The Bus To Lawlessness

Mayor Bill de Blasio’s Vision Zero initiative is a salve to the heartrending stories of tragedy on the streets of the City.  After all, any time someone gets hurt, there must be a criminal to pay.  Well, maybe not “any time,” as the New York Times explains:

The new law, which makes failure to yield a misdemeanor instead of a violation, has led to several arrests since it took effect last August. One was of a bus driver who struck a 15-year-old girl in Williamsburg, Brooklyn, last month, pinning her and severely injuring her leg.

The bus drivers’ union, taking the wrong message from the arrests, has angrily defended its members and thrown its support behind a misguided City Council bill that would exempt bus drivers from the law. It says drivers are being scapegoated as criminals and unfairly pressured to be both safe and on time — which is hard to do on streets choked with pedestrians jaywalking and flouting red lights.

Much as I lack a deep love for public sector unions, the bus drivers’ union has a really good point here.  And if they had a union, so would the cab drivers. And the uber drivers, if there were any. And every driver, for that matter.

The union president, John Samuelsen, sent out a message urging members to defend themselves from charges of recklessness — by driving with meticulous caution when pedestrians are in a crosswalk, even if it messes up their schedules. “Do not move your bus until all is clear,” he wrote.

Unlike occasional drivers, bus drivers are a perpetual target.  Most New Yorkers despise buses, as they ignore traffic laws constantly, blow through red lights, block the box, sit in crosswalks all the time.  But then, they do so because the purpose of buses is to get somewhere, and get there on time.

If buses waited for the streets to be clear, they would never get anywhere. For those of you who haven’t enjoyed New York City streets, crosswalks are never really clear. There are always people trying to cross, with the light and against it, and if a bus waited until there was no one at potential risk, it would sit there all day.

But you may well wonder, “what’s the big deal?”  After all, the change in law merely takes the traffic infraction of failure to yield and elevates it to a misdemeanor.  It’s not like anybody will go to prison for it, right?

Well, not exactly. First, a misdemeanor is a crime, and crimes affect ones ability to get a licensure and jobs.  Second, by elevating failure to yield to a misdemeanor, it similarly elevates the back end of tragedy, an accident that causes harm, from negligence to a felony, whether criminally negligent or reckless.  If someone dies, it’s a homicide.

This reverses all doctrinal theories of law, where the end result dictates the conclusion that a crime has been committed, rather than the conduct up front.  The bus driver who edges into an intersection with as much caution as one can muster given how streets in New York City work will suffer the potential of a felony conviction and punishment should someone get hurt or killed as a result.

This isn’t to suggest that the streets of New York should be the wild west, where carelessness reigns and drivers can do as they please with pedestrians taking their life into their hands when crossing the street.

This is, however, to suggest that the extreme desire to eliminate anyone getting hurt on the streets won’t be achieved by creating crimes out of negligence, or worse still, when some radical bicyclist decides to test out the blind side of a bus to see if he can beat it at its own game.

Hard as it may be to believe, the outcome does not dictate that a crime was committed.  Sure, drivers are, and should be, required to yield to pedestrians.  It’s not a fair fight, and no one should die for crossing a street in Manhattan. But when the occurrence of harm, as a matter of definition, dictates that a crime has been committed (since hitting a pedestrian means, by definition, that the driver failed to yield to the person he hit), then crime has lost all meaning.

People sometimes get struck by vehicles on the street, and whether that’s a crime or just a terrible tragedy needs to be determined based on culpable conduct, not merely outcome. The New York Times simultaneously acknowledges this and condemns it:

But an essential part of a lasting solution is a stricter web of laws, with real deterrence and punishment for those who recklessly or negligently cause injury and death.

Does the New York Times really believe that we should punish people because of an accident?  Apparently so, as does de Blasio.  Welcome to New York, where it’s no longer human to err. It’s a crime.


17 thoughts on “The Bus To Lawlessness

    1. SHG Post author

      If you had to ride a bus to get to work, you wouldn’t be nearly as thrilled with it sitting in the same place for hours.

  1. delurking

    Many times I’ve seen you write about accidents and punishment. I think you are trying to make the point that criminal punishment should be based on conduct but I think this distinction cannot be made in the real world. When it comes to the punishment someone receives for causing an accident in which no one gets hurt, the punishment is always based on the outcome and not on the conduct. If I lose control of my car while simultaneously drinking my coffee, changing the radio station, and texting, I pay a lot more if I smash up a parked new Mercedes than a parked used Yugo, but I won’t be charged with a crime regardless. If I just drive onto the shoulder, because there is no parked car there, before regaining control, there will be no punishment at all. If I kill a pedestrian who was on the shoulder, though, with the exact same conduct, there is a good chance I will be charged with a crime. Basically, there is a continuum of available punishments, and legislatures set guideposts for what punishments should result for what infractions, and the punishments go up with the severity of the outcomes. I don’t actually have a position on this specific case (failure to yield being a misdemeanor rather than a violation). My initial reaction is that it shouldn’t be, basically because of your argument that it automatically escalates some accidents to felonies or homicides. But, my initial reaction isn’t worth much.

    1. SHG Post author

      You’re confusing two separate piece of the puzzle: the first piece is criminality, is the conduct itself a crime. The second piece is enhance of the punishment for the crime based upon the degree of harm. I’m glad you raised this as it’s an issue that most non-lawyers don’t understand, as they focus on the second piece without grasping that you don’t get to the severity of punishment until after you’ve satisfied the first piece.

  2. Lurker

    This is, in my world view, exactly as it should be. Evry traffic accident is a result of negligence. If you drive with care, there will be no accidents caused by you. If you maintain your car, there are no accidemts caused by mechanical failures. If the city or county properly maintains roads and streets, there are no accidents caused by improper road maintenance. For every accident, there is someone who is culpable if negligent behaviour. That person need sto ne found and punished to provide deterrence.

    1. SHG Post author

      In the United States, negligence is compensable in a civil proceedings, a lawsuit for money damages. It’s not a crime. For conduct to be criminal, we (theoretically) require conduct with a greater degree of culpability than simple negligence.

    2. David M.

      Lurker, the reasoning is that people invariably slip up. It’s something over which we have no control, meaning deterrence would be an ineffective remedy. By your reasoning, everything short of perfection should be criminalized. Nobody, including you, can live up to that standard, no matter how routine the act or how conscientiously one goes about it.

      1. SHG Post author

        You foreign guys crack me up. Lurker is from Finland, and has a very different perspective than an American. Plus, they never screw up. Except for fine food, which should be a crime.

        1. David M.

          Also, if Lurker does screw up and negligent-car-homicides someone, he’ll be sentenced to no sauna for a month.

    3. Chris Ryan

      My job is based around vehicle accident civil liability (I am an engineer), and while I cant attest to the legal side of this issue, I completely understand why the union is taking the stance they are.

      This issue is a lot more complicated then even this post makes it appear to be. A sad truth of vehicle accidents is that the person who gets the short end of the stick, isnt always the “victim”, and its very common for public perception to simply blame the person in the bigger vehicle (in the case of a pedestrian/vehicle crash, the blame is almost always on the vehicle). The media (and the public for that matter) might not take kindly to an officer determining that the dead pedestrian splattered all over the crosswalk was actually the part at fault and should be ticketed. This doesnt even begin to address what happens when the cause of the accident is due to a person/entity that has immunity (be it design, absolute or other).

      Additionally, accidents do happen. You cant have your eyes everywhere, and many studies show that drivers simply cant process every source of input, and their brains automatically regulate how much is shown. Also, Mother Nature is a cruel mistress, and has been known to do ugly things that simply cannot be avoided.

      Its bad enough to criminalize an action, but when the law doesnt even attempt to make sure its getting the right person, its deeply flawed. Relying on prosecutor discretion to solve this problem is its own can of worms that doesnt fix the issue. The rest of the problems (the felony upgrade, etc) is just a faulty house built on a terrible foundation.

    4. bill

      Lurker, I seriously hope this is sarcasm and i’m just missing it, but it seems like you’re serious. My uncle was killed b/c a woman had a seizure while driving. She wasn’t in any way intentionally negligent. People have heart attacks fairly frequently and some of those lead to accidents and deaths of others. Tires blow out b/c a certain fraction are defective. Animals run out into the road. All sorts of things happen that are beyond anyone’s control and the difference between a close call and jail time is often just a matter of bad luck. Hopefully you’re just being facetious or just trolling and I’m missing it, but if you are serious, you’re clueless. It takes as little as a second to kill someone or cause a serious accident. Even the most conscientious driver can drift off for a second or two, or have a heart attack. Your point is like saying if no one wrote bugs, software development would be perfect. good luck with that.

    5. Bartleby the Scrivener

      Having worked as an insurance agent for five years and interacting with approximately 60 insureds per day (of whom about half had some sort of claim on their policy within the past four years), I can tell you to a moral certainty that there are some accidents that are actual accidents and not the result of negligence.

      For example, a deer jumps out very suddenly and immediately in front of a car, surprising the driver and smashing the windshield. The driver slams on the brakes, but the reflexive jerk to the steering wheel that was made at the moment of impact causes him to run into another vehicle, mailbox, or what-have-you.

      That’s an accident, and it did not result from a person failing to exercise due care in driving their car.

  3. Greg Lubow

    The battle for dominion and control of the streets of New York City continues. [Ed. Note: thousand words in the middle deleted because this ain’t your soapbox.] The presumption is clearly shifting in favor of the NYP, whether they are in the right or the wrong lane.

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