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.”


Saturday: Vigil Ride for Cyclist Jasmine Herron

Earlier this month, Jasmine Herron was killed while cycling on Atlantic Avenue, after a driver opened her car door and knocked Herron into the path of a bus. She was 23 years old. There will be a vigil ride for Herron this Saturday, the 25th, starting at 8:00 p.m. at the corner of Atlantic and […]

This Week: Help Improve Driver Education on Cycling

In response to the death of cyclist Jasmine Herron, who died after getting doored by a motorist on Atlantic Avenue last month, Brooklyn State Senator Eric Adams plans to release a bill to add bike safety components to the state’s required drivers ed courses. To build momentum, he wants to organize a group ride and […]

The Weekly Carnage

The Weekly Carnage is a Friday round-up of motor vehicle violence across the five boroughs and beyond. For more on the origins and purpose of this column, please read About the Weekly Carnage. Fatal Crashes (2 killed this week, 27 this year, 4 drivers charged*) Flushing: Meilan Jin, 22, Struck By MTA Bus Driver on […]

The Weekly Carnage

The Weekly Carnage is a Friday round-up of motor vehicle violence across the five boroughs and beyond. For more on the origins and purpose of this column, please read About the Weekly Carnage. Injuries, Arrests and Property Damage East Harlem: Driver Hits Pedestrian at E. 120th Street, Victim in Critical Condition (DNAinfo) Midtown: Drunk Driver […]

Maureen McCormick: On the Cutting Edge of Traffic Justice

Earlier this month Streetsblog talked with Leslie Crocker Snyder, candidate for Manhattan district attorney, about how she would approach pedestrian and cyclist fatalities as the borough’s top prosecutor. Today we will hear from a prosecutor who has made traffic justice the centerpiece of her career. From 1986 until 2005, Maureen McCormick served as an assistant […]