How the Daily News Gets the Right of Way Law Completely Wrong

Bianca Petillo McCloud, 18, was walking across 132nd Avenue in Rochdale, Queens, when she was struck by a turning truck driver and killed. Police did not issue so much as a citation, even though the circumstances of the crash suggested that McCloud had the right of way.

Shirley Shea died 10 months after she was struck by a school bus driver who violated her right of way in a crosswalk. Police barely investigated the crash and did not cite the driver, a situation the Right of Way Law seeks to remedy.

Nor did police issue any charges to the truck driver who turned across the path of 24-year-old Emma Blumstein as she biked straight ahead on Bedford Avenue with the green light. Blumstein was pronounced dead at the scene.

And there were no charges for the school bus driver who struck Shirley Shea, 78, as she crossed 67th Street at Columbus Avenue with the walk signal. Shea died 10 months later as a result of injuries sustained in the crash.

I bring up this awful loss of life because the Daily News opinion page ran two pieces condemning the city’s new Right of Way Law over the weekend — one by the editorial board and the other by City Council Member I. Daneek Miller — with only one mention of someone hurt or killed by a driver who failed to obey the law.

The piece from the editorial board had the laziest mistakes, so let’s start with that. According to the Daily News:

The criminalizing of failure-to-yield accidents grew out of the notion, espoused by some transportation advocates, that there is virtually no such thing as a traffic accident. In almost every case, someone did something wrong, so that’s a crime.

Those advocates may often be right in the most technical, literal sense, but not in the real world and certainly not in a criminal justice system that demands proof beyond a reasonable doubt after the handcuffs have been released.

This is completely wrong, coming and going.

The Right of Way Law was designed to fix a very specific, “real world” problem — police and prosecutors were not holding drivers accountable for hurting people even when they clearly broke the law. The Right of Way Law does not criminalize drivers “in almost every case” that they injure someone — it applies strictly to crashes in which people are walking or biking and following all the rules, only to get hit by a driver who violated their right of way.

The law is not out of step with the norms of the criminal justice system. Police must have probable cause to charge a driver for violating the Right of Way Law. To secure a conviction, law enforcement must prove guilt beyond a reasonable doubt. What police and prosecutors do not have to establish is the driver’s “culpable mental state.” This is no different than the standard used to determine guilt when a drunk driver kills someone.

Before the law passed, police were not even investigating crashes that hurt New Yorkers unless officers personally witnessed the collision or the victim was deemed likely to die. What’s happening now is that, instead of brushing off every non-fatal crash that an officer didn’t see firsthand as “just an accident,” NYPD is actually investigating some of them. Sometimes, they find that the driver violated the victim’s right of way, and this results in arrest.

To hear the Daily News tell it, the Right of Way Law is “meting out jail” to drivers. Here’s what the law actually does:

  • The Right of Way Law made it an unclassified misdemeanor for drivers to strike pedestrians or cyclists with the right of way. (Other unclassified misdemeanors include driving while intoxicated and biking on the sidewalk in such a way that endangers people or property.)
  • The maximum fine for violating the Right of Way Law is $250, and the maximum sentence is 30 days in jail, but in practice a first-time offender will never face jail time.
  • Unclassified misdemeanors usually get pled down to traffic violations in court.

So, these are the types of sanctions we’re talking about for drivers who maim and kill people with the right of way. A fine equivalent to a red light ticket and a misdemeanor charge that will probably morph into a traffic citation. The law is prompting police to investigate and find wrongdoing in cases they would have glossed over before, but the penalties are not severe.

The incident that precipitated this round of debate involved the arrest of an MTA bus driver who maimed a 15-year-old girl crossing the street with the light. Of the 17 drivers charged under the city’s new Right of Way Law, six have been MTA bus drivers, according to the Daily News. This suggests that police may be applying the law disproportionately to bus drivers, as the TWU has alleged, but more than anything it shows that NYPD should be citing many more drivers than it has so far.

In December alone, more than 1,200 pedestrians and nearly 200 cyclists were injured in traffic, and 10 pedestrians were killed. We don’t know exactly how many of these collisions were caused by drivers who violated someone’s right of way, but failure to yield is responsible for 27 percent of serious pedestrian injuries and deaths in New York City, according to NYC DOT’s 2010 Pedestrian Safety Study and Action Plan [PDF]. There are hundreds of cases each month where the Right of Way Law should be enforced, not just a handful.

The Daily News’ preferred tactic — “ramp up failure-to-yield summonses before anyone has been hit” — is a complement to enforcement of the Right of Way Law, not a substitute for it. If NYPD actually followed the editorial board’s advice, the result would be tickets for drivers who don’t hit people and no penalty whatsoever for most drivers who do. How does that make sense?

City Hall is standing firm behind the law. “The new failure-to-yield law is a vital tool in our efforts to protect pedestrians and make our streets safer,” a spokesman for the mayor, Wiley Norvell, said in a statement on Thursday. “We will work with our partners at the M.T.A. and push for the training and support drivers need to do their job safely, and we are looking closely at changes we can make on our streets to prevent crashes between pedestrians and buses.”

There’s an opening here: Maybe MTA buses can be better equipped to improve drivers’ field of vision and reduce the stress of the job. That would be in line with a Vision Zero approach to street safety. But weakening a law that is just starting to get NYPD to take reckless driving seriously would be a step backward.

Barron Lerner, a chronicler of the movement to combat drunk driving whose nephew, Cooper Stock, was killed by a turning taxi driver on the Upper West Side in 2014, predicted that treating reckless driving as a crime would encounter similar resistance. His piece in the Times last January continues to resonate in light of the events surrounding the Right of Way Law this month:

…I also understand the many pitfalls Vision Zero is likely to encounter. As the author of a book on the history of drunk driving, I know that efforts to criminalize drunk driving were long stymied by a cultural indifference to the problem. Well into the 1970s, police and prosecutors looked the other way, seeing drunk drivers either as diseased alcoholics, young men sowing their wild oats or, paradoxically, victims themselves, even if they killed or maimed people. Judges and juries — perhaps because they, too, secretly drank and drove or knew those who did — were reluctant to convict.

Police told family members that their loved ones — the actual victims — had been “in the wrong place at the wrong time.” Crashes were called accidents.

Things finally changed in the 1980s when Remove Intoxicated Drivers (RID) and Mothers Against Drunk Driving (MADD) burst on the scene. Members of these groups had often lost children at the hands of drunk drivers, many of whom had several previous arrests and no convictions. These parents were viscerally offended when they learned that killers were allowed to plead down to traffic or parking violations.

This activism affected a sea change. Drunk driving is no longer seen as youthful folly but a serious crime. Between 1980 and 1985, states passed more than 700 laws lowering the acceptable blood alcohol level and tightening loopholes. “Friends,” we were told, “do not let friends drive drunk.”

Perhaps the most important lesson learned was that drunk drivers were still responsible for the damage they caused, even though the harms they inflicted were unintentional.

Correction: This piece originally stated that neither opinion in the Daily News mentioned people who were hurt or killed by drivers who broke the law. The piece has been amended to reflect that the Daily News editorial board did mention Jiahuan Xu, who was struck by an MTA bus driver.