Mimesis Law
23 November 2020

Hammers, Nails & Traffic Laws

June 30, 2016 (Fault Lines) — Judge Gia Morris of the Queens County Criminal Court struck down a “failure to yield” ordinance that imposed criminal penalties on drivers who hit pedestrians or bicyclists. The ordinance, Section 19-190 of the New York City Administrative Code, reads:

  1. Except as provided in subdivision b of this section, any driver of a motor vehicle who fails to yield to a pedestrian or person riding a bicycle when such pedestrian or person has the right of way shall be guilty of a traffic infraction, which shall be punishable by a fine of not more than fifty dollars or imprisonment for not more than fifteen days or both such fine and imprisonment.
  2. [A]ny driver of a motor vehicle who violates subdivision a of this section and whose motor vehicle causes contact with a pedestrian or person riding a bicycle and thereby causes physical injury, shall be guilty of a misdemeanor, which shall be punishable by a fine of not more than two hundred fifty dollars, or imprisonment for not more than thirty days or both such fine and imprisonment.

The constitutional issue with the ordinance was the mental state required to establish culpability. The law requires that in order to be criminally liable, the driver must have failed to exercise the degree of care that a “reasonable prudent person” would have exercised in the same situation. The problem is that the “reasonable prudent person” standard applies to civil torts, and doesn’t meet the basic requirement to establish criminal liability, actus reus et mens rea (a guilty act and a guilty mind.)

New York Penal Law 15.05 establishes the mental states required for various crimes. It defines criminal negligence thusly:

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. (Emphasis added.)

In other words, criminal negligence is something worse than civil negligence. In her decision, Judge Morris cited the Supreme Court case of Elonis v. U.S., in which the defendant was convicted of posting various online threats, based on the fact that a reasonable person would regard them as such.  The Supreme Court held that the reasonable person standard didn’t pass constitutional muster:

Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct—awareness of some wrongdoing.”


In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

The ordinance was part of Mayor Bill DeBlasio’s Vision Zero program, an attempt to improve traffic safety. According to the program webpage:

The primary mission of government is to protect the public. New York’s families deserve and expect safe streets. But today in New York, approximately 4,000 New Yorkers are seriously injured and more than 250 are killed each year in traffic crashes.


This status quo is unacceptable. The City of New York must no longer regard traffic crashes as mere “accidents,” but rather as preventable incidents that can be systematically addressed. No level of fatality on city streets is inevitable or acceptable. This Vision Zero Action Plan is the City’s foundation for ending traffic deaths and injuries on our streets.

This is another example of the hammer and nails problem that so often infects criminal law. With 8.5 million people stuffed into an area of less than 500 square miles, does anyone really think that it’s possible to “end traffic deaths and injuries?” Even if it were, has anyone explained the logic underlying the jump from “traffic injuries are a problem” to “which we can solve by locking people up for ordinary traffic accidents?”

According to the website, a combination of innovative street design and engineering changes resulted in an all-time low for traffic fatalities in 2011. So it’s not like there aren’t other tools available to solve a complex problem. And yet, the ordinance was signed into law in 2014, because after all, “We can, and must, do better.”

“Doing better” in this case means eroding due process protections in an unconstitutional way. And despite Judge Morris’ ruling, the law has been upheld in Manhattan and Brooklyn, so a higher court will likely have to take a look at it. Here’s hoping they tell the city to put away its hammer.

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