Incivility: How Lawyers and Legislators De-Valued Your Life
Submitted by Bruce Ebert on Tue, 06/01/2010 - 05:59
The outcome: a fine of $140 for the collision, which fractured the cyclist's skull and damaged his left leg to the point that it necessitated amputation at mid-shin.
Looking at that case in relation to some similar cases, her penalty was harsh-but nothing when viewed in the context of how her operation of a two-ton box of steel with horsepower to spare altered the life of the boy and his family.
Compare that case to this: in April 2009, a month after former Navy SEAL Daniel Wayne Hersh was killed by an SUV in Virginia Beach, Virginia, the city's chief prosecutor, Commonwealth's Attorney Harvey Bryant, announced he would take no action. Bryant said he and police officers determined there was insufficient evidence to bring charges against the driver. The decision incited a vigil, as well as an explosion of outrage to the local news media. Wrote one cyclist to the region's newspaper's web site:
"Harvey Bryant is a politician and he knows better than to infuriate his SUV-driving electorate. Driving a truck is a right and not a privilege at the Beach, and bikes are speed bumps."
While that was taking place, the news in Los Angeles included the case of a Hummer driver who maneuvered into a stream of about 12 cyclists, injured one and destroyed several bikes. The investigating officer let the driver go without pressing charges.
These cases and others are infuriating cyclists all over the U.S., causing many to question the integrity of a system that appears to dismiss the value of lives extinguished or crippled on roads that traffic signs and PR campaigns remind us are meant to be shared.
The reality is that, unlike in Europe, such leniency has been part of the American way of justice for decades, as state after state changed its respective laws to process car-bicycle collision injuries as compensation matters handled in civil courts-and the result was less punishment for the offender and greater emphasis on compensation for the injured cyclist.
"I can understand the reaction," says Steve Kessell, the Maryland State's Attorney who prosecuted Weaver. "But it's based on a perception of the law that is not really accurate."
In the '70s, with cycling's surge in popularity, America's criminal courts began to be so overwhelmed with cases that, as part of a state-by-state court reform, car-bike collisions were downgraded as criminal matters and turned over to civil courts for the purpose of meting out compensation to victims. Thus, in most states, anything less than cases of wanton disregard for human life, malicious intent or gross misconduct with a motor vehicle will merit little more than a ticket-and sometimes not even a ticket.
"Until then, motor vehicle offenses were criminal," explains David Hiller, advocacy director for the Cascade Bicycle Club in Washington State. "Then, in exchange for waiving the right to due process, and to unclog the courts, the trade-off was those cases would be handled in civil court."
As civil cases, says Portland, Oregon lawyer Ray Thomas, they do little or nothing to advance real justice. "You could have a carrot for a lawyer," he says, "and you (the injured) will get the limit [of monetary compensation]."
"It's extra work for the police officer to go to court," says Thomas, who specializes in pedestrian- and bicycle-related cases. "Everyone just says, 'Let the insurance companies work it out.'"
"The lowest of the low" is how bike-vehicle collisions rank in the eyes of police, Thomas says. "They say, 'Our job is to get criminals off the streets.'" Period.
In the Maryland case, says prosecutor Kessell, even the victim's parents understand there was no wanton disregard for human life-no excessive speeding, no driving during or after substance use, for example. They accepted it as an "accident." The collision occurred on a narrow, hilly country road, the boy standing with his bike in the middle of the road on a downslope. The driver was going 40 in a 35-mph zone but showed no evidence of drug or alcohol consumption.
But not every motorist meets up with such an understanding victim or victim's family. Throughout the country, bicycle advocates are working for changes that will wake the rest of the public up to the fact that killing or maiming a bicyclist is taking or altering a life-and it deserves serious punishment. Wrote Thomas in a paper submitted to Portland's Bicycle Transportation Alliance in January:
"Few families would seek to send to prison the soccer dad whose moment of inattention caused the death of a child attempting to walk to school. But when responding police officers merely issue a minor traffic violation or no ticket at all, victims' families are justifiably frustrated and angry that so little is done to provide some public accountability for the horrific mistake and to reduce the likelihood the driver will kill again.
Victims' families, he says, "will gladly support legislative efforts to reform traffic laws to provide real consequences for deadly drivers, even if the primary intent of legislation is to improve, not punish, bad drivers and deter others from careless fatal mistakes."
But because driving today is such a necessity for most American adults, and because it means dealing with untold stresses and obstacles, public sympathies are strongly on the side of drivers. That sentiment is reflected in the laws that exist.
"Sixty-three percent of the public drives," says Hiller. "They make up the majority of the voting public."
And they have clout-applied and implied. "Some lawmakers don't see cyclists as equally entitled to the roads," says Bruce Drees, advocacy director for the Tidewater Bicycle Association in southeastern Virginia, where Daniel Hersh was killed. Not only that, Hiller believes that instead of doing something to discourage careless and inattentive driving and protecting people from becoming victims, legislators are inclined to put themselves "in the position of the perpetrator, not the victim. They say, 'That could have been me'" who hit the cyclist, Hiller says. "The carnage we accept in this country."
Unless a driver does something that meets the standard of gross negligence-like move deliberately to harm or kill a cyclist, take a vehicle on the road after consuming alcohol or drugs, or driving knowing that he or she can put someone's life in danger-chances are little criminal action will be taken, says Portland lawyer Thomas.
Change is occurring, but it is slow and, like the code changes of the 1970s that moved bike-car collisions to the civil docket, it is state-by-state. In nine states there are now laws providing criminal penalties for causing a death for crashes that don't meet the standard of gross negligence. Those states are Alabama, Arizona, Georgia, Hawaii, Idaho, Nebraska, Nevada, North Carolina and Utah. Efforts are under way in several other states, including South Carolina and Colorado.
Though it may look as if drivers are at war with cyclists, "There is no fiendish, Machiavellian plan to 'get' cyclists," says Andy Clarke, executive director of the League of American Bicyclists, the country's largest bicycle-advocacy and education organization. "There are way too many people not paying attention-and they don't care," he says.
Getting each side to understand the rights of the other-and its responsibilities to the other-is something courts are more actively attempting as they hear cases.
"We try to promote understanding and empathy," says Portland-area Judge Pro Tem Christopher A. Larsen. "We try to put the bicyclist in the driver's shoes and the driver in the bicyclist's shoes, so that it's not us versus them, but it's we."
Therein stands the question that boggles the minds of those who take "Share the Road" literally: Shouldn't the fragility of life be enough motivation to make drivers extremely watchful and mindful that they have the capacity to kill people?
"You would think so," says Clarke. "But it doesn't."
And so, cyclists like Liz Hokanson, a crash survivor from Blacksburg, Virginia, wonder what will happen when any future fatality case comes before a judge while the current mindset prevails. She asks: "Will the judge say of the driver, 'He probably feels so bad?'"