Mionske: Vulnerable User Laws a First Step Toward True Traffic Justice

In the second installment of his two-part "traffic injustice" series (here’s part one), cycling attorney Bob Mionske covers a lot of ground. While much of it will lead Streetsblog readers to nod in knowing agreement, what struck us is the way Mionske exposes how a transportation system so dominated by multi-ton vehicles has basically absolved drivers of responsibility when it comes to interactions with actual people.

It usually takes a more serious degree of negligence (for example, drunk driving or excessive speed) for a driver to injure or kill another driver. And when that happens, prosecutors can use that more serious degree of negligence to bring the offender to justice. But when the offending driver has been merely inattentive — "I didn’t see him" is the most common excuse drivers make after hitting a cyclist — or has otherwise failed to exercise due care, the choices most often available to police and prosecutors are to do nothing, or to charge the driver with a minor offense that does not reflect the harm the driver actually caused.

Of course we see this play out almost daily in New York. As of this writing, in 2010 alone we know of 13 pedestrian and cyclist fatality cases in which the driver was reportedly charged with no wrongdoing. Inadequate laws combined with an apparent necessity or eagerness to close cases means that even when a driver is "brought to justice," his or her punishment often amounts to a cruel joke.

"The basic problem we face," writes Mionske, "is that in most states there are appropriate penalties for drivers who commit minor offenses like failure to yield, and there are appropriate penalties for drivers who commit the most egregious offenses, like killing somebody while driving drunk. But there’s no middle ground — no appropriate penalties for those who kill through carelessness, and no justice for those who were killed because somebody else shirked their duty to exercise due care."

Unlike in other countries, says Mionske, where the onus of safety is placed on the operator of the heavier vehicle, the "invisible" cyclist or pedestrian defense creates an easy excuse for American drivers not to exercise due care. As with drunk driving in decades past, the problem will require a combination of cultural upheaval and (often subsequent) political will. Mionske points to vulnerable user regulations — like New York’s Hayley and Diego’s Law, pending in the current legislative session — as an important step because they fill this void in the justice system.

  • I found Mionske’s piece extremely compelling, and I thank Brad and S’blog for highlighting it. What bears emphasizing, to my mind, is Mionske’s observation that behaviors that drivers can do to each other without necessarily causing major injury, often have grievous consequences when they are done to people on foot or bike.

    The enlightened response to this, seen in much of Europe, is to treat such behavior as a criminal action because it was committed against a vulnerable user. In contrast, U.S. practice, “based on an underlying, unspoken assumption in the law that those who use our roads will be driving cars,” according to Mionske, is to write it off as relatively harmless, since it likely wouldn’t have wiped out another driver.

  • I always say:

    Accidentally discharge a firearm (cleaning, repairing, etc.) with absolutely no criminal intent or carelessness and end up shooting or killing someone, expect to do time in jail.

    Drive a car in an absolute careless even reckless fashion and end up hurting or killing someone, expect the criminal justice system to “understand that it was only an ‘accident’.”

  • Check on this link http://www.copenhagenize.com/2010/02/strict-liability.html for Strict Liability in most of Europe, where “it’s always the motorist at fault when they collide with vulnerable road users like pedestrians and cyclists.”

  • As far as I can tell (correct me if I’m wrong…) the “strict liability” rule in Europe applies to civil cases, not criminal ones. If a car hits a bike, the driver (or the driver’s insurance company) will always be obligated to pay compensation to the bicyclist. But it doesn’t follow, as far as I can tell, that the driver will go to jail.

    So, under strict liability, that driver in Staten Island who drove onto the sidewalk and killed a pedestrian would be liable for hefty damages (as he probably is under existing rules), but strict liability would not require felony charges.

    I can think of incidents where strict liability would have been helpful, though. About a year ago, a cyclist in Madison was doored on a downtown street, and ended up in the hospital. The police decided that she was at fault (she was riding in the door zone on a fairly narrow street), so they visited her in the hospital and gave her a ticket, and the driver’s insurance company resisted paying her medical bills.

    As a result the city, and later the state, passed laws that created strict liability for drivers in dooring incidents. But the usual rules still apply for other kinds of collisions.

  • Strict Liability is a legal concept which applies in a variety of criminal and non-criminal circumstances. On the criminal law front, however, it is not used that often for several reasons. First and foremost, with strict liability, the government is basically saying that the mental state aspect of the crime does not matter and it is enough that the defendant physically committed the act, i.e., we won’t concern ourselves whether the defendant acted intentionally, recklessly, or negligently. Rather, because the crime is deemed so serious or society has such a compelling interest to try and prevent the crime, the government is willing to essentially take away a whole line of possible defenses in that you can’t say “I didn’t intend to do it, I was just reckless etc.” For example, statutory rape is one type of crime where a defendant is strictly liable for his or her actions. It doesn’t matter that you didn’t intend to have sex with someone who is under the legal age of consent, all that matters is that you actually did. On the other end of the spectrum, the government is also willing to make many moving violations strict liability offenses in that it is no defense that you didn’t know you were speeding or that you didn’t mean to speed. If you are caught speeding, you get a ticket. But, here, the government is willing to forgo the necessity of establishing a particular mental state precisely because the penalty being assessed is a relatively small financial one as opposed to the possibility of having your liberty infringed upon in the form of incarceration. At the end of the day, removing the requisite mental state component of a crime is a very serious and complicated question.

  • Bob has some interesting points!


Paterson Signs Two Traffic Justice Bills Into Law

On Friday evening, New York Governor David Paterson signed two bills intended to make streets safer by giving law enforcement greater leeway to bring charges against reckless drivers. Diego Martinez and Hayley Ng were killed when a van left idling and unattended careened backwards into a group of pre-schoolers on a Chinatown sidewalk. The driver […]

Maureen McCormick: On the Cutting Edge of Traffic Justice

Earlier this month Streetsblog talked with Leslie Crocker Snyder, candidate for Manhattan district attorney, about how she would approach pedestrian and cyclist fatalities as the borough’s top prosecutor. Today we will hear from a prosecutor who has made traffic justice the centerpiece of her career. From 1986 until 2005, Maureen McCormick served as an assistant […]

Is Manhattan DA Cy Vance Delivering on Traffic Justice?

The 2009 race for Manhattan district attorney presented a rare opportunity for proponents of safer streets. After decades of indifference toward victims of vehicular violence from Robert Morgenthau, advocates succeeded in making traffic justice a prominent campaign issue for his would-be successors. Contenders for the office pledged to take definitive action to reduce the carnage […]

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 […]