It has become a ritual in New York City when a child is killed or injured in a horrific traffic tragedy: The city and the family unite in grief. Neighbors and community groups express their outrage. Legislators introduce a law intended to make sure nothing like it ever happens again.
And all too often, nothing more ever happens.
“There is a precedent in this city for laws named after children that get dropped, basically,” said Dana Lerner, whose 9-year-old son, Cooper, was killed on the Upper West Side last January. ”None of these laws has ever really been enforced.”
In the aftermath of her son’s death, Lerner worked to pass Cooper’s Law, which targets cabbies who are charged with breaking traffic laws and critically injuring or killing another person. Despite the high profile of the case, only two drivers have been suspended under the law, and none have so far had their licenses revoked, according to Taxi and Limousine Commission records obtained by this newspaper.
A look at other pedestrian safety laws named after children in the wake of tragedy reveals a similarly troubling trend of spotty enforcement.
Hayley and Diego’s LawIn 2009 an unattended delivery van left in reverse backed onto a sidewalk in Chinatown and killed Hayley Ng, age 4, and Diego Martinez, age 3. A year later, legislation was passed in their name that gave law enforcement an intermediate option between issuing low-level moving violations and serious criminal charges in accidents that cause injury or death to pedestrians or cyclists.
But according to Transportation Alternatives, an advocacy organization, the law went almost entirely unenforced one year after it was put in place. The group reported in 2011 that summonses issued under the law remained more or less flat before and after Hayley and Diego’s Law was passed, meaning law enforcement wasn’t taking advantage of the middle ground that the law afforded them.
Wendy Cheung, Hayley Ng’s aunt, told TA the family worked hard to pass the law, and hopes police, “will use all the tools at their disposal to bring justice to our streets and protect others from the pain of losing a loved one to traffic violence.”
That sentiment, offered three-and-a-half years ago, echoed a similar statement by Councilmember Helen Rosenthal, who after learning that Cooper’s Law had only been applied twice in nine months, told this newspaper she wishes law enforcement would issue more violations and arrests at the scene of serious accidents involving TLC-licensees so Cooper’s Law would have more impact.
In general, NYPD officers responding to the scene of an accident only issue tickets if they personally witnessed the unlawful conduct that led to it. In cases where a person is critically injured, is dead or is likely to die, the NYPD’s Collision Investigation Squad conducts an investigation and can issue arrests.
After the lax enforcement of Hayley and Diego’s Law was revealed, sponsors State Senator Daniel Squadron and Assemblymember Brian Kavanagh tried to pass a bill giving officers explicit permission to issue arrests and violations to drivers in accidents, even if they hadn’t witnessed what happened. The bill passed the State Senate in 2012 but failed in the Assembly where it eventually languished in committee.
Both lawmakers are continuing to push for its full passage.
Elle’s LawIn September 2009 a driver who spied a prime parking spot on the Upper East Side reversed up a one-way street and struck Elle Vandenberghe, fracturing her skull. The injury led to a stroke in the emergency room, which damaged her brain and led to a months-long stay in the intensive care unit and 11 surgeries. Against uncertain odds, Elle has since partially recovered and retained the use of her brain and regularly works with a therapist to improve her condition.
Like many parents who find themselves in this situation, Elle’s mother, Heather Vandenberghe, was incensed that the driver who hit her daughter walked away with merely a traffic ticket. With the help of then-Assemblyman Micah Kellner, she worked to pass a law in her daughter’s name that says drivers who break traffic laws, and as a result seriously injure or kill pedestrians, can lose their license for six months or, upon a second offense, one year. Vandenberghe contends Elle’s Law has never been applied.
“Unfortunately Elle’s Law has not been enforced at all since it was passed unanimously by both houses of the New York legislature and signed by the governor in 2010,” said Vandenberghe in a recent interview. “In New York City this is specifically due to NYPD policy that an officer has to actually witness a reckless driver hitting a pedestrian in order to charge the driver under Elle’s Law. This was never part of the law, it has arbitrarily become department policy under leadership of the NYPD.”
It’s exactly that weakness that State Senator Daniel Squadron and Assemblyman Kavanagh tried and failed to fix in 2012 with Hayley and Diego’s Law.
“Hayley and Diego’s Law is a really important tool to crack down on careless driving, and we believe there’s a number of ways to make sure it’s fully enforced,” said Squadron in a recent interview, noting that he and Kavanagh are still pushing for the bill that would increase officer discretion at the scene of serious accidents.
However, said Squadron, “with or without passage of this law we believe Hayley and Diego’s Law is an important tool that should be used. It’s not being used in all the cases we believe it should be used. That’s why we’re still pursuing this legislation.”
Kavanagh could not be reached for comment on this story.
Elle Vandenberghe has a traumatic brain injury as a result of the collision, which causes daily seizures and learning challenges, according to her mother. She also walks with a limp and cannot use her right hand, and is deaf in one ear. Despite this, Vandenberghe takes comfort in the fact her daughter is alive.
“Elle has proven to be a miracle, simply by being alive,” she said. “Every day I look at her and am reminded that she is the bravest, most amazing child I know.”
And yet, as in the case of Dana Lerner, lax enforcement of Elle’s Law is disheartening to Vandenberghe.
“The intention behind the law was to remind drivers that their actions have consequences, and to pay closer attention and be mindful of pedestrians or face actual consequences,” said Vandenberghe. “Because the law is not being enforced, it’s as if it doesn’t exist.”
For Transportation Alternatives Deputy Director Caroline Samponaro, the issue of enforcing pedestrian safety laws, especially those named after children, is dependent on a culture shift within law enforcement that is at present mostly dependent on the driver’s narrative of what happened in a serious accident.
“When it comes to bad decision making behind the wheel, we do not hold drivers accountable,” said Samponaro, who noted that with victims and families she’s spoken to, and in reviewing police accident reports, the driver’s perspective is usually given the most weight. “I think it’s the drivers perspective that’s written into the traffic reports and it’s ‘oops, that was an accident and were going to move on.’ You’re lucky if you have a witness.”
But despite the meager returns, Samponaro said she is seeing some progress.
“One the one hand you can say there’s been an improvement in enforcement,” said Samponaro. “But it’s inadequate. Progress has been made, but it’s a question of scalability.”
Samponaro said the idea is to enforce these laws to such a degree that drivers are aware that reckless driving can have serious consequences, thereby changing behavior.
“The way to change behavior is to have predictive and consistent enforcement,” she said.