Cooper was holding my husband’s hand as they crossed 97th Street and West End Avenue. They were in the crosswalk, with the light. By law, they had the right of way. The taxi driver failed to yield while making a left turn.
According to the mayor’s office, driver error is a factor in 70 percent of pedestrian deaths in New York City, yet motorists are rarely held accountable. The Department of Motor Vehicles reports that motorists are cited for careless driving in less than 1 percent of crashes. Even fewer drivers are charged with a crime. How can drivers who kill innocent pedestrians go free?
Seventy percent? How is that possible? It must be that the balance of pedestrian deaths comes from being run down by Chinese food delivery bikes and people walking head first into the ubiquitous scaffolding poles while deeply engrossed with Facebook updates. I would have expected 90% or better.
But Bill de Blasio has a tragedy, a child killed in a crosswalk, and it cannot go to waste.
IN June, Mayor Bill de Blasio signed 11 bills related to Vision Zero, the city’s initiative to eliminate traffic deaths and serious injuries over the next decade. One was Cooper’s Law, named for my 9-year-old son, Cooper Stock, who was struck and killed by a cab on Jan. 10.
That a child died matters. But that does not give rise to the next step in the reasoning.
There was videotape evidence that the man who killed Cooper did not yield. Witnesses corroborated that the driver was not paying attention.
I soon learned, however, that the Manhattan district attorney’s office would most likely not charge the driver who killed my son with criminal negligence. A New York State case law precedent known as the “rule of two” stipulates that there must be two misdemeanors for a charge of criminal negligence to be brought against a driver who kills.
Not quite, but as the writer, Dana Lerner, is a psychotherapist and a mother who has suffered the loss of her child, she can be forgiven her imprecision. What the “rule of two” does is distinguish between mere negligence and criminality. It can be speeding plus, or recklessness plus, or any traffic infraction plus, but it requires that a driver go beyond a mere infraction before a tragic outcome is elevated from an unintended accident to a crime. Even the rule of two allows mundane conduct to be criminalized. There are a lot of traffic laws.
Indeed, pretty much any time a car strikes a pedestrian, it is inherently reckless. Drivers are required to both drive safely and allow pedestrians the right of way. There is no authorization to drive carelessly, recklessly, negligently. These are people in control of 2000 lb. missiles that can take the life of another human being in an instant. It’s really not too much to ask that they drive them with the utmost care.
But to err is human.
The wrongfulness of human conduct is not, contrary to the belief of New York’s new mayor, determined solely by outcome. Any failure to pay close and fastidious attention while driving could result in someone being harmed, even killed. And the pedestrian killed is, by definition, innocent. And the needless loss of life is tragic.
That doesn’t make for a crime, and doesn’t make the driver a criminal. I get that a mother who has lost her child needs some sense of revenge, some degree of comfort in knowing that the person who did this to her, to her baby, will pay for what he did. Much as we can explain how that won’t bring Cooper back, no one who hasn’t lost a child has the right to deprive a mother of her feelings.
The criminal law, however, isn’t a means of vindicating feelings, no matter how deep and awful the loss. Even the best of drivers, the most diligent and attentive person behind the wheel, will have a momentary lapse. Perhaps the problem is cars themselves, which demand much from their drivers to be used safely. Perhaps the problem is our attention span, or our rushed society, or traffic boredom and anger, or stress.
New York City is an awkward place for cars. While roads are clogged beyond belief, most New Yorkers (meaning the real ones, who live and work in Manhattan, not the poseurs who live next to cow fields upstate) don’t drive in the city. Many don’t even have drivers licenses. We use public transportation to get around, and hold no great love for the idiots who block the box in their Porsche Boxsters and Chrysler-built Maseratis.
But no matter how little regard you have for those pretentious foreign car owning, exhaust-fume spewing, drivers, or American-car-driving-foreigners in the case of medallion cabs like the one that struck down Cooper, they are not criminals because they drive like foolish humans.
Like Lerner, I too am deeply concerned about what I perceive to be the growing lack of attention by drivers, the selfishness as reflected by people’s doing whatever is good for them at the expense of the lives of everyone else on the road, the apparent inability to care enough about adhering to the norms of the road so you don’t needlessly risk harm to others. The others include me and my children, so yeah, I care.
Is the solution to create more crimes, to criminalize neglect, to turn everyone who suffers from human foibles plus a tragic unanticipated outcome into a prisoner? As furious as I was at the gal in the car next to me on the Long Island Expressway yesterday for veering in and out of lane as she held her smartphone close to her face, laughing uproariously at something, I don’t want her imprisoned. I just want her to get her head out of her ass. That makes her a person, not a criminal.