Adding “Violence” To The Back-End (Update)

The image was of some Mad Max villain driving his auto of death toward a crowd of children at ramming speed.  But that wasn’t what they were really talking about, because that’s not what happens in New York City.  The drivers have no desire to kill or maim, but to get where they’re going like anyone else.

For anyone who hasn’t had the pleasure of driving a car or truck in Manhattan, it’s not like Kansas.  Cram enough people into a space too small to hold them all and something has to give. Add to it cabs going vertical to grab a fare, and boxes (the square where an avenue and street cross) jammed for three consecutive lights, and frustration abounds. Then there are bikes weaving between cars and people crossing wherever it works for them, and you’ve got chaos.

And sometimes, perhaps too often, cars hit something. Other cars, bikers and pedestrians.  Nobody means to have this happen. Sometimes, drivers aren’t as accommodating as they should be. New Yorkers can be rude that way, putting themselves first and expecting, forcing, the other guy into a game of chicken.

But when I saw this website, the one that made me think Mad Max at Madison Square Garden, it coalesced into the next dangerous conflation of law.

Families of Traffic Violence Victims Demand Justice From District Attorneys 

Traffic violence?  So by adding the word “violence” to the back-end, it converted the tragedy of a traffic accident to a crime?  That’s exactly the game they’re playing.

Braving the cold, more than 150 people gathered on the steps of City Hall yesterday to demand that New York City’s five district attorneys begin filing charges against reckless drivers who kill and injure New Yorkers on the streets.

“The five New York City district attorneys have failed to do their job,” said Amy Cohen, who helped found Families For Safe Streets after her 12-year-old son Sammy was killed in 2013. No charges were filed against the driver who killed her son. “New York City has a culture of lawlessness on our streets, because reckless drivers are not held accountable,” she said.

Charges are filed against drivers who commit crimes.  Recklessness is a mental state,* not an adjective that gets tossed at anyone who has an accident that results in tragedy.

“Recklessly.” A person acts recklessly with respect to a result or  to a circumstance described by a statute defining an offense when he is  aware of and consciously disregards a substantial and unjustifiable risk  that such result will occur or that such circumstance exists. The risk  must be of such nature and degree that disregard thereof constitutes a  gross deviation from the standard of conduct that a reasonable person  would observe in the situation.  A person who creates such a risk but is  unaware thereof solely by reason of voluntary intoxication also acts  recklessly with respect thereto.

This isn’t a slap in the face of mothers whose children have been harmed or killed, but a distinction between conduct that is criminal and accidental.

Charges for reckless or negligent driving are exceedingly rare absent other aggravating circumstances, even in cases where the victim dies. Since January 2012, more than 500 pedestrians and cyclists have been killed by drivers in NYC, but in only two known occasions have city DAs filed homicide charges against a driver who was not drunk, fleeing the scene, running from police, or intentionally attacking the victim, according to records kept by Streetsblog. Fewer than 2 percent of drivers in non-DUI cases are prosecuted, according to Families For Safe Streets.

There is a reason for this, but those who want “justice” because of back-end consequences don’t really care and those who find arguments like this influential don’t really understand. That the end result was a tragic loss of life doesn’t make the conduct causing it criminal.  That the driver who caused the accident committed a traffic infraction doesn’t, standing alone, raise the culpability to a crime.

This isn’t a matter of being unsympathetic toward the victims of traffic accidents, and unlike so many others who usurp the language of victimhood for their own ends, they are very much victims.  But then, they also can’t usurp the language of crime by adding the word “violence” to the end of traffic.  This isn’t traffic violence. Mad Max was traffic violence. This is traffic accident, as painful as that may be to a mother whose child was lost.

What makes this particularly alarming is that it’s part of a larger trend to connect unrelated words to give rise to an appearance of criminality where none exists, or should exist.  The Utopian notion of a city where no one is ever hurt in a traffic accident is clearly something that most would favor, though the nature of human beings in command of 2,000 pound machines in the midst of Manhattan chaos makes that an unlikely outcome.

Rather, by conflating criminality with tragic outcome, what this well-intended group would produce is another group of criminals, except for the lack of having done anything more wrong than being lousy drivers, if only for a moment.  Can anyone say they are a perfect driver? Does anyone manage to drive so well that they violate no traffic law?  And if the moment of inattention, or speeding, or whatever, ends in tragedy, is there anyone who thinks they deserve to be convicted and imprisoned for it?

Because if you do, then what you are suggesting is that the crime, the conduct you engaged in and over which you had control, is worthy of prosecution and imprisonment. Whether you strike someone or get home safely is fortuitous, but you committed the crime the moment you failed to be the perfect driver, the rest being just dumb luck that there wasn’t a child in your path.

The push to criminalize every potential bad outcome, for which there are a growing number of groups each with their own issue that cries for “justice,” uses rhetorical devices such as adding “violence” to the back-end to obscure its conceptual emptiness.  Just as calling victims “survivors” when their life wasn’t threatened, it’s a trick played on the public to generate support for a cause among people who don’t understand the issues or problems, and are susceptible to emotional pleas without sufficient thought behind it.

The death of a child, of anyone, in a traffic accident is tragic. That death results, however, doesn’t make something a crime, and doesn’t justify the conflated phrase “traffic violence.” Now you know. Don’t fall for it.

*  While the word “reckless” is used, it’s more likely that they are calling for prosecution for criminally negligent homicide, Penal Law §125.10. Criminal negligence is defined as:

“Criminal negligence.” A person acts with criminal negligence with  respect to a result or to a circumstance described by a statute defining  an offense when he fails to perceive a substantial and unjustifiable  risk that such result will occur or that such circumstance exists. The  risk must be of such nature and degree that the failure to perceive it  constitutes a gross deviation from the standard of care that a  reasonable person would observe in the situation.

This remains a long way off from common negligence that gives rise to civil liability for damages.

Update: After posting, Dave Goodkin sent me this decision out of Michigan, People v. Stinchcomb, where ordinary negligence plus tragic outcome is a crime.

A negligent homicide conviction requires that the prosecution prove beyond a reasonable doubt that:
(1) defendant was operating a motor vehicle, (2) defendant was operating the vehicle at an immoderate rate of speed or in a careless, reckless, or negligent manner, (3) defendant’s negligence was a substantial cause of an accident resulting in injuries to the victim, and (4) those injuries caused the victim’s death. People v Tims, 449 Mich 83, 95, 99, 103-104; 534 NW2d 675 (1995).

The Court drops a footnote which shows the absurdity of this view:

While we recognize that the prosecution has broad discretion to bring any charge supported by the evidence, People v Nichols, 262 Mich App 408, 415; 686 NW2d 502 (2004), it is regretful that the obviously unintentional actions of defendant resulted in a negligent homicide charge. By all accounts, defendant simply overcompensated in swerving to avoid a vehicle that was difficult to see and, in doing so, caused the death of his friend and co-worker. We are hard-pressed to think of circumstances more deserving of the exercise of lenient prosecutorial discretion.

The only safety valve is prosecutorial discretion. What could possibly go wrong?

20 thoughts on “Adding “Violence” To The Back-End (Update)

  1. rich

    So if I stagger out of a bar and into the street and get hit I get to go on a daytime talk show and call myself a “survivor of car violence”?

  2. Nathan

    I agree, they’re probably being unsophisticated in their use of language. “Reckless driver” is normal-person-speak for “negligent driver.” And most accidents are either true accidents or the result of ordinary negligence. But I do get the (purely anecdotal) sense that a significant number of traffic deaths in this town are caused by drivers who were not merely careless but were completely unjustified in driving that way, if at all.

    It may be that prosecutors don’t want to charge cases that would be too hard to prove to a jury. Proving that someone crossed the line from “he wasn’t paying enough attention” to “he belongs in jail” could be too iffy in a lot of these cases. If that’s the case, then the DAs are doing the right thing. No prosecutor should ever write up a case they don’t believe they can prove beyond a reasonable doubt.

    For most of these fatalities and injuries, the cases belong in civil court. This might be another area of unsophistication on these folks’ part. A huge number of people don’t realize that criminal prosecutions and civil lawsuits are separate things involving different bodies of law and different courts. To many, “illegal” can mean breach of contract as well as murder. Plus, a lot of people in this town think that if there’s a wrong, then the government should be taking the action to fix it, rather than the wronged individuals acting on their own behalf, and so we get more calls for criminal prosecution where a civil lawsuit would have been appropriate. And even those who know the difference are unlikely to sue if there’s a perception that civil courts don’t do anything — which is understandable in a city where a simple personal-injury case can take three years or more just to get to depositions. And of course there’s the whole problem of people calling for criminalization without realizing what that even means, or that criminal penalties are unnecessary to achieve their goals. It’s not as if the threat of jail time is going to deter bad drivers from driving badly. I’m taking too long to say that these folks may not realize there’s a civil remedy already in place, and their calls for criminalization add nothing.

    Not that this unsophistication excuses anything. It would be awful if the DAs bowed to public pressure to abandon their discretion and charge cases they otherwise wouldn’t have charged. But they seem to be coming from a sense that justice is not being done. Perhaps they ought to focus their calls for reform on the civil courts instead.

    1. SHG Post author

      One of their primary beefs is with what is known as the “rule of two,” which isn’t exactly a rule, but influences the line between civil and criminal liability for auto accidents.

      As the Court of Appeals held in People v. Cabrera,

      In short, it takes some additional affirmative act by the defendant to transform “speeding” into “dangerous speeding”; conduct by which the defendant exhibits the kind of “serious[ly] blameworth[y]” carelessness whose “seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” (Boutin, 75 NY2d at 696 [citations omitted]). Thus, in the cases where we have considered the evidence sufficient to establish criminally negligent homicide, the defendant has engaged in some other “risk-creating” behavior in addition to driving faster than the posted speed limit [citations omitted].

      To their credit, the Court recognizes how easily common traffic infractions could convert an accident into a crime, particularly given the myriad rules governing how we should drive. The Court had the good sense not to criminalize pretty much every accident that happens. But this will be of limited value if prosecutors are pushed to prosecute whenever an accident results in tragedy, as sentences will be served long before (and if) a reversal is obtained.

  3. Mike

    “Sometimes, drivers aren’t as accommodating as they should be. New Yorkers can be rude that way, putting themselves first and expecting, forcing, the other guy into a game of chicken.”

    My jury vote says that this constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. It is totally unreasonable to play chicken with a deadly weapon.

    1. SHG Post author

      That’s the guy walking across the street into oncoming traffic, knowing the cars are coming and daring them to hit him. Oh wait, you thought it was the driver of the car, didn’t you?

      1. Mike

        I sure did. Why on earth would a pedestrian challenge a car to a game of chicken? Use the damn crosswalk. Look both ways. These are kindergarten concepts. Are these people complaining about ‘traffic violence’ when the pedestrian did not have the right of way?

          1. Patrick Maupin

            A lot of people are moving to Austin, and some of them are obviously from places like New York. I have so far managed not to hit any of them, but it is a novel experience, having people wait until your light turns green before they wander out in front of you .

            I can’t be the only bemused local, and I fully expect traffic fatalities to rise. It will be interesting to see if the interlopers manage to drive significant behavior changes in the indigent population, or simply all die trying.

  4. ExCop-LawStudent

    Bring back contributory negligence from the civil side and make it a defense on the criminal side.

    And yeah, I know that it is simplistic and unrealistic, but then you could at least tell the kinfolk that you’re not prosecuting because Uncle Billy was also at fault.

  5. John Barleycorn

    What the heck is it, with the traffic code anyway?

    The traffic code is the promise land of unrealistic expectations. It is perhaps the most abused section of code whether through the front or back door in the pursuit of “justice.

    Makes me want to do a wheelie.

  6. Greg Lubow

    This group, Families for Safe Streets caught my attention back in November when they scored a meeting with the NYS DMV deputy commissioner. Imagine if criminal defense attys had that kind of access to government (but I digress). They wanted new laws – mandatory suspensions and increased penalties. NYC Vision Zero, the effort to reduce traffic fatalities used to have a photo of an intersection, in Bklyn, I think, on its cover. It showed pedestrians, crossing outside the lane, against the light, looking in the wrong direction, one woman, pushing a baby stroller was in both lanes of the intersection – in other words ignoring the basics of being a pedestrian. Clearly, no one with any understanding of the subject matter reviewed the photo. Despite what it showed the program targets the driver. (in fairness it is a larger program with many other components designed to reduce such accidents) They want to absolve pedestrians from any responsibility. (unless you happen to be crossing mid-block in Manhattan where you are subject to arrest). Then in December I received a solicitation from Transportation Alternatives, a group I ‘joined’ by riding their NYC Century Bike ride a couple of years ago. they used the tragic traffic death of a 16 yo girl, hit by a truck to beg for money. I looked into the publicly available information about that accident – the ever reliable NY Post – the semi truck came into Manhattan at 10 PM on a week night,(it was 61st St, so likely off the 59th St Bridge) and was turning onto 1st ave – not only did the truck have a green light, it had a green turning arrow. the teenager was crossing against the light – the article said so. She was struck by the rear wheels of the semi, suggesting that the entire truck had passed in front of her. the truck driver stopped and stayed at the scene. he was ticketed for a broken mirror and a registration defect. the Post, in an editorial, demanded that such accidents result in felony homicide laws and prosecution with mandatory prison sentences.
    Another tragic accident that made headlines last year involved a 12 YO boy apparently chasing a soccer ball across Prospect Park west, into traffic. the driver never saw him, and wasn’t speeding and not ticketed. without knowing, i suspect that SUVs may have contributed to this one – there weren’t any when i was growing up in Bklyn, you could see over the cars – so the boy could’ve seen the car coming and the driver could’ve seen the boy running between cars. The grieving parents confronted Sen Schumer outside his PPW apartment (remember that his wife had opposed the dedicated bike lane on PPW), who promised action.
    Statistics from 2013 show continuing decline in car/pedestrian fatalities – more fatal accidents involved pedestrians and bicycles than drunk drivers, statewide. 2014 was the safest yet since they began keeping such stats in NYC since the early 1900’s. Fewest pedestrian fatalities.
    Zero is a great goal. Instead of new laws, perhaps speed bumps could be put in place to slow traffic to acceptable levels. It seems that the current level of enforcement (soon to changed if this group gets its way) takes into account the relevant level of responsibility – sometimes an accident is just that, an accident without criminal responsibility. Not every tragedy demands criminal prosecution, or retribution. But alas, with the politicians being primed, I think the worst is yet to come.

    1. SHG Post author

      “…sometimes an accident is just that, an accident without criminal responsibility.”

      The notion of criminal responsibility has fallen out of favor. Now, it’s all about the tragic consequences that demand that someone must pay. Unfortunately, this comes from the same people who otherwise share our sensibilities, except when it’s their sacred cow at issue. And that makes me a horrible person for challenging ideas like this. Nice to have you aboard.

  7. Amy Alkon

    Great post. I nearly hit a woman a few weeks ago. It was on a street in Venice (CA) with no lights and she was wearing all black (like a Ninja) and crossing while looking the other way. She was lucky I saw her and was able to stop. There was negligence here, but it sure wasn’t on my part.

    1. SHG Post author

      I can hear the cries, “but isn’t she allowed to wear black without getting killed for it?” Victim blaming.

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