Steve Vaccaro

The right of way. You won't find it in the Declaration of Independence, the UN Charter on Human Rights, or any other foundational declaration of rights. But that's not because it's any less important. At least for those living in dense urban environments -- a growing proportion of Americans -- respect for the right of way is critical to efficiently navigating the routine of daily life. For millions of us, respect for the right of way is a matter of life and death.

I was gratified to learn in March that NYPD had re-christened its “Accident Investigation Squad” the “Collision Investigation Squad” (CIS), and reportedly beefed up its 19-person force of crash investigators by 50 percent. But as a lawyer representing pedestrian and cyclist crash victims, I have yet to see the impact of these changes on the ground. Instead, NYPD continues to waste a significant portion of the resources it devotes to traffic law enforcement on “garbage” summonsing of cyclists. Looking at NYPD’s overall traffic law enforcement program -- including both crash investigations and traffic law enforcement -- it seems like little has changed.

As any good policy wonk knows, certain activities effectively force people who only bear the costs of that activity to subsidize the beneficiaries. To use the classic contemporary example, fossil fuel polluters receive billions in tax breaks, but pay nothing for the climate change-inducing carbon that they emit.

Reading Heather Mac Donald’s impassioned defense of the race-neutral character of NYPD’s stop and frisk program in City Journal this weekend, I was struck by the following statement of an NYPD precinct commander, Inspector Christopher McCormack, exhorting an officer to be more “proactive” in making stops:

In the aftermath of a crash, we inevitably ask: How can a dangerous driver be kept off the road? It seems that the entire automobile transportation regime is aimed at keeping the driver behind the wheel. Absent impairment or flight from the scene of the crash, police quickly conclude that “no criminality is suspected.” The name of the responsible driver may be carefully guarded by police, even when the name of the victim or selective details are not. Government compels the insurance market to continue insuring the responsible driver, even if the market would consider the driver too risky to insure. The under-resourced legal system and insurance industry neglect and obstruct crash litigation, pressuring victims to simply accept whatever insurance is available without holding the driver personally responsible.

As mentioned in Street Justice last week, legislation has been proposed that would create felony liability in some cases where a driver flees the scene after seriously injuring or killing a person. At present, leaving the scene of a crash is a misdemeanor, often a class B misdemeanor punishable only by a fine of $250.00. That’s less than the fine for running a red light.  That we attach so small a consequence to the outrageous act of injuring a person and leaving them in the road to die is positively shameful.

In the last ten days, nine New Yorkers were killed by traffic violence. In each case where the driver responsible was sober and stayed at the scene, NYPD has announced, often within hours, that there was “no criminality suspected.” How can the deaths of so many fall completely outside the scope of the criminal laws?  The answer lies in the traditional emphasis in criminal law of punishing the “evil mind.” Meaningful driver accountability requires that we move past "evil minds" and implement strict criminal liability for traffic violence.

The U.S. auto industry presents a striking paradox. On the one hand, manufacturers design and engineer for passenger safety, incorporating features such as airbags designed to protect passengers even in the face of serious human error.  On the other, manufacturers almost entirely disregard the safety of pedestrians, cyclists, and other motorists who foreseeably will be struck by their vehicles.

It is little wonder why the rules of the road for cyclists are so poorly understood. They are hopelessly complex. The first layer of complexity (typical of many areas of law in the U.S.) has three parts: the interplay between state and municipal law governing the same subject matter; the interplay between legislation and administrative regulations; and the common-law system by which judges apply and give new and sometimes unexpected meanings to legislation and regulations.

Warning: this post starts with a lesson in legalese.