A Powerful New Tool to Deter Traffic Violence — If Law Enforcers Use It

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Last Thursday, the New York City Council passed Intro 238. This legislation makes it a misdemeanor for drivers to strike pedestrians or cyclists who have the right of way. Intro 238 has the potential to dramatically change driver behavior and advance the Vision Zero program of eliminating traffic fatalities.  But without enforcement by NYPD and prosecutors, Intro 238 will be no more than an unheeded “message in a bottle.”

What makes Intro 238 potentially so revolutionary? And why should we expect law enforcement to embrace it? To answer those questions, let’s do a quick review of how and why this legislation came to pass.

The need for criminal penalties to deter reckless driving is plain from the story of Ally Liao, told by her parents in City Council testimony this April supporting Intro 238 (videotape here). Allie was crossing hand-in-hand with her grandmother, in the crosswalk with the “Walk” signal, when a driver turned into them and killed her. The driver told police that he had looked for pedestrians in the crosswalk and hadn’t seen any. Police then told the Daily News that Ally had “broken free” from her grandmother, suggesting that the entire incident should be treated as a “tragic accident” befalling a rambunctious and poorly-supervised child.

But the video tells a very different story — one that plays out hundreds of times each year on New York City streets. Ally and her grandmother followed all the rules, but the driver still faced few consequences for killing her.

The city should make it a crime to drive this recklessly. That is the basic idea behind Intro 238, which originated with a proposal first discussed with candidates in StreetsPAC endorsement interviews, then published here on Streetsblog, and then lobbied for by Transportation AlternativesFamilies for Safe Streets, and many others.

Following the April hearing, the City Council amended Intro 238 to protect not only pedestrians, but also cyclists.  The law will take effect 60 days after it is signed by Mayor de Blasio, who at his January Vision Zero press conference acknowledged that reckless drivers “do not face sufficient consequences.”

Why Intro 238 Is Different From Other Laws

Intro 238 is different from existing laws regulating reckless driving because it provides for criminal penalties on a “strict liability” basis.

A misdemeanor charge is categorically more serious than a traffic violation. The offender is arrested, and then must appear in court and enter a plea. A plea of guilty or a conviction means a permanent, public criminal record. First-time misdemeanor offenders may not be sentenced to imprisonment, but it can happen. In contrast, common traffic offenses like “failure to yield” or “failure to use due care” — the violations that the driver in the Liao case was charged with — have in practice proven to mean fines and nothing more.

Relying on traffic violations to punish and deter reckless driving poses a second problem as well — NYPD’s unwritten “observed violation” rule (explained by Ray Kelly here). NYPD will only seriously investigate traffic violations that are not personally observed by a police officer if the violations result in life-threatening injury or death. In thousands of other cases involving serious injuries, police will not issue a traffic violation unless an officer happened to observe it.

The “strict liability” approach of Intro 238 is the second feature that sets it apart from existing criminal laws regulating driving. Courts have misconstrued these laws to require proof of “moral blameworthiness,” conscious disregard of a known risk by the driver, or at least a “gross deviation in failing to perceive risk.” It is very hard for prosecutors to prove such “culpable mental states” beyond a reasonable doubt, so these laws are rarely enforced against sober reckless drivers.

How Does Intro 238 Work?

Intro 238 applies criminal penalties on a “strict liability” basis: If you are at fault in striking a person who has the right of way, you are guilty even if you did not intend to cause harm or were completely oblivious to the risks. This should mean an end not only to strained inquiries into a driver’s “culpable mental state,” but also an end to the “rule of two” — the rarely-applied, judge-made rule by which a culpable mental state can in theory be inferred from a driver’s commission of two or more traffic violations.

Under Intro 238, a driver who strikes a pedestrian or cyclist with the right of way should be presumed to have committed a misdemeanor, unless and until the driver can show lack of fault on his or her part. This “presumption of criminality” should mean that police responding to a crash will treat it as a crime investigation. As in any crime investigation, if there is sufficient credible evidence to establish probable cause that the crime was committed, there should be an arrest.

How would this work in practice? Police should ask a driver who has injured a pedestrian or cyclist who likely had the right of way not only, “Did you see them?” but also, “Where were you looking?” and, “Why didn’t you see them?” Just as police officers now routinely ask persons suspected of marijuana use to consent to a search (“turn out your pockets”), under Intro 238 police should be asking drivers involved in crashes to voluntarily allow a cell phone exam or a download from the vehicle’s event data recorder.

Crash victims should not expect a “no stone unturned” investigation, but any investigation at all will in most cases be a vast improvement. If, after considering the available evidence, the police officers believe it is probable that the driver violated Intro 238, and that the driver was at least in part at fault, there should be an arrest and a criminal charge.

Will Intro 238 Be Enforced or Not?

Unless Intro 238 is communicated repeatedly to rank and file police officers via memorandum, roll call instructions, and formal in-service trainings, most police officers will not even become aware of the new law. And awareness is just the starting point. Intro 238 runs counter to the general belief held by many officers that a traffic crash is by definition a non-criminal matter, peripheral at best to the core police mission of fighting crime. Many prosecutors hold this view as well. And, of course, there are crimes more serious than misdemeanors — and misdemeanors other than reckless driving — that require attention.  These are all reasons why implementation of Intro 238 presents serious and difficult challenges.

The point of urging police and prosecutors to enforce Intro 238 is so that the new law will be carried out and, ultimately, drivers will get the message. NYPD and DOT should do direct public education of drivers. Most importantly, New Yorkers should know their rights and insist that police responding to a crash scene take not only a crash report but also a “complaint report” — that is, a report of a criminal complaint. Each time Intro 238’s message is communicated, we’ll be getting a little closer to Vision Zero — and to justice for Ally Liao and thousands of other crash victims.

  • dave “paco” abraham

    This may truly be a game changer in the fight for safer streets. I hope every precinct’s commanding officer reads this aloud to all of his or her officers and acknowledge the new tool the City Council has given them.

  • Jesse

    I’m skeptical. My research has uncovered a universal law the NY criminal justice system abides by:

    (socially agreed moral opprobrium for an act) x P(getting to unholster your gun) / (severity of legally imposed punishment) x (proportion of potential white suspects) ? P( law will be enforced)

  • Andres Dee

    Respectfully, Steve, I don’t believe that we lack for laws. Our problem is people’s obliviousness to something being “morally wrong”, regardless of penalty (i.e., that these creatures called “poedestrians” have something called “right of way”, what that entails and that it matters). It’s also a matter of authorities being willing to enforce the laws. With regard to this one, it should be a felony, not a misdemeanor to hit someone who has right of way as a result of reckless disregard. In the case of true mistakes, it should be a civil matter.

  • StepUpAndSaySomething

    Thanks very much for the clear understanding of the law. It sounds like one of the strongest ones yet. I only hope it is explained as well to the cops (and they are reminded it is their job to enforce this, it’s not an option).

  • smell bacon?

    This, and the discussion sort of begs the question: Could we make it a crime to not enforce the law? If police themselves fail to enforce the law could it be considered a misdemeanor, should they face a penalty?

  • Andy

    Anyone stopped by police knows that they don’t enforce laws. They thrust their opinion onto you, and if you don’t like it, your only option is to waste your time with a judge.

    While Intro 238 seems to be exactly the direction all places need to head in, I’m not sure it will do anything differently if the police at the scene don’t bother with it. Expecting police to change their procedure is like expecting climate change skeptics to give up.

    Anything that would require reprimands for not following this would be the next step to ensuring the correct process is followed.

  • lop

    Getting a mayor who sees this a priority is the next step. One who will find a police commissioner who sees the same the step after. The pair need to make it clear to precinct captains that this is important. If they don’t like it? Replace them.

    Regular cops don’t make policy. The city council can pass laws, but they don’t make policy. The mayor and the police commissioner make policy. The precinct captains follow their lead or get replaced. Your average cop does as he’s told by his bosses. Don’t blame them when the bosses, including the elected mayor, don’t tell them to do their job and keep you safe.

  • Andy

    Anecdote: I got pulled over while cycling with 5 people for being two-abreast. Someone in the group stated the local law number saying it was legal here (this was not in NYC), to which the cop said something like “Since when? I’ve been doing this a long time.” The response was simple and direct: “Since 1976 when the law was passed. I’ve been doing this a long time too.”

    Point being, even old laws get ignored because police only care about their own opinion. They can just whine to their higher-ups that they don’t have time to investigate crashes when “it’s just a pedestrian” that ran into the road or a cyclist doing the suicide swerve. Car drivers are first class citizens and the rest of us are just in the way, not worthy of finding out details for.

  • Jesse

    I think NY mayors are too afraid of the police union to effect any real policy changes in the NYPD.

  • Jesse

    This.

  • KillMoto

    Step 2: Get most NYC cops out of cars and onto bicycles and foot patrols.
    This will save massive amounts of money on health care costs and vehicle fleet maintenance. It will also get cops interested in learning about and enforcing laws hat protect cyclists and pedestrians.

  • smell bacon?

    My question really has nothing to do with individual officers; they are fallible fools like the rest of us. I’d like to know if there is any reason not to have the concept of strict liability applied to the lack of enforcement of this law in particular by the police (from individual officers, on up through to the mayor)? I am tired of giving police the discretion to fix parking tickets, needlessly run red lights at will, park in bike lanes/on sidewalks and now, potentially ignore intro 238.

  • Kevin Love

    Not all that far away, right across the New York/Ontario border, they have those kinds of laws.

    To quote the Crown Attorney, Lidia Narozniak, while prosecuting a car driver who hit a pedestrian crossing at a crosswalk (just like Ally):

    “It’s an area where pedestrians can be expected,” Narozniak said. “The claim, ‘I didn’t see her’ is proof of a lack of due care and attention and reason for conviction.”

    Source:

    http://www.thespec.com/news-story/4412657-driver-found-not-guilty-in-death-of-senior-crossing-dundas-road/

  • J

    My question is this: if you’re hit while in the crosswalk with the right of way and the NYPD fails to investigate an obvious violation of Intro 238, as was the case with Ally Liao, could you then sue the NYPD for negligence?

  • Larry Littlefield

    “Step 2: Get most NYC cops out of cars and onto bicycles and foot patrols. This will save massive amounts of money on health care costs and vehicle fleet maintenance.”

    It will increase pension costs, however, because the retired officers will live longer. Perhaps police officers on foot or bicycle should get free donuts as a offset!

  • SteveVaccaro

    Our firm has been working on several fronts, with our clients, Transportation Alternatives, StreetsPAC and Right of Way to improve NYPD crash investigations. There is a state statute (VTL 603-a) that requires police to perform a certain minimum investigation in all crashes causing a serious injury. Earlier this year, a federal Judge granted the City’s motion to dismiss a claim by one of our clients seeking to hold NYPD responsible for money damages failing to conduct the statutorily-mandated investigation of a crash because of the Department’s “dead or likely to die” rule. The court held that the statute does not create a duty on the part of investigating police officers owed to specific individuals (crash victims or their survivors). Rather, the duty is owed to the “public at large,” which, in practical terms, means that it is unenforceable through a private lawsuit against NYPD for failure to investigate.

    This does not mean the “end of the line” for enforcing the NYPD’s duty to investigate crashes. The federal district court disagreed with NY state court precedent holding that police do have a duty to investigate hit-and-run crashes, at least to the extent of providing victims with the identity of the driver. That precedent is still good law, and our firm intends to build on it through further litigation against NYPD in appropriate cases.

    Also, political efforts to improve and extend NYPD crash investigations to all victims of serious crashes continue. Mayor DeBlasio has conceded that NYPD failed to adequately investigate serious crashes under Ray Kelly, and Commissioner Bratton has stated that the Department’s goal is to thoroughly investigate all serious injury crashes.

    All of this occurs within the context of widespread, credible reports that Ray Kelly’s NYPD systematically underreported, downgraded, and failed to investigate a wide variety of crimes, including intentional crimes like rape, because of an overriding institutional imperative to show a downward trend in the incidence of crime, whether it was true or not. Critics of this broader policy of NYPD failing to investigate crime also appear to have been unsuccessful at mounting a legal challenge against NYPD. Courts grant police broad discretion in deployment of resources, and are reluctant to get involved in efforts to force police to investigate any particular cases or classes of complaints. The overall shortage of police resources and police/judicial reluctance to view traffic violence as crime, will definitely present challenges in trying to improve NYPD crash investigations of alleged Intro 238 violations.

    In this context, the only thing for our community to do is to raise complaints of a failure to investigate crimes of traffic violence through whatever administrative, legal and political channels we can–the CCRB, Precinct Community Councils, the Offices of the Mayor, Public Advocate, City Council members, our advocacy organizations like TA, and through lawsuits as the facts of each case will allow. The Law Office of Vacccaro & White will provide what assistance we can to complainants fighting an improper NYPD refusal to investigate a crime of traffic violence.

  • SteveVaccaro

    My response to J touches on this. I believe a massive systematic failure to enforce the law generally, or a seemingly bad-faith targeted failure to enforce the law in a particular class of cases (or which disproportionately affect a particular community), should both be actionable, in addition to case-specific challenges building on NYS precedent that NYPD must at least investigate the identity of hit-and-run drivers. But finding a judge with the backbone to entertain such a claims after what the Second Circuit did to Judge Scheindlin in the Floyd stop & frisk case is a challenge.

  • SteveVaccaro

    I take your skepticism and that of others expressed here seriously, as my “message in the bottle” metaphor was intended to show. Social movements that have successfully addressed systemic injustice have usually tried a variety of tactics–electoral politics, legislative reform, “grasstops” and media-oriented advocacy, direct action, mass mobilization, legal challenges–and it is not always clear (even in retrospect, and certainly, when in the moment) which of these tactics will be effective, or whether all of them in concert will be. As outlined in my response to J, our movement against traffic violence and the organizations that purport to represent that movements’ interests (TA, Right of Way, Transportation Alternatives, StreetsPAC, my law firm, and others) have done a pretty good job of attacking the failure-to-investigate problem on many relevant fronts.

    I personally try to support all of these types of efforts, as my time and resources allow. I hope others will too.

  • smell bacon?

    OK, but isn’t this different from ‘stop-and-frisk’? This concerns something that has occurred, not something reasonably suspected of occurring. Also, pardon my legal ignorance, doesn’t the class ‘pedestrian’ have a materially significant relationship to the ‘public at large’? Shouldn’t this potentially give intro 238 some teeth?

  • SteveVaccaro

    Actually, the class of vulnerable street users who are protected by Intro 238 are arguably not a “suspect class” or a group whose “:fundamental rights” are infringed upon in the same manner as the stop & frisk plaintiffs in Floyd, and that creates an additional challenge to getting judicial scrutiny applied to any alleged failure to enforce a law like Intro 238.

  • Andres Dee

    > “It’s an area where pedestrians can be expected,” Narozniak said. “The claim, ‘I didn’t see her’ is proof of a lack of due care and attention and reason for conviction.”

    Lidia Narozniak nails it. I wanna send her a dozen Tim Horton’s-es.

  • neroden

    This should have been done long ago.

    London has a small “armed response” division and the rest of the police do not have guns. This is appropriate.

    New York City should also have a small “motorized response division”, and the rest of the police should not have cars.

  • neroden

    We need a mayor who doesn’t give a damn about the police union and is willing to smash them if they won’t do their goddamn jobs.

    And first and foremost the job of a policeman or policewomen is to obey the law themselves.

  • neroden

    So, I believe the key thing is to get District Attorneys who have the same attitude as the Crown Attorneys. I think the police and courts will follow if the DAs act. The DAs have a lot of legal tools already, they just don’t use ’em.

  • Eric Cramer

    Ironically, the mounted police officers are some of the chillest cops I’ve ever met.

  • Eric Cramer

    The police tried to enforce stop and frisk which made the public safer and they got backlash for it so they may potentially not want to enforce Intro 238.

  • Eric Cramer

    So true. They need to investigate the mentally ill Franklin Lee in LIC, NY for filing false reports using the 911 system. They keep giving him a free pass.

  • Sani Fornus

    Intro 238 is stupid law criminalizing ordinary negligence.

  • ike mike

    THIS IS A ATTEMPT TO MAKE ORDINARY CITIZENS INTO CRIMINALS

  • ike mike

    The city council are a bunch of crooks

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