Kelly Hurley was fatally injured at 7:20 a.m. on April 5, in broad daylight, at the intersection of 9th Street and First Avenue in the East Village. When police from the 9th Precinct arrived, the man who killed her was waiting for them with the tool he used to kill her. The man didn’t dispute that he’d killed her, and the laws he broke to do it are clear and unambiguous. But police didn’t arrest Hurley’s killer that day, and as of the time of this story’s publication, he remains a free man. This has something to do with the fact that Hurley was on a bicycle when she was killed and that the man who killed her, still unnamed by the NYPD, did so with his truck when he made an illegal left turn into the bicycle lane, where Hurley had the right of way.
In the three years since the city undertook its Vision Zero campaign to eliminate pedestrian and civilian fatalities, it has made admirable progress in many areas, improving hundreds of dangerous intersections, expanding the network of protected bike lanes, dropping speed limits, and engaging in a wide array of education and outreach efforts. But despite a concerted and ongoing campaign, the fact remains that, in New York, few motorists involved in fatal crashes with pedestrians or cyclists are ever charged with even minor traffic infractions.
That was supposed to change in 2014 with the passage of the local ordinance 19-190, the Right of Way Law, which established clear civil and criminal penalties for drivers who fail to yield to pedestrians and cyclists who have the right of way. But advocates say enforcement of the law — holding reckless drivers to account when they hurt or kill someone — has lagged behind.
While the number of summonses issued to drivers who fail to yield has increased considerably from its rock-bottom level three years ago, the number of arrests under the new law remains negligible, and of the 38 fatalities last year identified by Transportation Alternatives, a group that advocates for safer streets, as having been caused or likely to have been caused by drivers’ failure to yield to a pedestrian or cyclist with the right of way, at least a third resulted in no charges at all.
The NYPD’s Collision Investigation Squad, which investigates cases in which someone is killed or likely to die, has been beefed up in recent years but is still woefully understaffed. There were more than 3,000 crashes causing serious injury or death last year, but CIS, which has fewer than thirty officers, investigated only 369 of them. Everything else gets handled by local precincts, where there are signs that a culture that tends to assign blame to cyclists and pedestrians and exculpate drivers remains pervasive. True to an increasingly familiar pattern, police responded to Hurley’s death in the ensuing days by ticketing bicyclists near the site of her crash for running red lights. Hurley wasn’t killed because she ran a red light, or through any fault of her own. She was killed by a motorist who broke the law.
“As a society, for quite a long time, since almost the beginning of the automobile, we’ve excused traffic violence as a sort of expected part of having cars on the road,” says Caroline Samponaro, the deputy director of Transportation Alternatives. “As the automobile was getting introduced en masse, the automobile industry spent a lot of money criminalizing walking, creating jaywalking, retaking the streets from people and turning them over to cars.” As a consequence, Samponaro says, for more than a century, “Whenever there’s a crash, there’s an assumption that it was an ‘oops.’ ”
That assumption persists to this day, traffic safety advocates maintain, and is reflected in how difficult it is to hold reckless deadly drivers accountable through the criminal justice system. Until recently in New York, says Steve Vaccaro, a lawyer and safe-streets advocate who specializes in this area, “There was no recognized basis for imposing criminal penalties for reckless sober driving by a licensed driver who stayed at the scene after injuring or killing someone.”
For decades, Vaccaro says, police sought to categorize driver misconduct into categories: drunkenness; driving without a license; hit-and-run; and intentional strike. “If it didn’t fit cleanly into one of those pigeonholes,” he says, “then the driver gets a pass, because the police presumption was that absent one of those factors, it was just an accident.”
District attorneys are often reluctant to pursue cases they’re not sure they can win — frequently a tall order due to a legal precedent known informally as the “rule of two,” which holds that a driver has to be breaking two traffic laws simultaneously before he can be found guilty of criminal negligence. The Right of Way Law was supposed to help break the logjam of the rule of two, but even when police do pursue a case, it often doesn’t go anywhere. According to Brian Reynolds, who heads the Collision Investigation Squad, sometimes there just isn’t enough evidence to recommend charges. “If we do have enough evidence, sometimes the D.A. has a different standard than we do, and the D.A. won’t pull the trigger for us,” he says.
“The culture of the police department and of prosecutors is really just a reflection of what our broader culture has been for a long time,” Samponaro says. “We have to acknowledge that it takes a long time to turn such a massive ship.”
At the monthly community meeting at the 9th Precinct last week, it was evident that, at least among some law enforcement officials, the full import of the failure-to-yield law has yet to be fully grasped. Addressing a packed room filled in large part with cyclists angry that the precinct’s most visible response to the fatal crash had been a campaign of ticketing cyclists, commanding officer Captain Vincent Greany lectured on how necessary it is for cyclists to look both ways before crossing the street and promised more education and outreach targeting them. “You’re talking about cars,” he acknowledged, but “it’s an area where anybody that makes a left turn is allowed to make that turn. It’s almost impossible to see a bicyclist in the mirror, sometimes in the blind spot, unless you physically turn your head and look back.”
The room erupted. “But it’s the law!” someone shouted. Greany remained placid. “I still have the right to make a turn,” he said. “What I would say is, ‘I didn’t see the bike.’ So there’s clear issues there.”
“You would be negligent!” someone yelled. “Like someone who shot somebody with a gun by accident!”
Standing next to Greany was Reynolds. In Kelly Hurley’s case, he told the audience, he did intend to recommend charges against the driver who killed her, but the Manhattan district attorney’s office had yet to sign off. “I have my own recommendations; that doesn’t mean the D.A. will be on board with that,” he said.
An audience member asked what the charge would be if the driver implicated in Hurley’s death is ultimately charged.
“Failure to Yield the Right of Way,” Reynolds answered. “It’s an unclassified misdemeanor.”
Failure to Yield misdemeanor charges are often pleaded down to a non-criminal disposition. In the unlikely event this one is not, the maximum penalty would be a $250 fine and thirty days in jail.