NYPD Looking for Criminality in All the Wrong Places

I was gratified to learn in March that NYPD had re-christened its “Accident Investigation Squad” the “Collision Investigation Squad” (CIS), and reportedly beefed up its 19-person force of crash investigators by 50 percent. But as a lawyer representing pedestrian and cyclist crash victims, I have yet to see the impact of these changes on the ground. Instead, NYPD continues to waste a significant portion of the resources it devotes to traffic law enforcement on “garbage” summonsing of cyclists. Looking at NYPD’s overall traffic law enforcement program — including both crash investigations and traffic law enforcement — it seems like little has changed.

Ten days ago I was asked to help a pedestrian crash victim. This 30-year-old woman sustained serious multiple fractures and other injuries that may prevent her from walking normally again.  She remains in the hospital two weeks after her crash, half that time spent in an intensive care unit. But because she remained conscious at the crash scene, her case apparently was not deemed “critical” and therefore the CIS was never called.

Only because her family acted quickly was videotape and other evidence concerning the crash recovered — without NYPD assistance. This evidence revealed that the motorist responsible was speeding at approximately 45 mph on a zebra-striped “no drive” lane, attempting to illegally pass other vehicles, and then swerved back into another lane striking his victim.

That driver will never receive a summons, or a suspension or revocation of his license, because NYPD did not investigate the crash as it is required to do in all cases of serious injury. “No criminality was suspected,” because no NYPD officer looked or even considered the possibility that the driver’s conduct was reckless enough to justify a criminal charge — even though witnesses told the police responding to the scene that the driver was speeding and swerving recklessly. NYPD was not looking for criminality at the crash site, so it never found any.

While NYPD likes to claim that the agency lacks the resources to properly investigate all serious crashes, at the same time it assigns police to give out garbage summonses. And when it comes to summonsing cyclists, NYPD clearly is looking for criminality in the wrong places. The recent case of Hilda Cohen provides a clear example of how NYPD officers, either by design or ignorance, fundamentally misunderstand how the traffic laws apply to cyclists (disclosure: I am Hilda’s friend and fellow StreetsPAC board member).

Cohen received two summonses for bicycling in a manner which, if you accept her account, was completely lawful. But the most remarkable thing about these summonses is that they purport to be for criminal offenses.  In the case of the “reckless bicycling” charge Cohen received (violation of New York City Administrative Code 19-176(b)), this is a violation which according to the regulation can result in a “civil penalty” only and must be adjudicated before the New York City Environmental Control Board. This provision is written in language almost identical to another Administrative Code provision for enforcement of solid waste separation for recycling, and should be enforced in the same manner. But NYPD officers routinely charge sidewalk cyclists using a criminal summons returnable in criminal court.

Simply by using the wrong form of summons, NYPD forces cyclists like Cohen to appear in person at criminal court to enter a plea, and often a second time if the plea is not guilty. Despite the wording of the regulation, there is a substantial risk that a cyclist mistakenly “convicted” in criminal court for a violation of Section 19-176(b) would be deemed to have a criminal record, something that must be disclosed on many job and other applications. Instead of simply paying a fine by mail — like a motorist who commits a traffic violation or a resident who doesn’t separate her trash — cyclists issued criminal summons for reckless bicycling face days of work missed, the possibility of a criminal “conviction,” or significant legal fees if they wish to plead not guilty.

In addition, “reckless bicycling” in violation of Section 19-176(b) is an offense that can only occur on the sidewalk. But according to Cohen’s account, the officers never even accused her of riding on the sidewalk.

Why did the officers write Cohen a criminal summons for a violation that was not even a crime, without even bothering to check whether she had violated the actual prohibition in the regulation against sidewalk cycling? While motorists complain of arbitrary summonses and “fish-in-a-barrel” checkpoints for tinted windows or cell phone use, at least those summonses are properly issued as traffic violations — not criminal charges — and usually only when the law has been violated.  In contrast, NYPD traffic law enforcement against cyclists routinely takes the form of improper criminal charges alleging conduct that, arguably, did not even occur.

The other criminal charge Cohen received was for disorderly conduct, specifically, for “obstruct[ing] vehicular or pedestrian traffic” with “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” Like most criminal statutes, this one specifies that the wrongdoer have an “evil mind,” that is, act with either an intent to cause harm or with recklessness as to a risk of harm.

How probing must these NYPD officers be, to discern the intentional and reckless “evil minds” of cyclists, based on conduct like riding counter-flow, going through a red light, or, in Cohen’s case, simply exiting a bike lane momentarily in order to circumvent a police car obstructing it?

When it comes to criminality by bicyclists, NYPD is on it! But in the case of the recent pedestrian crash discussed above and many others, criminal charges are never even considered as a possibility. NYPD is looking for criminality in all the wrong places, and it will take an Inspector General and legislation specifically aimed at crash investigations and traffic law enforcement to fix it.

Steve Vaccaro is an attorney with the Law Office of Vaccaro & White.

  • Anxiously Awaiting Bikeshare

    Steve,

    Thanks for the article. Do you know of any history of crash victims suing NYPD and receiving hefty settlements for their lack of investigation. I know that NYPD has a long history of settling lawsuits out of court so they never have to admit wrongdoing and so that they don’t set a precedent.

    This seems like the normal enforcement route for a government agency like NYPD who is not following a law (to investigate crashes with a serious injury).

  • Eric McClure

    Great article, Steve, but what a horrendous story. We need to elect public officials who won’t rest until the NYPD’s absurd miscarriage of justice in these cases (both kinds cited in your piece) is eradicated once and for all.

  • Bluewndrpwrmlk96

    I couldn’t agree with you more, Steve. No one should be forced to do the investigative work that is suppose to be the responsibility of the NYPD in the first place. Nor should anyone have to succumb to the illogical enforcement from the NYPD when cyclists actually are within law. It’s unfortunate for Cohen since the summons she received was not even the initial violation cited by the officer. According to Cohen, she was initially stopped for a red-light violation (though the signal was in yellow) and for not using the bike lane (though it was obstructed by the police car itself.)

    Funny how New York City is trying to promote itself as an upcoming bicycle-friendly city yet the counterproductive practices of law enforcement officers is becoming a bit of a cycling deterrent rather than the traffic conditions themselves. A successful cycling environment requires plausible enforcement, safe infrastructure provided by the DOT, and motorists’ compliance to law.

  • Anonymous

    NYC seems oddly schizophrenic toward bicycling from the outside, but I am growing convinced that the root of the disconnect is the NYPD as a nearly autocratic government-within-a-government, suffused with hidebound mores and customs to its very core, that is nearly as impenetrable and intractable to the City Council as it is to the average citizen.

  • Reader

    We need to create three different “NYPDs”:

    1. A counter-terrorism agency that focuses on existential threats from Al Qaeda and fringe groups and provides general security for large events or demonstrations. This is the NYPD Ray Kelly likes to run.
    2. A community safety police organization that focuses on stopping typical crimes such as rape, robbery, murder, etc. Someone like Bill Bratton would be good for running this NYPD.
    3. A traffic enforcement agency that focuses on keeping streets, orderly and safe, issuing parking tickets, and all the rest.

    Ideally, responsibility for traffic enforcement would be handed over to the DOT, since it has more of an understanding of the kinds of enforcement that actually might make New Yorkers safe. It might issue the occasional bike ticket, but it would be for things that actually endanger people, such as salmoning or riding without lights at night.

  • Anxiously Awaiting Bikeshare

    So the problem with this theory is that our current federal government spending priorities (TERRORISTS!!!!!! PANIC!!!!!!!) require the NYPD to take counterterrorism money and convert it into something worthwhile on a day-to-day basis.

    For example, the cops who are searching bags at the subway turnstiles. The bag search has a 0% chance of preventing a terrorist attack, but does provide a police presence that could disrupt other crime behavior patterns.

  • Anonymous

    Failure to investigate claims against the NYPD generally have succeeded in the past only when based on evidence of a cover-up or destruction of evidence by the investigating officers (typically occurring in cases where police investigate a crash allegedly caused by a off-duty police officer). Our firm has brought a claim against NYPD for failure to investigate a traffic crash on facts more similar to those described in the post, on behalf of Jake Stevens in respect of his late wife Clara Heyworth. The City has moved to dismiss that claim, and the motion is fully briefed. The court is expected to allow oral argument. When an argument date is scheduled it will be posted to the Streetsblog calendar so that those interested can attend.

  • Anxiously Awaiting Bikeshare

    Appreciated, thanks for the reply. All very interesting.

    I look forward to the resolution of the Clara Heyworth case.

  • SteveF

    You mean Hand It BACK to the DOT. DOT used to run the part of the traffic control, primarily the parking ticket agents. While I trust Bratton, I wouldn’t trust Kelly with anything.

  • SteveF

    Bloomberg is the primary schizophrenic- or he has a split – compartmentalized brain.

    On one hand Mike gives JSK’s DOT his full blessing to Make The World Save For Bicycling, and on the other hand Mike gives Ray Kelly marching orders to clear the streets of protesters at the 2003 “UN” Anti-War March, and the 2004 RNC. Kelly finds he has problems controlling cyclists, and puts cyclists on his enemies list. Kelly then uses the monthly Critical Mass rides as police training exercises, until he gets controlling cyclists right. Kelly has been attacking cyclists for 10 years, and the Mayor doesn’t have a clue.

    A couple years ago DOT announces a major cyclist education program that is supposed to be combined with effective enforcement, and asks the NYPD to assist. The top cop’s response was effectively: “You are going to wish you never asked for police help.” DOT issued massive safety instructions to drivers, cyclists and pedestrians. NYPD issued garbage tickets to cyclists.

    Bloomberg just can’t see that for every 3 steps DOT moves us forward, the NYPD drags us back 2 steps.

  • Joe R.

    My brother has said, and I’m starting to agree, that Bloomberg’s push for bike lanes wasn’t so benevolent. The idea was to get more people cycling so you have another group to give tickets to. Even if Bloomberg didn’t plan it this way, that’s the way it worked out.

    Knowing the propensity of the NYPD to give massive numbers of tickets to meet quotas, had I been Bloomberg, the very first thing I would have done before building bike infrastructure would have been to change the traffic laws for bikes to match the reality (i.e. red lights and stop signs as yields), and repeal the citiwide sidewalk cycling ban by permitting sidewalk cycling except where posted. On top of that, I might have added cameras to many busy intersections to ensure that cyclists were only ticketed if they failed to yield to cross traffic. I also would have made sure the NYPD was clear that there is no law requiring cyclists to use bike lanes. The law as written is designed to keep motorists out, not cyclists in. Just the list of things I mentioned would have drastically limited the circumstances under which cyclists could receive tickets.

    I fully agree the current NYPD enforcement is a serious deterrent to cycling. As much as I might want to check out Citibike or the Manhattan bicycle infrastructure, I’m not going anywhere near the areas where police enforcement against cyclists is rampant. I just can’t afford a day in court or a hefty fine. I wonder how many of the cyclists who got tickets just gave up riding?

  • Anonymous

    I think you could get by with 2 police departments. Both would be fully independent departments, reporting to their own commissioners, and both would have the full set of responsibilities of the current NYPD.

    Start them both with an equal budget, and then let the technocrats at city hall come up with whatever metrics they want to evaluate how the budget gets re-allocated each year.

    I believe that NYPD1 and NYPD2 would spend so much time going after each other that they wouldn’t have much time to harass the rest of the population.

  • Andy B from Jersey

    Steve,

    Can’t your pedestrian victim in the case you talk about first fill charges on her own? I know in New Jersey, citizens can fill summonses against another driver when involved in a crash. I’ve done it when a driver blew through a stop sign (blocked by a line truck) and I T-Boned her in my car. You have good impartial evidence. Can’t you go the DA with said evidence as well??

  • Ian Turner

    I’m hoping Steve can comment on this, but as far as I’m aware, NYC does not have a citizen summons law. I wish it did, we could form an organization to ticket all the placard abusers, set up citizen speed cameras, etc.

  • Anonymous

    Citizen-initiated criminal process was permitted in New York up until the mid-90’s when a court struck it down.

  • Anonymous

    Only in NYC can you go out for a bike ride and come home with a permanent criminal record for rolling a stop sign.

  • NYer

    I’m sorry but that is incorrect and silly. The improvement of NYC’s bike infrastructure is not just some massive revenue-generating scheme.

    NYC government is not a monolith. DOT’s push for bike infrastructure has no bearing on NYPD’s behavior toward cyclists. Just because one agency likes bikes, it doesn’t mean the other agency also has to like bikes. Particularly NYPD — more than all the other city agencies, it is its own fiefdom. It’s not even clear that Michael Bloomberg can tell Ray Kelly what to do.

    But more to the point: Why bother? If it were just for revenue generation, NYPD could just as easily summons cars and lots of other things.

  • Old_School_Cyclist

    Stay off the sidewalk.. its simple. stop crying and snitching on other people. Worry about yourself.

  • Anonymous

    Fair enough…but remember, Hilda’s is a case where the police gave a summons for sidewalk cycling to a cyclist who was never on the sidewalk.

  • Joe R.

    The NYPD goes after bikes because they’re easy targets. It’s much harder to ticket a motor vehicle. First, you have to chase after it. Next, you don’t know if anyone inside is armed. Third, motor vehicles are often driven by “people who matter”. In other words, people who could make a big fuss if they’re given a ticket. I’m not saying NYC put in bicycle infrastructure with the thought to get more people on bikes so they have another group to ticket, but that’s the way it worked out in practice. Making some proactive changes in the traffic laws beforehand could have prevented a lot of this unnecessary ticketing.

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