Manslaughter By Car: “At Best Negligent” in South Dakota

Here are some useful definitions for interpreting the continuously bad news about infrastructure and transit safety in South Dakota.

  • Gross Negligence: “…reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety…”
  • Negligence: “…failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one’s previous conduct).”
  • Involuntary Manslaughter: “…negligently causing the death of another person…”

Here’s a basic data point about people with cars killing Americans:

In the nine years from 2009 to 2018, pedestrian deaths increased 51 percent from 4,109 to 6,227.

And here are five related cases for consideration.

First, 2013 San Francisco Uber staff exhibited reckless disregard for safety or lives of others, killed people in the street, and in 2018 was charged with misdemeanor:

Prosecutors charged Muzaffar with a misdemeanor after finding no evidence of gross negligence in the incident. He faces up to a year in jail at sentencing. Muzaffar’s attorney argued that a blind spot in the driver’s vehicle prevented him from seeing the family when he struck them.

Think for a minute about that defense tactic. You close your eyes, fire a gun towards an area with people, and then argue — because you prevented yourself from seeing them — you aren’t responsible for your conscious violation of other people’s rights to safety.

Or perhaps imagine you shoot into the woods where you know there are walking paths and say you can’t be charged because couldn’t see people you were killing as the trees you were hiding behind blocked your view?

Second, 2017 San Francisco law enforcement officer sitting in a car shot an unarmed running man, and in 2020 was charged with a homicide while on duty

…Officer Samayoa was seated in the passenger seat. Officer Samayoa pointed his gun and shot Mr. O’Neil through the passenger side window of the patrol car, killing Mr. O’Neil…

Third, Arizona has the highest pedestrian deaths in America. Over 70% of pedestrian fatalities are at night. Jaywalking is a fantasy crime invented by American car manufacturers, which has led to premeditated overconfidence by drivers they won’t be convicted for killing pedestrians.

In 2018 Uber staff exhibited reckless disregard for safety or lives of others, killed someone in an Arizona street at night (as easily predicted), and in 2020 their “safety driver” was charged with negligent homicide.

…a charge similar to manslaughter that carries a recommended sentence of 2.5 years. However, the grand jury also charged that the crime was committed with a “dangerous instrument” — namely the car. When negligent homicide is committed with a dangerous weapon or instrument, the recommended sentence increases to six years.

…one departing Uber engineer, Robbie Miller, sent a scathing email to the head of the self-driving program days before Herzberg’s death. “A car was damaged nearly every other day in February,” Miller wrote. “We shouldn’t be hitting things every 15,000 miles.” Miller pointed to an incident the previous week (nine days before Herzberg’s death) when an Uber test vehicle “drove on the sidewalk for several meters.” …the incident “was essentially ignored” until Miller brought it to the attention of management. But Uber escaped criminal liability for the crash.

Fascinating to note how “dangerous instrument” means use of an Uber increased the sentence for a “safety driver” yet no charges for Uber. This is like charging Boeing pilots for negligent homicide in the 737 MAX autopilot crashes, yet Boeing itself escaping liability.

Speaking of which, Tesla killing pedestrians seems almost completely unreported compared to all the attention paid to Uber for doing the same thing around the same time.

Fourth, Republicans around the country very politically tried to criminalize freedom of movement outside a vehicle such that no driver ever would expect to be held liable for reckless disregard for the safety or lives of others.

In North Dakota this even was characterized very narrowly as a way for white middle-aged women to “hit the accelerator” to kill Americans in the street and still be free of any charges.

…what would have happened to his mother-in-law if she panicked and hit the accelerator when she meant to hit the brakes. Should the bill pass, Kempenich’s mother-in-law could not be prosecuted nor sued. The bill would be good for Kempenich’s mother-in-law but perhaps not so good for anyone who gets hit by a car…

In Texas it led to things like this backpedaling news story:

…author of a Texas bill to protect drivers who injure demonstrators found himself the target of outrage on social media this weekend after the hit-and-run death of a young woman…

Such an unbalanced mindset of American politicians criminalizing pedestrians is critical to understanding a terrible record of people in South Dakota being killed with cars.

Vehicle versus pedestrian collisions are fairly common in South Dakota. The state saw 140 such collisions in 2019, about one every 2.5 days. Eight pedestrians were killed and 132 were injured in 2019. So far in 2020, seven pedestrians have been killed. From 2014 to 2019, 50 pedestrians were killed on or along South Dakota roadways. Often in South Dakota, vehicle versus pedestrian collisions don’t result in serious criminal charges being filed.

The data suggests it’s more dangerous to walk on a road in South Dakota than ride a motorcycle.

Let me emphasize that again just to be clear. South Dakota doesn’t even have an adult motorcycle helmet requirement (it does require eye protection however), and still there are more pedestrian deaths each year than motorcyclists.

Far more people die each year from being hit by cars as they are walking in South Dakota then are killed by pretty much anything else (except poison, drowning and falling).

Source: South Dakota Government

Fifth, “run them over you won’t be charged” has been a social media campaign since at least 2016 encouraging Americans to kill each other using cars if they have political differences.

One tweet promoting this violence even suggested the sound of a dead American under vehicle wheels makes a sound like “Trump, Trump”.

Ok.

All of that is background to the news today that a South Dakota Attorney General in a car killed a man. Investigators proved “His face was in yours… think about that” yet the accused coldly dehumanized his victim to avoid charges of negligence.

He said he thought he killed an animal and he thought he looked hard enough (even though evidence proved he saw the man face-to-face and did not look very hard).

Think about that.

Because in South Dakota the dangerous instrument used to kill was a car…

…to charge him with manslaughter the state would have to prove he ‘consciously and unjustifiably’ disregarded a substantial risk — which it could not…

At best, [killing with a car] was negligent, which is insufficient to bring criminal charges in South Dakota… history of speeding: in the four years leading up to his election in 2018 he racked up six separate speeding tickets.

Six speeding tickets in four years perhaps you could say propelled this man into an Attorney General seat… in a state known to criminalize people walking in the street. His alleged negligence led predictably nonetheless to him claiming no liability at all for using a car to kill someone.

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