Kenmore won’t pursue negligent driving charge in death of Caleb Shoop

Caleb Shoop

Caleb Shoop

This City of Kenmore has decided not to pursue negligent driving charges against Joshua Tucker, the person who struck and killed Caleb Shoop as he biked across a crosswalk in March. Tucker received a $175 ticket for failure to yield at a crosswalk.

Kenmore’s prosecuting attorney “does not see enough evidence to charge the driver with negligence, and therefore the Vulnerable User Law penalties,” city spokesperson Leslie Harris told Seattle Bike Blog.

The VUL, passed in 2011, was designed to create repercussions reaching further than a simple slap on the wrist when people driving make a mistake and kill or seriously injure a person on foot or bike. Previously, if the mistake was not enough to warrant serious criminal charges, the people responsible would just get a ticket and be sent on their way. The VUL was supposed to change that.

Bike attorney John Duggan disagrees with the city’s decision, noting that the citation for failing to yield is more than enough evidence of negligence to bring the Vulnerable User Law into play.

“This horrible tragedy is exactly the situation envisioned when our legislature passed the VUL,” Duggan wrote in a memo to Kenmore attorney Sarah Roberts on behalf of the Shoop family (see full memo below).

It is a painful insult to anyone who loved Caleb Shoop to see the only penalty for the person responsible for his death is a $175 ticket. And the “penalties” in the VUL — which can include fines, license suspension, driving education and/or community service — are also a way for the person responsible to start making amends for what happened.

The fact that Kenmore is not pursuing the second degree negligent driving charge created by the Vulnerable User Law raises serious questions about the law’s efficacy and/or the justice system’s ignorance of how to use it or reluctance to do so. If the law is not used in this case, then what is the point of even having it? If it’s not a problem with the law itself, then why isn’t it being used more often? Sadly, it’s not for a lack of traffic tragedies.

We will look deeper into the problem with using the law in a follow-up story.

Here is the statement from Kenmore:

After careful review of the law and facts of the case, the King County Sheriff’s Office and the City’s prosecuting attorney have concluded that the case involving Caleb Shoop does not rise to the level of negligence; therefore, the Vulnerable User Law cannot be applied in this particular case.  In order for the penalties outlined in the Vulnerable User Law (RCW 46.61.526) to be applied, the prosecutor must be able to demonstrate and prove negligence. Given the facts of this case, and from a thorough review of those facts applied to the law, the prosecutor does not see enough evidence to charge the driver with negligence, and therefore the Vulnerable User Law penalties.

Both the King County Sheriff’s Office and the City’s prosecuting attorney carefully considered the Vulnerable User Law in this particular case. Part of this review consisted of the Sheriff’s Office and the City’s prosecuting attorney meeting with the parents of the victim.

The City of Kenmore takes this tragic accident and other recent accidents very seriously. We have implemented a number of measures to improve both pedestrian and bicycle safety, including awareness and education for both motorists and bicyclists. One example of these measures is the installation of approximately 11 pedestrian-activated rectangular rapid flashing beacons at arterial crosswalks with no mainline stop control.

Here’s the response from John Duggan (who is a Seattle Bike Blog sponsor):

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33 Responses to Kenmore won’t pursue negligent driving charge in death of Caleb Shoop

  1. Richard says:

    Well, we wouldn’t want to be ruining some poor guy’s life. I mean, he’s a motorist just like the rest of us, and this is such an easy mistake to make. Come one, man, *anybody* can make a mistake; it was just an accident. We don’t ruin people’s lives for simple accidents!

    /s

    • Tom Fucoloro says:

      I get that you’re being snarky and agree with your point, but that brings up one of my favorite parts about the Vulnerable User Law charge: It’s not a felony.

      It doesn’t try to address the problem with prison time the way we try to solve all our other social problems (not to get too off-topic about the problem with the American prison system). Instead, the “penalties” are relevant to the situation and geared toward education and relevant community service. And, yes, there are big fines (as there should be), but the law also includes a path to lessen the fines by doing more service, etc (the courts have a lot of leeway in designing a course of action).

      The point is, the person responsible needs to go through something significant as a result of their driving error. And hopefully, that significant experience gives them a chance to change their behavior forever and understand the weight of what they’ve done. Maybe even put them on a track to make amends as best they can.

      • Richard says:

        Yeah, exactly; if anything the law is maybe a bit too soft still (not from the perspective of “punishment”, but from the perspective of reasonable repurcussions – for example, it doesn’t include an true long-term driving privilege removal).

        I apologize for the snark being my first response; reading something like this just fills me with such a mixture of anger and disappointment.

      • Tom Fucoloro says:

        No need to apologize. It’s frustrating news.

      • IANAL says:

        That is something that has always confused be about the VUL, If someone has a conscious, the penalty seems trivial compared to the knowledge that one killed someone. On the other hand, if the person doesn’t have a conscious (i.e. a sociopath) , then the penalties seem so trivial as to be meaningless.
        If this is to act as a deterrent, the penalty would have to be so horrific (say, for example, being run over by a truck), and applied often enough (a place VUL fails) that even people who are “sure” that, “that won’t happen to me” would think twice. However, the eighth amendment precludes truly “horrific”, though life imprisonment for killing someone (under certain conditions) is not so unusual. Still, the “often enough” would be hard to manage.

        Lots of people drive with suspended licenses, and the inevitable civil suits make the fine rather minor by comparison.

    • Jeremy says:

      Curious, why do you assume that everyone is a motorist? Those too old are not, nor the youth, nor those who do not know how to drive.

      • Richard says:

        I don’t, I was just sarcastically representing the attitude of sympathy these people must have for motorists to be able to justify (in their minds) allowing someone who killed another person with such overt negligence to pass with a fine like this.
        Often times you hear arguments like, “We all make mistakes” and “Accidents happen”, in spite of the fact that they don’t “just happen” (the percentage of crashes NOT caused by some negligent action is tiny), and “mistakes” are often the direct result of not taking responsibilities as a motorist seriously.
        The “everyone is a motorist” perspective is common, too – motorists often feel like ALL normal people are motorists, so if you’re not, you must be some kind of weird hippie, or transient, or repeated drunk driver.

        It was sarcasm, but it’s so close to what some of these idiots actually say, I can see why that didn’t come across clearly.

  2. Wes says:

    This makes me sad. Kudos to John Duggan for continuing to fight the good fight.

    :(

  3. bill says:

    Can this case be removed from the City of Kenmore and prosecuted at the county or state level? I know there are ways to compel a prosector to bring charges, but it seems useless to force an unwilling prosecutor to pursue this.

  4. Ham says:

    This is definitely a good reason to not ride a bike in the city of Kenmore. :(

  5. amy says:

    This is just maddening. What can we do to ensure that the VUL is used when it’s appropriate? Duggan makes an extremely strong case – I can’t see any obvious rebuttal to the points he’s making. Shame on the city of Kenmore. They can say that they take this accident and others seriously, but their action in this case tells me that they are far more interested in protecting negligent, inattentive drivers from reasonable penalties than promoting and enforcing safety for all road users.

    • Breadbaker says:

      Unfortunately, there is one rebuttal to one of his points. RCW 5.40.050, which was enacted after the date of the case he cites, provides, in pertinent part, “A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence”. The distinction, while important, is not fatal to a prosecution under the vulnerable user law. Under the negligence per se doctrine, a violation of a statutory duty in and of itself is negligence. Under RCW 5.40.050, such a violation is “evidence of negligence.” Given the testimony of the witness, it seems likely a properly instructed trier of fact (judge or jury) could easily find negligence when a driver carrying a heavy load like that, and therefore in far less of a position to stop, sees other vehicles stopped for a reason he cannot himself see and his reaction is “screw those idiots, I’m not going to delayed for anything I can’t see”, rather than “those cars must have a reason to stop that I can’t see; I’d better be prudent and do what they’re doing.”

      The shame is that the Kenmore City Attorney apparently doesn’t even want to take the chance of losing that argument in front of a trier of act. And until someone takes the VUL in front of a jury and wins, no other prosecutor is going to have the guts to try it either.

  6. Matthew Snyder says:

    I’d like to write a letter expressing my disappointment about this decision. I’m not sure I understand who Sarah Roberts is, though. Is she a private attorney acting as the city’s prosecutor in this case? And does this private attorney have the final say in the matter? I’m just trying to make sure I direct my polite outrage in the right direction.

    Also, thanks, John Duggan!

    • Brian says:

      Many smaller cities contract out to private attorneys to act as the city’s prosecuting attorney. That is likely the arrangement between Kenmore and Ms. Roberts’s firm. They aren’t paid a lot for this work, often a flat monthly fee to cover everything they do, including prosecutions, which sets up scenarios where complex or lengthy prosecutions could cost the outside firm more than it makes through its flat fee. In any event, I don’t think that the decision to prosecute is left entirely to the contracted attorney; the city must have some ongoing discretion over decisions like this. So, I don’t know whether this decision can be pinned entirely on Ms. Roberts.
      John’s letter, however, seems spot on in legal analysis. I’m not sure what Ms. Roberts’s/the City’s counter-argument would be. The whole thing is terribly upsetting as an example of how excusing this sort of behavior is so ingrained into our culture and legal systems.

  7. Matthew Snyder says:

    Also, are there any statistics available on the number of times charges have been brought under the VUL state-wide since its inception? I feel like this sort of data must be available, but I’m not sure how to search for it. My sense is it’s a tragicomically low number.

  8. Ben P says:

    Although I think not prosecuting with VUL defeats it’s point, I don’t think this case makes much of a difference to the driving public in general. With the exception of families involved, readers of this blog, and maybe some interested lawyers, most people will never hear about the conclusion of this case. People are regularly killed on our roads and the outcome of this case won’t make a difference.

    To reduce deaths and injuries there will need to be major changes to culture and infrastructure.

    Cultural changes are only likely to come with a concerted media effort. Just like cigarettes went from a beloved cultural icon to an emblem of financially draining death, fast driving in particular and cars in general could go the same way. Even if say we wanted to use Tucker as a poster child for the peril of reckless driving, we already have him bad; he killed someone. Thats probably a lot worse than whatever prosecution would do to him.

    Infrastructure will also not be significantly helped by this prosecution. Behavior is heavily dependent on environmental queues. The particular place someone is driving has a huge effect on the safety of their driving choices. For example, cars on most roads are very hesitant to pass me up even when safe to do so. A notable exception is cycling along Wallingford N from 85th to 80th. Cars regularly pass despite having to completely enter the very narrow apposing lane where cars have a tendency to pop out of 82nd (I’m assuming they don’t realize the recent green on 85th means red on 80th). Although I cannot fathom what about the street encourages passing, the infrastructure is clearly flawed and needs looking at before someone gets hurt. Getting infrastructure improvements happens when we work with city officials in charge of roads, not when we make them feel threatened by us. while I don’t know if us pushing hard for this prosecution would really alienate any of the driving city officials, it is something to at least consider.

  9. Daily Commuter says:

    This lack of action on the law says to me basically that if you walk or bike you are taking too much risk -why take it, if you could get hit in a crosswalk and there is no repercussion for the driver? When is this nonsense going to end? Humans getting around without the protection of a 3,000 lb vehicle come first.

  10. Daily Commuter says:

    I am also very frustrated with the continuing legacy at Seattle’s transportation dept. of putting drivers first. We seem perpetually stuck with the results of Greg Nickel’s campaign, “Keep Seattle Moving”, which meant that lights on many arterial streets are timed to keep drivers on their way while pedestrians wait and wait for their walk light to get across the arterial. Why are new traffic lights still be erected that require a ped to push a button to get the walk light (and if we don’t, the drivers still get the light and we have to wait?). Every day I go through this in the Mercer Street “improvements”. When is Seattle actually going to put peds first? Why are there no signs reminding drivers that every intersection is a legal crossing point, not just the crosswalks?

    • Andres Salomon says:

      Seattle will put pedestrians first when people in Seattle apply pressure to politicians. The Mayor and City Council need to hear that the status quo is unacceptable. Seattle’s DOT does seem to take safety seriously, but as far as comfort or prioritization – the automobile still reigns supreme. Other major cities have codified prioritization of pedestrians, transit and bikes (including Chicago, where the new SDOT director is from) over the personal automobile: http://westseattlebikeconnections.org/2013/04/14/ped-bikes-transit-freight-cars/. Seattle hasn’t, and its politicians seem unwilling to do so. It needs to come from the top.

  11. Michael Howell says:

    While Caleb’s death was a tragedy, and failure to enforce the VUL was prosecutorial discretion, what exactly is the larger strategy beyond this ?

    Making an example of Tucker (fines, service, jail) might provide some closure to the Shoop family, but penalties are not a long-term fix: they will not affect a change in drivers’ behavior beyond a temporary, geographically limited scope.

    The only thing I’m coming up with for long-term corrective action is, at the State level, the Governor would appoint a bicycle advocate (Czar) to the WSDOT who would influence
    a) changes to WA drivers handbook to include VUL
    b) changes to drivers license renewal testing to ensure drivers are aware of VUL and bicyclist/pedestrian laws
    c) changes to WSDOT awarded projects which incorporate bicycle and pedestrian friendly infrastructure
    d) legislation which makes the VUL enforceable at the county and municipality level
    e) whatever else

    Ok, I nominate Tom F to be the first Wa Bicycle Czar.

    • Doug Bostrom says:

      We’ll have safer roads when laws such as those found in Australia and other places paying more than lip service to safety are enacted here (never).

      From Australian NSW gov. website, being found guilty of exceeding the speed limit by ~6 miles per hour or greater means a $2,200 fine. License suspensions begin at 18 miles per hour over the speed limit.

      Speeding and all the rest are never “accidents.” Ipso facto, speeding is either intentional or negligent. Same with failing to maintain awareness of things such as other vehicles being stopped in the roadway.

      Is there rule of law on roadways, or not? If there is, enforce the law harshly. Lives are at stake.

      • Doug Bostrom says:

        I should add that having driven in Australia I can attest to the eerie degree of respect paid to speed limits by Australian motorists.

      • bill says:

        France is very similar. There are speed cameras everywhere.

  12. Allan says:

    I hope that this in no way affects the financial compensation that the family of Mr. Shoop might win in court. I really believe that $1,000,000 would not compensate for the loss of life but that it would be a fair judgement the the killer should pay off for the rest of his life. I would hope that even with the failure of the city attorney, that there would be the cost of defending placed upon the driver. If this happened to a member of my family you can be sure that I would attempt to sue if the perpetrator was not sent to jail.

  13. Leif Espelund says:

    neg·li·gence
    noun
    failure to take proper care in doing something.
    “some of these accidents are due to negligence”
    LAW
    failure to use reasonable care, resulting in damage or injury to another.

    How does failing to yield and killing someone “not rise to the level of negligence”. It is the *&$#ing definition! I wonder what this guy would have had to do for the Kenmore attorney to actually consider him negligent enough to both pursing charges (which of course he still could have gotten out of with a sympathetic judge/jury)?

  14. John Nangle says:

    This is frustrating to read about. I wasn’t aware of Caleb Shoop until this morning. I googled “Kenmore Bicycle Tickets” because I (along with many others) was ticketed on the Burke-Gilman trail on Saturday, July 12th for failing to stop at a stop sign.

    I was near the cement factory, crossing 65th Ave NE. This is a 4 way stop and I was braking, going very slowly and prepared to stop when the lone car in sight, which was already stopped, made eye contact and waved me through. I let up the break and rolled through the intersection. About 100 yards down the path there were 2 police officers waving over cyclists in large groups, issuing tickets.

    I was wrong (though I think the officers really could use a dose of common sense) and will pay the ticket. The infuriating part is coming here and reading that a young man’s life is worth nothing more than a $175 ticket. Do you know how much my ticket is for? $87.

    • bill says:

      How can the officers assert you did not stop from 100 yards away? AFAIK there is no requirement to put a foot down. I would contest the ticket. When a motorist incorrectly yields the simplest thing to do is go. Otherwise you end up frustrating the “polite” driver and everyone else who is waiting.

      • John Nangle says:

        The officer addressed that and said that stopping meant “fully stopped with a foot on the ground”.

        I probably will contest it, but my comment was really about the inequity on display here. Like I said, by the letter of the law I was wrong. I just can’t believe that the driver in the Caleb Shoop case is getting off with a ticket that is only twice what scores of cyclists received on Saturday.

        I don’t want to see the man’s life ruined, but some community service or restitution of some sort seems in order. The VUL seems designed for just such a case.

      • IANAL says:

        “How can the officers assert you did not stop from 100 yards away?”
        Even from 100yd they could easily see that the car was stopped first and that the bicyclist crossed first, one is supposed stay stopped until the other vehicle is out of the way.

        “you end up frustrating the “polite” driver ”
        If this happened where I think it did, it is much worse than that. There is a very clearly marked crosswalk at the trail, the stop signs for the trail (the faces of which would be nearly perpendicular to the drivers line of sight) have plain wood posts, not red and white (on the Google street view anyway, don’t know how old those pictures are) From the point of view of the automobile driver they may not even have known it was a four (actually 3) way stop, they may well have thought the bicyclist actually had the legal right of way. Teaching automobile drives that they don’t have to yield for bicyclists* doesn’t seem like a very good idea.

        Even more fun is at say, Pend Oreille Road at the UW, where only the trail has stop signs, still a marked cross walk and yellow information signs. Bicyclist stops at stop sign, car stops at cross walk, but there is also a car coming form the other direction. Will the other car stop?, will it run me over?, is it an unmarked cop car? When I stay stopped and wait for both cars to clear the intersection will the driver who did stop decide bicyclist are idiots who should be run over? do I use hyperbole excessively? these are important questions.

        *not just bicyclists, on King county trails “all users” must obey traffic controls, the people in the Google street view pushing a baby stroller? if (hypothetically) a car was there first, then that car had the right of way. Must suck to be that hypothetical driver: stop sign, marked cross walk, baby carriage, the people pushing the stroller just standing there looking at me like I have two heads, what to do? I just hope the poor driver hasn’t recently watched a movie where assassins/kidnappers use a baby carriage to get their victim’s car to stop, or worse, the movie where the driver has seen the previous movie and drives right over the carriage.

      • Leif Espelund says:

        Despite your excessive hyperbole, you make a very good point: “Teaching automobile drives that they don’t have to yield for bicyclists* doesn’t seem like a very good idea.” Except I would change “for bicyclists” to “at crosswalks.” This happens all along the Burke. In Frellard there are a couple crossings with yield signs facing the trail (but then a few where drivers are properly notified that they have to yield or stop). We already have issues getting drivers to give pedestrians the right of way at marked crosswalks, training them that the trail users must yield only adds to the confusion. SDOT and King County need to fix this issue. If it is a marked crosswalk then the crosswalk users have the right of way unless there is beg button to allow them a specific walk cycle.

  15. ODB says:

    I’m outraged by the inequity of the two penalties. Imagine if a mother pushing a stroller had been hit. I bet the prosecutor would made the effort to “demonstrate and prove negligence.” I’m also appalled by the harassment and unfair treatment you and others were subjected to by officers of the law. Thanks for posting this story.

    I can’t find any authority for the proposition that you have to put your foot down at a stop sign. I just looked at Title 10 of the Kenmore Municipal Code regarding Vehicles and Traffic (http://www.codepublishing.com/wa/kenmore/); the Washington Model Traffic Ordinance as adopted by Kenmore (http://apps.leg.wa.gov/wac/default.aspx?cite=308-330); and the “Rules of the Road,” RCW 46.61 (http://apps.leg.wa.gov/rcw/default.aspx?cite=46.61&full=true#46.61.190).

    Maybe I’m missing something . . .

    In any event, it’s a stupid rule if it exists. Personally, I trackstand at red lights and never put a foot down for stop signs. Bicycle trackstanding should be encouraged because it improves bicyclists’ balance and thus enhances safety for all users.

  16. Pingback: Mother of Caleb Shoop: ‘Our son’s death warrants a just outcome’ | Seattle Bike Blog

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