No charges for driver who struck cyclist, even with video evidence

WABA reports that

Despite having clear video evidence documenting the assault–including the threatening language prior to the attack, an independent witness who stated that the collision with the cyclist was intentional, and excellent police work by MPD in locating the driver of the vehicle and completing the necessary reports, no assault charges will be brought.

The authorities saw the video.  That was their answer.

If criminal assault charges are not pursued in a case like this one, where the entire incident is videotaped, corroborated, and well investigated, it is difficult to imagine a time when these criminal laws would be used to provide justice after a bicyclist is assaulted.

To those who say that current criminal laws provide the needed protection: you are incorrect.  This decision  makes that abundantly clear.

Wow. I'm just stunned. What does it take? Do you have to be a cop yourself to get something like this taken seriously.

Comments

[oboe]

It sounds like the US attorney's office decided not to prosecute. I wonder how much of this would be different if we had an elected states attorneys office for DC. Not sure a change in law will help until then. You see and endless stream of criminals caught and released in DC because the US Atty can't be bothered to prosecute. Not specific to bikes; and legislation doesn't seem to help.

[michael D]

Link is missing.

Wow. I want to give the benefit of the doubt to the US Attorney's office, maybe the case was not so airtight? This case is crying out for some reporting. We need more facts.

[John]

WABA link:
http://www.waba.org/blog/2011/09/no-criminal-assault-charges-to-be-brought-against-driver-caught-on-camera-striking-cyclist/

[Ren]

I went to an Arlington civic association meet-and-greet with neighborhood police the other night. I asked if they had ever cited someone for passing a cyclist too closely, since it happens to me on Columbia Pike all the time. They told me that no such law existed. A local cycling law expert corrected them. Then one of the police started the scofflaw cyclist rant, mentioning that he sees cyclists speeding on the trails all the time. Cycling law expert noted that no trails in Arlington have speed limits. The conversation ended with the police saying that no - they would not cite someone for passing too closely and that cyclists really need to follow the law, though it would be nice if Arlington police knew the law. The commander was at least nice about it - it was his subordinate who seemed really anticylist. I realize that this case is one where the police are to be commended.

[Crickey7]

It's a tough call. While I don't necessarily agree,
I suspect the reason was along these lines: After the exchange, the driver pulls ahead and starts to gradually move over. There is no sudden movement. The truck is almost past the bike when the collision occurs. The bike makes no effort to avoid the truck visibly moving into its lane.

This adds up to a more-likely-than-not case, but that's not good enough for a conviction. A defense attorney would argue that the gradual move over while pulling forward, and the fact that the collision was with the rear of the truck, is plausibly just an instance of a driver passing and then misjudging where they were in relation to the cyclist. And they would bring up the lack of any effort by the cyclist to avoid a crash. Yes, he had no legal obligation to move out of the lane, but all vehicles are obligated to avoid accidents where it is in their power to do so. Same for assaults. It would be like someone intentionally pushing a heavy object at you gradually, and your not moving out of the way. In an assault case, it's tough to win when the victim could have avoided being assaulted and visibly did not do so.

[charlie]

Yep, Crickey7 has it.

Civil case -- maybe. Again the damages issue.

[oboe]

I think the video is pretty clear. I don't disagree that it would be tough to get a conviction, though. Most juries would end up being the equivalent of the OJ Simpson jury, only desperate to teach the entitled, arrogant cyclist in question that he can't just break the law like he did (i.e. by riding his bike in the street).

In any civilized country on Earth, the driver would be facing jail time. However, in the US it's clear that the only justice cyclists can expect to get is the justice they mete out.

[DaveS]

If I've tracked the story correctly, the "be a cop yourself" incident also wound up with the two most serious assault charges getting dropped.

(The perpetrator did plead guilty to misdemeanor assault on a police officer, so if you're not a cop even that minor charge wouldn't be on the table.)

I agree with oboe; it's becoming undeniable that we can't rely on the authorities for justice, but if we can't even get assaults like this brought to trial I really don't like the trajectory that puts us on.

[Jack Cochrane]

Take it straight to the media. They’ll love it… it has videotape, and it’s outrageous. An interesting story for them.

[Jim T]

The evidence seems particularly strong for hit and run.

Whether a cyclist should have swerved is hard to say: Sometimes you fall badly when you swerve. Could he tell a collision was imminent or was he assuming that he was just being passed too closely which happens all the time. Did he really have time to react? Is this case so complicated to try that it makes sense to let it go?

This decision does seem to give the green light to those who might be inclined to push a bike with a motor vehicle within the District of Columbia. Do you think the same prosecutor would drop charges against a cyclist who did the same?

At first, I was a bit skeptical about the idea of paying attorney fees for cyclists if they win a case against a motorist, but not paying the motorists legal bill if he wins. The clear bias of the criminal justice system against cyclists provides the justification for what would othwerwise seem to be a bias rule for attorney fees.

[charlie]

@JimT; different standards of proof.

Criminal; beyond a reasonable doubt
Civil:clear and convicing

The problem on the civil side isn't proof. I'd say you have a civil case here. The problem is damages and how to prove them.

There should be a clear legal basis against filing useless lawsuits. Can you file civil assult/battery charges against everyone who bumps againt you in the metro -- maybe. Should you -- no.

There is also a certain amount of assumption of the risk which is going on here.

[washcycle]

With the behavior before the crash (yelling, anger, erratic driving) it certainly speaks to intent. If that can't make a case for intent, what will? Why did the drive even need to change lanes? Do you actually need to yell "I intend to hit you with my car!" before hitting someone to prove intent?

And even if we generously decide that it was an accident, it's still criminal. There are crimes that do not require intent.

The crash is criminal (failure to pass safely, reckless driving etc...) and leaving the scene was criminal. It is not credible to believe that the driver was unaware that he had hit the cyclist.

And I think Jim addressed the cyclist responsibility pretty well.

[Jim T]

@Charlie: Are you suggesting that appeals court would (or even might) reverse a conviction based on insufficient evidence in this case? If not, I don't understand your point about different standards. My view is that the appeals court would not reverse a conviction in this case.

Can you explain why you believe that legally riding a bicycle on the streets of DC constitutes assumption of the risk that someone will change lanes and strike you? Is that true only for cyclists or for motorists and pedestrians as well?

I don't see why you think there is a need to prove damages for this intentional tort. The problem is likely to be the cost of litigation just to recover damages that are probably small unless the jury awards substantial punitive damages--but the proposed law largely cures that by awarding attorney fees in addition to the damages.

[oboe]

I'm curious: will the driver be ticketed for violating the three-foot passing law?

My assumption is that there's some sort of legal technicality to would prevent that from ever being enforced either, right?

[oboe]

There is also a certain amount of assumption of the risk which is going on here.

Not sure I follow you.

[Crickey7]

You would have the prosecutor bring this case for the purpose of vindicating cyclists' rights. Sometimes they'll do things like that, but more commonly they perform a rough cost-benefit analysis. If the probability of getting a prosecution is low relative to the crush of other cases they're charged with prosecuting. In order to bring a case they are likely to lose, just for PR purposes, you need to raise it to the level at which they suffer in public opinion for not litigating. In essence, you need to make it political rather than legal.

[Jim T]

..and as Oboe pointed out at the beginning, that may be almost impossible with the way the US Attorney is almost uniquely insulated from local politics.

Or maybe--if we want to be cynical--they have done the political cost-benefit analysis you mentioned and concluded that by not prosecuting this case, the City Council will pass the bill, and then they'll never have to take this type of case.

Still, it would not hurt for the City Council to invite testimony from the US Attorney's office to glean additional insights as to whether this type of assault case will be prosecuted. And for Del. Norton to ask a few general questions. And for the the police to charge the driver with those driving infractions that were not part of whatever decision was made.

Personally, I think that the probability of a conviction or plea was high enough, and the work needed to take the case to trial low enough, that it would have been brought in most localities--even in PG. Alot of juries these days find a video to be better proof than the testimony of a police officer about what he recalls seeing.

[charlie]

@JimT; appeals court?

My point is a jury could easily find reasonable doubt. I could. That means no conviction.

What you are looking for is the trial judge to reverse the jury' finding, and that is a very different standard. As it appellate review. You are getting very confused.

Washcycle is correct there may have been other laws violated here, but they are traffic laws. You want criminal, you've got to have a higher burden.

For a civll finding of assult, you might get puntative damges. Certainly the statements go there. What is that -- 500? $1000? You don't have any other damages, and that is where the money is.

What WABA wants is special treatment for one class of invidicuals -- people who ride bicycles.

let me phrase this another way: how much of a problem is this in DC? Deaths? Injuries?

[oboe]

My point is a jury could easily find reasonable doubt. I could.

If the glove doesn't fit, you must acquit.

[oboe]

What WABA wants is special treatment for one class of invidicuals -- people who ride bicycles.

What about DUI/DWI laws? Generally they apply only to operators of motor vehicles. Why the special treatment for one class of individuals?

[guest]

@oboe

I believe DC passed a law a few years back about cycling under the influence.

In many states it is OWI, which covers everything from lawnmowers to boats to ATVs to tractors.

[oboe]

@guest,

In the case of DC, yes. But it's my understanding that was not the case previously. And not the general case across the country.

[oboe]

Also, OWI (at least in Iowa) stipulates "motor vehicle" explicitly. In any case, there are plenty of laws on the books that are specific to a particular class of vehicle. In my opinion the whole "special treatment" argument is a relatively unpersuasive debating gambit rather than an argument.

Sometimes it's appropriate to treat different categories of things differently.

There's definitely an argument to include pedestrians, skateboarders, and people pushing strollers in the class of "people protected from assaults by the drivers of motor vehicles". I'm not a lawyer or a lawmaker, so I can't speak to why they didn't include those.

[think a little]

Well, the defense of "clearly if he was close enough to break his back windshield with my lock, so he must have been within 3'" needs to be tested

A friend of mine in NC (a 2a friendly state) travels with a shiny S&W on his back, never seems to have this problem.

[Jim Titus]

@oboe: I think that whether to include all the vulnerable users is a close call, and when talking about reforming contributory negligence or results from reckless conduct, they all should be included (as well as skaters and equestrians).

Cyclists seem to be peculiarly vulnerable to hostility that occurs just because they are following the safe and legal procedure. A certain fraction of drivers show their displeasure to other vehicles who block their way, by passing them in a way that seems to threaten--though usually not cause--a sideswipe style collision. These drivers do it to people in cars as well, but the bikes are far more vulnerable and needing protection of the law.

These frustrated motorists may be annoyed by pedestrians who cross at a crosswalk, but they don't seek retribution. DC law does not allow skates and skateboards on most major roads.

@Charlie. I should think that at some point, the sufficiency of evidence governs whether you go forward with a prosecution, and the test of that is whether a conviction would be sustained on appeal. I'm not sure that the fact that you think there is reasonable doubt really matters, since you would almost certainly be excluded from the jury.

But still, I'll bite: Why do you doubt that the driver was deliberately trying to express his opinion by driving the truck close enough to scare--if not hit--the cyclist?

[Viola]

I'm curious: will the driver be ticketed for violating the three-foot passing law?

I had this same question. Doesn't seem there are any tickets being issued here. When would that happen? Isn't this a clear cut case of not passing giving 3 feet? So...could MPD give a ticket retrospectively based on the video and other evidence?

[washcycle]

oboe, Jim hit half the reason that I heard from Shane Farthing, which is that other vulnerable road users aren't reporting these kinds of problems. The other half is that WABA wanted to keep the bill as simple as possible to make passage easier. They aren't opposed to making it more inclusive, but that isn't where they're starting.

[Boomhauer]

"I'm curious: will the driver be ticketed for violating the three-foot passing law?"

DC DMV has yet to issue a an actual citation with the associated "T Code" or fine, so it is not ticketable.

[Viola]

@Boomhauer, I hadn't realized that! What is the function of the law if it isn't ticketable?

[Jim T]

This is probably reckless driving, and certainly negligent driving, so the three-foot passing violation may be moot.

[Eric_W.]

What is the recourse (if any) if the US attorney doesn't bring it up for trial?