CYCLE OF RAGE: Driver Who Killed Dan Hanegby Should Be Jailed For Years, Not Days

The video of Dave Lewis killing the bike rider is chilling and should make every New Yorker livid.

This is the moment when bus driver Dave Lewis passed too closely to cyclist Dan Hanegby, who had the right of way, killing him.
This is the moment when bus driver Dave Lewis passed too closely to cyclist Dan Hanegby, who had the right of way, killing him.

This is what criminally negligent homicide looks like.

Watch the video below of bus driver Dave Lewis killing cyclist Dan Hanegby, which was released Thursday as part of Lewis’s trial. You see Hanegby cycling. And you see Lewis drive his Coach USA behemoth right into him. Lewis didn’t hit the brake. Lewis hit the gas. He should be sent away for years.

 

But Lewis is on trial for merely violating Hanegby’s “right of way,” a misdemeanor punishable by just 30 days in jail.

This is akin to letting Jack the Ripper off with a misdemeanor for soliciting a prostitute.

The facts are indisputable and the video is incontrovertible, which is why every New Yorker who cycles or walks needs to run to the window and scream, “I’m mad as hell and I’m not going to take it anymore”: Hanegby was cycling on narrow W. 26th Street when he encountered a pinch point due to an illegally parked car on his left and another vehicle, a van that was also possibly illegally parked, on his right. Hanegby rode in the center of the roadway, which is legal under state vehicular law, and advisable given that either vehicle could have easily doored the cyclist.

Lewis approached Hanegby from behind and never slowed down as he approached the same pinch point. As he tried to pass Hanegby at high speed, he clipped the cyclist’s handlebars, sending him to the pavement, where he was fatally struck by the bus’s back wheels.

Lewis’s defense — that he honked his horn at Hanegby — is exactly why he should have been charged with criminally negligent homicide and not merely violating Hanegby’s right of way.

Legal experts agree that the standard for such a charge is simple: state penal Law section 15.05(4) defines “criminal negligence” as failing to perceive a substantial risk that one’s actions or inaction would result in another person’s death. The risk must constitute a “gross deviation” from the standard of care that a reasonably prudent person would observe under the same circumstances. It’s a Class E felony, punishable by four years in prison.

Dan Hanegby was killed by bus driver Dave Lewis last year.
Dan Hanegby was killed by bus driver Dave Lewis last year.

Obviously, a “reasonably prudent person” would see that there was no way to squeeze his eight-and-a-half-foot-wide bus into a lane of traffic barely 12-feet wide that was already occupied by a two-and-a-half-foot-wide cyclist. A reasonably prudent person would have hit the brake rather than take the risk.

More important: we’re talking about a reasonably prudent person today, not ten or more years ago before the massive increase in cycling and when Vision Zero became official policy,” added lawyer Steve Vaccaro.

“A reasonably prudent person in New York City is different in 2017 than in 2007,” he said. “We have had a dramatic expansion of people biking on the street, we’ve had Vision Zero campaigns. We’ve had Citi Bike. Today’s reasonably prudent New Yorker is far more aware of the risks. That affects how we measure a professional driver’s acts. And that should be taken into account.”

Vaccaro and others have focused on Lewis’s defense — “Hey, I honked!” — as another reason why the driver could have been charged with criminally negligent homicide or at least reckless endangerment in the second degree, a misdemeanor punishable by up to a year in jail.

“Reckless endangerment requires an awareness of the risk — and the honking demonstrated that the driver was aware of the risk,” Vaccaro said. “It is absolutely shocking to me that this bus driver did this. He apparently has the mentality that if someone is in front of him, all he needs to do is honk and if the person doesn’t get out of his way, whatever happens to that person is their, not his, responsibility. Many drivers feel that way. But that is not the law.”

Vance’s decision to not seek higher charges against Lewis is gutless — but he’s just the latest law enforcement official who believes in the notion that it’s just a “tragic accident” when a driver kills a cyclist or a pedestrian with his car.

But the law is clear: There is no such thing as an accident when — honk, honk! — the driver is aware of the risk.

And Vance knows that. In 2011, he pursued manslaughter charges against an Upper West Side driver who slammed into a pedestrian as she rushed to beat a red light — always a risky move. The driver, Jessica Altruz, faced 10 years in prison, but Vance allowed her to plead it down to a three-year sentence.

Vance, of course, has been inconsistent on street safety, declining to charge the taxi driver whose right-of-way violations led to the death of cyclist Madison Lyden on Central Park West last month. And he’s not alone. Queens District Attorney Richard Brown just allowed a driver to plead guilty to reckless endangerment for killing 17-year-old Madeline Sershen in a Whitestone crosswalk earlier this year — but let the driver off with no jail time at all.

Vaccaro smells two rats: the DAs themselves, but also a quirk in the way the right-of-way law is executed.

Shortly after the law was enacted in 2014, the city reached a settlement with the Transport Workers Union, which represents some bus drivers, that watered-down the right-of-way law by forcing prosecutors and police to demonstrate that a driver both failed to yield and failed to exercise due care, a higher burden of proof. (One irony, of course, is that if the right-of-way law hadn’t passed, Lewis might not have been charged at all, said Marco Conner, legal expert for Transportation Alternatives.)

“The settlement muddied the waters,” Vaccaro said. “Dan definitely had the right of way. He was in front. But if the driver can show he used ‘due care,’ he has a defense to the right-of-way violation. And this driver said he honked. If there were drivers on a jury, many would, indeed, say, ‘He honked! He used due care! He alerted the bicyclist!’ So that puts a greater burden on the prosecutor to explain that, no, the bicyclist had the right of way, the bus driver shouldn’t have been there. And honking does not mean ‘due care.’ There are too many people who believe that honking at a cyclist is what a driver is supposed to do.”

And it leads to victim-blaming. But anyone asking that question — “Why didn’t Hanegby get out of the way?” — is asking the wrong question.

The right question is, “Why didn’t the bus driver just slow down?”

The answer is, “Because he acted with criminal negligence.”

Which raises another question: “Why didn’t Cy Vance charge him with that?”

Vance’s office said it could not comment while the trial is ongoing.

Gersh Kuntzman is Editor-in-Chief of Streetsblog. When he gets really angry, he writes the Cycle of Rage column. They’re archived here.

  • AMH

    It never ceases to amaze me how drivers expect their horn to just clear the way. They honk incessantly (and futilely) in gridlock, as if they expect all the other vehicles to just evaporate. This driver expected to honk Dan out of his way, and killed him. I’m curious–have drivers attempted to honk each other out of the way without braking, and used that as a defense for smashing into another vehicle?

  • Daphna

    If there had been a motor vehicle in front of Dave Lewis’ bus, he would have honked in anger/frustration/impatience and then waited. (Anger/frustration/impatience is not the use that a horn is designed for; a horn is supposed to be for safety purposes.) Dave Lewis would not have wanted to damage his vehicle by hitting another vehicle. And if he hit another vehicle, he knew that vehicle would have an insurance company representing it that would do battle against his own insurance company, possibly resulting in higher premiums or paying a deductible. But because he knew his vehicle would not be damaged in a collision with a cyclist, he honked and then proceeded to hit the cyclist.

    What did bus driver Dave Lewis think would be the outcome of his honk?? When there is no space and no where to go, where David Lewis possibly think that Dan Hanegby would be able to go as a result of the honk?

  • William Lawson

    Wow that is some disgusting shit. Manslaughter all the way. 10 years in jail sounds about right. FUCK all of the people who have been watching this video over the last couple of days and saying things like “ooo they were both at fault” and “mmm close call….who knows.” Are they watching the same fucking video? Dan did absolutely NOTHING WRONG! I’ve been reading all kinds of JERK comments about this video on Gothamist from people saying it was partly his fault, that he was “distracted,” that he shouldn’t have been “checking out that chick on the sidewalk,” that his headphones were to blame etc.

    I saw NOTHING about Dan’s actions in that video that even hint that he contributed to his own death. So he looked to the right momentarily. BIG FUCKING DEAL! BIIIIIIIG FUCKING DEAL! Does that mean he was distracted, and that if he’d been looking straight ahead the bus wouldn’t have hit him? Of course it doesn’t, and fuck anyone who even suggests this!

    I’ve also heard people say that he “swerved” around the van. No he fucking didn’t! He passed it at a very shallow angle that in no way shape or form could be described as “swerving into the bus’s path.”

    Ditto the headphones. There is no evidence that he was listening to music loud enough to drown out the sound of a bus or a honk.

    THE BUS DRIVER WAS 100% AT FAULT AND HIS ACTIONS SNUFFED OUT THE LIFE OF A HUMAN BEING. All of Dan’s history, his childhood, his education, everything he worked for, all of his hopes and dreams, obliterated in less than a second by a piece of shit bottom feeding reckless illegally operating menace to human life who should have NEVER EVER been hired as a bus driver. That this guy is now trying to minimize the consequences for himself, when those consequences are a THOUSANDTH of what he should have inflicted upon him, leave no doubt in my mind that he is SCUM. In the absence of real justice, we can only hope that at some point in the future, a reckless driver takes him out as well. THAT would be justice.

  • William Lawson

    “Vance’s office said it could not comment while the trial is ongoing.” – Cy Vance is an impotent piece of shit who has no interest whatsoever in doing his job properly or procuring justice for New Yorkers. Like so many in our rotten layers of criminal “justice,” he’s just biding his time until he can retire to Florida on his massive taxpayer funded pension and get the beach house with the jetski etc. FL is chock full of NYC retirees who are living it up after a lifetime of incompetence and privilege.

  • Joe R.

    In the absence of real justice, we can only hope that at some point in the future, a reckless driver takes him out as well. THAT would be justice.

    And the police declare “no criminality suspected” before the body is even cold. Justice served!

  • Ben Rifkin

    this is why, contrary to reason, bus drivers are some of the worst drivers in regards to cyclist and pedestrian safety. They’re aggressive, wide loads with limited visibility and instead of acting like the manatees they are, they’re more like bulls in china shops and feel as if they’re constantly being dogged by faster nimbler vehicles. Fuck this driver and almost all bus drivers in general.

  • Joe R.

    Here’s a great example, complete with the horn blasting to clear a path:

  • harry smith

    Exactly. Imagine being sat in your car and a bus smashes into your rear end. You get out and the bus driver says “Not my fault buddy. I sounded my horn”.

  • crazytrainmatt

    For all their imperfections, this is exactly the situation protected lanes prevent. Like commenters here and elsewhere have suggested, I get ahead of traffic at red lights and take the lane if there is an obstruction anywhere in the next block to avoid merging. But many crosstown streets here are too wide for a bike to hold traffic, but the clear path is too narrow for safe overtakes, and I occasionally get passed unsafely by aggressive drivers.

    You also need a lot of confidence and to be thinking ahead to ride safely like this. The few times I’ve ridden crosstown streets with my wife felt immensely dangerous, as less experienced cyclists don’t know the art of holding the lane: the least sign of indecision and cars will gun it to overtake. Most cyclists and drivers alike don’t instinctively get how dangerous the door zone is, the risk of getting trapped between an overtaking vehicle and a car leaving parking spots or driveways, or the risk of a driver swerving into you to avoid a pothole or whatnot.

    Always leave yourself an out but I think we all know there is no substitute for better infrastructure. The one positive result of this tragedy and the other two high-profile deaths recently is that they are being converted into change on the street in excess of the anemic DOT bike roadmap.

  • MatthewEH

    Slight nit: Hanegby’s riding was completely legal, but not by dint of state law. The state law that one might think would apply here is nys 1234, which requires riders to ride as far right as practicable (modulo obstacles, preparing for a left turn, etc.), but these parts of 1234 are completely superseded in NYC.

    The relevant law in NYC is RCNY 4-12 (p), which requires riders to ride as far right or left as practicable on a >= 40-foot-wide, one-way roadway. RCNY is actually completely silent on where to ride on roads less than 40 feet wide (or on two-way roads, for that matter), and state law 1234 still doesn’t apply. On a street like West 26th in its old configuration, any lane position is completely legal.

    And even if the road were >= 40 feet, a far-right or far-left path of travel is fine.

  • SteveVaccaro

    Agree with this analysis. Because of the potential dooring hazard from the two cars parked illegally far from the north and south curbs, Hanegby had every reason to take the lane and no law prohibited him from doing so.

  • LimestoneKid

    “Brake more, honk less.” ™

  • Dave

    What happens if a pedestrian, bicyclist, scooter, etc. “in the way” of a driver is deaf or hard of hearing? That’s yet another reason why honking cannot be relied on. If someone hears the honking, great, but drivers should give them time to react. If deaf/hoh/ear buds/etc., then you just have to wait a few extra seconds for the vulnerable road user (VRU) to clear the way. A few extra seconds or jail(maybe), take your pick.

  • Dave

    What exactly does that mean, “A horn is for safety purposes?”

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