Will DA Gascón Reform the Double Standard for Drivers Who Kill?

At least 13 pedestrians have been killed on San Francisco streets this year, all but one of them by motor vehicle drivers. The toll is all too typical for the city, as is the fact that most of those drivers won’t face prosecution.

District Attorney George Gascón. Photo: Matthew Roth

Last month, District Attorney George Gascón seemed to employ a tough new standard when he filed misdemeanor vehicular manslaughter charges against Randolph Ang, the first bicycle rider to kill a pedestrian in the Bay Area in at least five years. The exceedingly rare event drew a tidal wave of media attention and calls for stricter traffic enforcement of people on bikes, and it was followed by targeted police stings on Market Street.

Ang, who hit and killed 68-year-old Dionette Cherney in July when he ran a red light on the Embarcadero at Mission Street, now faces up to a year in jail due to “ordinary negligence that resulted in the tragic death of a pedestrian,” according to the DA’s office.

“The District Attorney’s Office takes seriously any case where criminal conduct is the cause of an injury or fatality,” read the statement. “Before our office files charges on any cases, we need all the evidence and information regarding criminal conduct to build a strong prosecutable case.”

However, the DA does not usually seem to take “ordinary negligence” seriously when it’s careless driving that causes a pedestrian fatality. The vast majority of the drivers who killed pedestrians this year — 11 of 12 — have not been known to face any charges, though there are signs that could begin to change.

Gascón, who was appointed DA in January, indicated late last month that his prosecution of Ang might be followed by stronger policies to hold deadly drivers accountable. He announced that three drivers could be prosecuted for recent pedestrian deaths, and he’s followed through with one of them so far. Gregg Wilcox, the driver who killed William Cox at 14th an Noe Streets in September, was charged last week with misdemeanor vehicular manslaughter because he was driving while wearing a leg cast, said DA spokesperson Stephanie Ong Stillman.

The Muni driver who killed 23-year-old Emily Dunn in the Castro could also still face charges along with the UCSF shuttle driver who caused the death of Dr. Kevin Mack, a passenger who was killed in a crash with a big rig the day before Ang’s crash, Stillman said.

A driver hit this woman on Masonic Avenue while running a red light in April. Photo: ##http://blogs.sfweekly.com/thesnitch/2011/04/masonic_red_light_jogger.php##Matt Smith, SF Weekly##

Shaana Rahman, a lawyer who represents victims of traffic crashes in civil court, explained that injuring or killing a pedestrian due to negligence has traditionally been categorized as a civil offense rather than a criminal offense, which requires “intent to harm.”

“What I have seen in my practice is unless there’s an issue where a driver or cyclist is under the influence of drugs or alcohol or driving recklessly and willfully, such as drag racing or something of that nature, by and large there are no criminal charges filed against folks who injure other people in those situations,” she said. Regarding the criminal charges against Ang, she added, “In this situation, with this particular bicyclist where you don’t have those aggravating circumstances, it seemed unusual to me.”

When it comes to protecting pedestrians in San Francisco, the DA’s decision to prosecute Ang, but not most drivers who kill, doesn’t square with the gravest risks out on the streets. While 811 people were injured by drivers last year, just 18 were injured by bicyclists, according to police records. Only 7.4 percent of crashes involving bicycles in the last five years have involved pedestrians, according to the Bay Citizen.

A 2010 SFMTA report [PDF] found that the largest cause of pedestrian injury in 2008 was failure by drivers to yield to pedestrian right-of-way, accounting for 41 percent of cases.

“There’s basically been no penalty for endangering others when you drive,” said Walk SF Executive Director Elizabeth Stampe. “That’s what we’re hoping to see change.”

Gascón’s announcement that he will look into prosecuting dangerous drivers could be a step in that direction. For now, though, charging drivers who kill (at least those who aren’t intoxicated, flee the scene, or claim they didn’t see the pedestrian) remains about as rare as a bicycle rider killing a pedestrian.

The DA’s office could not provide data on how often drivers are prosecuted for killing pedestrians, but a quick glance at cases from earlier this year reveals the type of deadly negligence that typically carries no consequences. The DA did not file charges that we know of in these cases despite reports that indicate that each driver failed to yield to a pedestrian in a crosswalk:

  • The crane driver who killed 71-year-old Lourdes Richman at 2nd and Townsend Streets in March
  • The driver who killed 87-year-old Aurora Venida the same week, while she was crossing Geary Boulevard at Arguello
  • The driver who critically injured a woman in her 50’s at Park Presidio and Anza in February

“We think it’s clear that these crashes could’ve been prevented,” said Stampe. “We think it should go through the process of the police and the DA’s office looking at what happened, and deciding to charge on a case-by-case basis.”

Is Gascón getting serious about driver recklessness and negligence? Rahman thinks the DA’s recent pronouncements could indicate “a fundamental shift in the punishment aspect of drivers who, in all other circumstances, would be seen as negligent drivers.”

“Criminal charges are important to deter certain behavior,” she said, and with so many cases of negligent drivers who kill or injure other people, “he’s going to have his hands full.”

Edited at 9:18 pm to show that the total number of pedestrian deaths reported this year is 13.

  • Mario

    I certainly hope that Gascon is taking pedestrian safety seriously. However, it is very suspicious that the signature case involves a cyclist as the culprit, even though that accident is more recent than other accidents involving drivers. Shouldn’t these cases be tried in chronological/severity order?

    If you ask me, Gascon intuitively understood that the bicyclist who ran a red light and killed a person should be punished. That’s because Gascon is not a bicyclist and could take a fair (or even biased against bicyclists, which is common for drivers) third-person look at the incident. But once he realized that, I think he has realized the double-standard, which must have evaded him before, since he’s a driver, and it seems he’s trying to compensate for that. I hope it is a faithful effort however and doesn’t just silently die down with these initial signature cases.

  • the greasybear

    Fatal bike-ped collisions prosecuted by Gascon in 2011: 100%
    Fatal car-ped collisions prosecuted by Gascon in 2011: 7%.

    This outrageous discrepancy is evidence of a flagrant bias for motorists, statistically the most harmful of all road users, and against bicyclists–who are the least harmful. I hope the DA’s announcement he’ll “consider” lessening his office’s upside-down policy of reserving the laxest possible standard to the most harmful of all road users is more than mere lip service. Bias, bias, bias.

  • Richard Mlynarik

    16 years of Willie Brown and his sock puppet Republican stooges.  Hooray for democracy!

  • Have your teenager share the family car instead of owning his or her own. Be sure check “Clearance Auto” and also add if your son or daughter makes the honor roll or moves away to college. Both qualify for discounts with most companies.

  • Icebrg

    What I did not see in this article is how many of these vehicle/pedestrian accidents are the fault of the pedestrian.  Not to defend drivers, but the same document states that 31% of incidents are the fault of pedestrians and another 22% are classified as other/no data.  Later on the report states that 3 out of the top 5 reasons for pedestrian/vehicle accidents are actually the fault of the pedestrian.  Did the author stop to think, of those fatalities waiting for indictment how many are actually the fault of the driver?  This article is clearly biased.  

  • mikesonn

    Icebrg, who says it has to be unbiased? It’s about time there is a point of view of walkers, transit users, and cyclists. The main media does enough coddling of drivers to more than compensate for a slight bias against.

    The owness is on the one operating the multi-ton vehicle. For example, in the 6th/Market/Mission area, SLOW DOWN because people are wondering this way and that. Why does 6th St have to be an onramp all the way back to Market? Where is the complaint of that obvious bias?

  • Anonymous

    That’s right Icebrg.  In case you haven’t noticed, this blog is a vehicle (no pun intended) for anti-car propaganda.  As mikesonn observed, if the facts don’t support their case, they just make stuff up.

  • mikesonn

    pchazzz, totally. When “3 out of the top 5 reasons for pedestrian/vehicle accidents are actually the fault of the pedestrian” and 0 out of 0 pedestrian/vehicle accidents are actually prosecuted, then we should all sit back and consider that a success.

  • Icebrg,  Your claim is interesting and so I read the SFMTA report referred to in the article which was also very interesting!  But I could find nowhere in the report the numbers you claim.  Perhaps you could cite the page numbers which show the data you are referring to?

    What I found in the report (page 44):

    In all San Francisco Vehicle-Pedestrian injury collisions between 2004-2088, 58% were the fault of the motorist, 31% were the fault of the pedestrian, and 11% were undetermined.

    Other interesting tidbits: statistically, pedestrian-vehicle collisions are most likely to happen on Fridays, in December, between 3-6 pm, during daylight hours, and when the weather is clear.  The driver in these collisions is most likely to be male (74% of fatal collisions, 67% of injury collisions) whereas the victim is more of a 50/50 split male/female.

  • Triple0

    Fault is determined by the police officer, based on input from the parties of the crash.  If a driver says it was the pedestrians fault, and the pedestrian is on their way to the hospital, or unconscious, it’s a one-sided story.

  • B4daylight

    Whats even more sickening is the grand jury.


  • Anonymous

    The irony of this is it is the exceptional danger of driving a car.  It’s simple when driving a car to kill: just a momentary distraction and it’s done.  There’s always a plausible excuse.  But bikes are so many orders of magnitude less of a threat, anyone killing with a bike was obviously grossly negligent.  The solution is to put a greater burden of safety on drivers, to not accept a defense simply because it is plausible, but to demand drivers drive in a way that expects the unexpected.


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