Sunday Morning Meditation – The law and cycling
Gregory Germani remains in critical condition at Grady Hospital, the victim of what Atlanta Police are calling an aggravated assault.
That charge has puzzled outraged cyclists. Cycling advocates also say there’s a frustrating lack of information about incidents involving cyclists in Atlanta.
On June 9, Germani, 50, was riding his bicycle in Atlanta’s Piedmont Heights community when he got into a dispute with the driver of a red Dodge Nitro. Police say the driver intentionally ran down Germani on Flagler Avenue. A reward fund for information about the suspect was almost up to $8,000 on the morning of June 15.
People who have commented on the case on social media and on news websites have asked why the suspect wouldn’t face the seemingly more serious charge of attempted murder.
Local attorneys who are familiar with cycling law and the criminal code say that attempted murder would be harder to prove. The best shot at getting a sentence that matches the severity of the alleged crime is aggravated assault, the attorneys said.
Aggravated assault has a statutory maximum time of 20 years. Andrew Hall, a criminal defense attorney, said before 2007 attempted murder convictions usually resulted in shorter prison terms than aggravated assault convictions.
“It used to be up until 2007, the way it read was you got one half of the time that the substantive crime called for,” Hall said. “The way it was interpreted was that one half of life was 10 years, if you charged the maximum.”
As a result, he said, the attempted murder statute was rarely used. The state legislature changed the statute for attempt crimes to 30 years, provided the crime being attempted could result in a sentence of life in prison. But Hall said attempted murder is much harder to prove, because it requires proving malice.
Hall a good defense attorney will have the upper hand if someone charges their client with attempted murder in a case like Germani’s.
“A defense lawyer could very easily argue he wasn’t trying to kill him, he was trying to injure him,” Hall said. “In that situation, with those facts, it would be much more difficult for the prosecutor to charge attempted murder.”
Ken Rosskopf, a Decatur attorney who specializes in cycling law, said that there would need to be proof that the driver intended to kill Germani.
“One reason they’re not discussing murder would be the lack of intent to kill,” he said. “It would be hard to show that, unless he said beforehand, ‘I’m coming after you and I’m going to kill you.’ Otherwise I don’t think you could prove more beyond a reasonable doubt. That kind of takes murder off the table.”
Germani remains sedated and has been unable to talk to police about the circumstances leading up to the incident.
Hall also said that the max sentence for aggravated assault is serious prison time.
“There’s nothing about being charged with aggravated assault that makes you think you’re getting a slap on the wrist,” he said.
Germani’s incident follows an incident in Decatur on May 6.
Laura Quade, 26, on May 6 was stopped on West Ponce de Leon and waiting to turn left when Edward Tamas, 87, struck her from behind with his Cadillac. Decatur Police cited Tamas for following too closely. There are no other charges pending.
The two incidents led to the creation of a Change.org petition by Georgia Bikes calling for the adoption of Vulnerable Road User laws to strengthen penalties against drivers that seriously injure or kill cyclists and pedestrians.
Atlanta Bicycle Coalition Executive Director Rebecca Serna said the coalition supports the petition. The petition itself quotes statewide statistics on cyclist fatalities.
According to the petition, fatalities involving bicycles in Georgia rose 54 percent from 2011 to 2012 and increased 37 percent from 2012 to 2013.
While there’s data available at the statewide level, at the local level it’s more difficult to obtain. Decaturish and Creative Loafing have both asked Atlanta Police for their data on incidents involving bicycles in Atlanta. An APD spokesman said the department does not keep track of this information.
Serna said that makes her job more difficult, because the lack of data makes it hard to come up with informed suggestions about polices that could better protect cyclists.
She said while the state tracks cyclist fatalities, she said the data on crashes would be more helpful.
“It’s very hard for us to get good data on bike crashes in Atlanta,” Serna said. “Georgia DOT puts out a report that shows the fatalities each month. We don’t have that many fatalities in the city of Atlanta, only 16 fatalities statewide. It’s hard to draw any conclusions from those. Crash data would be so much more useful.”
Serna said with crash data, the Coalition could help the city find problem areas for cyclists and recommend specific safety improvements.
The more fundamental question the crash data would answer is whether incidents involving cyclists are becoming more common.
“You always hear about hit and runs and it’s really hard for me to say if they’re increasing,” Serna said. “Anecdotally, I feel like they are.”
Perception cuts both ways.
Atlanta City Councilman Alex Wan said APD doesn’t regularly give the city council information about cases that involve cyclists.
“While I can’t say that I have heard about an increase in such accidents, I’m glad that the City is being proactive about installing bike lanes (for example, the 10th Street cycle track) not only to promote use of alternate forms of transportation, but more importantly to protect the safety of cyclists on our roads,” Wan said via email.
Rosskopf can offer some perspective based on the number of bicycle injury cases that he handles.
“I noticed a drop off last year, strangely enough, but then I’ve noticed it pick up considerably this year,” he said. “My practice is so narrow it’ll have waves like that and I can’t conclude anything from them. I would expect more bicycle injury cases because of the number of people that are taking up bicycling for transportation, health recreation, and the fact that now our roads are getting a little more bike friendly. I think people are getting more comfortable getting out on the roads on their bikes.”
Correction: An earlier version of this article incorrectly identified where the assault took place. It was in Piedmont Heights, which is near Morningside.