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.”
See www.citizen-times.com.
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.”
Id.
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.
Id.
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.
Id.
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.
Ever been shot at? Didn’t think so.
you know what, upon further review, attempt is a tricky legal hurdle. with all sympathy to mr. simons, unless arizona is different (i don’t think so) an attempted homicide charge would have been reaching a bit.
mattchew: It’s not really a reach. I don’t think any state actually has a legal provision for a “warning shot”. Firing a gun in someone’s general direction is implicit proof of an intention to kill them.
From a follow up story on the Asheville citizen times:
“Superior Court Judge James Downs sentenced Diez to 15-27 months and suspended all but the 120 days. If Diez screws up, he could get the full sentence.
Diez must abide by a curfew and pay Simons $1,200 to cover medical expenses. He also lost his job as a firefighter.
Diez could’ve gotten 20-39 months, but with a “mitigating factors” including good character, a solid military service record and a positive employment history — and no previous criminal record — he qualified for the lesser sentence.
Contrast all this with the sentence an LSD peddler got Friday from Judge Alan Thornburg: a minimum of 175 months in prison, or more than 14 years. That guy, Benjamin Thomas Schaeffer, had more than 6,000 hits of the hallucinogenic drug in his possession outside an Asheville concert in 2006.
Sure, he deserves a stiff sentence, and he got one: roughly 42 times what Diez will serve.”
I am a lifelong North Carolina resident and Diez’s sentence is making me physically ill today. It’s disgusting.
art: just my opinion – it’s not as much of a slam dunk as we’d all like it to be. if assault with a deadly weapon exists as an offense, it exists because the legislature intended it to be applied. if you had attempted murder any time you used a deadly weapon in an assault, there’d be no need for the lesser crime.
i’ll concede that the discharge of a pistol in another’s direction implies malice (to me it makes sense). but what do i know, i’m no attorney…
anyway… just sayin… let’s all just be happy that mr. simons is alive and well.
mattchew,
This has slam dunk written all over it.
A warning shot is just that. A big boom to get your attention. Bullet goes flying up.
But a warning shot that pierced your helmet ? What’s that ? An inch at best from your skull ?
And you see no attempt to murder ?
“mr. simons” is alive only because fire-boy was a lousy shot.
Bite me.
This surely must be the longest running commentary on any DC.com post. Am I wrong? Should we aim for 100?
I’m happy that the man is alive, but I’d be more happy if I wasn’t frightened so often when I ride a bicycle, if I didn’t have friends that drive cars for only one reason: they are scared to ride the bicycle, and if I didn’t have to consider getting one more firearm because of the instability of the US dollar and the insanity of our death culture all around us. Guns are real – Fed reserve notes are a fiction.
I’d be more happy if there weren’t half ass budgets for bike paths, where they begin and end like unfinished sidewalks in the third world. I’d be more happy if all paving from 1990 onward included a nice bike lane. I’d be happy if there was another way to ride from Tucson to Mexico other than the breakdown lane of I-19. I’d be happiest if they didn’t commission fancy fine art sculptures for bike path bridges that make great brochure photos and instead put that money towards simple ribbons of asphalt – what every cyclist needs to just get there. I’d be more happy if there weren’t 15 people studying the data for every one out there laying out bicycle infrastructure. I’d be so happy if it weren’t just liberal do gooder non-profits pushing for this ‘alternative’ transportation that they think bicycles are. Never forget: asphalt pavement was invented for the bicycle, not for the horseless carriage.
“Never forget: asphalt pavement was invented for the bicycle, not for the horseless carriage.”
Que ??
what, you think i approve of the outcome?
The sentence was an insult but AWDWISI was the right charge on the facts.
littlejar – I recall seeing a few posts go in excess of 100, think the election fueled a few of them. probably too much agreement, in general on this one.
Maybe I can spark a little more debate.
Will carrying a gun really make you feel safer on a bike ride? Not really for me. I fear the driver that in an inattentive moment gets just a little too close as they pass. That scares the shit outta me. No bullets going to stop that. How many cyclists have been killed by gunshots/stabbings/assaults? How many just run over by some texting/drunk/careless dumbfuck? Just don’t see guns doing much to decrease the cyclist mortality rate. In fact, it may increase it. Probably safe to say guns don’t mix well with 1) stupid people 2) alcohol 3) anger/rage.
I’m all for guns (ask Mikey) but think they have a place, and that probably isn’t strapped next to your Gu packs. There are certainly exceptions to that, but I’ll contend they are the minority.
What are you going to do, be the first to draw anytime a confrontation arises? I am sure the law would love that–lycra clad douchebags flashing iron. We have seen how balanced the law has been with motorists/cyclist confrontations historically.
If you already have a gun pulled in your face you probably aren’t going to go reaching for yours, unless you have been seriously practicing your old west quick draw and feel quite lucky.
I have known two specifics incidents where guns were pulled on cyclists. Both ended without injury and both resulted in prosecutions/convictions. Adding an armed cyclist to either of these situations would certainly not have made things any better than they turned out.
This is something I have personally given some consideration to, carrying while riding, particularly when I used to commute across Tucson and was notified I was riding through some sketchy areas. Again after encountering some pretty spooky folks out in the middle of the desert while mountainbiking alone on a few occasions. Ultimately, for various reasons, I opted not to.
And after many years of riding in all sorts of terrain, I have yet to have an encounter where a gun would have made things turn out better for me. (other than the satisfaction of making somebody shit their pants after pulling a jackass move–and ultimately I probably couldn’t feel good about that either)
Lance Armstrong and the Doping Clown blows most doors off @ 112 comments.
I think there are a few others with more but I doubt they are any better. Big Kitchen might now.
Like Grandpa McCain says – it takes a ‘cool hand’ and in the case of being armed and facing someone angry, a person armed *usually* has a little more restraint. Only a suicidal idiot pulls a gun on someone who is armed. If you shoot, that means you’re probably going to get shot at in return. It is a micro-economic arms race, and it works. The gun is either one of two things: A: a deterrent to being a victim, or
B: the ability to defend oneself against an armed assailant. The bottom line is this: If you do not have a gun, and someone with bad intent toward you does, you have no leverage in the matter.
did he fire from inside the car? they could have gotten him on § 13-1209(A):
A. A person commits drive by shooting by intentionally discharging a weapon from a motor vehicle at a person, another occupied motor vehicle or an occupied structure.
that’s a class 2 felony. douche wouldn’t have been able to own a gun legally after a conviction on that one.
Don’t be a retard. I paid about $1000 to lose that last three pounds of bike weight and I’m not going to climb with a .45 ACP strapped to my sweaty back. Or what, you’re gonna just put two rounds in the clip to save 12 ounces? You guys need to keep your priorities straight here.
Oh this could turn into an awesome cycling debate as to what gun saves the most weight for gnarly climbs.
“I hear Schleck is carrying a SpecialOps 330 carbon-ceramic .45 with high-density plastic shell casings, and with only 4 bullets it weighs a measly 412.4 grams!”
“And Phil, what’s contador carrying today?”
Anyone?
…colonelsandersretired…re: que ???…
…”The Good Roads Movement occurred in the United States between 1880 and 1916. Advocates for improved roads led by bicyclists turned local agitation into a national political movement…
…Outside cities, roads were dirt or gravel; mud in the winter and dust in the summer.”…beyond that info, use your imagination…
Contador created his own resin_based two-shot ala Malkovich. 343g.
I understand people’s opposition to being armed while riding, but In defense: 1. I only carry on solo rides 2. I am licenced to carry a concealed firearm 3. I practice situational use with the firearm on a regular basis 4. and MOST IMPORTANTLY…it is my CONSTITUTIONAL RIGHT to carry my firearm…on a bike or not. As for the weight issue, like a steel singlespeed roadmachine I carry a S&W .40 w/ 190gr hollowpoints…. 15 of em’. Not light, but smooth and effective.
Doing a really quick search, looks like the Kel-Tec PF-9 could be a good contender for the light weight category at 411 grams…loaded…but then if you are going to carry, probably not the department to skimp out on weight, so I have to agree with armedcyclist and the choice for the .40 cal. That is a good demotivator I would venture.
I agree the gun is a great deterrent, but that is where it gets sticky. Do you pull your gun at the first sign of any possible trouble? If so, then you could take what is actually a minor situation and make it much worse for yourself. On the flipside, if you wait, by the time you realize the gravity of the situation you will probably already have lost your window of opportunity to defend yourself.
I suspect that someone with bad intentions would probably be fairly quick to show a gun if they have it. This dilema is perhaps where having a highly visible gun would be the best deterrent, kind of like the audible/visible warnings you get from a rattlesnake. You don’t have to guess what you are dealing with, and as a result, most creatures will choose to stay away.
Criminals and assholes both seem to be opportunistic like that, won’t go making trouble where they don’t know if they have the advantage, at least not if they are at all smart.
armedcyclist – how do you carry that thing when you ride?
It actually fits quite comfortably in a soft holster in the center pocket of my jersey. I have been riding on the road since I was 13 (22 years) and I have my share of brush-bys, yelling, honking..etc. Maybe I am older/more carefull now, but I have noticed in the last few years it has become considerably more dangerous. A few years ago I had 3 rides in a row with situations, 1. pickup truck with out of state plates, passenger swings his hand near my head and yells “nice tights fag” 2. the next day riding on a well traveled road with a wide (3-4ft) shoulder, a red CBR1000 comes from behind swerves in next to me, pulles in the clutch and revves the shit out of it…loud, fast and close (under 6″). I had heart palpitations the rest of the way home, it was the closest to death I have ever come. 3. A few days later a Jeep Cherokee full of high school kids comes by tires squealing, with a coke can flying out of the window towards me. I reported it to the police each time, with pretty good descriptions and nothing has happened (that I know of). Believe me, I have kids and I would never ever pull a weapon on someone unless my life or my family’s life was in danger. I can talk a dog off of a meat wagon, and beleive me I would try all angles before doing something as life changing and drastic as using a weapon…but it is a fucked up world out there and you just never know.
Just added a link to your site from mine, great blog.