Erick R. dropped me an email about this one this morning. He’s got a post up over at Tuscon Bike Lawyer. Just makes you glad to be alive, don’t it?
A former Asheville firefighter will spend 120 days in jail for shooting at a bicyclist, narrowly missing his head with a bullet that pierced the man’s helmet.
Charles Alexander Diez, 42, pleaded guilty Thursday to assault with a deadly weapon with intent to kill, but testified during his sentencing hearing that he only fired a warning shot and didn’t intend to hurt Alan Ray Simons.
“I was the one who felt truly, truly threatened,” Diez told the court. “It was not my intention to shoot him.”
As if that wasn’t enough to get your blood boiling, there is more.
Simons described being confronted by the 17-year Fire Department veteran on the morning of July 26 as he was riding his bike along Tunnel Road with his 4-year-old son in a seat on the back and his wife on another bike.
He said Diez yelled at him from his car, claiming he was putting the boy’s life in danger by riding on the busy roadway.
“We were out for an enjoyable ride, minding our own business,” Simons said. “At any point, he could have left.
“When I got to his door, the gun was pointing at my chest. I turned to walk away, (and) the gun went off. He chose to pull the trigger.”
This is a story many a cyclist can relate to on a very personal level because many of us have been there before. I sounds so goddamn familiar. We’ve lived it for years. You, the cyclist, are out on a ride. A passing motorist takes it upon himself to yell out his car window that you are 1) dangerous, 2) shouldn’t be on a bike, and 3) clearly in the wrong. Cyclist yells back something equally worthless. Tit for tat. Just like we’ve all been through, countless times out on the nation’s roadways. Just like it always goes, right?
This story goes another step further, to a place only some of us have been before. You see, sometimes the motorist stops and wants to fight. I’ve not been in such a punch up myself. But, I have had a guy get out of his car and come at me, wanting to trade blows. More than once. If we haven’t been in a fist fight ourselves, I’m sure you’ve heard stories such as I have from numerous friends and cycling acquaintances about people who have. I could name three or four guys right now that have been in fights with motorists. It happens. A lot.
On this fateful day, Diez stopped his automobile to continue the altercation. It was the first of a series of conscious choice he made. Remember, the car was passing by when this exchange began. Diez most certainly could have just kept on driving. Diez said he “felt threatened.” Well, why then did you stop your car? That big scary cyclist could have been nothing more than a passing memory disappearing in your rearview mirror, save your choice to take it to the next level. Nine time out of ten, in like situations, the motorist just keeps on rolling. Not this time. This time, Diez chose to pull over, he chose to wrap his hand around the grip that firearm, he chose to point his gun at Simon, and he chose fire a round at Simon’s head.
Right in front of the man’s family.
You’d think at this point the motorist has really crossed a line. That he has clearly attempted to kill another man. You might also think that society cannot tolerate such behavior. That this man should be punished for his action, for the choices he made that day, the choices that very nearly left a young boy fatherless.
You might think that, but you’d be wrong.
Police initially charged Diez with attempted first-degree murder after consulting District Attorney Ron Moore. But a grand jury declined to indict him on that charge, instead opting for the lesser assault charge. A first-degree attempted murder conviction requires a trial jury to find the elements of premeditation and deliberation.
Ok, no premeditation and deliberation. I can follow it thus far. Charge what you can get a conviction for. Nothing more, nothing less. (See definitions.uslegal.com/p/premeditation/, definitions.uslegal.com/d/deliberation/. See also law.onecle.com/north-carolina/14-criminal-law/14-17.html, en.wikipedia.org/wiki/Murder.) The state opted instead to pursue a charge of assault with a deadly weapon.
But, still, four months seems a bit light for shooting a gun at someone’s head and missing that target by an inch. Assault with a deadly weapon is a serious offense, commonly resulting multiple years of incarceration.
The presumptive sentence for someone convicted of assault with a deadly weapon with intent to kill is 20-39 months under state sentencing guidelines.
Downs ruled that mitigating factors present for sentencing purposes in this case include that Diez has good character, served in the military, supports his family financially, has a positive employment history and has a good support system in the community. The judge found no aggravating factors, and Diez had no criminal record.
Mitigating factors my ass. What is unsaid, but I suggest extremely relevant, is the fact that Mr. Simon’s was 1) a bicyclist, and 2) not killed by that bullet. The fact the Simon rode a bicycle means he is presumptively wrong. Those who ride bicycles do not matter. And, the fact that Simon’s wasn’t killed allows people to think less of what could have happened that day, and concentrate instead on point one – he was a cyclist and they are always wrong.
The six hundred point gorilla in the room is the fact that we’re dealing with a cyclist. No one gives a shit about a cyclist. Not the motorists, not the cops, not the judges, and not the people on the jury. No one. Riding on a busy street with your kid? You’re holding up traffic. You’re dangerous. You’re wrong. You deserve to get yelled at. And if you talk back, you should expect to get dealt with. Harshly.
That is exactly what happened here.
I take my kids for bicycle rides, from time to time, in a trailer I tow behind me. My wife often rides along side on a second bicycle. What this case tells me is the next time we do so; I have to take whatever shit some asshole yells at me out his car window as he drives by. Because, if I don’t just take it like a good little boy, he might pull over, get out of his car, and shoot me right in front of my family. And if he does so, it will be my fault.
Because, clearly, I am a cyclist. And I am wrong.by