Road Rage Victim’s Reputation Smeared Until Proven Innocent

20090521_AssaultOnCyclistD_1.jpgRay Bengen, pictured on the sidewalk below his assailant, is paying a steep price for defending himself while riding in the Ninth Avenue bike lane.

Following Brad’s post last week about one pedestrian’s encounter with an enraged driver and the NYPD, I caught up with Ray Bengen, another New Yorker charged with criminal mischief after touching a car that threatened his safety. Bengen is still waiting for some kind of resolution to his case, which is on hold while the Manhattan DA’s office decides whether or not to prosecute him.

Already, though, Bengen is paying a price. He earns much of his living flying small aircraft for government agencies, including the Department of Homeland Security, and consulting on computer projects for Wall Street. It’s sensitive work, he says, and the clients who employ him always perform due diligence before signing off on a hire. Last week, a potential client rejected him because his criminal background check didn’t pass muster. This had never happened before. As long as the criminal charge is hanging over his head, Bengen believes the market for his services will be severely restricted. He also expects to shell out for some attorney’s fees as the case progresses.

When we first published Bengen’s story, some readers speculated that the driver who assaulted him was an off-duty cop. Maybe that’s true (the alleged perpetrator, Gus Gonzalez, certainly knows how to make his identity difficult to trace). But there also seems to be some doctrine at work, which is very commonly applied to confrontations in traffic, where the default position of law enforcement is to either charge both parties or neither party, no matter who received the brunt of the assault.

The Manhattan DA’s office won’t comment about the specifics of the Ray Bengen case, so I asked attorney Bob Mionske, who writes the Road Rights column for Bicycling Magazine, about the thought process law enforcement applies to cases like this. The column recently analyzed a case near Portland, Oregon in which police charged a cyclist for slapping the sideview mirror of an SUV after the driver buzzed him and threatened to run him down. Mionske replied:

What usually happens in these types of cases is when the police arrive on the scene, they have two parties who have been involved in an altercation, and both want the police to enforce the law in regards to the other guy. Unless witnesses can verify one account or the other, the police don’t really have any way of determining who did what, so when both parties are alleged to have been involved, the police will often press charges against both parties, and let the courts sort out who did what.

The Ray Bengen incident is somewhat different from the Oregon incident, because (as far as we can tell from the news accounts) Ray Bengen is not alleged to have damaged the driver’s car, as was the case in Oregon. If he did not in fact damage the car, then it is likely that the criminal mischief charge reflects his role in precipitating a fight — at least for purposes of bringing both participants into the courtroom, until prosecutors can figure the case out. If he is brought to trial, it will be because prosecutors feel that his actions contributed to the incident in a way that meets the definition of criminal mischief. Prosecutors may also elect to reduce the charges to less serious charges in exchange for a guilty plea — another reason more serious charges may initially be leveled in a case.

Another distinguishing characteristic of the Ninth Avenue road rage case is that a witness has come forward with pictures and testimony consistent with Bengen’s account. So, how about it prosecutors: Is slapping a three-and-a-half ton SUV in self-defense a provocative act that meets the definition of criminal mischief?

  • In answer to the last line of the story, the answer is obviously as hell No.

    My question is why is someone even allowed to file such an obviously inapplicable charge?

  • Paul

    The police consider a vehicle a deadly weapon and often fire upon them if the driver aims their vehicle at them, justifying deadly force. Funny how a cyclist is treated like crap when they so much as touch a car just before they’re about to be run over. I had to do it once when pinched between a moving vehicle and parked cars. I did it loud on hard, my wedding ring making an astonishingly loud crack, and the guy just kept moving over into me and made his right turn. I’m sort of glad he didn’t stop as I don’t care much for confrontations. Still I was left wondering if he even saw me peddling right next to the passenger window.

  • Streetsman

    countersue plantiff for loss of business damages?

  • Bill from Brooklyn

    As I said in earlier posts on this subject, Mr. Bengen would be will served to consult an attorney regarding a potential civil action including an assault action. I believe our courts are very much abused and that lawsuits are brought for too many incidents when people should just walk away. But, in this instance the actions and results are just too egregious.

    That said, after an incident last Friday night I can even further identify with Mr. Bengen. I was riding home from work in the bike lane up Dean Street, which was packed solid with cars barely moving from Hoyt all the way up to 3rd Avenue. Obviously, I am moving much faster than the cars. Dean Street has only one car lane and the bike lane is on the left, but just as I approach this taxi, the taxi swerves directly into my path into the bike lane, merely to see the status of the traffic in front of him – he can’t pass, there isn’t room for two cars. I had to brake hard and swerve and I ended up having to brace myself with my right arm against the taxi’s window, which I must say startled the driver. Boy was the adrenalin jumping and I yelled something idiotically at him to watch out its a bike lane and then something about him being 2 tons and me with the bike around 200 pounds. Instead of being contrite, he started to mock my being upset at which point, I just rode away – it wasn’t worth it. But wow, so close to a pointless confrontation that never had to happen if the taxi either honored the bike lane or even bothered to just look. He had a passenger, I wonder how that went???

  • Whether it comes to either a criminal or civil trial, one thing is certain — it would come to trial in the County of New York, where a super-majority of households are car-free. And I’m guessing bikers would fill the courtroom, politely fixing their eyes on Gus, all day, every day.

  • Kaja

    Bill – Sounds like you raged. Try scolding instead.

    Seems to me like the cabbie has to hear two things: why that was a dick move, and suggesting the passengers tip him less.

    Definitely take off before he can reply. You don’t want a confrontation, not least because it can only distract from your justice.

    re Bergen the lesson I’m taking away from this is that you don’t want the cops showing up at your accident. Pity we have to fear them as we do a street gang.

  • Bill from Brooklyn

    Kaja, it was close to a moment of rage, but luckily I quickly realized that the best course of action was just to leave. When a vehicle springs out of traffic and threatens you so suddenly and so stupidly you really get that adrenalin burst, but you have to try hard to keep it under control and not let matters escalate. I was lucky, traffic was very slow, but still if he made his move a second or two later, he would have hit me. As I said, an incident like that really makes you appreciate and identify with Bengen.

  • years ago, in san francisco, i was run into by a dude, in an suv, talking on a cell phone. i saw him out of the corner of my eye. it was at a stop sign, that he was supposed to stop and, and didn’t.

    i saw him out of the corner of my eye, he was talking on his phone and looking to the left, to see if any cars were coming. then he slammed into me.

    obviously i was pissed off, he immediately said “i’m sorry, are you ok?” i was so pissed i kicked his fender as he drove by.

    i was waiting for muni, as people so often do in san francisco, when he showed up and started screaming at me. apparently, i’d dented his fender. he said he was going to call the police and have me charged and that he was a lawyer and all that.

    a single officer showed up immediately.

    he interviewed me first. i told him the truth, about him hitting me and everything. then i watched as he interviewed the lawyer. he denied everything.

    he totally got me. he played the law and did it well.

    i’m not proud of kicking in his fender, and if i could do it over again, i probably would have just spit on his car.

    the thing is, this asshole inadvertently taught me one of the most valuable lessons one can learn in this country – NEVER TALK TO THE POLICE!

    had i kept my mouth shut, and with the fact that there were no witnesses around, it would have been extremely difficult to prove that i was the cause of the dent. but, i didn’t. and i lost. i knew i didn’t have a case against this buy, but now there was a case against me, because i opened my mouth.

    police aren’t rocket scientists, they are urban rednecks and they are given the power to decide who is at fault on the spot. giving them information is bad. i mean why would you give them information, when they’re gonna arrest you anyway? get it?

    wait until you have spoken to a lawyer, before opening your mouth, period. they are paper tigers without any real power, other than to arrest you. you can sue them later, if you have a case against them.

    let the courts decide who is guilty, not the police!

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