Photo by Don Fulano.

At Friday’s oversight hearing on the Metropolitan Police Department, Councilmember Phil Mendelson asked some tough questions about prosecution against drivers who kill pedestrians or cyclists.

The exchange starts at 4:53:45 on this video recording.

Mendelson asked about a particular incident where a driver killed a pedestrian on Wisconsin Avenue while allegedly talking on a cell phone. He said, “There have been a couple of these incidents where a pedestrian or bicyclist was killed… and there’s no prosecution, even though we have a reckless driving law. It’s as if, as a government, we are too easy on the driver, too forgiving of the driver, even though an individual has lost their life.”

Chief Lanier responded that the driver has to have committed a specific violation before the police can bring any charges. Assistant Chief Patrick Burke then said that MPD did submit that particular case to a grand jury, but wasn’t able to definitively determine whether he was on a cell phone, and the grand jury refused to bring an indictment.

After some further discussion, Mendelson concluded by saying, “I just think we’re being too easy on drivers who re hitting individuals and killing them, and there’s no charge.”

Certainly not all drivers who kill pedestrians or cyclists deserve to be prosecuted. Sometimes the driver really wasn’t distracted or speeding or otherwise being reckless, and sometimes pedestrians do suddenly jump out into traffic without enough opportunity for drivers to see them and stop. However, MPD also seems to refuse to bring charges except in the most egregious of cases, such as when witnesses see the driver on a phone. We haven’t seen proseuctions if the driver is speeding, for example.

Furthermore, a source familiar with safety prosecution said that MPD’s policy is to assign fault the pedestrian if the pedestrian or cyclist violated any laws at all. It appears, therefore, that if the pedestrian or cyclist violates the law in a small way and dies, the victim is responsible, but if a driver breaks a law in a small way and kills someone, the driver isn’t responsible.

It’s tough to provide evidence for these generalizations because we have little information on MPD’s conclusions in fatal crashes or subsequent prosecutions. MPD generally refuses to provide copies of the police reports in these cases; for example, years after Alice Swanson’s death, attempts to get that police report have been unsuccessful.

The first step to determining whether MPD is being too easy on drivers is to get information on how easy they are being. What did they conclude in the recent fatal crashes? If they assigned fault to the dead pedestrian or cyclist, was that based on real evidence? How often did they bring charges or issue tickets? Mendelson could help shed light on these questions by pushing MPD to release these police reports and information on prosecutions.

Thanks to Michael Neibauer for watching the hearing and highlighting this exchange.

David Alpert is the founder of Greater Greater Washington and its board president. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He lives with his wife and two children in Dupont Circle.