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Posts from the "Street Justice" Category

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If Police Don’t Take Traffic Violence Seriously, Vision Zero Will Fail

Eight months in, Mayor de Blasio and his administration should be proud of how much has been achieved under the Vision Zero program. As an attorney and advocate for crash victims, my expectations were exceeded by the early progress in almost every area of this multi-agency initiative. There have even been noticeable changes at the police department — the one agency that historically has been most resistant to stepping up on street safety. But as shown by the Dulcie Canton scandal NYPD’s response has been inconsistent. [Disclosure: The author is on the board of StreetsPAC, which endorsed Bill de Blasio for mayor, and his law firm represents Dulcie Canton.]

Dulcie’s case illustrates the gaping holes that remain in NYPD’s approach to Vision Zero. She was struck with tremendous force in a horrific hit-and-run crash on August 7 and suffered serious injuries, somehow managing to escape with her life (in large part because she was wearing a helmet). Surveillance video shows a sedan driver speeding behind her fully-illuminated bicycle, striking her, and driving off without so much as hesitating.

Although, as is often the case, the surveillance video did not capture the car’s license plate, and the driver sped off before witnesses could get a look at him, Bushwick residents at the crash scene came together in a remarkable way to help identify the driver. The owner of the building by the crash site went to extraordinary lengths to preserve footage from his surveillance cameras. People on the block recovered a piece of the car that fell off when it struck Dulcie, bearing serial numbers that link it to the vehicle. The skateboarder with Dulcie that night worked with neighbors to identify the car, parked just a block or so from the crash scene. This prompt action from neighborhood residents — the lengths people went to in order to help a crash victim and find a perpetrator — shows just how much the principles of Vision Zero matter to New Yorkers.

All that was left for me to do as Dulcie’s lawyer was to bring this evidence to the police and let them do their job — or so I thought. But that’s where the process broke down. Because Dulcie thankfully hadn’t been killed or critically injured, the NYPD’s Collision Investigation Squad did not respond. Instead, a detective at the 83rd Precinct was assigned to investigate the case as a hit-and-run. With all optimism, I met with the detective on the fourth day after Dulcie’s crash and gave him all the evidence, and told him we were waiting to inform the insurer of the car of our claim because we didn’t want the company to alert the owner of the car to the investigation.

Over the following month, I followed up with the detective several times by phone and in writing. He explained to me that he was busy with a heavy caseload and needed more time before he could question the owner. After three weeks, the Bushwick neighbors who had been so helpful and had continued to monitor the car advised that the owner had fixed the damage from the crash. Now that critical evidence was being lost and concealed, we had to act, and so the car’s insurer was alerted.

Naturally, I heard back from the insurer that the owner of the car denied any knowledge of the incident. But recent press attention to this case has caught the attention of some law enforcement officials, and following a meeting yesterday it appears that Dulcie’s crash may finally be investigated as it should have been. Many thanks to folks who made phone calls and used social media to help us move this case higher on NYPD’s to-do list!

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DMV Cheating Cyclists With Unlawful Surcharges and License Points

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As NYPD’s latest bike ticket blitz — “Operation Safe Cycle” – rolls into its second week, here at my law firm we’ve been getting more than the usual number of phone calls and emails from cyclists with questions about summonses. Usually the big question in these discussions is whether to plead guilty, not how to plead guilty. But now it appears that if you pay your fine online for a moving violation while cycling, you’ll probably be paying an $88 surcharge that you shouldn’t be, and getting points on your license that don’t belong there.

The problem arises when cyclists make their plea and pay the fine online, as most who receive traffic tickets in New York City do. Even though traffic tickets issued to cyclists usually indicate on their face that the vehicle is a “bicycle,” the DMV’s online payment system appears to ignore this fact.

Yet the DMV’s own rules with respect to surcharges and license points make crystal clear that they do not apply to cyclists. The specific provisions of law that exempt cyclists from the $88 surcharge and from points are set forth in a letter we recently sent to the DMV demanding that it cease and desist from applying these unlawful penalties. We have yet to receive a response.

This is no simple computer glitch either. Judging from the pre-printed traffic forms supplied by the DMV, you’d think it’s trying deliberately to trick cyclists into overpaying their fines. The form states: “included in the total amount for each violation (except equipment) are mandatory surcharges in the amount of $88. Equipment violations include mandatory surcharges of $58.”

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A Powerful New Tool to Deter Traffic Violence — If Law Enforcers Use It

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Last Thursday, the New York City Council passed Intro 238. This legislation makes it a misdemeanor for drivers to strike pedestrians or cyclists who have the right of way. Intro 238 has the potential to dramatically change driver behavior and advance the Vision Zero program of eliminating traffic fatalities.  But without enforcement by NYPD and prosecutors, Intro 238 will be no more than an unheeded “message in a bottle.”

What makes Intro 238 potentially so revolutionary? And why should we expect law enforcement to embrace it? To answer those questions, let’s do a quick review of how and why this legislation came to pass.

The need for criminal penalties to deter reckless driving is plain from the story of Ally Liao, told by her parents in City Council testimony this April supporting Intro 238 (videotape here). Allie was crossing hand-in-hand with her grandmother, in the crosswalk with the “Walk” signal, when a driver turned into them and killed her. The driver told police that he had looked for pedestrians in the crosswalk and hadn’t seen any. Police then told the Daily News that Ally had “broken free” from her grandmother, suggesting that the entire incident should be treated as a “tragic accident” befalling a rambunctious and poorly-supervised child.

But the video tells a very different story – one that plays out hundreds of times each year on New York City streets. Ally and her grandmother followed all the rules, but the driver still faced few consequences for killing her.

The city should make it a crime to drive this recklessly. That is the basic idea behind Intro 238, which originated with a proposal first discussed with candidates in StreetsPAC endorsement interviews, then published here on Streetsblog, and then lobbied for by Transportation AlternativesFamilies for Safe Streets, and many others.

Following the April hearing, the City Council amended Intro 238 to protect not only pedestrians, but also cyclists.  The law will take effect 60 days after it is signed by Mayor de Blasio, who at his January Vision Zero press conference acknowledged that reckless drivers “do not face sufficient consequences.”

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NYPD Denies Access to Confiscated Bikes, Including Those of Crash Victims

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As seasoned observers of the department’s dealings with bicyclists know, NYPD has long enjoyed taking our bikes. Following the 2004 Republican National Convention, NYPD clipped locks and took bikes of persons suspected of associating with Critical Mass, resulting in a successful federal lawsuit that enjoined the practice as a constitutional violation. During a 2010 visit to New York by President Obama, NYPD without notice confiscated bikes wholesale along the president’s route, failing to tag the bikes and making it extremely difficult for their owners to reclaim them. Now, NYPD has taken things to the next level by shuttering its bike pound for a year and a half, and refusing to allow owners to claim their bicycles indefinitely.

The problem came to light during efforts by the Lefevre family to retrieve the bicycle of fatal crash victim Mathieu Lefevre. [Disclosure: Steve Vaccaro of Vaccaro & White is counsel to the Lefevre family.] NYPD has moved to quash a court-ordered subpoena to produce the bicycle Lefevre rode the night he was killed. This comes on the heels of well-documented foot-dragging by the NYPD in failing to respond to the Lefevres’ requests for information in the immediate aftermath of their son’s death, drawing extensive press attention, from Streetsblog to the New York Times. The Lefevres ultimately sued the NYPD to get the investigative documents to which they were entitled, resulting in judicial criticism that NYPD “needlessly delayed handing over documents and other materials” in a manner “agonizing” to the family.

In this latest example of NYPD stonewalling, the Lefevres issued a subpoena to the NYPD to produce the bike for use as evidence against the driver. The Lefevres’ papers state that the bike is needed to reconstruct the manner in which the crash occurred, and to test the driver’s claim that he was unaware that he had struck Lefevre when he left the scene of the crash. A picture of the bicycle taken by police the night of the crash shows extensive damage:

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NYPD’s Jaywalking Enforcement Boondoggle

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Although the de Blasio administration’s Vision Zero plan to eliminate traffic fatalities does not specifically call for pedestrian traffic enforcement, NYPD Commissioner Bill Bratton has made clear that individual precinct commanders have the discretion to do so if they determine it to be warranted.

Leaving aside the many good reasons that pedestrian ticketing should be considered NYPD’s lowest traffic enforcement priority, it now appears that many NYPD officers (and some precinct commanders) do not even understand the traffic laws that apply to New York City pedestrians. The NYPD’s jaywalking enforcement boondoggle points to the need for comprehensive in-service training for NYPD officers on pedestrian, cyclist, and motor vehicle traffic laws.

After three Upper West Side pedestrians were killed by motor vehicles within a short period of time and within two blocks of Broadway and 96th Street, the commander of the 24th Precinct apparently decided that pedestrian traffic enforcement was needed. (Only one of the three pedestrians killed, Samantha Lee, was alleged to have violated traffic laws).

Building on this disconnect between the problem and the proposed solution, officers of the 24th Precinct proceeded to cite pedestrians for violation of New York State Vehicle & Traffic Law Section 1152, “Crossing at other than crosswalks.” This law does not apply in New York City — NYC DOT has superseded it (see page 16 of this pdf, 34 RCNY Section 4-02(e)) under New York City’s delegated authority to legislate with respect to the right of way of vehicles and pedestrians.

Making matters worse, the officers issued summonses returnable to New York City Criminal Court — even though a violation of traffic law was alleged. What did the Criminal Court do with the summonses it was asked to adjudicate for violation of a non-applicable, non-criminal traffic violation?  It dismissed them — of course:

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How the City Council Can Impose Tougher Penalties on Reckless Drivers

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The election of numerous safe streets candidates earlier this month, followed by the exoneration of road-raging cabbie Faysal Himon and the gut-wrenching parade of daily traffic deaths since, create the best opportunity in years to impose meaningful consequences for sober reckless driving.

I have been told by numerous lawyers with state legislative experience that only Albany can tinker with criminal penalties for reckless driving. But I’m not sure that’s true. Outlined below is the case for legislative reform, the authority of the City Council to enact reform, and a proposed bill reflecting what reform should look like.

Why New Laws Instead of Better Enforcement of Existing Laws? Before putting new laws on the books, better to first ask whether existing laws are adequate to punish and deter sober reckless driving. New York State Vehicle and Traffic Law (VTL) Section 1212 — entitled “Reckless Driving” — would seem to fit the bill. It reads:

Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor.

Pretty good, huh? The statutory text requires only that a driver “unreasonably interfere with” or “endanger” another person to be guilty. The offense is classified as a misdemeanor, creating criminal penalties for reckless driving.

Isn’t the answer simply to vigorously enforce this law? No, for three reasons:

  • Despite the clear “causing unreasonable danger/interference” standard spelled out in the statutory text, courts applying it have seized on the word “reckless” in the title of the statute and used it as a reason to smuggle in the entirely foreign penal law concept of recklessness, which requires a finding that the driver “grossly deviated” from “reasonable” conduct. This is a much harder thing to prove, as the Court of Appeals held in People v. Cabrera.
  • Even if a “gross deviation” demonstrating recklessness is found, VTL 1212 does not specify a penalty, and so the default penalty for unclassified misdemeanors applies — a maximum of 30 days in prison and $300 fine.
  • In practice, it is commonplace for judges hearing reckless driving charges to offer the driver an “adjournment in contemplation of dismissal” (ACD) which allows the driver to avoid prison time and a criminal record.

If you have the pleasure of receiving a summons to criminal court for cycling on a bike path or talking back to a cop, you will watch a handful of drivers who received reckless driving charges get off with an ACD and a fine of $100 to $200 (sidewalk cyclists are usually offered, and often take, the same ACD deal with a $50 fine). For a driver who injures or kills a vulnerable street user, an ACD plus a $200 fine is not meaningful punishment or deterrence.

Accepting as true that it is extremely difficult to win legislative reform of traffic laws in Albany, what can city government do?

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Reforming NYPD Crash Investigations: What’s Next?

New Yorkers were outraged to hear yesterday that there may be no criminal charges against cab driver Mohammed Himon, who plowed into a bicyclist and several pedestrians, horribly injuring a woman on the sidewalk. Although yesterday’s NYPD statement was not official, anonymous leaks to the effect that sober drivers who stay at the scene of a crash will face no criminal charges are almost always borne out  — unless the District Attorney conducts its own investigation.

Today brought welcome news that office of Manhattan DA Cy Vance is investigating the crash and has not ruled out charges. Based on the facts as reported to the public to date, a charge of first degree assault is supportable and should be vigorously pursued.

But even if the DA’s office secures a conviction of the driver, the fact remains that many hundreds of crashes involving sober, stay-at-scene drivers who recklessly cause serious injury or death to pedestrians and cyclists typically end with no serious consequences for the driver. These crashes go uninvestigated, under-investigated, and/or unprosecuted, due to the apparent presumption that harm done by a motorist is mere “accidental” negligence — even when there is clear evidence of multiple traffic violations, or road rage, at the root of the harm.

Despite the public outcry over the last two years for meaningful NYPD investigation and charging of non-drunk, stay-at-scene reckless drivers, it appears nothing has changed.  What has brought us to this point?

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Personal Security and Livable Streets

Yesterday’s watershed decision in Floyd v. New York, in which federal Judge Shira Scheindlin found NYPD’s stop and frisk program unconstitutional, has thrown a spotlight on the issue of personal security. Mayor Bloomberg, Commissioner Kelly at his side, utterly rejected the decision, suggested it would directly result in increased violent street crime, and vowed an appeal.

Judge Scheindlen made clear that her decision was based on the constitutionality of the program, not on the possible desirability and effectiveness as a deterrent to crime. Surely the vast majority of New Yorkers want and expect a public realm reasonably free from street crime. Does that mean livable streets advocates should consider taking the administration’s view of the personal security debate? Here are some reasons why not.

Racial profiling destroys the public realm:Planners strive to create urban places in order to draw people into the public realm for the enrichment of shared experience. In a city as diverse as New York, a program of harassment that discourages racial minorities from being out in public or in certain neighborhoods is directly at odds with this goal. Judge Scheindlen found that the NYPD’s stop and frisk program was exactly that: a program of racially profiling black and Latino males for humiliating stops and frisks. She rejected the city’s rationale for the racial disparity in the program — that the majority of persons suspected and arrested for crime are black and Latino males. The circularity of this approach is self-evident. It impoverishes everyone’s experience of the city.

Without suggesting that NYPD enforcement of traffic laws against cyclists is equivalent in any legal or political sense to the racial profiling and discrimination proven in Floyd, I’m not surprised that there are clear parallels between the two — since it is the same officers doing the policing. These parallels nicely illustrate the “community suspicion” principle underlying Judge Scheindlin’s finding of constitutional violations.

In one seemingly race-neutral example of this “community suspicion” approach, an NYPD lieutenant was heard “instructing officers to stop anyone on a bike who is carrying a bag near an area where there have been car break-ins. ‘Those are good stops,’” the lieutenant asserted. “Community suspicion” is not only unconstitutional, but has a chilling effect on community members’ willingness to venture out in public — a vital ingredient to the streets we all want.

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Rally for Our Right of Way

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.

It is a staple of urban stereotypes that New Yorkers jealously guard their right of way and are constantly pushing against the envelope of others. Cars inch into the crosswalk in anticipation of a green light or to force a way through pedestrians’ right of way. Cyclists with open road before them take the lane, then when vehicular traffic slows, cut a labyrinthine path in and out of traffic lanes and around pedestrians. Pedestrians walk imperiously out into traffic and seem determined to make the absolute minimum changes in course and speed necessary to avoid collisions. If each group engages in a roughly equivalent level of traffic misbehavior, then haven’t we achieved a rough justice in respecting each others’ right of way?

Of course not. It is abundantly clear to those who travel our streets without motors, armor, and padding that the terms of engagement with those who do involve a distinct, and dire, risk assessment. Pedestrians and cyclists fail to anticipate what a motorist is about to do at peril of life and limb. But as every Streetsblog Weekly Carnage reader knows, motorists are likely to drive away from a fatal crash without a scratch, criminal charge, or even a traffic ticket. The apparent equivalence of “every-person-for-themselves” traffic chaos masks how much the deck is stacked against pedestrians and cyclists, who make up half of the victims in the hundreds of fatal New York City crashes each year, but cause no more than a few traffic deaths per decade.

As long as the design of our streets and automobiles optimize motorists’ speed and power vis-a-vis other street users, the laws and customs regarding right of way are the only things that keep the numbers of pedestrian and cyclist fatalities and serious injuries in check. Great strides have been made in recent years to redesign New York City streets to prioritize safety, and as Nicole Gelinas recently reported, hundreds of lives have been saved as a result.

Many more lives could be saved if NYPD stepped up enforcement of traffic laws against dangerous driving in neighborhoods, instead of wasting time on fish-in-a-barrel summonsing of technical violations. Seven NYPD officers are assigned daily to check every tour bus and truck for explosives, right outside my office. Why aren’t officers assigned to checking giant semi trucks for approrpiate mirrors, other safety equipment and permits before they cross a bridge or tunnel into the pedestrian rich streets of our city? The parents of Renee Thompson and every other victim or survivor of traffic violence has a right to an answer.

But the possibility of meaningful intervention by NYPD into the city’s survival-of-the-biggest traffic culture — and maybe even the street redesign gains of the last six years — is in jeopardy. None of the leading contenders for mayor have made street safety a top priority in their platform, even though traffic violence is the greatest cause of injury-related death in NYC. The tabloid media, which potently shapes popular opinion, continues for the most part to emphasize the personalities of perpetrators and victims over the common thread of preventability running through the endless, numbing procession of lives tragically cut short or wrecked.

That’s why is so important for eveyone who gives a damn about fairness in right of way to come to City Hall tomorrow at 8:30 a.m. To give a public voice to the searing pain crash victims and their survivors suffer in private due to official neglect. To punch through the nauseating business-as-usual approach to traffic violence. To show the candidates running for office that traffic violence is not just another token issue to play politics with, to check or uncheck the box. Please come to City Hall tomorrow to demonstrate that right of way is a fundamental urban right that government has a duty to protect.

Steve Vaccaro is an attorney with the Law Office of Vaccaro & White.

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NYPD Looking for Criminality in All the Wrong Places

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.

Ten days ago I was asked to help a pedestrian crash victim. This 30-year-old woman sustained serious multiple fractures and other injuries that may prevent her from walking normally again.  She remains in the hospital two weeks after her crash, half that time spent in an intensive care unit. But because she remained conscious at the crash scene, her case apparently was not deemed “critical” and therefore the CIS was never called.

Only because her family acted quickly was videotape and other evidence concerning the crash recovered — without NYPD assistance. This evidence revealed that the motorist responsible was speeding at approximately 45 mph on a zebra-striped “no drive” lane, attempting to illegally pass other vehicles, and then swerved back into another lane striking his victim.

That driver will never receive a summons, or a suspension or revocation of his license, because NYPD did not investigate the crash as it is required to do in all cases of serious injury. “No criminality was suspected,” because no NYPD officer looked or even considered the possibility that the driver’s conduct was reckless enough to justify a criminal charge — even though witnesses told the police responding to the scene that the driver was speeding and swerving recklessly. NYPD was not looking for criminality at the crash site, so it never found any.

While NYPD likes to claim that the agency lacks the resources to properly investigate all serious crashes, at the same time it assigns police to give out garbage summonses. And when it comes to summonsing cyclists, NYPD clearly is looking for criminality in the wrong places. The recent case of Hilda Cohen provides a clear example of how NYPD officers, either by design or ignorance, fundamentally misunderstand how the traffic laws apply to cyclists (disclosure: I am Hilda’s friend and fellow StreetsPAC board member).

Cohen received two summonses for bicycling in a manner which, if you accept her account, was completely lawful. But the most remarkable thing about these summonses is that they purport to be for criminal offenses.  In the case of the “reckless bicycling” charge Cohen received (violation of New York City Administrative Code 19-176(b)), this is a violation which according to the regulation can result in a “civil penalty” only and must be adjudicated before the New York City Environmental Control Board. This provision is written in language almost identical to another Administrative Code provision for enforcement of solid waste separation for recycling, and should be enforced in the same manner. But NYPD officers routinely charge sidewalk cyclists using a criminal summons returnable in criminal court.

Simply by using the wrong form of summons, NYPD forces cyclists like Cohen to appear in person at criminal court to enter a plea, and often a second time if the plea is not guilty. Despite the wording of the regulation, there is a substantial risk that a cyclist mistakenly “convicted” in criminal court for a violation of Section 19-176(b) would be deemed to have a criminal record, something that must be disclosed on many job and other applications. Instead of simply paying a fine by mail — like a motorist who commits a traffic violation or a resident who doesn’t separate her trash — cyclists issued criminal summons for reckless bicycling face days of work missed, the possibility of a criminal “conviction,” or significant legal fees if they wish to plead not guilty.

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