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A windshield fell out of a bus!: A windshield fell out of a bus in SE DC today. Nobody can say why yet, but that's what the operator said. (Get There)

A dog is worth 10 joggers: A driver killed a jogger along the side of a road in Frederick County, but only faces a $500 fine after prosecutors gave him a plea deal and dropped a negligent driving charge. Meanwhile, a man threw a Chihuahua off a bridge, and faces a $5,500 fine and 4.5 years in jail. (The Perils of Public Transportation)

You dented my car when I hit you!: An American driver hit a Danish cyclist with a rental car in Copenhagen last year. Police faulted the driver. Now the driver's insurer, American Express, is demanding compensation from the cyclist for so inconsiderately damaging that car when it hit her. (Copenhagenize, Matt', Erik W)

Rules apply to reporters too: Channel 9's Bruce Johnson got a parking ticket at Vincent Gray's announcement. Mike DeBonis rode his bike. (Twitter/mikedebonis)

What can we learn from Charleston?: Charleston's Mayor Riley will give a lecture on Monday, April 12 at the Kennedy Center. He's done a lot to revitalize his city and Richard Layman says his talks are terrific. (RPUS)

Shoup@NBM: Donald Shoup is returning to DC on May 27 and will give another talk about parking policy and pricing at the National Building Museum. (Bossi)

Cities in scope: Washington DC's own Neal Pierce, the founder of Citistates Group, has announced the launch of Citiscope, a new global news service focusing on cities, "to report regularly on cities' notable new approaches and solutions on every issue from climate adaptation to local food self-sufficiency to slum upgrading." (Eric Hallstrom)

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David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington and Greater Greater Education. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater. 

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as has been reported here again and again I suspect the leniency on the jogger death is because it would require holding a person to a level of responsibility while s/he's driving. The cruelty of throwing the dog off a bridge didn't have anything to do with an act while driving. For instance there's no charge at all for driving your car into a dog and injuring/killing it, even if the act was intentional (too hard to prove excuse) or there was circumstantial evidence of the drivers' neglect, like talking on the phone at time of crash. (see case of Mr. Schwartz. Again, the too hard to prove excuse). It's about the (pathological?) inability of our culture to hold drivers to a level of responsibility for their acts while driving, whereas the same person would be made responsible for similar acts of cruelty/neglect committed when they're not driving.

by Bianchi on Mar 30, 2010 5:13 pm • linkreport

Re: You dented my car when I hit you

Our reputation really does precede us- we're the litigious aholes of the world. Sorry Denmark! :/

by Chris Loos on Mar 30, 2010 5:19 pm • linkreport

Re; car dent and fatality w/ jogger - similar problem decribed by this quote ...the police have said that the American woman wasn't used to watching for cyclists and, after the accident, couldn't understand that it was her fault. Inability to comprehend responsibility for acts committed while driving.

by Bianchi on Mar 30, 2010 5:32 pm • linkreport

the future of the exurbs (i know this has been brought up before): http://www.latimes.com/business/la-fi-hemet30-2010mar30,0,7301923.story

by IMGoph on Mar 30, 2010 5:52 pm • linkreport

Bianchi, your understanding of the legal system is somewhat weak. You do realize that if I shoot you accidentally, that is not a homicide?

The key question is intent with regard to criminal laws.

The charge here was "negligent driving." I am not familiar with that specifics of that law in Maryland. Clearly the prosecutors made a decision it was better to offer a plea agreement rather than prove "negligent driving" in court. That is probably because

A. There was no speeding
B. No alcohol
C. The defendant is visibly sorry.

And you do realize the penalty is only a year in jail.

The charge of "failing to avoid a pedestrian collision" is interesting, and might describe what you are looking for. Again, I am not a maryland lawyer but a quick look through google seems to it is mostly used when you hit a pedestrians in a crosswalk.

From the news reports, that is exactly what he pled to, and paid the maximum fine.

To quote the DA ""While it is an extremely sad and tragic incident, there is no crime for a death resulting from mere negligence," Smith said. "Nevertheless, we felt very strongly about him pleading guilty to the citation of failure to avoid a pedestrian collision for which he was given the maximum fine," he said."

Asking for an increase in the penalty is fine, but stop asking judges and DA to make up laws that don't exist, and then blame it on "Driver-bias".

by charlie on Mar 30, 2010 6:13 pm • linkreport

Bianchi, your understanding of the legal system is somewhat weak. You do realize that if I shoot you accidentally, that is not a homicide?

I think you are confused about what the word homicide means. Many "accidental" shootings are in fact homicides.

by hugo on Mar 30, 2010 6:22 pm • linkreport

@charlie, I'm not referring to the legal system. I'm talking about culturally acceptable behavior that in other comparable cultures (like in Denmark for instance) is unacceptable.

by Bianchi on Mar 30, 2010 6:23 pm • linkreport

I can vouch for Mayor Riley. I have heard him a few times. He may be a old school, but his message is as important as ever. He is a treat to behold. An evening well spent --- and it's free! I know I will be there!

by William on Mar 30, 2010 6:25 pm • linkreport

The Mayor of Charleston may be a great speaker, but I doubt DC can really learn all that much from a city of less than 200,000 people and anchors a metro area with well under a million people.

Does Charleston have a transit system drowning in red ink? Does Charleston have major job centers like Tysons Corner located in the Suburbs? Does Charleston have to compete with 2 other states within its own metro area?

by urbaner on Mar 30, 2010 7:45 pm • linkreport

If it's not almost exactly like us, we can't learn from it.

Right.

Charleston has a reputation for attention to the public realm and context-sensitive infill development. But too bad we can't learn anything from it.

by Stephen Miller on Mar 30, 2010 8:24 pm • linkreport

I go to the charleston area about four times a year on business. It's unfortunate I don't get to spend much time downtown because I like it there. The rest of the area is a forgettable array of strip-malls and tract housing.

by Michael Perkins on Mar 30, 2010 9:43 pm • linkreport

With respect to "Jogger worth 10 dogs", I'd like to clarify two things. First, the comment shouldn't be that the penalty for throwing the dog off a bridge was too high. (This was a clear act of cruelty done with the intention of killing the dog or at best causing it serious harm.) I think it should be understood that the concern was that the penalty against the motorist was too low, given the information provided. I don't know the prosecutor's reasoning, but it does appear too lenient.

Second, I can only suggest that these two cases are probably best not compared, as pointed out by other people commenting on it. If for nothing else, only one involved a vehicle. Also, I'm not sure if the motorist claimed it was an accident, but I know there is nothing accidental about throwing a dog off a bridge. Its just plain cruel.

by Ken Kriese on Mar 31, 2010 8:53 am • linkreport

Re: Jogger and dog comparison - two words: mens rea.

by Fritz on Mar 31, 2010 9:13 am • linkreport

re: You dented my car...

1 1/2 years ago I had a bad bike accident as a result of my navigating away from an SUV that was entering real fast the road I was biking on.

My front tire went straight into the street car track in the great City of Portland, OR and I went down for the count real fast, in severe pain, unable to move.

20 minutes later, I'm in the ambulance still at the location, in agony. A driver approached one of the EMTs. I hit her car and caused damage, she said. She was asking for my contact information! I'm laughing now. Then, I just groaned and didn't answer.

The EMT then passed me a small piece of paper on which she'd written her first name and phone number. I still have the piece of paper as a token of the inhumanity I observed.

And no, I never called.

by Dennis Jaffe on Mar 31, 2010 9:24 am • linkreport

Typical GGW BS. Did you even read the article about the pedestrian accident in question?

Basically, the story says he was not drunk, not speeding, within his lane of travel, and operating his motor vehicle legally. It was an accident. The "failure to avoid a pedestrian" charge is, actually, something that should make you happy, since it appears that anyone, anytime, who hits a pedestrian will get slapped with this, even when it's not their fault. Fortunately, we have no such thing in DC.

And you think this guy should be punished more harshly than someone who willfully tortured and killed an animal?

So what is it now. Every single time that a pedestrian (anywhere) dies in an accident for which the driver is not found to be responsible, you're going to cry about the injustice of someone else getting a harsher penalty for some completely unrelated crime for which they actually were responsible?

Great reporting. Keep at it. Your point, which seems to be that we should lock up anyone who kills a pedestrian for life regardless of the circumstances, is pretty weird, at best.

by Jamie on Mar 31, 2010 9:42 am • linkreport

Sigh. Too early in the morning for this...

C. The defendant is visibly sorry.

Fucking pathetic.

Asking for an increase in the penalty is fine, but stop asking judges and DA to make up laws that don't exist, and then blame it on "Driver-bias".

Right, because our laws certainly in no way reflect our cultural biases. Imagine how our lives might be different if, when the Lord Jehovah passed down *our* current motor vehicle code, He had handed the stone tablets meant for Holland to George Washington instead. How different our streetscape might be.

You can't make this shit up.

by oboe on Mar 31, 2010 10:00 am • linkreport

@ charlie: Asking for an increase in the penalty is fine, but stop asking judges and DA to make up laws that don't exist, and then blame it on "Driver-bias".

I think you finally get the point. Most people here think that it is unfair that killing a pedestrian has pretty much no penalty. I would say "justice is not served". Others might simply not be able to believe that there are no laws on the books to slap these killers with. Clearly, the law is full of driver-bias.

@ Jamie: If you wanna put it in black-and-white terms, yes that's what is boils down to. However, most folks here see the world in shades of gray, which leads to a lot of subtlety, which is hard for some to follow.

A lot of people would for starters object to the word accident. The question is in most cases, whether you should hold someone responsible for the action of willfully (or neglectfully) not paying enough attention to the situation on the road.

When people bump in to each other on the sidewalk, most would say sorry and admit they weren't paying (enough) attention. That's fine and the consequences are usually minor.

Oddly, this behavior of taking responsibility for one's actions seems to become impossible when "bumping" into someone while surrounded by a ton of steel and moving around a much higher speed with much higher consequences. In fact, a few examples are given where the crasher demands damages from the crashee. Why is that exactly?

by Jasper on Mar 31, 2010 10:06 am • linkreport

@oboe: Again, the issue in criminal law is the defendant's mens rea, not the car-centric cultural biases of our culture, or whatever pseudo-psychological/anthropological explanations anyone wants to come up with.

If you want the driver of any vehicle that hits a pedestrian or cyclist to be charged with murder or attempted murder, then amend the laws to say so. Essentially, that would mean that the simply act of driving would now be subject to strict liability, rather than the traditional framework of negligence. I don't think that has the slightest chance of happening, but by all means, advocates for such a change should petition their legislators to enact that new legal interpretation.

Of course, such an interpretation would doubly have the effect of essentially banning all vehicles from being operated because the insurance costs would skyrocket, thereby either making insurance premiums prohibitively expensive or resulting in insurance companies dropping auto coverage b/c of the liability risks. And that would make jurisdictions far more walkable, but would make it just a bit more difficult to transport any goods or services.

Otherwise, the centuries-old legal concepts of a person's intent will be dispositive of the issue.

by Fritz on Mar 31, 2010 10:15 am • linkreport

"willfully (or neglectfully) not paying enough attention to the situation on the road."

Perhaps we disagree on the purpose of punishing people severely. If someone has made an error resulting in injury or death, you seem to think they should be treated about the same as someone who intentionally caused the same harm. I am really not sure how society benefits from that.

The thing is, your assumption is that any pedestrian accident involves willful negligence. Fortunately, in order to be convicted of a crime in this country, you must prove that, or at least convince a jury.

There are hundreds of thousands of accidents every year involving cars. Do you think, in every case, we should try to identify the driver at-fault and try to prosecute them as if they were willfully negligent?

Since you want to treat the driver of a car in an accident where someone dies as a murderer, then I also assume you would want to treat the driver of someone in every other accident on attempted murderer.

What if I am holding a ladder for you and for some reason, the ladder moves, and you fall off, being injured or killed. Do you think that I should be charged under the same standard?

If a deer jumps in front of my car and I lose control, resulting in the death of a passenger in my car, do you think I should be charged with homicide?

Why do you believe that every time an accident happens, it's the result of willful negligence? In 99% of the incidents that are discussed here, it's entirely unclear that this was the case. Yet, like McCarthy, you are intent on relentlessly holding someone responsible every time there is an accident that results in injury or death.

Do you believe that, actually, accidents never just happen? That it's impossible for mere human beings to reasonably be able to avoid such an accident in every single case? That there are more actors in a situation than just the driver? And that, as such, we should treat everyone involved in an accident as a murderer?

Welcome to North Korea.

by Jamie on Mar 31, 2010 10:18 am • linkreport

@oboe: Again, the issue in criminal law is the defendant's mens rea, not the car-centric cultural biases of our culture, or whatever pseudo-psychological/anthropological explanations anyone wants to come up with.

And yet...as we've hashed over again, and again, and again here, other countries *do* handle things differently. I'm assuming you're just being pig-headed in not understanding the obvious point that our laws reflect our cultural biases.

It's a pretty trivial point, and should be pretty easy to grasp, hand-waving about pseudo-psychology, or what have you, notwithstanding.

by oboe on Mar 31, 2010 10:21 am • linkreport

The thing is, your assumption is that any pedestrian accident involves willful negligence. Fortunately, in order to be convicted of a crime in this country, you must prove that, or at least convince a jury.

Again, love that for some folks here, who cannot fathom any option other than a) lethal injection on one hand, or b) a $10 fine on the other.

Not exactly the last bastion of supple thinking.

Welcome to North Korea

Right. Or Holland. Of course, for your typical reactionary lunkhead, it's a distinction without a difference.

by oboe on Mar 31, 2010 10:27 am • linkreport

hand-waving about pseudo-psychology, or what have you, notwithstanding. heeheehee.

by Bianchi on Mar 31, 2010 10:31 am • linkreport

Typical Oboe response. Ignores every part of the central argument, and responds with "you're dumb."

So, back to my question: Do you think that it's possible for an accident to NOT involve willful negligence? How do you think the people in all those scenarios I described should be charged? Should everyone involved in a situation where someone's injured be presumed "willfully negligent?"

What other countries do isn't really relevant to the question of what makes sense here. You may recall that this country was founded because we didn't like what another country was doing.

by Jamie on Mar 31, 2010 10:33 am • linkreport

Typical Oboe response. Ignores every part of the central argument...

Well, to be fair, I thought I was being succinct. The argument wasn't that drivers shouldn't be held to some marginally higher standard than they currently are; the argument was that no higher standard is even possible, and that our failure to do so is in no way culturally driven.

Now you're arguing that "We do things *our* way. The American Way!" Which is essentially a different way of saying, "You are correct, Oboe. I guess these things are driven by 'psuedo-psychology'; or more accurately 'sociological factors'. Thanks for pointing out my error. You rule."

Your welcome.

by oboe on Mar 31, 2010 10:54 am • linkreport

"Now you're arguing that "We do things *our* way."

Actually I was simply pointing out that the fact that because (one) other country does things a certain way, does not mean we should do it that way..

It may surprise you to know that nearly every single aspect of our legal system and societal conventions differs in substantial ways from many other countries. Your personal agreement with one aspect of another country's legal code is not an argument for it being good.

If I said "well Iran chops of people's hands when they steal so we should too" would you agree with me? So why, then, does the mere fact that another country does something in a way that you like, make that an argument for doing it?

"Well, to be fair, I thought I was being succinct."

And you still failed to answer any of my questions.

Do you think it's possible in any accident involving an injury or death for the other party to not be guilty of willful negligence?

by Jamie on Mar 31, 2010 11:04 am • linkreport

Ok, now that we're arguing the question: "Do you think it's possible in any accident involving an injury or death for the other party to not be guilty of willful negligence?"

Obviously that's the case. The difference here is that the presumption is that the car is being driven with sufficient care--even in the case where another road user, a user who by law has right-of-way, is killed.

To address your future point: It's easy to confuse this with "presumption of innocence" but they're not the same thing.

by oboe on Mar 31, 2010 11:16 am • linkreport

"It's easy to confuse this with "presumption of innocence" but they're not the same thing."

Well then explain it to me.

"Driving without sufficient care" would be the grounds for charging one with a crime, willful negligence.

Individuals are either innocent or guilty when charged in a crime.

Therefore, a lack of presumption of "driving with sufficient care" even with no evidence to the contrary, means there is no presumption of innocence.

Where's the logical disconnect?

by Jamie on Mar 31, 2010 11:26 am • linkreport

If we've already established that you were the one that hit the pedestrian, we've established that you're *not* innocent. What's left is to determine culpability. The logical disconnect is that, in most developed countries, if you hit someone in a crosswalk, that in itself is compelling evidence that you were not driving with sufficient care. It's up to the driver to prove that there were extenuating circumstances, if any.

Here's a thought experiment: if run someone down in a parking lot, killing them, my guess is I'd be more likely to pay a heavier penalty than if I did so on the roads. Why? Because, in the popular conception, cars are supposed to watch out for pedestrians in a parking lot. And everywhere else, pedestrians are supposed to "watch out" for cars.

You see this unexamined attitude a lot both here and in the "real" world. It's fucked up.

by oboe on Mar 31, 2010 12:03 pm • linkreport

"If we've already established that you were the one that hit the pedestrian, we've established that you're *not* innocent"

Ah, I see, we define "innocent" differently. I believe it means "not at fault," as generally used in our legal system.

Since you believe that anyone involved in an accident is, by definition, not innocent, then that definition differs than the one that most people use.

You believe "innocent" means "not involved in an accident at all." Nothing more to discuss there, I guess.

As for "in most developed countries," can you elaborate? I thought it was only Holland.

"cars are supposed to watch out for pedestrians in a parking lot. And everywhere else, pedestrians are supposed to "watch out" for cars."

So basically, you think that those pesky "rules" like crosswalks, traffic lights, and stop signs, which are designed to ensure that everyone is safe, are useless, since, actually, you should drive on a road in exactly the same way that you drive on a parking lot. So we really don't need them at all, and roads and parking lots serve entirely the same purpose in our infrastructure.

by Jamie on Mar 31, 2010 12:12 pm • linkreport

Jamie: "Innocent" is not the legal term. It is "not guilty." "Not guilty" means "not held responsible by the legal system." It's very possible that someone is not "innocent" in that they did in fact do whatever is alleged, but that the legal system decides there is insufficient evidence to convict them.

by David Alpert on Mar 31, 2010 12:24 pm • linkreport

@Dave, this is semantics.

The basis of our legal system is that you are presumed "not guilty" of a crime unless sufficient evidence is presented.

What you and other seem to want is a system that allows the conviction of an individual for a criminal offense without the usual burden of proof in a specific situation.

I don't care what you call it - but if you do not presume that someone is complying with the law at the outset, and you can then convict them of a crime without evidence of their breaking any law, then they are no longer presumed to be "not guilty" of a crime.

What makes this situation different than any other where fault is not immediately obvious?

What about accidents involving two cars? Should the surviving driver be required to prove that he was NOT breaking any laws?

The problem is, in the absence of an eyewitness in almost any accident, it will be very difficult for the survivor to meet any reasonable burden of proof.

Given that almost half of all pedestrians killed in motor vehicle/pedestrian accidents are legally drunk according to NHTSA, you're sure placing a lot of responsibility on one party, and very little on the other.

by Jamie on Mar 31, 2010 12:38 pm • linkreport

@Dave, this is semantics.

Jamie, FTW...

by oboe on Mar 31, 2010 12:50 pm • linkreport

It's not semantics at all. It's a very important, key distinction. But you are the one who brought up semantics by talking about oboe's used of the word "innocent."

The issue is one of legal standard. You always have to prove a charge beyond a reasonable doubt, but the question is, what do you have to prove?

"Negligence" does not require mens rea, the intent to commit the crime. Clearly the driver did not intend to hit the pedestrian. You seem to be saying that since that's the case, therefore the driver is innocent, end of discussion.

The driver is not innocent because the driver did hit the pedestrian. The driver is also not guilty of murder, because murder requires intent and it's pretty clear there was none. But is the driver guilty of negligence?

Different nations choose different standards for negligence in driving. One standard would be: if a driver hits a pedestrian, they are negligent, unless there was some extenuating circumstance. Some European nations do it that way.

Another standard would be: if a driver hits a pedestrian, they are not negligent unless they were also breaking some other law at the same time AND the pedestrian was breaking no laws. For example, if the pedestrian is in a crosswalk with the light and the driver is speeding, the driver is negligent, but if the ped was not in the crosswalk and the driver was still speeding, the driver is not negligent. I don't yet know the nuances of the standards here but often that seems to be the way the law is enforced in the US.

Some are arguing we should use the European standard. There are also middle grounds. For example, we could have a standard that the driver is negligent even if they don't break any other laws, but if a jury could find that a reasonable driver would have not hit the pedestrian. Or, we could have a standard that if the driver is breaking some law but the pedestrian is also, the driver is still potentially negligent.

Drivers are supposed to not hit pedestrians. Drivers are supposed to operate their vehicles in such as way as not to hit a pedestrian. There's no inherent reason why it's necessary that a) the driver committeed two violations, not just one, and b) the pedestrian was 100% blameless just for any consequence to adhere to the driver whatsoever.

We can argue about where to draw that standard, and states do move the line, but I'd argue that, based on the current outcomes in many cases, the line is not in the right place.

When a driver in Florida can hit and kill a cyclist in broad daylight, with great visibility, where the cyclist was just going straight along a country road with no intersections, and say "I just didn't see him" and not be considered even the slightest bit negligent under the law, then our negligence standard is wrong.

by David Alpert on Mar 31, 2010 1:05 pm • linkreport

I didn't say anything about intent. I don't see why that's important except for the specific crime for which they are accused. We are talking about the crime of negligence, which as you note does not require intent, and is a lesser crime. That's fine.

I am not saying that we should hold a driver unaccountable in the situation you describe. But that is because of the specifics of that situation. Those are, actually, the factors that would be used to convince a jury of guilt: good visibility, broad daylight. In my view they should be guilty - if a car hits a cyclist with absolutely no reason to believe that they couldn't see them, then that's how you eliminate the reasonable doubt of their innocence.

What if it was at night and the victim had no reflective gear? What if the cyclist/jogger was wearing a headset, meaning he might not have been fully aware of their surroundings?

The problem I have with the attitude here is to assume guilt, and rail against the system, in EVERY SINGLE CASE, even when it seems clear that the victim was, in fact, the negligent one, such as the jogger/truck accident.

Oboe and others don't seem to be arguing for a rule that says, there is no need to identify the anything (e.g. good visibility) that would indicate negligence on the part of the driver. They seem to be arguing for a rule that says, the driver must prove they were not negligent first, regardless of the pedestrian's apparent actions.

Very, very few of the accidents that get brought up here are nice and clean like your cycling accident. Most are in traffic, the pedestrian possibly not in a crosswalk, at an intersection, a jogger wearing headphones (which also means they were probably moving faster than a typical pedestrian), and so on. In these cases, you cannot point to any factors that clearly indicate negligence, as with the Florida example.

by Jamie on Mar 31, 2010 1:23 pm • linkreport

@Jaspar; your quote " Most people here think that it is unfair that killing a pedestrian has pretty much no penalty. I would say "justice is not served". Others might simply not be able to believe that there are no laws on the books to slap these killers with. Clearly, the law is full of driver-bias."

Again, there are a lot of way to kill you accidentally that carry little to no penalty. The key question, as others have stated, is do you intend to kill someone. Just driving a car isn't evidence of intent.

What some people are asking for is a shift of the burden of proof (i.e. if you kill someone with a car you have to affirmatively prove you are not guilty) or a redefinition of "negligent" to include driving behavior where nothing wrong was done. In the case of Mr. Schwartz, I could see expanding cell-phone use to "negligent" but the facts did not line up well. In any case, we still don't know what he was charged with.

Blaming this all on "driver-bias" is a massively ignorant reaction.

Let me give you a counterfactual. One of the authors (perhaps dave or michael) had a car with a broken axle recently. Let's say that axle broke while driving and in the accident he killed someone -- a passenger, other driver, or pedestrian. What should the penalty be?

Or to take it one step further, someone gets into an accident with an older car, and becasuse the car is a bit older and doesn't stop quickly enough, someone dies. What is the penalty there?

Finally, take someone who dives a cheap new car (but like many cheap cars with bad brakes) and gets into an accident and kills someone. If he had a better car, he could have stopped sooner. What is the penalty there?

by charlie on Mar 31, 2010 1:24 pm • linkreport

It seems as if there is a substantial conflation between "not guilty" as it relates to criminal law and "not liable" as it relates to tort law.

Criminal law's standard is, by necessity because you're talking about imprisoning a person, much higher than that used in tort law in civil cases.

To charge every driver with a crime in every case of a car hitting a pedestrian or bicyclist, regardless of the circumstances, is simply not good public policy, nor does it make any sense. Every death is not a crime.

This discussion reminds me of the thread from last week on the grand jury that refused to indict a driver who had been involved in a pedestrian death. There was much shock, anger and gnashing of the teeth. There was much agonizing about how such a result wouldn't happen in other countries. There was speculation that it must have been the grand jury's car-centric biases that led to the results.

Yet the bottom line is that to try someone for a crime and to sentence that person to prison, there sure as heck out to be incontrovertible evidence. It's a very high standard, and it should be any time the state is trying to put someone in jail.

In civil cases dealing with tort law, the standard is far lower than "beyond a reasonable doubt." And that makes sense since you're generally talking about money, and not someone's life, as the remedy for the tortious actions.

The view that every car accident should be viewed as criminal activity is simply a radical departure from the traditional American criminal justice precedents.

If that's what they do in Europe, or Asia, or Antarctica, that's fine and dandy because their legal codes allow for such a result. But our legal system, as it currently exists, does not allow for the same result. And that's not because it's car-centric, but because it's common sensical.

Now, as I said before, if proponents of a system that exists in other countries want a similar system here, then by all means advocate its adoption by the legislatures. But it's rather pointless to complain that the criminal justice system isn't doling out "justice" when it's simply not statutorily allowed to do so willy-nilly.

And, since this is America, you can always sue! A pedestrian hit by a car can simply pursue civil charges against the driver under tort law.

by Fritz on Mar 31, 2010 1:27 pm • linkreport

If that's what they do in Europe, or Asia, or Antarctica, that's fine and dandy because their legal codes allow for such a result. But our legal system, as it currently exists, does not allow for the same result. And that's not because it's car-centric, but because it's common sensical.

Ok, finally. Thanks for someone on the auto-centric side conceding that it's a cultural bias. Now that we've got that out of the way, let's address the "common sensical" assertion.

Personally, I agree with Einstein that "Common sense is the set of prejudices we acquire by the age of 18." It's the very definition of unexamined cultural bias (in this case, the infelicitous "driver bias" as someone put it). Saying something is "commonsensical" is basically an admission that you're either incapable of, or won't be bothered with defending it.

That's why Palinism is so popular with a certain segment of the far Right.

by oboe on Mar 31, 2010 1:42 pm • linkreport

@Dave and Jamie,

The distinction between "innocent" and "not guilty" can be important but in this context really is just semantics. When the issue is punishing someone for committing a crime the distinction becomes irrelevant because under our legal system someone who is "not guilty" can't be punished rendering their innocence (or the lack thereof) completely irrelevant (in the eyes of the law.)

The issue seems to be that some people believe that the laws, as they currently exist, are too lax. The problem is that rather than working through the political process and trying to get the laws they disagree with changed many are arguing that the judiciary should apply a stricter standard than the law allows them to. Changing driver liability standards is clearly a political issue, not a legal one, and needs to be treated as such.

by Jacob on Mar 31, 2010 1:47 pm • linkreport

How about fining all parties involved.

If both parties did something wrong fine both.

If one party did something wrong fine that party.

If one party dies because of the other party but the dead party was doing something wrong the penalty should be lower because the dead party will not pay there fine.

Another thing is we should be enforcing jay walking laws I have never seen that enforced even when people jay walk right in front of police.

Does anybody know what happens in the European countries where "the driver automatically gets the blame" if the person hit saw the car and stepped in front of it on purpose.

by kk on Mar 31, 2010 1:49 pm • linkreport

Ah, sorry. Forgot to address this:

Now, as I said before, if proponents of a system that exists in other countries want a similar system here, then by all means advocate its adoption by the legislatures...

Yes. That's why most of us are on GGW.

Driving and Negligence, a play by S. Beckett.

- It can't be done that way.

- Though they actually *do* do it that way in other countries. With better outcomes.

- Well, that's not how we do it here. We use common sense.

- But this alternate way of doing it actually seems to make a lot of sense.

- Right, but that alternate way could never work.

- Strange, because that's how they do it in other countries.

- Ah ha! But in America...

[exeunt Left; lights dim]

by oboe on Mar 31, 2010 1:51 pm • linkreport

charlie: No, the question is not intent. Negligence is not about intent. It's about whether you were operating the vehicle in a manner reasonably enough to not expect to kill people. If you go around speeding and swerving everywhere and reading a book while driving, even if you don't intend to kill someone, you could be considered negligent if you do.

Jamie: I agree with much of what you say. The real issue is where to draw the line. In the Florida case, the driver probably was negligent. Okay. But if a driver is speeding, and someone tries to cross midblock but far enough away that the driver could have seen them, are they now suddenly not liable because we went from a clear-cut case to one that's got a small gray area?

This also gets into the civil standard of contributory negligence, which is another issue here. DC, MD, and VA are some of the only states with a standard that in a civil suit, if the victim bears even 1% of the blame, they can recover no damages. In almost all other states, if they're 25% at fault, they could still recover 75% of the damages.

Civilly, we need to switch to the comparative negligence standard others have. Criminally, we need negligence laws that allow prosecutors to try to hold drivers responsible in more cases when they in fact acted negligently instead of the current extremely narrow subset of such cases.

I'm not arguing for putting every driver in jail who hits a pedestrian. I'm just arguing we shouldn't excuse every driver automatically except in the rarest of circumstances.

by David Alpert on Mar 31, 2010 2:07 pm • linkreport

"With better outcomes."

There's the kicker. Are you so sure the outcome is better? Why?

If you believe that harsh laws would improve safety, then I assume that you believe it's fear of punishment that prevents people from driving negligently. At least, I can't think of any other reason for a desire to exact harsh revenge upon someone (hopefully) guilty of a crime of negligence.

In the rest of the crime and punishment world, there is no conclusive evidence of a strong deterrent effect of harsh punishments -- and this isn't even a crime that one might consciously choose to commit or not based on the perceived punishment.

If you think that harsher penalties for running over a pedestrian would improve safety, then please cite any studies or evidence that supports this notion.

If you do not think that there would be a deterrent effect, then basically you think the law should simply punish, and the argument that it's good for safety is out the window.

by Jamie on Mar 31, 2010 2:18 pm • linkreport

"I'm just arguing we shouldn't excuse every driver automatically except in the rarest of circumstances."

I agree.

However, the frequent rhetoric here on this topic indicates that many people do not feel that way. The assumption in any case is that, when we read about an accident where the driver was not deemed negligent, that the driver was excused automatically.

In some cases, it seems clear from the circumstances that the driver was most likely not negligent. In other cases, we do not have enough information to judge one way or another that the right call was made. In every case, though, there is a call for blood on this blog.

by Jamie on Mar 31, 2010 2:25 pm • linkreport

Dave, to clarify my point about intent, it comes down to the point about what crime is being charged and to explain that this wasn't "driver-bias:

In terms of negligent/vehicular homicide, yes, you can show negligence as an element..

But where there is no negligence, that is accidental, and the intent issue becomes important. Some folks want the fact you are driving, or a someone is killed, to demonstrate either intent and/or negligence, and that isn't going to happen.

In terms of changing what is meant by negligence, I think the courts have drawn the line at a pretty good place right now. You speed, you drink, your run a red light, you're in trouble. Cell phone are a weird place but courts are moving in that direction. Using a GPS? driving a crappy car with mechanical problems? using the radio? Talking to someone in the car? All of them are as distracting as a .08 BAC.

In my perfect world, you abolish all traffic offenses and if you kill someone with your car you are charged with murder. Equally unrealistic. A large number of driving deaths are "suicide by car" as that is the most dangerous thing we own.

Your point about civil liability is interesting. In a world of mandatory car insurance, those costs are just going to be passed along to everyone. Would be interesting to study if the different standard had a preventive effect on behavior -- since I suspect most people are unaware of the legal rule I doubt it. It sounds like a way for insurance companies and lawyers to make more money off of us.

I just purchased an insurance policy covering death/hospitalization if I get hit by a car -- about $100 a year. Perhaps we should make that mandatory for bikers.

by charlie on Mar 31, 2010 2:29 pm • linkreport

The main issue with criminalizing traffic accidents Europe style is that continental European legal systems have a completely different attitude toward sentencing, punishment, and penology than the American legal system.

While someone who hits and kills a pedestrian in Holland may be convicted of a crime and forced to pay restitution, they are likely to have a minimal jail term at most. If they do go to jail, conditions will be humane and they certainly won't have to worry about the assaults and rapes that happen every day in American jails.

They may not even lose their job, and if they do they will have access to generous social benefits. They will have a fair shot at a new job, unlike in America where ex-cons become instantly unemployable anywhere other than McDonald's.

We need to fix our perverted criminal justice system before we funnel yet more nonviolent offenders into it.

by Phil on Mar 31, 2010 3:54 pm • linkreport

Wow, this discussion is getting very long. A few points:

1) What David said.

2) I never said that someone who kills a pedestrian should be treated as a murderer. That is incorrect. I want such a person to be treated as a killer. That's what he factually is. You don't even need the law for that. In fact, I tend to stay away from legal arguments. I try to make moral arguments. If the law follows the right morality (thou shall not kill and stuff), justice is served.

3) As for the treatment of a killer in the legal system. I don't really care what the treatment is. You can end up in an infinite debate about intent, guilt, lines and penalties. That is too complicated for a simple soul like me.

I just would like to see the facts to be entered in the legal system and then let the legal system do its work. Currently however, it seems that traffic killers can't even be entered in the legal system. That is rather odd. If you kill someone out of self-defense, you do have to go through the legal system and get a judge to confirm your self-defense.

Why is that so different for traffic killers? Why can't we get traffic killers to go through the legal system and let a judge look at their negligence, intent and guilt? Nobody frowns when that happens in a case of self-defense.

4) Somebody compared Holland to North Korea. Seriously, get a grip on yourself. Pretty much the only thing they have in common is that they're not in the US. Perhaps you may also think that the people over there talk funny. That's about it. I will SPAM this crazy story again though: http://vienna-pyongyang.blogspot.com/

by Jasper on Mar 31, 2010 3:54 pm • linkreport

Jasper, you are arguing for a Kantian approach to this situation, but the Anglo-Saxon legal system is not based on Kantian ethics. If we want to change the legal system to run on a Kantian basis a la those in continental Europe, the changes need to go far beyond the treatment of people involved in traffic accidents.

by Phil on Mar 31, 2010 4:03 pm • linkreport

@ Phil: Can you elaborate on what a Kantian approach is? I have no clue what you're talking about.

by Jasper on Mar 31, 2010 4:06 pm • linkreport

"if you kill someone out of self-defense, you do have to go through the legal system and get a judge to confirm your self-defense."

That's absolutely untrue. The state can decline to bring charges against anyone if they so choose, and it happens all the time in self-defense cases.

You don't really believe this, do you? You think that every time someone shoots an intruder, they are prosecuted and go through the whole system even if it's obviously self defense?

The state only presses charges if they think a law has been broken. Killing someone in self-defense is not against the law. Try googling: "no charges were filed" and see what comes up.

People don't even get charged sometimes when it was an accident in gun cases, e.g. someone shoots a person they believed, incorrectly, to be an intruder.

"That is too complicated for a simple soul like me."

Which is, really, why you shouldn't take a principled position on a very complex issue, if you aren't interested in the complexities.

by Jamie on Mar 31, 2010 4:06 pm • linkreport

@ Jamie: Which is, really, why you shouldn't take a principled position on a very complex issue, if you aren't interested in the complexities.

Ah. Ok.

by Jasper on Mar 31, 2010 4:23 pm • linkreport

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