How the Daily News Gets the Right of Way Law Completely Wrong

Bianca Petillo McCloud, 18, was walking across 132nd Avenue in Rochdale, Queens, when she was struck by a turning truck driver and killed. Police did not issue so much as a citation, even though the circumstances of the crash suggested that McCloud had the right of way.

Shirley Shea died 10 months after she was struck by a school bus driver who violated her right of way in a crosswalk. Police barely investigated the crash and did not cite the driver, a situation the Right of Way Law seeks to remedy.

Nor did police issue any charges to the truck driver who turned across the path of 24-year-old Emma Blumstein as she biked straight ahead on Bedford Avenue with the green light. Blumstein was pronounced dead at the scene.

And there were no charges for the school bus driver who struck Shirley Shea, 78, as she crossed 67th Street at Columbus Avenue with the walk signal. Shea died 10 months later as a result of injuries sustained in the crash.

I bring up this awful loss of life because the Daily News opinion page ran two pieces condemning the city’s new Right of Way Law over the weekend — one by the editorial board and the other by City Council Member I. Daneek Miller — with only one mention of someone hurt or killed by a driver who failed to obey the law.

The piece from the editorial board had the laziest mistakes, so let’s start with that. According to the Daily News:

The criminalizing of failure-to-yield accidents grew out of the notion, espoused by some transportation advocates, that there is virtually no such thing as a traffic accident. In almost every case, someone did something wrong, so that’s a crime.

Those advocates may often be right in the most technical, literal sense, but not in the real world and certainly not in a criminal justice system that demands proof beyond a reasonable doubt after the handcuffs have been released.

This is completely wrong, coming and going.

The Right of Way Law was designed to fix a very specific, “real world” problem — police and prosecutors were not holding drivers accountable for hurting people even when they clearly broke the law. The Right of Way Law does not criminalize drivers “in almost every case” that they injure someone — it applies strictly to crashes in which people are walking or biking and following all the rules, only to get hit by a driver who violated their right of way.

The law is not out of step with the norms of the criminal justice system. Police must have probable cause to charge a driver for violating the Right of Way Law. To secure a conviction, law enforcement must prove guilt beyond a reasonable doubt. What police and prosecutors do not have to establish is the driver’s “culpable mental state.” This is no different than the standard used to determine guilt when a drunk driver kills someone.

Before the law passed, police were not even investigating crashes that hurt New Yorkers unless officers personally witnessed the collision or the victim was deemed likely to die. What’s happening now is that, instead of brushing off every non-fatal crash that an officer didn’t see firsthand as “just an accident,” NYPD is actually investigating some of them. Sometimes, they find that the driver violated the victim’s right of way, and this results in arrest.

To hear the Daily News tell it, the Right of Way Law is “meting out jail” to drivers. Here’s what the law actually does:

  • The Right of Way Law made it an unclassified misdemeanor for drivers to strike pedestrians or cyclists with the right of way. (Other unclassified misdemeanors include driving while intoxicated and biking on the sidewalk in such a way that endangers people or property.)
  • The maximum fine for violating the Right of Way Law is $250, and the maximum sentence is 30 days in jail, but in practice a first-time offender will never face jail time.
  • Unclassified misdemeanors usually get pled down to traffic violations in court.

So, these are the types of sanctions we’re talking about for drivers who maim and kill people with the right of way. A fine equivalent to a red light ticket and a misdemeanor charge that will probably morph into a traffic citation. The law is prompting police to investigate and find wrongdoing in cases they would have glossed over before, but the penalties are not severe.

The incident that precipitated this round of debate involved the arrest of an MTA bus driver who maimed a 15-year-old girl crossing the street with the light. Of the 17 drivers charged under the city’s new Right of Way Law, six have been MTA bus drivers, according to the Daily News. This suggests that police may be applying the law disproportionately to bus drivers, as the TWU has alleged, but more than anything it shows that NYPD should be citing many more drivers than it has so far.

In December alone, more than 1,200 pedestrians and nearly 200 cyclists were injured in traffic, and 10 pedestrians were killed. We don’t know exactly how many of these collisions were caused by drivers who violated someone’s right of way, but failure to yield is responsible for 27 percent of serious pedestrian injuries and deaths in New York City, according to NYC DOT’s 2010 Pedestrian Safety Study and Action Plan [PDF]. There are hundreds of cases each month where the Right of Way Law should be enforced, not just a handful.

The Daily News’ preferred tactic — “ramp up failure-to-yield summonses before anyone has been hit” — is a complement to enforcement of the Right of Way Law, not a substitute for it. If NYPD actually followed the editorial board’s advice, the result would be tickets for drivers who don’t hit people and no penalty whatsoever for most drivers who do. How does that make sense?

City Hall is standing firm behind the law. “The new failure-to-yield law is a vital tool in our efforts to protect pedestrians and make our streets safer,” a spokesman for the mayor, Wiley Norvell, said in a statement on Thursday. “We will work with our partners at the M.T.A. and push for the training and support drivers need to do their job safely, and we are looking closely at changes we can make on our streets to prevent crashes between pedestrians and buses.”

There’s an opening here: Maybe MTA buses can be better equipped to improve drivers’ field of vision and reduce the stress of the job. That would be in line with a Vision Zero approach to street safety. But weakening a law that is just starting to get NYPD to take reckless driving seriously would be a step backward.

Barron Lerner, a chronicler of the movement to combat drunk driving whose nephew, Cooper Stock, was killed by a turning taxi driver on the Upper West Side in 2014, predicted that treating reckless driving as a crime would encounter similar resistance. His piece in the Times last January continues to resonate in light of the events surrounding the Right of Way Law this month:

…I also understand the many pitfalls Vision Zero is likely to encounter. As the author of a book on the history of drunk driving, I know that efforts to criminalize drunk driving were long stymied by a cultural indifference to the problem. Well into the 1970s, police and prosecutors looked the other way, seeing drunk drivers either as diseased alcoholics, young men sowing their wild oats or, paradoxically, victims themselves, even if they killed or maimed people. Judges and juries — perhaps because they, too, secretly drank and drove or knew those who did — were reluctant to convict.

Police told family members that their loved ones — the actual victims — had been “in the wrong place at the wrong time.” Crashes were called accidents.

Things finally changed in the 1980s when Remove Intoxicated Drivers (RID) and Mothers Against Drunk Driving (MADD) burst on the scene. Members of these groups had often lost children at the hands of drunk drivers, many of whom had several previous arrests and no convictions. These parents were viscerally offended when they learned that killers were allowed to plead down to traffic or parking violations.

This activism affected a sea change. Drunk driving is no longer seen as youthful folly but a serious crime. Between 1980 and 1985, states passed more than 700 laws lowering the acceptable blood alcohol level and tightening loopholes. “Friends,” we were told, “do not let friends drive drunk.”

Perhaps the most important lesson learned was that drunk drivers were still responsible for the damage they caused, even though the harms they inflicted were unintentional.

Correction: This piece originally stated that neither opinion in the Daily News mentioned people who were hurt or killed by drivers who broke the law. The piece has been amended to reflect that the Daily News editorial board did mention Jiahuan Xu, who was struck by an MTA bus driver.

  • J

    Excellent piece. The comparison to drunk driving is well made. It’s amazing how much the opponents of this law sympathize with people who drive their cars into other humans, and how little sympathy they have for the law-abiding people who have been injured or killed by them. Keep pointing out the callousness of these types of arguments, since there is little logic or data that supports them.

  • vnm

    As shown in today’s post quoting the Daily News about the driver who turned into and killed a pedestrian in the crosswalk at Coney Island Avenue & Avenue M, the Daily News itself is at the forefront of reporting the daily bloodbath. They publish these articles every single day. I’m surprised they’re not psychologically affected by all of their own stories about these violent deaths.

  • Eric McClure

    Great piece, Ben. As to @J ‘s point, the degree to which people critical of arresting bus drivers for running over teenage girls have gone to avoid calling Jiahuan Xu by name is shockingly, disgustingly callous.

  • Reader

    Was Google or a telephone not available to the Daily News editorial board members when they so egregiously misrepresented the consequences of the Right of Way law?

  • Rabi

    Can someone explain to me what Miller/TWU think “due process” is? Both have claimed that arresting someone violates the right to due process. I honestly don’t get it – should you have to convict someone of a crime before arresting them?

    Miller also talked about bus drivers being “locked up in cells traditionally reserved for the most dangerous criminals,” when in fact de Jesus was taken to the local precinct and released that day with a DAT. An editorial can contain bold opinions, but it cannot contain outright lies.

  • SteveVaccaro

    Nice post, Ben. It’s irritating to see these uninformed (and mis-informing) attacks in the Daily News, but it also is proof that what we’re doing is working. The whole point is for drivers to get the message that they can face serious consequences for carelessly injuring or killing. If that message has to come, at least at first, from specious protests like the Daily News is printing, so be it.

  • SteveVaccaro

    Actually, I spent at least half an hour with a DN Editorial Board member providing background for this piece. They had the information, they just disregarded it.

  • These are really good points that I didn’t have space to get to in the post.

    People arrested for violating the Right of Way Law go through the same process as everyone else arrested for a misdemeanor. Police must have probable cause to charge someone. I think many people who support the law would agree that the cuffs are unnecessary, but that’s how NYPD handles every single arrest in the city. The NYPD’s use of handcuffs is a separate issue than the enforcement of this law.

    In any case, there are no violations of due process, and it’s totally okay to print lies in the Daily News.

  • One of the best written and clarifying pieces I’ve ever read on Streetsblog.

  • At the TA Vision Zero Symposium, Kim Wiley-Schwartz of DOT was asked about the people who left angry comments on the department’s Facebook page about the new 25 mph speed limit. I can’t remember her exact words, but she said something along the lines of “Great! Those people know it’s 25 mph!”

    After three editorials in about a week, lots of Daily News readers now know the police can arrest drivers for violating a pedestrian’s lawful right of way.

  • Andres Dee

    The problem seems to be the Police’s unwillingness to investigate failure to yield, whether it causes insult (as in bullying of walkers and reinforcing their second-class status) or injury. Heck, I’ve seen Police and Traffic Enforcement (in NYC and elsewhere) violate right of way themselves. I’m beginning to suspect that the high percentage of MTA drivers charged is a deliberate attempt to leverage a politically-connected group to get this law overturned.

  • Kevin Love

    “…serious consequences…” In my opinion, a $250 fine with no jail time for first offenders and a maximum of 30 days for multiple offenders is NOT serious consequences.

  • Kevin Love

    Thank you, Ben, for a great article.

    Yes, the comparison to drunk driving is apt. Most of the rest of the world went through cracking down on dangerous drivers many, many years ago.

    If the examples that Ben cited in the article had occurred in Tokyo, the perpetrators would probably still be in a Japanese jail cell.

    But we don’t have to go to Europe or Japan to find laws that take traffic violence seriously. Just across the New York/Ontario border. Where anyone who “operates… a motor vehicle in a manner that is dangerous to the public” is liable for imprisonment for up to 5 years in jail. That becomes 10 years if the car driver causes bodily harm and 14 years if the car driver kills someone. Which is one reason why crossing the border suddenly results in much safer roads.

    Note also that judges and juries do not have to engage in mental telepathy to try to determine “intent.” Nor do they have to be amateur clergymen to determine the “immoral depravity” of the behavior. Just whether or not it was dangerous to the public.


  • dporpentine

    On my way home, I saw three cars run red lights. One was a cop car, naturally, and to successfully get to the other side, it had to make a bunch of pedestrians cede right of way.

    If the cop had hit one of them, the Daily News would want what exactly? For it to have been prevented by the cops giving themselves tickets in advance?

    It’s the Minority Report theory of traffic violence prevention, and it would be stupid if it weren’t so obviously a willful distortion, not a misapprehension.

  • Well, you know it’s tabloid journalism. It’s meant to inspire and incite people, it’s not truth, justice, and the comics.

  • monablum

    I am Emma Blumstein’s mother. I appreciate your remembering her. Her death was a tragedy and the police and court system was a horrific experience. Thank you for this article.

  • WoodyinNYC

    Well, there’s that.
    But I also have the impression that
    lots of bus drivers are black, if you
    know what I mean. Of the six bus
    drivers charged for failure to yield,
    how many were black? Just saying’.

  • Nathanael

    Someone needs to start documenting police lawbreaking. I mean, besides the lovely Cops In Bike Lanes blog.

    There’s probably no chance of getting the police to arrest one another in the short term, but if portfolios documenting brazen lawbreaking by specific police cars or officers are built up and published… eventually someone in power will see the point in acting.

  • joyauto

    The only way to stop the blood flowing in the streets is to take the profit motive our of crashes. Crashing is a big business. 12 billion dollars annually is the latest figure I’ve heard. That’s the amount of money it cost victims for being involved in a crash. What people don’t realize is that while victims pay, someone else is receiving it, e.g., doctors, EMT, car dealers, lawyers, etc, etc. And when money changes hands the state gets a cut in the form of sales and income taxes. Can anyone figure 8% of 12 billion dollars? The state has sure figured it out. So, like red light cameras, speed cameras, it’s all smoke and mirrors. It’s always about the money, not safety.

  • mattkime – very detailed documentation of petty corruption and an occasional description of the system that looks the other way.


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