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» Bikers' Rights, Legislation » Reacting to Tragedy

Reacting to Tragedy

Last Friday marked the start of Arizona Bike Week. Tragically, before the second day of events had ended, the local motorcycling community lost one of its shining stars. Kimmy Chapman, founder of a national publication for bikers and by all accounts a great person, was killed by a 22-year-old in an SUV who claimed he didn’t see the bike she was on when he failed to yield the right of way. ABATE, one of Arizona’s motorcycle rights organizations, issued the following official statement in response to the tragedy:

ABATE of Arizona, Inc.
7509 N. 12th St, #200
Phoenix, AZ 85020

ABATE OF ARIZONA STRONGLY CHALLENGES THE DECISION OF ARIZONA LAW ENFORCEMENT IN RIGHT OF WAY COLLISION

FOR IMMEDIATE RELEASE:
March 28, 2011

Contact: Ross Rutherford, President, ABATE of Arizona, Inc.
president@abateofaz.org
(928) 925-4204

On Saturday, March 26, 2011, at approximately 5 p.m., Kimmy Chapman of Phoenix, Arizona was killed by a motorist making a left turn at an intersection while riding as a passenger on a motorcycle.

Even though Ms. Chapman was a fatality at the scene and the operator of the motorcycle, Mark Tapper, suffered critical injuries including a broken spine, a broken pelvis and numerous other injuries, the driver of the vehicle that struck them was not charged with any violations.

This tragedy was clearly the fault of the 22 year-old driver of a Nissan Rogue who failed to yield and made a left turn in front of Ms. Chapman and Mr. Tapper at the intersection of 43rd Avenue & Bell Road in north Phoenix.

As is often the case, the driver causing the death and injuries claimed not to have seen the motorcyclists.

As advocates for motorcyclists and motorcyclists’ rights in Arizona, ABATE of Arizona stands firm that perpetrators of such carnage should be held fully responsible for their actions.

Ross Rutherford, President of ABATE of Arizona said, “This is truly another tragedy in a long line of tragedies related to inattentive drivers killing and maiming motorcyclists on Arizona roadways. Simply saying ‘I didn’t see the motorcycle’ should not be allowed as an excuse for taking the life of another on the road.”

Ms. Chapman was the founder of the national franchise “The Biker’s Information Guide”.

People posting to biker email lists have echoed the official sentiment, calling for new laws and urging that the SUV driver pay for his actions. In response to a little criticism, JD wrote the following:

I do not view this as a “hang’em mentality”. I view this as a necessity. A license to operate a motor vehicle is NOT a right … it is a privilege. Bad judgement, not paying attention… NOT an excuse. In-fact, when behind the wheel of several thousand pounds of metal flying down a street, you are expected to be paying attention and to have good judgement. If not… enjoy the Florence Hotel. Period. End of story. Start prosecuting these idiots BECAUSE they are not paying attention, and maybe you will GET their attention. We need legislators NOW who will stand up and offer a bill to effect the necessary changes for a “Kimmy’s Law”. I would urge people to call or email their Reps and encourage this.

Although most responses either call for severe punishment regardless of the driver’s state of mind when he committed the moving violation or argue for harsh new laws, some suggest a more cautious approach. This one comes from Ron Kool, who has been tirelessly following every motorcycle right of way violation in the state for years:

Don’t be too quick to start accusing the Phoenix PD. I have collected over 100 police reports, most of them fatals. There is hardly ever a police report written at the site. For a crash this serious they will draw blood even if the person does not seem impaired. The blood draw usually goes to the DPS lab and the report takes awhile. If they had charged the driver with a 28-762 citation (ROW violation) it would be harder to amend it later to be a DUI. Also we need one and only one person from each org to be the point person and deal with the pd and prosecutors. Right now we have people asking us to write or contact this or that person. That is not the way to get the citation written. The PD has six months to cite the person.

Bobbi Hartmann, ABATE’s former designated lobbyist and a strong advocate for harsher right of way laws for many years, also offered some good advice:

Spoke with the Lead Detective Pitts on Kimmy’s case, a bike rider himself, who is working on her case and keeping in close touch with Kelly and other family members. He feels he owes Kimmy’s family a full and thorough investigation. He called in the state expert on impairment to investigate any signs of impairment of the driver and to provide them with the ‘probable cause’ needed to issue an order to draw blood. They found none. This state investigator is the same one working on the dump truck case from a year ago, which is still ongoing. He wants everyone to know that this is far from over and the only thing they haven’t shown is ‘criminal intent’. The police department can ONLY charge the driver with a ‘Violation’, such as in this case ‘Failure To Yield’. Any other charges will come AFTER the investigation is through.

Detective Pitts said that once everything is turned over to him to review, then it goes to the ‘review unit’ and then it is turned over to their Supervisor for Final Review and then passed on to the County Attorney’s office. That is where the final charges will be filed if any. We need to stay on top of the County Attorney’s office.

I tend to favor the cautious approach rather than the rush to pass new laws or punish, and I feel that way for several reasons.

I believe credibility is important. If it turns out the driver was cited for something at the scene or has since been cited, any outrage based on misinformation or outdated information will diminish ABATE’s influence after it finally has all the facts and tries to apply a little political pressure. If the driver is cited at some point before September 22, 2011, the state’s deadline for serving a civil ticket, the organization’s subsequent goals still may be frustrated by its earlier outrage at the lack of a civil citation. Authorities may see that bikers wanted the driver to be ticketed. They ticketed him, and bikers still aren’t happy. Now, if bikers are demanding manslaughter charges, why won’t they come back demanding second degree murder charges if the state gives in to that too?

There are even more important reasons for not rushing to legislate a problem away. I dare you to name one fair, effective piece of legislation that passed in a hurry in response to a tragedy. Can you? The government sneaks through things like the Patriot Act or the bailout knowing most citizens desire immediate action. The people in power use a mobilized group craving change to pass their own agenda under the guise of being what the people want. The people who demand “Kimmy’s Law” probably opposed the Patriot Act or the bailout. They want the government to do something now because they knew Kimmy or they too ride and fear that some 22-year-old kid is going to pull in front of them. If they get Kimmy’s Law, it probably won’t look anything like what they wanted. Expect it to include a helmet law, and expect it to only be enforced against bikers who commit the right of way violation and harm their passenger in so doing.

The desire for punishment is understandable. Someone very beloved has died. I suspect most bikers imagine the SUV driver is probably still driving around right now, not paying attention and having forgotten completely what he did. It may be true, but it probably isn’t. More often than not, the client’s I’ve had who’ve killed someone through negligence or recklessness feel terrible. The kid may never be the same. He may never drive again. He may spend the rest of his life in therapy, or he may be contemplating suicide because of the consequences of his carelessness. Or he may not give a shit. If he might become the next crusader against distracted driving, speaking to schools to warn children of the dangers of failing to yield, or if his life is already ruined by this, should society still spend a fortune charging him with a crime and later housing him in a prison?

In one response, Steve Briggs asks, “if your natural brother or sister were killed by someone negligent, would you not want to see that person prosecuted and punished?” I think he should turn the question around and ask, “”if your natural brother or sister negligently killed someone, would you want to see that person prosecuted and punished?” Imagine your brother or sister looks you in the eye through glass at the jail and says through tears they didn’t see the motorcycle. They looked both ways, they weren’t on the phone, and they came to a complete stop. If you believed your brother or sister with all your heart and thought it was just an honest mistake caused by bad lighting or blind spots or just the wrong speed or some other fluke, would you say “too bad, not seeing a motorcycle is no excuse” and get up and leave?

We don’t know at this point whether the driver was negligent. In order for the driver to be charged with negligent homicide, the state must believe he failed to perceive a substantial and unjustifiable risk of such nature and degree that his failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. There is no question that hitting and killing an innocent motorcycle passenger is a substantial and unjustifiable risk, so the decision to charge him with negligent homicide will almost certainly turn on his failure to perceive that risk. If it comes to light that there was absolutely no reason why he shouldn’t have seen the bike and the surrounding circumstances show that constituted a gross deviation from the standard of care a reasonable person would have observed, he will be charged with a class 4 dangerous felony and face 4 to 8 years of prison with a presumptive sentence of 6 years of prison. He will be ineligible for probation.

If it turns out he didn’t see them because he was texting, talking on his cell phone, or driving dangerously by speeding, pulling out in front of people, or running lights, he may face even more serious charges. He could be charged with manslaughter if he was aware of and consciously disregarded a risk and his disregard constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation. He’d then face 7 to 21 years with a presumptive sentence of 10.5 years and no possibility of probation. If the police discover the circumstances manifested extreme indifference to human life, determine he acted with the same state of mind for manslaughter, and find his conduct created a grave risk of death, he may even be charged with second degree murder. That carries a penalty of 10 to 22 years with a presumptive sentence of 16 years and no eligibility for probation. He would have to serve every single day of his sentence.

I have no clue what his state of mind was. He may have committed a criminal offense under the current laws. He may have just failed to perceive a risk and done so for reasons that would’ve applied equally to anyone. We all make mistakes. I doubt that any rider or driver, no matter how skilled, has not at least one started to pull into a lane and realized someone else was there. How many times have you not noticed a speed limit sign? How many times have you slammed on your brakes after seeing the car in front of you has already begun stopping quickly? People miss things. All of us. The State of Arizona has decided to make criminal negligence, the standard I mentioned first above, the minimum requirement for criminal liability. I don’t have all the facts, though it seems undisputed that the accident was SUV driver’s fault. He more or less admitted that when he claimed not to have seen the motorcycle. Fault alone, however, does not make it a crime.

ABATE’s press release argues that simply saying “I didn’t see the motorcycle” should not be allowed as an excuse for taking the life of another on the road. I agree. The legislature agrees too, as “I didn’t see the motorcycle” is currently not an excuse for taking the life of another on the road. It is only an excuse if the drivers failure to see the motorcycle was not a gross deviation from the standard of care a reasonable person would observe in the situation. In the right situation, “I didn’t see the motorcycle” could be the basis for very serious criminal charges, the farthest thing from an excuse. It could be the nail in a defendant’s coffin. In a situation where failing to see a motorcycle is something any reasonable person might have done, it probably should be an excuse from criminal liability. Anyone who claims they would never miss something or make some error while driving is either a liar or a megalomaniac. Nobody is perfect.

Plenty of laws are on the books to punish the driver. Furthermore, even if he is not punished in the criminal justice system, he will undoubtedly be sued civilly. He will not forget what happened. He will likely end up owing hundreds of thousands of dollars and might lose everything. If he’s convicted criminally, society as a whole wastes it money putting him in a cage or monitoring him on probation. A civil suit is going to compensate Kimmy’s family directly. Neither money nor prison can bring Kimmy back, and neither money nor prison can possibly adequately reflect the value of a human life. Knowing criminal charges will only cost the state money while a civil suit will punish the driver while compensating Kimmy’s family, which one looks more like justice to you?

Those who are calling for new laws seem to all believe they will have some impact on people’s behavior. Having dealt with people accused of breaking laws almost every day for the past few years, I can tell you that no piece of legislation will make one tiny bit of difference in the way people act. We could punish right of way violations with the the death penalty and people would still do it. We could have weekly seminars for schoolchildren about the penalties for right of way violations, we could have mandatory driving retests every month for all drivers where they have to prove they know the penalties for right of way violations, and we could equip each car with a device that quizzes them about right of way violation penalties before their cars will start. It will not make a difference. It is absolutely ridiculous to believe that someone who doesn’t think about what they’re doing and slams their vehicle into hundreds of pounds of steel with human beings riding on top is going to somehow be able to focus on the penalties contained in the Arizona Revised Statutes while driving.

Prescribing Ritalin to the entire US population would likely be more effective than creating new, tougher laws. Just look at our unbelievably harsh DUI laws, which have not stopped drunk driving. With huge amounts of mandatory jail, mandatory interlocks, and enormous mandatory fines, MADD’s own numbers for Arizona show 219 DUI fatalities in the recent year and that 27% of total traffic deaths were DUI-related. Arizona’s defensive driving class presents the statistic that 40% of drivers on the road after midnight on the weekends are committing DUI. In the moment, people don’t think about the penalty, no matter how harsh the penalty might be. People who are momentarily inattentive, just like people who are drunk, are far less likely than the average person to think about it at the time. We would be wasting our time with new laws.

Criminal charges may be appropriate for the SUV driver who killed Kimmy. I can’t say because I don’t have all of the information. Nobody has all of the information at this point, though authorities are probably trying to get everything they can. There is no deadline for filing charges against the driver, as there is no statute of limitations for a homicide in Arizona. The possibility of charges will therefore hang over the driver’s head until the day he dies. Authorities can do a thorough job and make sure the case isn’t full of holes. If the angry mob had its way and the police took the driver in right away after an obviously incomplete, likely sloppy investigation, we’d just have another angry mob when the case gets thrown out and the driver really does get away with something.

Reacting to tragedy with immediate and well-intentioned but ill-conceived action is never the best thing to do. The cautious approaches suggested by a few bikers are the right ones. It may be that the SUV driver is never charged with anything. If that is the case, it will probably be because he made an honest mistake that the laws do not penalize. If that is not the case, going off half-cocked with all kinds of uninformed demands will do nothing to help the case against the driver. As a group, bikers should wait until all of the facts are available and then consider all of the unique circumstances surrounding this horrible tragedy in light of the current laws before demanding action. Anything else will undermine the cause.

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5 Responses to "Reacting to Tragedy"

  1. It is not new or harsher laws we require. It is the enforcement of the current laws that needto be addressed.

  2. Deuce says:

    Matt,

    Excellent blog. I know as a rider you are “torn” by this decision. I myself am a rider and cant tell you how many times people have turned in front of me, and worse yet, drivers behind me honk as I sloww down at an intersection when a driver has a turn signal on. I am NOT one to jump for legislation, but there MUST be consequenses for the way people drive in this state. just my opinion.

  3. Heavenly says:

    I don’t know if this could work but why not put left on arrow only in the intersections that these accident occur or on all left turn lanes? Would be a pain in the arse but it could save lives. I did not know Kimmy but my heart goes out to her family and friends for their loss

  4. JD says:

    Matt,

    Having read your blog, I will point out a couple of things. ABATE came out with their statement a full day after I published a similar statement, almost to the letter, to the ABATE and ACMC mailing lists, other lists, as well as a few individuals.

    I am not in favor of an immediate reaction based upon emotion. In-fact, I have personally argued in favor of a law that would punish those who cause such accidents for years. No one listens until someone they know of prominence dies. I have seen way too many I know die or end up crippled. The fact, the problem, is very simple… “I didn’t see him” should NOT ever be an excuse for killing someone and ruining someone’s life, usually multiple lives. There needs to be a base penalty for this, and then guided by extenuating circumstances.

    Your comment that laws make absolutely no difference in how people act, and has no effect on a person’s behavior, I think is absurd. The purpose for having laws would be… what? The argument of deterrence is used for DUI laws I believe, quite often. If nothing else, penalties being in existent and knowing about them might at the very least make people, some people, think and act differently. At least, according to all the agencies and organizations we hear from, it certainly is working for getting drunks off the road. Unless those same agencies are just playing politics with numbers (such as MADD is known for doing).

    I do agree with your comparison and description of the differences in use of criminal v. civil law. You are very correct, and this has been pointed out by others as well. But then, a civil suit is worth only the money the perpetrator can cough up. From what little I know, this young kid driving will have little if anything he can lose in a civil court.

    Lastly, making an “honest mistake” that ends in the death of someone and the lives of many altered forever, should NOT go unpunished. THAT is the problem. Honest aside… a mistake that kills someone must have consequences. I own guns. If I make an “honest mistake” and kill someone because my gun goes off, do I walk away and the law says… no problem, you didn’t mean to kill them. This happens on a regular basis here in AZ. regarding killing people on motorcycles or bicycles. If I kill a pedestrian crossing an intersection and they had the right of way… am I responsible? Yes. Why? because we have rules for that. There are no rules that are followed for this type of an “accident”.

    A major problem in this society today is that most feel they are NOT accountable and should not be held accountable for the results of their actions. That needs to change. That entire mindset needs to be changed. Thank you for reading.

    JD
    inthewindaz@yahoo.com

    Do you need a paralegal who has been riding over 40 years to work on motorcycle related cases? I have a BS Degree, 2 years of Law and 4 years as a paralegal and a lot of time on my hands. just a thought…

  5. Sharon says:

    Thank you Matt! You’re right! I enjoyed ” A Letter to Pinal County Sheriff Paul Babeu” ! Brilliant!

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