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.

Yesterday, I noticed she put up the following with a link: “Adam Gee teaches you How To Market To Bikers in his newest class.” Intrigued, I clicked the link. I couldn’t find anything about the content of the course though, so I went to Adam Gee’s page at SPU. There, I saw the following under his syllabus:

Marketing to Bikers: Developing a Motorcycle Practice
* Indirect Marketing Techniques
* Direct Marketing Techniques
* Blogs, social media and books

I think SPU is a great idea, and Adam Gee may be a hell of a lawyer. For all I know, he may even have some serious biker cred. However, what Susan Carter Liebel wrote, along with that little portion of the syllabus on Adam Gee’s page, worried me a little bit.

I’m a biker. I ride ten to twenty thousand miles each year, and I’m very active in a variety of bikers’ groups. I volunteered for MROs and went to swap meets before I started law school. Brown & Little, P.L.C., wasn’t even a twinkle in my eye. My friends are bikers, so I often get to see lawyer advertising not from the perspective of another lawyer, but from the perspective of the target demographic. It isn’t pretty.

Lawyers saturate the biker market. Most lawyer advertising aimed at bikers is not well done. I cringe every time I see a pamphlet showing a couple of guys with neatly-trimmed goatees wearing neatly-pressed leathers as they lean on their spotless, stock Softails. Do they really think they can just add some flames and an angry eagle to their ad and they’ll be ready to take the motorcycle community by storm? Never mind, I know the answer.

Lawyers also start special wings of their firms claiming to offer bikers free breakdown assistance or legal advice regarding discrimination. They give out special cards for bikers to carry in their wallets in case something happens. When there’s discrimination or a stranded biker, you can usually hear the crickets chirping on the phone line. When a biker gets seriously injured by another motorist, however, the lawyers pounce. Good thing the biker joined their card-club; those pesky ethics rules about solicitation are normally a drag. Do lawyers actually think bikers can’t tell the difference between a gimmick and someone who genuinely wants to help? Never mind, I know the answer.

Attorneys finagle their way into every event bikers attend and every product bikers buy. They’re like vultures. They see the promise of riches and throw money at bikers, but most bikers see through their crappy advertising. Bikers know who the outsiders are, and they generally aren’t swayed by a back page ad. Weekend warriors and people who aren’t in a club or an MRO may not notice the lack of authenticity, so the poser biker’s lawyer will probably find himself sitting across a desk from a poser biker in an initial consultation, each pretending they’re the genuine article. I guess that’s okay, but it’s too bad lawyers have to insult the intelligence of a group of good people with ridiculous advertising in order to find a playmate for a session of biker make-believe.

Whether you believe me or not, I’m not complaining about this because bikers are my market. Sure, my firm does market to bikers, but it’s mostly just to the extent necessary to help good causes that need sponsors. We also do get clients from our involvement, but there’s one big difference between that and the way most lawyers market to groups like bikers.

I get biker clients the way I get clients from my family and friends. It isn’t based on some slick ad or some sham club I’ve convinced people to join. When a friend who happens to be a biker knows someone in need of a criminal defense lawyer, they refer that person to me because they know and trust me. Lawyer advertising in the biker market doesn’t take away my slice of the biker pie any more than another lawyer advertising in my mom’s Christmas letter would convince my brother to send a DUI referral elsewhere.

Lawyers study their markets as if the people who compose them are animals. They infiltrate organizations to take their targets’ hard-earned money. Their goal, because of the very nature what they’re doing, is to take more than they give. They aren’t in it to make friends or help a cause at all. And we wonder why we’re hated?

I understand that’s how marketing in general may work for a lot of lawyers, but I wish we had a little more self-respect. This is supposed to be a profession, isn’t it? Lawyers can get some of the low-hanging fruit by exploiting a group of people, but that doesn’t mean they should. It’s embarrassing. Are attorneys so greedy, stupid, and helpless that they need to pay someone else to study insular groups of people and teach them how to make friends with and influence those people? Never mind, I know the answer.

I hope SPU isn’t wasting its time sending freshly-minted solos into meetings to peddle their new biker helpline or hand out pamphlets with lots of flames and skulls, but I honestly have no idea what SPU intends to teach about bikers. If it’s something to make lawyers more effective at handling motorcycle-related cases, more power to SPU. If it’s a superficial study of what most bikers like (hint: a good time, and boobs) and don’t like (hint: authority) intended to show money-grubbing lawyers how to make friends and persuade bikers to hire them, I’ll be disappointed. Please, SPU. Do it right. The biker world doesn’t need any more law firms with mascots.

The only consolation for me in all of this is the fact that attorneys, probably far more so than bikers, are studied as a group and targeted by marketers. What I view as exploitation by us may be more likely to end up being exploitation of us. Most biker marketing isn’t going to send a single biker to a shady lawyer hoping to score a quick buck from a new group of suckers, but the same doesn’t seem to be true of marketing to lawyers. Lawyers looking to exploit bikers are probably going to find themselves getting a dose of their own medicine, medicine that actually seems to work on them. Attorneys will buy anything. That must be why many lawyers think they can get clients with half-baked ideas.

My client enters the picture in 1992 or 1993, when he buys the motorcycle. He registers it in California and operates it for years with no issues. He moves to Massachusetts and registers it with no problem. In 2004, he moves to Arizona to be closer to his children and grandchildren.

When he takes the bike to the Arizona MVD in 2007 (he didn’t ride it for a few years), the inspection officer notices the California VIN is different from the manufacturer VIN code and wants the bike to be checked out by a specialist. My client complies and brings the bike back for another inspection a few days later. This specialist is an Arizona Highway Patrol officer, and he decides the bike may be contraband and seizes the motorcycle.

When I met the client, the motorcycle had been in impound for months. I was confident that I could get the motorcycle back; after all, my client had a mountain of evidence proving that he bought the motorcycle in good faith and that California had applied a new VIN to the motorcycle. Other states would be required to recognize that VIN, right? Also, it would be pointless to take away a man’s motorcycle of over a dozen years, right? Not in Arizona.

The contraband statute is so incredibly broad that the Judge ordered the motorcycle be destroyed. The state argued two things: 1) that the California VIN was invalid because it altered the manufacturer’s VIN, and 2) that the forks may have been stolen in the 1980s.

Unfortunately, the burden of proof is on the owner to prove the state is wrong. California destroys MVD records after five years when no foul play is suspected, so it was impossible for my client to obtain the original California records. Ironically, that was due in part to the fact no foul play was suspected (in my opinion, correctly so).

We argued that California did its own investigation twice (when the new VIN was applied and when the bike was transferred to my client), and we brought up the fact Massachusetts had no problem with the motorcycle. How could Arizona, after nearly twenty years, be in a better position to determine if parts on the bike were stolen? Another frustrating aspect of the case was that everyone agreed that Arizona does things no differently when applying a state VIN to a vehicle.

After a trial and many motions, including a motion to reconsider that almost turned the tide, the state convinced the judge that we didn’t prove the forks weren’t stolen and didn’t prove the California VIN was sufficient. How could we? How does someone prove motorcycle forks weren’t stolen? Prove to me that your thirty year old lawnmower wasn’t stolen. You can’t. A receipt could be for an identical (but different) set of forks.

There’s a reason why the state should always have the burden of proof. They have massive resources. It’s the state’s courts.

In the end, the State of Arizona destroyed a man’s prized possession not because it was dangerous, not because it was going to be returned to the rightful owner, not because the man had done anything wrong, and not because the motorcycle had been used in a crime.

I think the implications of the ruling are terrifying.

The Act makes it illegal to sell ATVs and motorcycles to children under 12 because the children might eat the battery terminals, the frame, or tear apart the brakes and lick enough lead to kill or harm them. I’m not sure why kids are incapable of eating Mom’s car battery, which in almost all cases would be easier to get to than a bike or ATV battery, but no one asked me. Lead, while obviously a poor meal, is instrumental as an alloy in the manufacturing of certain materials. Quite simply, it has to be used to construct certain products.

The motorcycle industry, like most industries these days, is hurting. The Act makes it illegal for dealerships to sell the bikes in their showrooms. Lead is used in battery terminals, tire nozzles, and as a trace alloy in frames. Not only does this severely hurt the profitability of a dealership because of lost sales and worthless inventory, but it also hurts the sales of adult ATVs and bikes. If Dad (or Mom) can’t take Billy (or Suzy) with him (or her) on the weekends, then a lot of parents will have to stop riding.

A local dealer told me the Sierra Club was instrumental is passing the Act as a backdoor way of shutting down off road motorized activities. I don’t know if that is correct or just a conspiracy theory, but I have to wonder, especially after the motorcycle industry repeatedly alerted the government to the impact of the law and they made no attempt to cure the preposterous results. The Sierra Club did assist in pushing the Act.

Where does the act of defiance fit in? Malcolm Smith, a legend in off-road motorcycling lore, called the media and told them he was going to sell his youth ATVs and motorcycles in knowing violation of the Federal law. Malcolm faces severe penalties and possible prison time for his bravery.

The protest day was a success, as several ATVs and motorcycles were sold illegally. There was also a show of support by the many off-road racing celebrities who were in attendance. Malcolm carried a baggie of lead fishing weights purchased by his wife that morning to help indicate just how absurd our Nanny State’s nannying has become.

Here is a link to Mr. Smith’s website. He is a true American Hero in my book, and it was a courageous act of defiance. Oh, and thanks again Congress.

On one hand, I can understand why bikers might want to take a “screw ‘em, we just won’t go” approach. I imagine that will cost Myrtle Beach quite a bit of money. Sure, the powers-that-be can increase taxes or figure out some other way to bleed enough money from their constituents to scrape by, but the people who’ll end up having to pay those taxes won’t have as much cash as they used to. There will be plenty of hotel, restaurant, and bar owners who will start hurting. I wouldn’t be surprised if a few tourist shops go under. On top of that, if bikers really stay away, there won’t be any ticket revenue. I think Myrtle Beach will miss the bikers sooner or later. There’s something very satisfying to me about the idea of sticking it to the city that way.

On the other hand, if bikers want to take a stand and really get their message across, an act of large scale civil disobedience is hard to beat. Bikers who just ride through town sans helmet and later pay the ticket might as well not bother. They’d be helping the city. Fighting the ticket is what matters. If hundreds or maybe thousands of bikers get ticketed for not having helmets and every single one of them fights their ticket, what would happen to Myrtle Beach’s court system? The only reason civil traffic infractions generate a lot of profit is because most people roll over. It wouldn’t take that many bikers fighting their tickets to give the Myrtle Beach courts more than they could possibly handle. Most if not all of the bikers will lose, but hearings take time and cost money. The courts could try to cut corners, but I just don’t think it’s possible to cut enough corners to make a government traffic-ticket scam work when everyone’s contesting their infractions.

I think both options are entirely possible, as bikers are ridiculously organized. It may take ten of us an hour to gas up on a poker run, but thousands of us will jump all over a rights issue in a matter of seconds. Try writing something online criticizing bikers and see how long it takes you to get a response. I’ve never seen an online poll go in favor of helmets. On issues with only one pro-biker option, we mobilize quickly. It’s different when the best course of action for bikers isn’t clear. From what I’ve seen, there’s no single voice to be heard about Myrtle Beach. Rights groups have definitely taken up the cause, but they’d be a lot more effective if they acted as one. I hope that happens.

For what it’s worth, my advice to the bikers who are organizing the resistance is to crunch the numbers and base the decision on what’s most realistic. How many tickets would we need to fight to clog the courts? How many bikers can we realistically expect to participate in large scale civil disobedience? How much revenue will Myrtle Beach lose if bikers disappear? How much can Myrtle Beach afford to lose?

Personally, I’m hoping bikers as a group pick civil disobedience. I’ve been meaning to take a ride to South Carolina.