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Grandmother reports felony, Newton PD treat as a traffic violation

2012 September 6
by Sean

All things being equal, on my bike I would rather be shot at from a moving vehicle than have someone in a moving car intentionally open a door on me*. A car aimed at a human being is a potentially lethal device.

Imagine if a cyclist reported that someone in a car waved a gun and threatened to shoot her. Presumably, the response would be to track down the car as quickly as possible. I’m guessing that police would be waiting at the address where the car was registered and that other police would be looking for the car. With any luck, the car and its passengers would be found quickly, questioned, and  a proper investigation could proceed.

The other day, a Newton grandmother reported that, as a car passed her on her bike, a passenger on her side opened a door and threatened to “door” her. Understandably shaken, she took the license number and immediately called the police. The officer that responded said that there was nothing that he could do because he hadn’t seen the incident.

What a total failure to protect the safety of a Newton resident and a total failure to understand the nature of the crime. There is no requirement that a police officer be present to investigate and potentially prosecute someone for threatening someone’s life. The fact that the instrument used to perpetrate the threat is a car doesn’t make it a motor vehicle violation. It was a crime and should have been treated as such.

It’s not just the threat that matters. It was incredibly reckless behavior. There are so many things that could have gone wrong and resulted in the cyclist’s death or injury, regardless of the morons’ intent.

It is not yet clear what, if any, investigation was done or has been done. Acting Chief Howard Mintz says that both the crime and the response will be investigated. But, it is more likely than not that the opportunity to find the guy who made the threat was greatly diminished by the failure of the officer to recognize the crime for what it was.

Bike and pedestrian advocate Aaron Naparstek is fond of writing that, if you want to kill someone and get away with it, run them over. Police just don’t treat motor vehicles seriously as weapons. We saw this in the case of the bicyclist who was run over on Comm. Ave. a few years ago, passing legally on the right. Not even a citation for the driver. Hey, how was the driver supposed to know that her actions could result in someone’s death or serious injury?

This is a test of the Newton Police Department’s seriousness about bicycle and pedestrian safety. I don’t want to suggest that this incident reflects frequent behavior. In fifteen years of biking in, from, and to Newton, I can count on one hand the number of times a driver has driven in an intentionally threatening manner. The daily risk is the inattentive. But, the larger point is whether or not Newton makes drivers accountable. Cars can kill. Drivers should drive like they understand the risk and responsibility. And, the police should take dangerous driving — intentional or otherwise — very seriously.

* The likelihood of hitting the target (me) is much greater with a car door than a gun, and the likelihood of death or serious injury from the door is not meaningfully less.

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27 Responses Post a comment
  1. Molly Schaeffer permalink
    September 6, 2012 01:29 PM

    Many, many (more than 50 in 36 hrs) people have responded on various listserves re: this incident. While “intentional dooring” seems to be really unusual, the message that comes through loud and clear from them is:
    1. my experience (e.g. bicyclists being harassed, assaulted, threatened by motorists) is not just an isolated case
    2. the police in Newton need educating NOW on the laws relating to bicycle safety
    3. cyclists are really angry at the “do nothing” attitude of city government with regard to “bicycle friendliness” in Newton and elsewhere
    4. the recent killing of the cyclist in Wellesley hasn’t changed our elected officials and public servants’ attitudes toward bicyclists’ safety one iota
    5. if you bike through Newton and experience malicious drivers’ behavior, the police will probably not protect your rights
    Many thanks to all the cycling groups’ members for their support regarding this incident. Now we just have to figure out how to make change happen.

  2. mgwa permalink
    September 6, 2012 03:50 PM

    Sadly, it’s not just bikers who face Newton police indifference to their safety from drivers. A friend tried to report an MBTA bus driving in a crazed and very unsafe manner (including side-swiping cars) and met with indifference.

  3. September 7, 2012 10:44 AM

    At a minimum, the incident should be logged. How many times have we heard fatal accident reports where it is noted with such surprise that there have been “no prior history” of problems. Well, if incidents like these are not recorded … how does one ever develop a history? I would imagine that this is an early sign that at some point, this operator is going to be the cause of a very very sad incident.

  4. September 7, 2012 01:15 PM

    In 2009 a Bicycle Safety Bill was signed into law after many legislative sessions, and I was honored to play a pivotal role in finally getting this passed. Clearly there needs to be more education about the rules of the road regarding driver safety for motorists and bicyclists, check out: SameRoadsSameRules.org for more information, one rule being that a driver should look behind for approaching bicycles before opening a door on either side of a vehicle or risk a $100.00 fine. In this case there appeared to be a clear threat to the bicyclist which should be investigated. The license number was reported which gives the police an opportunity to take further action. I certainly hope an investigation will occur which will also send a message that this behavior is not acceptable.

  5. Adam permalink
    September 7, 2012 01:40 PM

    Not to dismiss the need for bicycle safety, but ultimately this case appears to be not about rules of the road or even car vs. bicycle interaction, but an outright threat and violent act by an individual using a motor vehicle (as a weapon, as Sean argues) As a society, I think we blur the boundaries everyday, and that’s unacceptable. Would the police have handled this case much differently if a driver deliberately charged at a pedestrian crossing the street or tried to run someone off the road, with verbal threats but without witnesses? I see that happen all the time, without consequence, as long as no one is hurt. Is there any ambiguity in the law or is this just a matter of enforcement? As a matter of law, how would such cases play out without witnesses?

    I’m all for tracking such behavior, but right now, that would be done (in theory) through the RMV as a civil matter of improper operation of a motor vehicle, which goes to the heart of Sean’s argument. Without actually bringing charges, is there a way to track aggressive behavior in a meaningful way?

  6. Ted Hess-Mahan permalink
    September 7, 2012 06:22 PM

    I am informed that Interim Chief Mintz tried to contact Ms. Schaeffer to advise her that her “the matter will be thoroughly investigated and followed up” and that he has “also sent some information to the bicycle task force members and [] spoken with the Boston Globe.”

  7. nathan phillips permalink
    September 9, 2012 12:52 PM

    Sean and Greg,

    We are continuing this conversation on our renovated Bike Newton blog: http://bikenewton.org/blog/

    By the way, we’d be grateful if you included this site on the Village 14 blogroll – thanks for considering it.

    Nathan

  8. September 9, 2012 10:07 PM

    Done.

    And here’s a story from the Globe about this.

  9. nathan phillips permalink
    September 10, 2012 07:58 AM

    Greg, thanks. Nathan

  10. Sean permalink
    September 10, 2012 08:19 AM

    The lead in the Globe article is misleading:

    A Newton police officer’s response to a biking incident earlier this week has triggered a firestorm of criticism from cyclists and spurred the Newton Police Department to take a closer look at the case.

    The Newton Police Department hasn’t yet taken a closer look. Acting Chief Mintz has credibly promised that the matter will be investigated further, but, according to Molly, nobody has yet contacted her. Apparently, they are waiting for the original officer to return to duty after days off.

    Waiting for the original officer to follow up what he already bungled doesn’t strike me as treating the incident with the utmost seriousness.

  11. Lisap permalink
    September 10, 2012 12:04 PM

    @Sean – I believe that the crime described would be classified as an assault which is not a felony under Massachusetts law but a misdemeanor (punishable by imprisonment in a House of Correction for up to 2 1/2 years), as well as a civil infraction. An assault and battery which causes serious bodily injury is, however, a felony under Mass. law. Regardless of the criminal classification, this is a very serious event which deserves an appropriate investigation by the Newton police and, if warranted, an application for criminal process to issue against one or both individuals.

  12. Hoss permalink
    September 10, 2012 12:10 PM

    Lisap — Are you saying this person’s words were illegal? Given the person has little ability to follow-through (i.e., is not a continuing threat), and the grandmother is not the President of USA, what charges are now appropriate?

  13. Sean permalink
    September 10, 2012 12:55 PM

    I stand corrected, Lisa. Thanks.

    I would think that it also might be chargeable as reckless endangerment. Also a misdemeanor?

  14. dulles permalink
    September 10, 2012 01:31 PM

    @Hoss, the article description above doesn’t give an accurate depiction of what happened. Usually “dooring” a cyclist means a passenger who’s getting out of a parked car swings a door wide open just as a bicycle is coming up from behind… the result: *wham!* as the cyclist collides with the door.

    In this case from reading other sources, it sounds like the car came up from behind, and a passenger swung the door of the moving car open as it was passing the cyclist, making as if to hit her.

    This not-so-funny prank could’ve (a) struck the rider with the door even if the passenger didn’t mean to; (b) caused the rider to avoid by swerving, and crash; (c) caused the rider to avoid by swerving, sending her into traffic where she could’ve been struck by another vehicle.

    I suspect we’re talking about just-arrived college students here. If that’s the case it sure would be nice if mommy & daddy got word about the sorts of ‘friends’ junior is hanging out with: and poetic justice if they took back the brat driver’s car and gave him a bicycle.

  15. Hoss permalink
    September 10, 2012 02:17 PM

    dulles — that seems a bit more than “[t]hreatened to ‘door’ her…”. But if we take the sympathetic aspects away, and we have two charged-up Corvettes on the Mass Pike, one driving 55 and another doing a very high rate of speed pulls in front of the driver in an intimidating and life threatening manner, what do we expect an State Police to do? Lisap (a lawyer) seems to say there was a threat of harm and even without police as witness there can be charges. If so, how does this work?

  16. Sean permalink
    September 10, 2012 04:31 PM

    Dulles,

    Thanks for the clarification(s).

    Hoss,

    Let’s say that a person in a stopped car opened the door a little and said “I’m going to door you”? Isn’t that enough? If that happened to me, I’m sure I’d swerve to avoid the door, risking hitting something in traffic. First, you have the fact that being doored in and of itself is likely to cause injury. Second, you have the risk of more serious injury or death trying to avoid the primary injury.

    As for the police not seeing it. Police are not witnesses to most crimes. You have complaining witnesses (victims) who report crime. The police investigate. Charges are brought or not.

    As for your Corvette example, the police could choose to treat it as a motor vehicle violation (speeding), which they can’t issue unless they see it. Or, they could say that the intentional behavior rose to the level of a crime, in which case they could investigate and, if warranted, make an arrest.

    The point is that being in a car doesn’t/shouldn’t limit the available response to your behavior to violations. If your intent is bad enough, if your behavior is recklessness enough, or if the consequences are bad enough, it can be and should be treated as a crime.

  17. Hoss permalink
    September 10, 2012 04:43 PM

    Sean, If you’d stop thinking of a bicyclist as a potential protected-class you’d see that the corvette trying to run another corvette off the road is as equally bad. Nothing happens in these cases. Most of us go home muttering that someday, someone dies and the idiot will end up behind bars. We don’t shoot off at local police for not arresting based on accusations, and what could have happened.

  18. TheWholeTruth permalink
    September 10, 2012 05:09 PM

    I am troubled by several aspects of this thread. First, the headline is rather inflammatory (IMO). What does being a Grandmother have to do with what allegedly happened here. This headline makes one have an image of a sweet old “granny” helplessly being attacked. Second, this article only gives one side of the story. As we all know, there is always more than one side to a story. It appears to me many of you have decided the Officer was wrong and nothing anyone says will convince you otherwise. As Lisap pointed out, this “crime” was not a felony as Sean so boldly described in his headline. Unfortunately, the damage is done and many assume this must be true. As for the investigation, I would think that the NPD would want to talk to the Officer involved before taking any more action on this incident. As I have said on many other topics, lets wait and see what the investigation reveals before we start condemning the people involved.

  19. Lisap permalink
    September 10, 2012 06:41 PM

    @Sean, I’m not aware of reckless endangerment as a charge where the victim is an adult. There is a misdemeanor crime of reckless endangerment of a child (subject to imprisonment in the House of Correction for a term up to 2 1/2 years).

    @Hoss – to give you a very basic answer as to how criminal process could work, the police or the victim of a crime man file with an application for a criminal complaint to be issued against the individuals. The application would be filed in the District Court and there would then be a hearing to determine whether a complaint should issue. (This is the same process that was used with reference to the employee of the police department who was accused of stealing.)

  20. Sean permalink
    September 11, 2012 06:31 AM

    Lisa, Hoss, and TWT,

    Please take a look at Section 15B. Assault with a dangerous weapon against a person 60 years old is a felony, carrying a maximum penalty of 5 years in state prison. A purposely opened door of a moving car aimed at a person is a dangerous weapon.

    Hoss,

    Do I want to make cyclists a protected class? I’m glad you raised the question. In this case, the cyclist was treated as the opposite of a protected class. Her complaint wasn’t treated with the seriousness that someone not on bicycle might have been afforded. Imagine if a knucklehead walked up to a 60+ Newton resident on the sidewalk and intentionally swung a bat at her. Think the police would have just shrugged? So, no, we don’t need cyclists to be treated as a protected class. But, it is interesting to note that Molly was clearly targeted for the assault because she was on a bike.

    TWT and Hoss,

    If you think that I want to get someone locked up without hearing his side of the case, I was not clear. Maybe there is some innocent explanation for the car passenger’s behavior. But, we don’t know because the police dropped the ball and failed to investigate.

    Hoss,

    The crime of assault exists for two reasons: the law recognizes that there is harm that comes from a reasonable fear that you are at risk of injury, serious injury, or death. And, the law recognizes that things can go seriously wrong when you use threaten someone. You may not be able to control the threat. The person might react to protect themselves and suffer harm. The fact that something might go wrong is exactly a reason for the crime.

    You seem to suggest that the potential for something to go wrong is what we accept with millions of cars on our roads. And, I don’t disagree. But, when someone uses their car in a way that’s not legitimately related to getting from A to B, such as threatening to hurt or kill someone by opening a car door, we shouldn’t just shrug.

  21. Lisap permalink
    September 11, 2012 09:30 AM

    @Sean – Agreed. Even if the victim is not a person over the age of 60, assault with a dangerous weapon is categorized as a felony. For anyone interested, Massachusetts has an unusual way of delineating misdemeanors from felonies. The classification is not dependent upon the length of time one may be incarcerated but where the incarceration will occur. Felonies are crimes for which the incarceration will occur in a state prison; misdemeanors carry possible incarceration in a House of Correction.

  22. dulles permalink
    September 11, 2012 09:36 AM

    What’s been reported (fair use excerpt source: Boston Globe): “…an old Mercedes pulled up in front of her. While the car was moving, […] one of the passengers on her side opened the door and yelled “doored.” Schaeffer said she didn’t hit the open car door on her bike, but the potential for an accident shook her.”

    Based on what’s been told, we don’t know if it was a really close call. Does it make a difference if swinging a door open with the stated intent to strike the cyclist missed by 3 inches vs. 3 feet, or whether one party really intended to hit the other or did it as a joke? Seems subjective. But I think the Newton P.D. tracking down the vehicle’s operator and having a heart-to-heart about life choices may do some good (ie. next time you or your buddy decides to do something stupid, keep in mind your car has a license plate and we already had a citizen complaint).

  23. Lisap permalink
    September 11, 2012 10:01 AM

    @Dulles, The crime of assault can happen in either of two ways: either by attempting to batter someone or by putting the other person in fear of an immediate threatened battery. Assuming we’re talking about the act of putting another in fear of a threatened battery, the standard is not subjective. Rather, the state is required prove that the behavior charged was “objectively menacing” conduct with the intent to put the victim in fear of immediate bodily harm”. Thus, whether this happened 3 inches, 3 feet or 30 feet from the victim is certainly relevant. (I’m leaving out the legal citation stuff but if anyone really, really wants something I can post a link.)

  24. Sean permalink
    September 11, 2012 10:07 AM

    These are exactly the kinds of things that a proper investigation will determine and a proper charging decision will take into consideration.

    Where the incident occurred (Beacon eastbound approaching Hammond), there’s not a lot of room already.

    Lisa, are you sure that there is a requirement to intend to put the victim in fear of immediate harm? Isn’t intent limited to whether the behavior was intentional and such behavior would objectively put someone in fear of immediate harm?

  25. Lisap permalink
    September 11, 2012 11:20 AM

    Hey Sean, the language I quoted is from Commonwealth v. Gorassi, 432 Mass. 244 (2001). (Here’s a link: http://masscases.com/cases/sjc/432/432mass244.html) (I like this case because they actually include a heading entitled “definition of assault” -good for when I haven’t had enough coffee.) An assault happens when someone attempts to commit a battery or they threaten to commit a battery. When the crime charged is an attempted battery, then you are correct that there is no requirement of proof that the victim be placed in fear. Rather, the government must prove that the accused”attempted to do bodily harm”. “In the case of an attempted battery type assault, although the Commonwealth must prove that the defendant attempted to do bodily harm, there is no requirement that the victim be aware of the attempt or be put in fear by it.”

    Where the crime charged is a threat to batter, this is what the case says on that point: “In the case of a threatened battery type of assault, the Commonwealth must prove that the defendant engaged in “objectively menacing” conduct with the intent to put the victim in fear of immediate bodily harm.” They further state: “Under the immediately threatened battery category, what is essential is that the defendant intended to put the victim in fear of imminent bodily harm. . .”

    So, hypothetically speaking of course, if a passenger in a car opened a car door unsuccessfully attempting to do bodily harm to the cyclist, then that would seem to satisfy the elements for an assault. On the other hand, if behavior is viewed as a threat without the actual attempt to do bodily harm, then there is the intent element and the actions are viewed by an objective standard.

  26. Lisap permalink
    September 11, 2012 11:23 AM

    And as a bit of personal commentary, the actions described by the cyclist were at a minimum completely and utterly moronic by any standard I can imagine.

  27. Sean permalink
    September 11, 2012 11:57 AM

    I don’t love the “intent to cause fear” requirement, but I guess that it probably doesn’t matter in the end. If the conduct would objectively cause fear, the actor certainly knows that it would cause fear, so it must, therefore, be his intent to cause fear.

    Thanks, Lisa, for the terrific legal commentary.

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