You Can Kill Anyone As Long With Your Car, As Long As you Don't Really Mean It
By M. Sophia Newman Jun 18 2014
On May 29 of last year, Bobby Cann left the Groupon offices in Chicago,
where he worked as an editorial-tools specialist. Traveling north on his
bicycle, he rode up wide, sunny Larrabee Street. As he entered the intersection
at Clybourn Avenue, a Mercedes SUV traveling more than 50 miles per hour
slammed into him from behind. The impact threw Cann into the air. He landed
unconscious, blood streaming out of his mouth and his left leg severed.
Bystanders, including a registered nurse, rushed to help. Shortly after
transport to a nearby hospital, he died.
What makes Cann's story notable among the 700 or so bicyclists who are
hit and killed in America each year is that San Hamel faces charges in Cann's death. According to a
recent report by the League of American Bicyclists, barely one in five drivers who end
bicyclists' lives are charged with a crime. The low prosecution rate
isn't a secret and has inspired many to
wonder whether plowing into a cyclist with a car is a low-risk way to commit homicide.
The Cann case is an exception that proves the rule. "The criminal
case is sort of about the outrageous nature of what happened," Todd
Smith, a civil attorney for Cann's family, concedes. "[San Hamel
was] driving under the influence on the city streets where things are
congested, and [there was] the complete lack of braking of any sort, the
enormous impact of a car of thousands of pounds going in excess of 50
miles per hour, hitting just the human body." San Hamel's blood
alcohol level was 0.127 at the time of the crash.
Bicyclists who pushed for prosecution also helped the cause. Last summer,
more than 5,000 people signed a petition asking state attorney Anita Alvarez
to refuse a plea bargain from San Hamel. Local activist Robert Kastigar,
who started the petition, says he believes it encouraged the state to
pursue the case. A representative of Chicago advocacy group Active Transportation
Alliance says the involvement of activists is likely to influence stiffer
Nationwide, incidents like Cann's often result in misdemeanor charges,
tickets, or nothing. Leah Shahum from the San Francisco Bike Coalition
New York Times
last year that her organization does "not know of a single case of
a cyclist fatality in which the driver was prosecuted, except for DUI
or hit-and-run." Kristin Smith, also of the SF Coalition, says that
"Last year, four people were hit and killed in San Francisco and
no charges were ever brought," including for a collision captured
on video that showed the driver was at fault. Last year in New York City,
the bike-advocacy organization Time's Up pushed for changes in police
investigations of bicyclist deaths by painting chalk-body outlines on
streets, marked with words familiar from NYPD reports: "No Criminality
Data on the official number of prosecutions in fatal bicycle collisions
is sparse, and following up on prosecution is the least-covered point.
A May 2014
report from the League of American Bicyclists reads, "We don't know much about the consequences of most crashes
that result in bicyclist fatality." Based on incomplete data, the
report estimates, "Nationally, 45 percent of fatal cyclist crashes
had some indication of a potential enforcement action; 21 percent had
evidence of a likely charge; [and] 12 percent resulted in a sentence."
Put another way, killing a cyclist with a car was effectively legal in
more than seven of every eight cases.
Despite universally acknowledging the problem, bike activists don't
always agree on appropriate punishments. Robert Kastigar, the activist
who circulated the petition for Hamel to stand trial, is ambivalent about
punishment. "He shouldn't do 120 days, but he shouldn't do
12 years, either," he says, even though the latter figure falls within
Illinois state law's sentencing guidelines for reckless homicide (three
to 14 years). He also suggests San Hamel would be best punished by being
forbidden to drive, "since we all depend on cars." (It's
worth noting that Bobby Cann did not have a car.) In another case, the
mother of Hector Avalos, a 28-year-old former Marine struck and killed
by a drunk driver in Chicago last December, believes putting the man who
killed her son in prison is pointless. Robert Vais, the driver, "might
only do one year," she said. "What good does it do for me?"
Vais received a felony aggravated DUI and two misdemeanor DUI charges,
but nothing for killing Hector.
But if the public is at a loss, so are prosecutors. Portland, Oregon, attorney
Ray Thomas explains that DAs don't like to go after "some soccer
dad who made a mistake… The police, prosecutors, and courts don't
feel it's a mistake that should net someone jail time… There
are criminally negligent homicide laws. But [a crash] has got to be really,
League of Illinois Bicyclists executive director Ed Barsotti explains why
cases aren't prosecuted in his state: "We are left in that situation
where you have to be charged with a felony, and it's really tough
to meet that standard, or you're stuck with the usual traffic citations.
We and many others are interested in having that prosecution gap closed."
Illinois created a Distracted Driving Task Force in 2008, which generated
a list of laws for new charges against drivers who hit bicyclists. Unfortunately,
for lack of political will, none of those laws passed.
In 2010, a glimmer of hope was sparked in New York when Hayley and Diego's
Law was passed. The law, which focuses on penalties specific to careless
driving, is designed to enable prosecutions of drivers who hit bicyclists
and pedestrians—a previously difficult task because no appropriate
penalties existed. But New York cops and activists don't acknowledge
Diego and Hayley's Law. Despite arguing for more aggressive prosecutions
of careless drivers, Time's Up director Bill DiPaola was unaware of
the law. (DiPaola says his group focuses on educating bicyclists on how
to manage a crash, and has also successfully pushed the city to beef up
its collisions-investigation unit to address cases in which bicyclists die.)
While Hayley and Diego's Law is a step in the right direction, New
York City's biggest roadblock when it comes to prosecuting cycling
accidents is a bizarre loophole that is applicable to the majority of
Right now, what New York misses that other states have is that the police
cannot issue a summons unless an act was committed in their presence,"
says local bike attorney Dan Flanzig". This means most bicyclists can expect police action only if a cop happens
to watch with his or her own eyes as they get flattened on the pavement.
Flanzig says New York is also unique because it has a
"no-fault" insurance law
for motorists, which can cover an injured bicyclist's medical bills
without a criminal prosecution or a private lawsuit. Flanzig says the
insurance may give cops an excuse not to bother with the logistical
problems of prosecution: "They may say, 'This is a civil matter;
we're not going to chase them down; we're not going to do a summons.'"
Other states' laws make a bit more sense. Delaware, Hawaii, Oregon,
Utah, Vermont, and Washington have recently implemented
vulnerable-road-user laws, which provide comprehensive methods to address cases of careless driving
without felony charges. Thomas describes them this way: "[The crash
is] not necessarily a crime, but there are some things you need to do
to reconcile it. That's community service, a physical and mental evaluation,
and a driving safety course," which "provide a higher level
of scrutiny" on whether a driver should return to the road.
Spurred by an incident caught on video where a driver yells something at a cyclist before slamming into him,
Washington, DC, passed a limited "anti-harassment" law in 2012
to penalize drivers who deliberately assault bicyclists. Washington Area
Bicycle Association, which pushed for the bill, says it was necessary
because deliberate harassment of cyclists was common in the DC area and "
too often… criminal charges are not brought" under existing laws. Similar laws have been passed in 17 states.
But while those laws might help prosecute the psychopathic assholes who
don't have any qualms about hitting a cyclist out of anger, the vast
majority of fatalities can be chalked up to negligence. This means that
even if these new laws are actually enforced, the number of cyclists who
are run over might not decrease. Portland, Oregon's Bicycle Transportation
Alliance helped pass a Vulnerable Road Users law, but communications manager
Rob Sadowsky says, "We didn't push the law expecting there to
be more [safety]. We wanted prosecutors and DAs to have an opportunity
to have tools at their hands to be able to punish." Sadowsky points
out deterrent effects only reduce
intentional killings, and "nobody ever wants to kill anyone."
The longtime tension between cyclists and cops, which DiPaola blames largely
on the confrontational and sometimes violent Critical Mass protests of
years past, seems to be waning. In Chicago, a recent Ride of Silence that
I attended went off without a hitch. The ride, which tours
ghostbikes to call attention to bicyclists' deaths, began with a gentle reminder
to "obey the police," and the police reciprocated with an unusual
politesse. For people complaining about having their lives threatened,
the activists were bizarrely chill.
But if the group reacted to their own aims as if the wind were at their
backs, then perhaps they have a point. After all,
every single state has considered distracted or careless driving laws (like Hayley and Diego's
Law) since the year 2000, and every Vulnerable Road User law on the books
has been passed since 2007. Increased public funds for bicycle lanes,
bicycling promotion schemes, and advocacy have created huge surges in
the number of riders, too. If the recent past is any clue, more pro-bicyclist
legislation is on its way.
Soon, any crash—not just the drunken, high-speed, body-dismembering
collision that killed Bobby Cann—might be enough to put a driver
off the road or even behind bars. As bike attorney Ray Thomas puts it,
"I feel like things are going our way."