Is There Really a “Rule of Two”?

Conventional wisdom has it that in the state of New York a motorist must be breaking at least two traffic laws at the time of a crash to be charged with criminal negligence. As Nassau County ADA Maureen McCormick told Streetsblog: “It is believed that if a defendant commits two simultaneous traffic violations in the course of a collision, that automatically allows for a criminal charge because one violation would be considered ‘ordinary’ or civil negligence.”

The driver who doored cyclist Jasmine Herron reportedly broke up to three laws, but was not charged for Herron's death. Photo via ##http://ghostbikes.org/new-york-city/jasmine-herron##Ghost Bikes##

Though the “rule of two” has no statutory basis, it is the standard by which police and prosecutors determine whether to pursue charges related to taking a life. Except when it isn’t.

In September of 2010, Brooklyn cyclist Jasmine Herron was fatally struck by a city bus after she was doored by an unlicensed driver who reportedly left the scene. Krystal Francis was initially charged for driving with a suspended license. Prosecutors also levied a felony count for leaving the scene, but that charge was later dropped.

On Tuesday, Francis was found guilty of aggravated unlicensed operation of a motor vehicle in the third degree, a misdemeanor that stipulates that Francis drove without a license when she knew or should have known she didn’t have one.

Since there was no charge issued for dooring, the “rule of two” was not in play, and Francis was not charged for the death of Jasmine Herron.

This is not the first time city law enforcers have not pursued negligence charges despite the apparent presence of at least two violations. Here are other recent instances:

  • Yolanda Casal: Killed in Manhattan by an unlicensed driver backing up a one way street
  • Sonya Powell: Killed in the Bronx by an unlicensed driver who left the scene
  • Catorino Solis: Killed in Manhattan by an unlicensed driver who ran a red light
  • Brian Waldman: Killed in Brooklyn by an unlicensed driver who left the scene

In none of these cases was the driver charged for causing a death.

When one is conditioned to tally up attendant charges, it becomes startlingly easy to overlook the fact that in most cases the act of fatally striking a person with a motor vehicle is not itself considered an offense. Ibrihim Ahmed, Joshua Ganzfried, Dorothea Wallace, Roxane Murano, Margaret Walsh, Andrzei Wiesniuk, Clara Heyworth and Laurence Renard were all killed by drivers who, if nothing else, were breaking the law just by being behind the wheel, yet their deaths were not adequate cause to trigger the “rule of two.”

Speaking to Streetsblog a couple of weeks ago, Saba Michaud marveled at the circumstances surrounding the death of her sister, cyclist Rasha Shamoon. Something she said summed up the vagaries of New York’s traffic justice system as succinctly as I’ve heard.

“You can get a ticket for using a cell phone,” said Michaud, “but not for killing someone.”

  • Why on earth wasn’t there a summons issued for dooring in this case?  It was a fatality case, the AIS should have been involved, my understanding is that there was good evidence that Jasmine Herron was doored.  This is outrageous.  This is another AIS file that needs to see the light of day.

  • Larry Littlefield

    Unlicensed, suspended license.  If you hurt someone in either of those cases, you ought to be sent to jail for “reckless indifference to human life.”

  • Killmoto

    Why, in the twenty-first century, do we still start automobiles with keys?  I cannot log onto my computer at work without placing my ID into a card reader. Cars should be limited to only start when a valid drivers license is placed into a card reader. Lost, stolen, suspended or surrendered licensees need not apply.  Police would no longer have to figure out who was actually driving – the black box would tell them.  Who, when, how fast…  Oh to dream!

    Security can be enhanced by requiring license plus 4 digit pin. 

  • Albert

    Taking a contrarian point of view:

    “Having a valid driver’s license” doesn’t automatically make a person a safe, responsible driver.   Plenty of properly licensed drivers door, swerve, speed and kill, even when not drunk.

  • @45589687e8df260df565d048dab64df2:disqus  Your contrarian point is a non sequitir. The point is that driving without a license is a moving violation which should, if the law were actually enforced, indicate criminal culpability on the part of the person who opted to knowingly break the law and operate a motor vehicle and then caused someone’s death. The point is whether or not these people were legally permitted to drive, not whether or not being licensed would indicate if they were any good at it.

  • fj

    It’s obvious that transportation systems based on cars are not safe where death and severe injury are too easily caused by user error and equipment malfunctions and is the only system requiring insurance by users where the true liability should be borne by the public and private institutions that support them and  allow them to continue; and, which in effect, allow this brutal transportation method to maintain its monopoly not over an industry and public right but urban public space as well.
     

  • fj

    Self-driving cars have existed for about two years, but one of the real gotchas is who is liable.  It’s just kind of difficult to continue to pass this on to the non-driver or even vehicle owner and the potential liability could easily bankrupt any public or private institutions that produce and support these vehicles; just as the current vehicles would bankrupt those institutions directly involved in making and supporting this technology.

    Obviously, it’s the public that bears the brunt of this very dangerous, inefficient, destructive and costly technology. 

  • Joe R.

    @twitter-93223785:disqus Why the question of liability here? Self-driving cars would decrease the death and injury rate to practically zero if implemented universally. The automakers could easily afford to buy an insurance policy, or even pay out of pocket, for the handful of times per year that their cars malfunction.

    It’s fairly obvious the current system isn’t working. If we insist on continuing to use private automobiles, then it makes sense to take the driver out of the loop. Sure, some will complain they no longer have the joy of driving, but I’m sure there will be plenty of closed courses for those who want to drive for its own sake. The majority of the populace doesn’t even enjoy driving anyway, as evidenced by their continually paying more attention to their electronic gadgets than the road.

  • carma

    @2555783a6f62598b6aadd2d882a4830f:disqus 
    As evidenced with ATO for robo-trains, accidents will still happen.  Lets not forget that train accidents still happen on dedicated track.  Imagine if there is a wide open road (not really with traffic) and robo-cars have a “software misjudgement”.

    I may be a minority, but i actually love to drive.  (when the conditions are right, meaning there are no moron cellphone, texters, drunks, traffic.).  yes, i do like to drive on open road, not closed courses.

    speaking of lousy drivers, as i was cycling, i never encountered so many pathetic drivers like yesterday.  i had two cars come inches away from me, and i was on a bike lane, scores of double parked cars, several red light runners, and a few texters swerving.  rarely do i see it this bad.

  • Joe R.

    @d8d46f16f380afef59ca318522397233:disqus Obviously robo-cars won’t be perfect, but I suspect they’ll be a lot better than humans. As for robo-trains, I’ve read through some NTSB accident reports. More often than not it’s an equipment malfunction caused by poor maintenance which is to blame, rather than a flaw in the system itself. Also, most of these robo-train systems date from the 1960s or 1970s. Obviously we can do better now. CBTC being implemented on the subways is one such example. You will need to have multiple failsafes on robocars. For example, redundant proximity sensors are needed.

    I’ll admit driving on an open highway sounds like fun, but that’s becoming increasingly rare these days. Urban driving isn’t fun by any stretch of the imagination, or at least I’ve never heard anyone say they enjoy it.

    Yeah, I’ve had days like you did, where it seems like all the drivers on the road had a big dose of stupid. Saturday coming back along Jamaica Avenue I had a stretch limo pass about six inches from me. And then I had the usual idiots racing to be first to the next red light. The poor condition of the street didn’t help matters much, either. I’ve seen worse though.

  • Killmoto

    @twitter-93223785:disqus I may be extrapolating on your idea a bit, but it is positively brilliant.  Someone has to be accountable for the wrongful death of vulnerable road users.  Credible estimates place a value on a lost life at $1million.  Why not have a federal law that requires the “road owner” (city, state, feds) responsible by default for paying that $million to the victims family.  Of course, if a driver is found at fault, or company at fault via product liability, the city/state/feds are off the hook and the driver/manufacturer face whatever tort damages a court finds is warranted. 

    This would certainly, in the case of NYC, compel the PD to investigate and the DA to prosecute. 

    @2555783a6f62598b6aadd2d882a4830f:disqus, if automobiles are wired to not-start without a smart-card license as ignition key, even self-driving cars have a single individual claiming responsibility.  This will help Alzheimer’s patients from wandering off by car, and ten year olds from using mom’s minivan to “run away”.  

    Even if we can perfect the algorithm for self-driving cars, we need to ensure someone claims responsibility for the trip.  By starting the engine, that person is taking responsibility – asserting the vehicle has been well maintained, asserting there is a proper level of auto insurance, etc.  

  • Joe R.

    @c44dc01f8107c1b33104b538f33b734d:disqus I was actually thinking one big selling point of robocars is that parents don’t need to spend time shuttling their kids around. They just program in the destination, start the car, put their kid in, and away it goes. To go home, the kid would insert a special key which will only let the car return home. Before anyone says this is dangerous for kids, it’s functionally equivalent to a kid taking a bus or train, something I’ve seen children as young as 5 or 6 year do alone in the city quite a bit. The parent would still retain responsibility that the car is in good working order, insured, etc.

  • Killer Cars

    I would like it if car horns were disabled if the car was going below a certain speed.  Anyone who rides a bike knows that the car horn is used by jerks to tell you to get out of “their” way.  Or in NYC the horns start blaring the second a light turns green, sometimes a little before.  These are not legitimate uses of the horn but comprise the vast majority of horn-honking.  And when you think about, in a low-speed situation (say 25mph or less, I know that’s not really low but for impatient car people it is) if there is a situation that might require your horn, it’s probably always better to just hit the brakes anyway.  

    For instance, you see cars going through intersections at “low” speeds honking their horns at jaywalking pedestrians.  Why are they doing that? Because they want the jaywalkers out of “their” way and they don’t want to have to slow down.  I don’t care who has the right of way, if people are in the street, you should hit the brakes not the horn.

    Obviously if a car is going a certain speed it could be dangerous for the driver to slam on the brakes.  The car could lose control and cause even more damage.  So the horn actually might be safer at higher speeds and shouldn’t be disabled in that case.  But at lower speeds the horn is just annoying and pointless and often used as a way of avoiding driving more safely. 

  • New Yorker

    Thank goodness we don’t have a “Rule of Two” for gun deaths.

    Can you imagine?

    “Sorry, ma’am, there’s nothing we can do about the murder of your husband, because the murdered wasn’t breaking any other laws when he fired the gun.”

    The way that New York City’s justice system deals with pedestrian and cyclist fatalities on NYC streets is, truly, an enormous scandal.

  • ? of course 

  • ? Of course the “Rule of Two” applies if you’re (1) driving while (2) black or brown.

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