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 course of a collision, that automatically allows for a criminal charge because one violation would be considered ‘ordinary’ or civil negligence.”

The driver who doored cyclist Jasmine Herron reportedly broke up to three laws, but was not charged for Herron's death. Photo via ## Bikes##

Though the “rule of two” has no statutory basis, it is the standard by which police and prosecutors determine whether to pursue charges related to taking a life. Except when it isn’t.

In September of 2010, Brooklyn cyclist Jasmine Herron was fatally struck by a city bus after she was doored by an unlicensed driver who reportedly left the scene. Krystal Francis was initially charged for driving with a suspended license. Prosecutors also levied a felony count for leaving the scene, but that charge was later dropped.

On Tuesday, Francis was found guilty of aggravated unlicensed operation of a motor vehicle in the third degree, a misdemeanor that stipulates that Francis drove without a license when she knew or should have known she didn’t have one.

Since there was no charge issued for dooring, the “rule of two” was not in play, and Francis was not charged for the death of Jasmine Herron.

This is not the first time city law enforcers have not pursued negligence charges despite the apparent presence of at least two violations. Here are other recent instances:

  • Yolanda Casal: Killed in Manhattan by an unlicensed driver backing up a one way street
  • Sonya Powell: Killed in the Bronx by an unlicensed driver who left the scene
  • Catorino Solis: Killed in Manhattan by an unlicensed driver who ran a red light
  • Brian Waldman: Killed in Brooklyn by an unlicensed driver who left the scene

In none of these cases was the driver charged for causing a death.

When one is conditioned to tally up attendant charges, it becomes startlingly easy to overlook the fact that in most cases the act of fatally striking a person with a motor vehicle is not itself considered an offense. Ibrihim Ahmed, Joshua Ganzfried, Dorothea Wallace, Roxane Murano, Margaret Walsh, Andrzei Wiesniuk, Clara Heyworth and Laurence Renard were all killed by drivers who, if nothing else, were breaking the law just by being behind the wheel, yet their deaths were not adequate cause to trigger the “rule of two.”

Speaking to Streetsblog a couple of weeks ago, Saba Michaud marveled at the circumstances surrounding the death of her sister, cyclist Rasha Shamoon. Something she said summed up the vagaries of New York’s traffic justice system as succinctly as I’ve heard.

“You can get a ticket for using a cell phone,” said Michaud, “but not for killing someone.”