicide in Georgia. That's the kind of law we need.

I'll third that drivers are under-regulated.

Going farther, if you want to improve safety you can go after two points. You can reduce the number of collisions or the severity of them. For those in cars, there are all kinds of ways to do the latter - crumple zones, air bags, seat belts, safety glass etc...Cars are really engineering marvels when it comes to safety. For cyclists there isn't much you can do in that regard beyond reducing vehicle speed (helmet use helps in my opinion, but it's limited). The only way to protect cyclists is to prevent accidents in the first place. This is why the "treating cyclists like cars" mantra isn't always so good. It's Ok for cars to hit cars - that's what bumpers are for, right? But it is not OK for cars to hit cyclists and pedestrians. Because the cost of a car hitting a cyclist of pedestrian is so much higher than hitting a car, the risk to the driver needs to be higher too. I don't want equality when it comes to "duty of care" I want the duty to be much higher.

[guez]

Washcycle,

I agree with much of what you say, but I think that you're confusing bikes and cyclists (and cars and motorists, for that matter). (I think that Contrarian confuses the two, as well, now that I reread his post.) I would suggest that the duty of care should not be the same when dealing with *bikes* and with other *cars*, but rather when dealing with *cyclists* and other *motorists*. Since cyclists have a higher chance of being injured in accidents than other motorists (and a reasonable person knows that), it follows that the motorists have a duty to be more careful around cyclists. I pretty sure that this is the way that criminal negligence works pretty much everywhere in the U.S.--in principle, at least.

The real question (and here I do agree with Contrarian) is whether the overall "duty of care" toward operators of other vehicles on the road should be higher.

[lwatkins]

Weak, weak laws. In germany, it's a driver's responsibility to avoid a collision with a cyclist or pedestrian no matter what. Say a pedestrian is on the sidewalk and just thinking about crossing - it's the driver's job to assume they will and avoid the accident - saying otherwise you will fail the driver's test.

And in Holland, a driver is automatically at fault if you hit a cyclist or pedestrian - by default.

They are also a lot stricter about training drivers in Europe in the first place.

This is what we get for being lax on drivers. The negatives do not outweigh to positives.

[charlie]

We're talking about two separate problems.

First, the driver was not criminally negligent. There may be civil liability, but we don't know from this fact pattern yet.

Second, automotive traffic law sits at the intersection of criminal law and regulations. As a regulation, there are any number of failures. But what washcycle is arguing for is increasing penalties based on what happens to the victim. That system may make sense: if you kill someone in an automobile accident you could be prosecuted for murder. In certain cases where are regulations are completely broken (speeding and drunk driving and talking on cell phones) that may make sense. You can speed all you want, but if you kill someone you're going to the gas chamber.

Actually, that is what they do in Saudi Arabia, which is why we tend to have a system of criminal justice that opposes things like that.

[ibc]

Weak, weak laws. In germany, it's a driver's responsibility to avoid a collision with a cyclist or pedestrian no matter what.

I was thinking about this the other day while riding my bike on Capitol Hill. Watched groups of mothers and children fearfully scurrying across E Capitol Street, trying to get to Lincoln Park. Realized I do the same thing with my daughter: "Hurry up! Let's go!"

It's completely and totally fucked up, and it's got to stop.

I'll be happy when the speed limit is 15mph in the city limits, and cars have essentially the same rights as one of those beeping carts at the airport that you see driving the elderly and handicapped to their gates.

Given that the whining, bitching, crying and self-pity that you hear from drivers every time the city paints a bike lane, I'm guessing this is going to take a long time.

[SJE]

Ridiculous. Not only was he wearing bright yellow, he was
1. Riding on a road that leads to a park...the sort of road you might expect cyclists
2. Shore Drive at that spot looks, on Google maps, straight, flat, two lanes in each direction, and kinda sleepy. Its not like riding in Manhattan.
3. He was a SEAL....you would expect him to be fit and have good situational awareness.

If this guy can get killed where and how got killed, why is there "insufficient evidence" for even a misdemeanor charge?

[anonymous]

Block. Traffic.

Every time you see a situation like the one described by IBC, pull out and block traffic.

If drivers whine and complain and feel entitled every time a line of paint appears on their precious highways, I say block traffic. Cyclists cannot continue to be marginalized and expect to see anything more than token efforts to make a community pedestrian and bike friendly. I say declare war.

Seriously, look at Cambridge, Mass. This is a city with a similar density as DC, yet everyone bikes everywhere because it is so safe. Drivers there have been tamed. They stop at every intersection, or anytime a pedestrian looks like they want to cross the street. Nobody speeds.

DC has a nearly identical set of laws; why do drivers here speed everywhere with impunity? If the cops won't slow them down, we should.

[SJE]

Anon: drivers in DC are the worst I have seen. I think that part of the problem is that you have
a lot of people who are very full of themselves in in their little town and are used to getting their way, and driving accordingly.

[guez]

SJE,

In criminal negligence cases, which are very subjective, prosecutors generally want something other than broad, circumstantial evidence of the sort that you cite. ("Well she must have been negligent: how else could she have hit him?") If you read the discussion thread from the linked article, moreover, there are number of explanations of how this could have happened: early morning lighting (nearly 30 minutes before sunrise), in particular, may have been a factor. Perhaps we should, as Lee Watkins suggests, rethink our whole attitude toward motorists and criminal negligence, but I find the assumption that this is an open-and-shut case of negligence to be unwarranted.

[SJE]

Guez: I realize that the criminal negligence standard is high. I was mostly venting. Nevertheless, I would like to see more information about why the driver wasnt charged: did they check cell phone records, driving history, BAC?? Its too easy to find "insufficient evidence" if you do not look hard enough.

[guez]

Don't know about driving record, but according to the article, they did check cell phone records and BAC. In addition,

Investigators took measurements, photographs and video of the scene, all of which supported the woman's statement that she was in her lane and abiding by the 45-mph speed limit.

This is a tragedy, and perhaps we *should* set the bar higher, but there's no reason to think that the police did not do their job in this instance.

[Washcycle]

I'm with guez on this. There isn't evidence (or enough) for gross negligence.

But there is evidence of some negligence. And there seems to be a gap in the law that should be filled by a lesser crime/misdemeanor.

Imagine four incidents in which a cyclist is hit from behind.

1) Driver was heard yelling "I'm going to show you cyclist" before the collision.
2) Driver was drunk
3) Driver was inattentive
4) Cyclist was drunk, riding at night wearing all dark clothing, no lights and no reflectors.

1 would be murder. 2 gross negligence (and thus a lessor crime) but 3 and 4 are criminally indistinguishable. I think we need some sort of crime defined for 3. Right now that's not illegal.