Last year, 21 cyclists died in vehicle crashes in New York City. But only two drivers were arrested and local district attorneys are hard pressed to cite convictions for cyclist deaths. Instead, they say, cyclists and their advocates don't understand how tough it is to call a traffic crash a crime.
As far as intersections go, Bowery and Delancey is a pretty big one, eight lanes cross six. It’s never really empty, not even at 1:30 in the morning. It was that time of night about four years ago when Rasha Shamoon was fatally struck there by a Range Rover while riding her bike home.
As is standard procedure in traffic deaths in New York City, the police arrived and treated the intersection as a crime scene. They interviewed the three people in the car, but no other witnesses were mentioned in the police report -- several people had called 911 from the scene, but we'll never know if they saw the crash or not. Police determined Rasha Shamoon caused the crash and let the driver go.
Rasha's mother didn't buy the story. Samira Shamoon would later tell a New York city council hearing: “The first police report to the newspaper claimed that Rasha was at fault because she had run the red light and she was not wearing a helmet.” No helmet was found at the scene, but Rasha was known as obsessive on safety issues.
“Even the statement they got from the driver and his friends were not accurate and complete,” Samira Shamoon lamented. To get more information, she took the driver to civil court.
“We didn’t have any eye witnesses that said he was speeding," says Shamoon's lawyer, Adam White. "We didn’t have an accident re-constructionist, nothing in the police report that indicated rate of speed.” White used circumstantial evidence: Rasha's whole bike was covered in reflective tape, the passengers gave partially-conflicting accounts, and the 21 year-old driver had at least six previous moving violations.
"Ultimately the jury found that the driver was 95 percent at fault and it put 5 percent of fault on Rasha,” White said of the verdict handed down in February. The Shamoons were awarded $200,000.
The year Rasha Shamoon was hit, 2008, was the worst since 2000 for cyclist deaths: 26 people died. Last year, it was 21. But there were 27 times when a cyclist died, or was thought likely to die in NYC—that's how police categorize cases for record keeping. The NYPD tells WNYC of those 27 cases, two drivers were arrested. Looking at all cases where a driver kills someone -- pedestrian, cyclist, other motorists, themselves -- forty percent of the time, there’s not even a traffic ticket. Explaining why not, gets complicated.
Cyclist deaths in 2011 -- locations and dates from NYC DOT.
Bike advocates like Caroline Samponaro of Transportation Alternatives want the police to get tougher. If drivers cause crashes that kill, she told me, they should face serious consequences. “Even if you can’t prevent that crash, you can follow up and make sure that another crash like it doesn’t ever happen."
As cycling has taken hold in New York, and cases like Rasha Shamoon’s make their rounds on the bike blogs, something of a furor has risen up in the cycling community. Samponaro’s group organized protests outside police headquarters in November after another killed cyclist's family started criticizing the NYPD investigation.
Artist Mathieu Lefevre was hit by a truck in October in Williamsburg. The driver told police he did not know he hit anyone, so continued driving a few blocks before parking. No charges were filed because police determined both parties were at fault.
Erika Lefevre, Mathieu's mother, pressed for more investigation, and publicly complained the police withheld information from her, eventually filing a freedom of information request to see what the investigation report had found.
There were no photos from the scene because the police camera broke, according to the police report. And the only surveillance video from the scene doesn't show the crash.
I called the truck driver several times. When he didn’t return my calls, I went to his house to try to get his side of the story, but all he said was “no comment.”
As for the police, they say they're just following the law.
Sparked largely by the Lefevre case, the City Council held a four-hour hearing on traffic safety in February. “We realize that these are not just numbers on a piece of paper," NYPD Deputy Chief John Cassidy told angry council members and victims' family members. "And in my opening statement when I said one fatality is one too many, I seriously believe that,” he added.
The morning turned into a lesson in organizational charts, patrol guides and traffic law. The NYPD's most involved traffic investigations are handled by the Accident Investigation Squad. In 2000, there were 24 detectives. Now, because of budget cuts, there are 19. They handle the whole city.
So those detectives can only show up when someone dies or is declared likely to die by a medical professional. Asking them to handle more cases, or adding more detectives would be a policy choice, Cassidy said. “It would take resources away from other enforcement initiatives. One person can’t do two separate jobs at the same time.”
Those other initiatives include speed traps and DUI checkpoints. And, as Cassidy pointed out, traffic deaths are at an all time low. "So the accidents that you speak of," he told the council, "are not in fact occurring. So it’s not that we’re not doing anything out there. I think it’s quite the contrary -- we’re doing a lot with [a] lot less.”
I asked the police to explain how they determine when to make arrests, when to issue a ticket, and when to just let the driver go in a fatal crash with a cyclist. In an email, they said a motorist needs to break two traffic laws to rise to the level of criminal.
“Speeding alone will not produce criminality” the statement reads. “Passing a stop sign only will not provide for criminal charges. They will result in a speeding summons and a stop sign summons only, but together we have established a criminal charge of Criminally Negligent Homicide or higher.”
You'd need both to slap cuffs on a driver. And the police would need to witness speeding to prove it in most cases, they point out.
“We as a society have chosen to drive these big cars," said Joe McCormack, Assistant District Attorney for the Bronx. It’s his job to prosecute traffic crimes. "And we also as a society have chosen not to criminalize every single small mistake that just has a dramatic consequence because you're driving a car,” he said.
I asked all five district attorneys for an accounting of how many times someone who killed a cyclist was convicted of a crime. They all said they don’t track cases that way. But after much prodding for examples of what types of cases lead to jail time, the Queens DA cited two cases. In a 2009 case, a driver who had just sold heroin to an undercover officer was fleeing the scene when he struck and killed a cyclist. He was sentenced to seven-and-a-half to 15 years. In a 2006 drunk driving case, the motorist was sentenced to two-and-a-half to five years.
The Manhattan D.A. pointed to the case of Marilyn Dershowitz, sister-in-law of prominent lawyer Alan Dershowitz. The driver has been indicted. The case is pending.
The Brooklyn D.A. has brought three cases where bicyclists died in the past two years. All got convictions. Two were prosecuted as aggravated unlicensed driving charges. The third death case was tried as a manslaughter but ended with a jury trial conviction of driving with a suspended license.
Only one cyclist died in the Bronx last year. It was a hit and run. The driver was never found.
“There are times where the factual situation that is presented to us doesn’t rise to a crime," McCormack said. "And it’s important to realize that the reason it doesn’t rise to a crime is that society has made that decision that it doesn’t want it to be a crime.”
Some in society do.
When the weather warmed last month, a couple hundred cyclists held a memorial ride to honor the 21 bike riders who were killed on city streets last year. They placed white painted ghost bikes at the site of each crash. Read a statement in front of the 90th Precinct where four cyclists were killed last year, including Lefevre. And rang their bike bells the the backdrop of a bagpipe.
Those 21 deaths, they say, are 21 too many. On that, the police agree.