Few Protections for Cyclists

No bill in teen's death highlights lack of recourse for those injured on the road

Brian Silva
Brian Silva (photo courtesy of the Silva Family)

On Sept. 3 a grand jury declined to pursue charges against the driver of the car that struck and killed 16-year-old cyclist Brian Silva this past June (see "Remembering Traffic Fatality #43," Aug. 10.) Silva, who'd saved money from his weekend job at the 290 Flea Market to buy the bike, was the 43rd traffic fatality this year – almost twice as many as occurred from January to June of 2014.

Al Bastidas of Please Be Kind to Cyclists – a local nonprofit dedicated to educating the public about road safety and offering assistance to injured cyclists and their families – has been a lifeline for Silva's family in the last three months, calling his mother, Diana Guerrero, when few others did. He said it should have been a "no-brainer" to charge the driver, who the family says tried unsuccessfully to pass Silva on Johnny Morris Road, a two-lane road with no shoulders, sidewalks, or bike lanes.

"It shouldn't be a suicidal mission when you get on your bike to go to school, to visit a friend, or to go to work," Bastidas said. "But the message that we're sending to the rest of the community is: It is okay to hit a cyclist because you're going to walk free."

The grand jury considered manslaughter and criminally negligent homicide, according to defense attorney Joe Lopez, but decided not to indict the driver on either charge. Bastidas, who suffered multiple head injuries in his own bike crash in 2002, believes there's a pervasive prejudice against cyclists – that they don't follow the rules of the road – which colors the outcomes. Lopez said there's a common theme in focus groups he runs in these cases.

"What I run into time and time again is that normal people that were paying attention, that weren't distracted in some form or fashion – there's a lot of people that almost hit someone on a bike," Lopez said. "And they had that moment of, 'Oh my God, I could've just killed that person.' So they have their own preconceived notions going into the grand jury."

Bastidas said that's exactly the wrong attitude, especially for a city that promotes the cycling lifestyle the way Austin does. But although there is a disconnect, the problem by no means ends at city limits. According to the National Highway Traffic Safety Administration, Texas ranked in the top three nationwide in cyclist fatalities as recently as 2013. Bastidas routinely gets calls from across the country from families of bike crash victims.

He cites Canada, which implements stiff fines in all 10 provinces, as a leader on the issue, and hopes the U.S. will begin to emulate them. "In a perfect world, we would have a law in place that would deter drivers from being distracted," Bastidas said. "What does that mean? That means some people will go to jail. Some people will lose their license."

The Austin Police Department points out that of the 69 fatal crashes this year, Silva's case is the only one that involved a cyclist. And while initiatives are in place to combat fatalities more generally, there's no one program targeting cyclists. Still, it is their hope that policies like the hands-free ordinance and DWI no-refusal will help protect all vulnerable road users.

The city's transportation department couldn't speak to the specifics of the case, but offered: "We work closely with our partners in the city, including the Austin Police Department and TxDOT, to review each fatality and determine if there is anything we could have done in terms of education, enforcement, or engineering that could have improved that situation."

Matthew Foye, the vehicular crimes liaison prosecutor for the Travis County D.A.'s office, said he takes every traffic fatality as far through the legal process as possible. But a vaguely worded section of the penal code stipulates that criminal negligence "constitutes a gross deviation from the standard of care that an ordinary person would exercise."

"And so, I don't know that people would normally have a ready definition of what is a gross deviation, what constitutes that, what is the standard of care," said Foye. "Another thing about that is it's very case-specific. The standard of care, the way an ordinary person would [deal with it] would be very different based on the specific circumstances of each situation."

That legal justification has meant very little to the grieving family, who are still in disbelief that the case won't proceed. "I feel destroyed," Guerrero said of the grand jury's decision. "I feel like they killed me again .... When somebody hurts animals, they put charges on them," she continued. "This is a human's life."

Guerrero agrees with Bastidas that there is a general prejudice against cyclists, and further points out the area's low-income population. The stretch of Johnny Morris Road where her son lost his life connects a chunk of mobile homes to Jordan Ele­ment­ary School. Yet thick brush eclipses both sides of the street, leaving cyclists and pedestrians at risk.

"The city doesn't make any changes on [Johnny Morris Road], ever," she said. "If there were more people in the area who have more money, I can tell you [the city] will go to it right away. They will clean the sides, and make sidewalks for the people."

She's left with memories of a son with boundless energy – for better or worse – and a genuine love for other people. Though he sometimes struggled to focus on his own classwork – "He has to be moving all the time," said Guerrero – he helped keep other students at KIPP Austin Collegiate from dropping out of school.

"I'm so proud of him," she said, through tears.

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Brian Silva, traffic safety, Al Bastidas, Joe Lopez, Diane Guerrero, Austin Police Department, APD, Matthew Foye, Travis County D.A.

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