City Council Member Rory Lancman thinks NYPD is playing fast and loose with the Right of Way Law, and he'll soon introduce a bill that would make it more difficult for police to apply it.
A key facet of Mayor de Blasio's Vision Zero initiative, the Right of Way Law allows NYPD to file misdemeanor charges against drivers who harm people who are walking and biking with the right of way. Lancman voted for the law, but has complained that NYPD uses it too often.
Motorists have injured or killed over 8,000 pedestrians and cyclists since the Right of Way Law took effect last August. As of April, NYPD had applied the law 22 times. As of now virtually all cases resulting in Right of Way Law charges were worked by the Collision Investigation Squad, which is trained to investigate serious traffic crashes.
In an email to fellow council members today, Lancman called on them to sponsor a Right of Way Law amendment that would place additional burdens on NYPD crash investigators, and create loopholes for motorists who harm people who are following traffic rules.
Wrote Lancman:
[I]t is unclear whether the police department is conducting a “due care” analysis before deciding to arrest and charge drivers with a misdemeanor, or what factors are incorporated into such a “due care” analysis. Indeed, the Transport Workers Union has filed a lawsuit to declare the law unconstitutional and unenforceable in part because of this ambiguity.
This amendment clarifies the meaning of “failure to use due care” by requiring the police department to consider visibility, illumination, weather conditions, roadway conditions, and roadway design as well as whether the pedestrian was in violation of any vehicle and traffic laws at the time of the accident.
Adding a provision to the bill to require an analysis of due care will penalize drivers who hit pedestrians out of recklessness and gross negligence, while sparing drivers when accidents are caused by poor road conditions, bad weather and scofflaw pedestrians.
NYPD Chief of Transportation Thomas Chan has explained publicly that the department files charges under the Right of Way Law only when probable cause can be determined based on evidence. Given the number of pedestrian and cyclist injuries and deaths since the law was adopted, if anything it seems NYPD is exercising excessive restraint in applying the law.
"In assessing whether a driver used all the care that is due, the driver must be charged with knowledge of all the existing circumstances," says attorney Steve Vaccaro. "Lancman's statement suggests that to the extent weather or road conditions play a role in causing a crash, the driver is exonerated, when in fact a driver should take these factors into account, slow down, and use added caution when they are known to be present."
"The reference to scofflaw pedestrians is baffling," Vaccaro says. "'Scofflaw pedestrians' presumably do not have the right of way, so the law doesn't apply to them or the drivers who strike them."
Lancman's intro will be the second bill intended to weaken protections for New Yorkers who walk and bike. Council Member I. Daneek Miller has proposed legislation to exempt MTA bus drivers from penalty under the Right of Way Law. Miller's bill has 25 council sponsors.
