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Why Isn’t It a Crime To Kill a Cyclist with a Car?

Rewriting the Rules of the Road for the Bike Age

Story by Andrew Zaleski

Illustration by Marian Runk

Published on Feb 17, 2014

It was a clear and bright spring morning in central Mississippi. Jan Morgan and her cycling buddy Kim Richardson were riding along the edge of a two-lane highway, training for an upcoming triathlon in Florida. Both wore helmets. It was Sunday and traffic was slow on a rare flat stretch of State Highway 50. That’s when Richardson heard the rumble of an approaching car.

The initial impact sounded “like a gunshot,” Richardson recalls. Morgan, 57, had been hit from behind. Richardson saw her friend bounce into the air and come falling back down onto the hood of the car, which continued to speed ahead for several hundred feet before coming to a stop.

Local newspaper accounts said the vehicle had been traveling at 55 miles an hour, although no one will ever know exactly how fast the car was going when it hit Morgan.

Richardson remembers the driver, a local woman named Robbie Norton, getting out of her car with a cell phone pressed against her ear. She was telling the person on the other end that she needed a ride home. “‘You have to come get me, I’ve hit a woman,’” Richardson remembers Norton saying.

Moneaka Jones and her boyfriend, Jessie, had been driving directly behind Norton. They stopped when they saw the crash, and Jones placed the original 911 call. That’s when all mayhem broke loose.

“When we turned around,” Richardson says. “Her [Jones’s] boyfriend was screaming, ‘Oh my God, she’s run over her!’”

To the three of them, it appeared as if Norton was trying to move her car to the side of the road. But in the process, she drove over Morgan’s head, with her right front tire placed squarely on top. (Norton’s attorney says that she was in a state of shock.) They screamed at Norton to back the car up, which she did, but after getting out of the car a second time, she reentered the vehicle. “I was horrified that she was trying to drive it again,” Richardson says. “I was screaming at her through the passenger-side window, which was down. She was trying to put her keys in the ignition… I was trying to reach into the sedan to grab her keys.”

It was Jessie, Richardson says, who finally pulled Norton away from the car. An ambulance arrived soon after. Morgan was sped to the West Point location of the North Mississippi Medical Center about 20 minutes away, and then was flown by helicopter to the hospital in Tupelo, Miss.

The car’s impact had fractured the base of Morgan’s skull and caused bleeding in the temporal lobe of her brain. She had a cardiac contusion, which would require an intravenous line carrying doses of blood-pressure medication to be inserted in the right atrium of her heart. Her ribs, sternum, a vertebra, fibulas and fingers had also been fractured.

When the Mississippi Highway Patrol arrived, a trooper conducted interviews with Norton, Richardson and Jones. Norton was sent home without arrest.

After a week’s time, an official accident report was filed. Meanwhile, Morgan stayed in the intensive care unit for another month. For the first two weeks, the doctors weren’t positive she would survive. By the end of it all, medical expenses totaled more than $500,000.

“I was scared to death,” says her husband, David Morgan.

His fear would soon turn to anger when he realized that local police had no interest in pursuing charges against the woman who nearly killed his wife. After the State Highway Patrol’s investigation concluded that there were no grounds for felony charges, the district attorney also demurred from pressing charges.

“As far as the state of Mississippi goes, you could be an armadillo hit on the road, and the state treats you just the same as a… cyclist,” Morgan says.

“When we turned around. Her boyfriend was screaming, ‘Oh my God, she’s run over her!’”

With felony charges beyond their grasp, the Morgans began considering a recently instated misdemeanor law intended to improve bike safety. Named after 18-year-old John Paul Frerer, who was fatally struck by a truck while biking on a country road, the so-called “three-foot law” mandates that all motorists leave no fewer than three feet between them and cyclists on the road. One month after another cyclist fatality — this one 27-year-old Kevser Ermin, a doctoral student killed instantly when a car struck her from behind at 72 miles per hour — the Morgans filed a charge of simple assault with a deadly weapon against Norton. (The driver who struck Ermin was never charged or even ticketed for the collision.)

The Morgan trial on Nov. 16, 2011 was brief and garnered little attention beyond the region’s tight-knit cycling community, still reeling from Ermin’s death. The presiding judge, Joe Taggart, a Justice Court veteran of 33 years, found Norton guilty of a lesser charge of negligent driving, and fined her $50.

“She should not have been found guilty of a crime because she did not commit a crime,” said Norton’s attorney, C. Marty Haug. “Criminal law punishes bad intentions and bad acts, not traffic accidents.”

Norton appealed the $50 fine. After a lengthy appeals process, a different judge found Norton guilty of simple assault and charged a $250 fine, plus court costs and a six-month suspended jail sentence. Norton’s jail time was commuted in exchange for a promise she would produce public service announcements reminding drivers to keep at least three feet between their car and any bikers on the road.

In a country where the national highway system was designed for the automobile, it’s unsurprising that the legal system also prioritizes the car. Still, the number of Americans who commute by bicycle jumped by 64 percent — to 765,703 — between 1990 and 2009, and in many parts of the country cyclists ride on dedicated bike lanes and lock up on publicly subsidized bike racks. But the laws protecting them lag behind. In most states, for instance, the only law explicitly addressing bike safety is a safe passing law requiring drivers to give cyclists a cushion of anywhere from two to four feet. In only three states is it a felony offense to maim or fatally injure a biker or pedestrian if you are behind the wheel of a car. And in nearly every state, getting police or the courts to prosecute a negligent driver for harming a cyclist is a serious challenge, attorneys and cycling advocates say.

Consider crash data from New York City, which has installed more than 350 miles of bike lanes. There were 14,327 pedestrian and cyclist injuries in 2012 as a result of vehicle crashes, but police cited only 101 motorists with careless driving, a rate of less than 1 percent.

By all indicators, New York’s low prosecution rate is not an anomaly, but rather a reflection of national patterns. Yet there is no sure way to know. While the National Highway Traffic Safety Administration keeps track of cyclists killed by motorists — 726 in 2012 — there’s no corollary database of how motorists were charged, if at all. For state governments, there are no guarantees that transportation officials are in touch with law enforcement officials who track court cases.

“Many states do not aggregate citation statistics in a manner that makes it easy to understand how laws protecting cyclists, such as three-foot laws, are being enforced,” says Ken McLeod, a legal specialist with the League of American Bicyclists.

The absence of data, compounded with the patchwork of local laws and varying understandings of cyclist rights across the country, means few solid protections for the Jan Morgans of the world. A fine of $100 is the penalty for a first-time offense of the three-foot rule in Mississippi, even if the offense endangered a life. For a third offense, a $2,500 charge is levied along with seven days in the county lockup if, that is, the police and courts decide the charge is worth the time. Even with the law, however, there is no state database keeping track of three-foot violations and subsequent enforcement.

“What happened to Jan is not an accident,” says Peter Wilborn, a trial lawyer and founder of Bike Law, a South Carolina-based firm that represents cyclists in court. “This is what happens when drivers are lawless.”

Rules of the Road

No one knows the sad state of bike law better than Wilborn, a former civil rights lawyer who started representing cyclists in 1998, the year his brother was killed on a bicycle after an underage driver ran a red light and smashed into him. Today, Wilborn deals almost exclusively in civil bike cases, and takes on more than 100 cases a year representing cyclists who have been injured or the families of cyclists who have been killed.

His big test case came in 2010 when Matthew Burke, a U.S. Army surgeon, was fatally struck a sports utility vehicle. The driver, Daniel Johnson, initially said he had been reaching for something and had not seen Burke and the other four cyclists riding with him. Bike Law brought an accident engineer to the scene of the crash, where road tests were conducted to determine how long the cyclists were visible prior to being hit. The results effectively showed that the driver had plenty of time to see, and then avoid, the cyclists. Johnson was eventually convicted of reckless homicide, a felony.

But Wilborn will be the first to tell you it wasn’t stringent bike law that got Johnson convicted.

“Bike laws don’t deal with catastrophic injury cases,” he says. “Bike laws deal with what happens every day on the road. The driver… was prosecuted under a criminal provision of recklessly causing the death of another human being.”

The felony charge that put Burke’s killer behind bars remains outside of the scope of bike safety law in the vast majority of the U.S. In the birthplace of the car, attempts to regulate bike-driver interactions have been largely limited to the passage of three-foot “Safe Passing” laws, like the one the Morgans turned to in Mississippi. As of January 2014, 22 states had enacted these laws, including California, Pennsylvania, Arkansas, Florida, Georgia, Louisiana and Tennessee, along with Mississippi. But how effective these laws are remains murky. After three years on the books and no charges, safe streets advocates question its value.

Mississippi’s law, for instance, declares that is the responsibility of “every driver” to “exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle.” As to what constitutes “due care,” the law is silent. By dint of this silence, the law makes it difficult to find a driver legally at fault in a collision. In order to charge a driver who hits a cyclist or pedestrian, according to a statute on the books at the time, a judge must determine one of three things: that the driver attempted to leave the scene of an accident, purposefully caused serious bodily injury, or acted “recklessly under circumstances manifesting extreme indifference to the value of human life,” according to Clay County District Attorney Forrest Allgood. (This statute, Allgood says, has since been altered.)

In the Morgan case, Allgood said, “the law failed, but it’s the law nonetheless — I can’t create something as a crime just because I think it ought to be.”

“It is a terrible situation,” he continued. “It’s how the system works, and how it frequently fails to work.”

The absence of data, compounded with the patchwork of local laws and varying understandings of cyclist rights across the country, means few solid protections for the Jan Morgans of the world.

A March 2012 study by researchers at the Johns Hopkins University noted that since Maryland enacted its three-foot law in 2010, it was rarely enforced. Adding insult to injury, crashes between cars and bikes in Maryland increased following the law’s passage, from 799 in 2008 to 841 in 2012. One particularly notable collision happened in early 2011, when an 83-year-old woman turned into the lane of 20-year-old Nathan Krasnopoler while he was biking in Baltimore. He collided with her car, ended up in a coma, and died the following summer. The driver pled guilty to a negligent driving charge, but was fined just $220.

(Drivers in Maryland who seriously injure cyclists after failing to yield can end up with a $1,000 fine and three points on their license.)

“Generally, our lawmakers, our judges, our officers tend to just think that car accidents happen — they’re the inevitable product of living in a modern society with cars and trucks,” says Juan Martinez, general counsel at Transportation Alternatives, a New York-based non-profit that advocates for better road safety for cyclists and pedestrians.

Martinez argues that traffic accidents are entirely preventable, if only the causes of them were actively enforced. The New York City Police Department, for example, issued more than 96,000 citations to drivers in 2012 for excessive window tinting, which wasn’t an influence in any fatal or injurious crashes. By comparison, according to a October 2013 Transportation Alternatives report, the NYPD issued fewer than 12 summonses a month in 2012 to drivers who failed to yield, one of the leading causes of injurious crashes in New York.

Even when the law is on the cyclist’s side, enforcement can be tricky. Take Oregon, for instance, where a large and politically empowered cycling community led to the 2007 passage of the state’s Vulnerable User Law. Modeled after a law in the Netherlands, the regulation recognizes that the person behind the wheel is encased in several tons of metal, and thereby protected in a way that others out and about are not. The so-called “vulnerable user group” includes pedestrians, cyclists, highway workers and people in wheelchairs or motorized scooters. According to the League of American Bicyclists, Oregon is one of seven states — Hawaii, Utah, Connecticut, Washington, Delaware and Vermont are the others — with such a law.

Passing the precedent-setting law was a huge win for safe-street advocates. There have been other important courtroom victories, too, though it hasn’t fully solved the problem of uneven enforcement.

“The DMV and the department of transportation feel like they don’t have the money to track the numbers of drivers criminally charged with this violation,” says Ray Thomas, a bike law attorney in Portland. “Our state barely has enough money to educate the police about the improvements in the law that we passed through the legislature.”

It’s not only drivers and police who need educating. “Boneheads,” as Thomas calls them, are the riders who want cars to stop for them, but then run red lights and blow through stop signs at four-way intersections. He says such cyclists are in the minority of this country’s 860,000-plus ridership, but their ignorance has an outsized effect on public perception, making the job of attorneys representing cyclists even tougher.

“I can’t walk into a courtroom and expect twelve jurors to be sympathetic to a cyclist,” says attorney Lenore Shefman. “The first thing that goes through their mind is: What did the cyclist do wrong?”

Shefman, a personal injury lawyer in Austin, Texas, has for seven years — and 14 years in San Francisco before that — almost exclusively represented injured cyclists. She has tried 13 such cases and hasn’t lost one, she says. In one instance, a cyclist hit by an airport shuttle van and suffered jaw and facial fractures walked away with a pre-trial $258,000 settlement and a $600,000 jury verdict. In another, a cyclist hit by a truck making an illegal left turn won a $100,000 settlment. Shefman’s method? Pay virtually no attention to the cyclist in the courtroom, and instead focus on what the driver did.

“It’s about choices,” Shefman says. “It’s about making sure that the jury knows that driver made choices that led up to the crash. For example, if you get into your car drunk, that’s a choice. When you call it a choice, it’s a crash or collision, it’s no longer an accident.”

There are signs that awareness of street safety rights is spreading. McLeod says the League of American Bicyclists “recognizes Washington and Colorado as leaders in bicycle-related laws” based on survey questions from the League that represent “over 40 ways in which state laws and enforcement-related policies can vary.” But the questions don’t focus on how harsh penalties are.

Hawaii is also something of a leader in bike legislation. Its vulnerable user law, which went into effect in July 2012, gives a basis for harsher prosecution if a negligent driver seriously injures or kills a “vulnerable road user,” cyclists among them. The least harsh penalty — for those who “negligently operate a motor vehicle” causing “serious or substantial bodily injury to another person while operating a motor vehicle” — can result in a charge of negligent injury in the first degree, a felony. Causing death under the same circumstances can result in another felony charge, negligent homicide.

Complete Streets policies, which require that sidewalks, bike lanes and “inviting” crosswalks are included in all road projects and not just as optional add-ons, also help to spread awareness. Several Mississippi towns have instituted them. On the national level, the Cardin-Cochran amendment successfully made its way into MAP-21, the federal transportation bill signed into law in July 2012. Backed partly by Sen. Thad Cochran (R-Miss.), the amendment ensures that local governments, school systems and planning committees have access to funding to make cycling and walking safer.

Even the NYPD is making progress. Previously, the police only investigated traffic crashes in which someone died or that first responders thought of as likely to be fatal, but now the policy is to investigate all crashes that result in critical injuries, opening the door for more widespread enforcement of bike safety laws. In Austin, the police department conducts sting operations by dispatching two plainclothes officers on bikes at a time, who then write citations for drivers who encroach on that three-foot barrier.

Bob Mionske, a former U.S. Olympic cyclist-turned-bicycle lawyer and founder of BicycleLaw.com, says the main issue, more so than laws and penalties, is how cyclists are perceived.

“If you ride your bike in Italy, Spain, France, Belgium, Holland, most of Scandinavia, people don’t look at you like you’re in their way,” he says. “They don’t see you as the enemy.”

Ghost Bikes

Down the country road in Pontotoc, Miss., where a driver fatally struck 18-year-old John Paul Frerer, stands a bicycle painted bright white. A “ghost bike,” it was put there as a memorial to Frerer and a reminder for everyone passing to slow down and watch the road. More than 575 of these two-wheeled tokens have been placed on roads around the world, each serving as a memorial for a cyclist killed in a collision.

Bike Law’s Wilborn says that in order to shift attitudes about cycling, cyclists and related groups need to promote relationship-building and education, primarily with law enforcement, before any accidents — any more accidents, that is — occur. This entails working with police to make the roads not just safer for cyclists but for everybody using them, motorists included.

Massachusetts makes for a good example. The state’s 2009 bike safety law made it mandatory for police recruits (it’s optional for veteran officers) in all jurisdictions to take classes in what the bike safety laws are, how motorists cause crashes, how cyclists cause crashes and how drivers intentionally endanger cyclists. The training, in large part, is done by the MassBike advocacy group.

Training aside, Wilborn says, shifting the negative perception of cyclists also means getting on friendly terms with the police, so that officers better understand the mindset of cyclists. And it means bringing in experts to educate police about how to properly report bicycle accidents. Many times, police reach a decision about cycling collisions without ever speaking to the cyclist involved, mainly because, as in Jan Morgan’s case, the cyclist is in the hospital. “It’s very easy to say [police] are anti-cyclist after the fact,” Wilborn says. “Before the fact? I think you find a lot of very hard working, underpaid people that may not be part of cycling culture, but are certainly not against it.”

“I can’t walk into a courtroom and expect twelve jurors to be sympathetic to a cyclist. The first thing that goes through their mind is: What did the cyclist do wrong?”

Ultimately, increasing awareness was what spurred the Morgans to take Jan’s case to court in the first place.

“It has never been about anger toward Norton,” David says. “[W]e were trying to figure out a way to at least make an issue of this. Too many people are getting hit on bicycles across the country with no consequences.”

The consequences for Jan, now 60, have been far-reaching. She experiences short-term memory loss. A participant in the Ironman Florida competition in 2010, she has lost the strength and balance she needs to ride a bike safely. Almost a year after the crash, Jan rode with her husband on the trails inside the Noxubee National Wildlife Range, and continued riding after that in closed-off areas or in bigger groups. “I can tell I’m out of shape, but it felt really good to be back out there,” she told me in March 2012.

But this past October, while cycling in a parking lot, Jan fell off her bike, hit the right side of her head and ended up in an intensive care unit overnight with bleeding in her brain. She doesn’t remember what happened after her fall — apparently a passerby found her on the ground having what looked like a seizure.

“I can have my bike set up on a trainer, so I can definitely ride my trainer all I want, because I’m not going to fall over on that,” Morgan says. “But I cannot ride anymore… I really think I probably shouldn’t, but it’s something I’m sad about.”

Morgan continues working at the cycling shop she and her husband founded in their hometown of Starkville, but she can no longer ride a bike on the roads. Still, she counts herself lucky. She still has her life.

Our features are made possible with generous support from The Ford Foundation.

Andrew Zaleski is a freelance journalist in Philadelphia. Find him on Twitter.