Can NYC Council Bill to Create Speed Camera Program Survive Court Challenge?

Legislative gymnastics on the part of the governor, mayor, and city council could be enough to stave off court challenges.

With Governor Cuomo and Mayor de Blasio, City Council Speaker Corey Johnson has engineered a plan to turn the city's speed cameras back on before school starts next week. Photo: Jeff Reed for NYC Council
With Governor Cuomo and Mayor de Blasio, City Council Speaker Corey Johnson has engineered a plan to turn the city's speed cameras back on before school starts next week. Photo: Jeff Reed for NYC Council

The City Council is about to create its own speed camera program. Whether it’s constitutional is another question.

The legal case for Council Speaker Corey Johnson’s legislation hinges in part on a 30-day executive order signed by Governor Cuomo. The order declared a “state disaster emergency” in order to suspend requirements that cameras go offline upon the expiration of the laws that authorized them in 2013 and 2014 [PDF].

By superseding existing state legislation, however, the order could be unconstitutional. The executive may not simply be able to wish away laws already enacted by — or allowed to sunset by — the legislature.

The bill’s co-sponsor, Council Member Brad Lander, tweeted that Cuomo’s executive order was “just bluster” that should have stuck only to the narrow issue of giving the city access to state DMV records so that the city could issue speeding tickets to the scofflaws caught on camera. That “bluster” could spell the program’s demise, according to Republican Senator Marty Golden.

“There will be a ticket issued, and someone will sue saying [the city speed camera program] is illegal,” he told the Brooklyn Reporter. “The state will lose, there will be confusion, and that will cause distraction to the fact our children will still not have the protection of speed cameras.”

Council members, however, argue that the legislature’s decision to allow the state-approved speed camera program gives the city the right to enact its own system.

“I am confident in our authority here. We have strong home rule authority on this issue, and I can think of no better way to use it,” Johnson said at a City Hall hearing this afternoon.

State law prohibits either the city or state from enacting laws that have been “pre-empted” by the other via passed legislation or a stated intention to pass legislation. Council members and DOT officials declined to go into detail, but the crux of the Council’s argument appears to be that the legislature’s failure to renew the camera program allows the city to take action on its own — even though the end of the program was written into the bill that created it in the first place.

“The legislature made themselves irrelevant,” said attorney Steve Vaccaro, who has advised Johnson on the matter. “They removed themselves from the equation, and the city is free to act.”

The language in the legislation takes extra precaution to head off any pre-emption-based legal challenges. Chiefly, the bill would only be in effect until the state passes its own legislation, so clearly the city is not trying to pre-empt the state. In line with that approach, Johnson downplayed the bill’s magnitude, telling DOT officials that “nothing really fills the void of the state coming up with a fully robust, expanded speed camera program.”

For years, attorneys at the state and city level have insisted that speed cameras require state authorization. But Vaccaro argues that decades-old state law gives the city broad powers to enact and enforce its own traffic regulations.

Columbia law professor Richard Briffault, a preeminent scholar in matter of city and state legislation, agrees, saying that the way he reads the law, the city may have never needed state authorization after all.

“As a general rule, [the NYC] council can enact local laws effecting health and safety so long as they aren’t pre-empted by state law. At this point, there is no state law,” Briffault told Streetsblog. “It’s often unclear what the city’s power is. It may not have been the case that they couldn’t do it, they just were not sure.”

“I suppose they’re now testing whether they can do it on their own,” he said.

The full City Council will vote on Johnson’s legislation Wednesday at 1:30 p.m.

  • Larry Littlefield

    I hope they aren’t just letting the state legislators off the hook just before Election Day.

    Remember, in the end they are all on the same side.

  • Daphna

    Is there a way for NYC to have more authority on home rule with this and other matters permanently? There are good intentions here but it also seems like a complicated legal mess. It would be great if NYC could make a deal with the NY State to have more home rule.

  • Brian Howald

    The only reason the city would need state authorization to do something is if the state has pre-empted the city from doing it or stated a desire to do so.

    If the Legislature had passed a bill saying, “NYC can’t do this in perpetuity unless we specify the parameters,” while also saying, “we authorize this with the following parameters for a period of time,” there would be a conflict.

    However, the Legislature, in its infinite wisdom, authorized the speed safety camera program in the same bill preempting the city from taking any other action and set a five-year sunset clause on all the bill’s provisions.

  • Andrew

    Whether its constitutional is another question.

    it’s

  • The way for New York City to have home rule is to secede from the State.

    Unfortunately, due to absurd archaisms in American law, there is currently no legal way to accomplish this.

  • jcwconsult

    If courts rule on the basis of law, and not emotion, the for-profit speed camera rackets will remain closed. Enough state legislators fully understand the speed cameras are not safety programs, but are for-profit rackets that target mostly safe drivers, that they want them closed forever.
    James C. Walker, National Motorists Association

  • jcwconsult

    And the sunset is passed, so the cameras must remain off.
    James C. Walker, National Motorists Association

  • jcwconsult

    In traffic enforcement, the term “home rule” means authorizing for-profit enforcement rackets targeting mostly safe drivers. This should NOT be allowed.
    James C. Walker, National Motorists Association

  • Brian Howald

    You missed the crux of the story: the only law limiting New York City from imposing a speed safety camera program expired last month.

  • BubbaJoe123

    Or, drivers could actually drive reasonably close to the speed limit. Just saying.

    Somebody driving more than 10mph above the speed limit on surface streets near a school in a densely packed city like NYC is by definition not a “safe driver.”

  • jcwconsult

    I understand your view entirely. The problem is that it doesn’t happen, and I only deal with realities – not wishful thinking. Example: If the slowest 85% of the drivers feel safe and comfortable at speeds up to 37 mph on a main collector or arterial street, then that will be the flow speeds regardless of whether the limit is posted at 40, 35, 30 or 25. THAT is the reality proven many times over in more than 75 years of traffic safety engineering research, and I only deal with realities.

    If the slowest 85% feel safe and comfortable at speeds up to 37 mph, the only way to have the slowest 85% at speeds only up to 25 mph is to reengineer the street so speeds above 25 mph no longer feel safe and comfortable. That is more expensive and eliminates the chance to use the street as a for-profit speed trap racket, but it is effective.

    James C. Walker, National Motorists Association

  • BubbaJoe123

    Except this just isn’t true, at least in these cases. Speeding in areas where the cameras were deployed declined dramatically (over 60%), showing that driver behavior can be changed.

    That’s reality. I get you find it inconvenient to acknowledge it, but it’s reality.

    http://www.nyc.gov/html/dot/downloads/pdf/speed-camera-report-june2018.pdf

  • BubbaJoe123

    Oh, and here’s another piece of “reality” for you, since you only deal in realities. Lowering the speed limit in Boston caused drivers to…wait for it…slow down!

    http://www.iihs.org/iihs/news/desktopnews/city-drivers-slow-down-for-lower-speed-limit-in-boston#.W4VV_MhOUNU.twitter

  • Can’t agree. Speed limits are largely a joke anyway. And school zones are used, just as other traffic laws, to generate revenue. There is a school zone on the main road near where I live.. it’s a three-lane-each-way road with a 45 mph posted limit. There’s also a speed camera across the street from the school (this is Arizona, btw). That’s the ONLY place people go 45. The rest of the road is driven at 55-60. People are going to drive at a speed that they feel is reasonable for the given conditions. Setting a limit too low only means it’s going to be ignored.

  • Of course they do… when people know there are cameras around, they will slow down for them. That only makes sense. But if speed limits are too low, people will ignore them.

  • jcwconsult

    Here is that actual before/after data in Boston.

    Boston sites Speeds (mph) Proportion
    Mean 85th% >30 mph
    Before 24.8 31.0 18.2%
    After 24.8 31.0 18.1%
    Before-to- 0.0 0.0 0.1%
    after change

    With the MASSIVE reduction in actual mean speeds of 0.0 mph plus the MASSIVE reduction in actual 85th percentile speeds of 0.0 mph and the MASSIVE reduction of 0.1% of the proportion over 30 mph – it takes some pretty tortured logic to say speeding changed.

    Be VERY careful of “studies” from what should be called the Insurance Institute for Higher Surcharges. Their texts in “studies” often try to convince readers that X = Y with data that clearly shows that was not the case.

    James C. Walker, National Motorists Association

  • jcwconsult

    It is possible to somewhat lower speeds with speed cameras, but NYC deployed just enough to get some published stats WHILE collecting millions of dollars from the ones the program did not affect. That is how speed camera rackets work. They never deploy enough cameras and signage to prevent most drivers from speeding because then the for-profit cameras would not collect enough fines to even pay their own high costs. Cities will NOT deploy enough cameras to the point they lose money.
    James C. Walker, National Motorists Association

  • BubbaJoe123

    Funny how you’ve chosen to simply ignore the top category, >35mph. You’re either very sloppy, or deeply dishonest. In either case, it’s clear you have nothing to add to this conversation.

  • BubbaJoe123

    Fair enough. If people will only drive responsibly when there are cameras present, we need a lot more cameras.

  • jcwconsult

    Funny how you failed to notice that category went UP in the “control sites” in Providence with no change in the posted limits. Small changes like 4.9% to 3.8% or 3.5% to 4.1% are well within the normal variations expected over time – and the Providence data with no limit change proves that.
    James C. Walker, National Motorists Association

  • jcwconsult

    Further on in the text, the study concludes that the actual average speed was reduced by 0.3%. If the average was 25.0 mph before (near the mean of 24.8), then the after average speed was 25.0 times 99.7% or 0.997 = 24.9 mph. It totally strains credulity to claim that actual change would produce safer results.
    James C. Walker, National Motorists Association

ALSO ON STREETSBLOG

Vacca Defends Speed Cams While Ulrich Defends Speeding

|
This afternoon, the City Council’s transportation committee held a hearing on resolutions asking Albany to move forward on two street safety initiatives: legislation allowing New York City to start a speed camera demonstration program, and a bill to close a loophole in the state’s careless driving law. Votes on the resolutions are expected at the full […]