Patterico's Pontifications

12/30/2010

If True, How is This Not Criminally Negligent Homicide? (Many Updates)

Filed under: General — Aaron Worthing @ 7:24 am

[Guest post by Aaron Worthing; please send any tips here.]

Update: Thanks to Dana in the comments, we get more information about the tragedy.

Update: Governor Paterson calls for a criminal investigation.  Right on.  He also said, and I quote, “This morning I was reading Patterico’s Pontifications, as I do every day, and this Aaron Worthing guy really made me think that this might be criminally negligent homicide.”  Okay, not really, but it would be cool if that was true.

More seriously, Paterson is about to be an ex-governor, but hopefully Cuomo will take up the cause.

There are more than a few lawyers here, so I am asking for their feedback.

I have kept an eye half-open on the story of the blizzard in NYC, feeling admittedly a little schadenfruede to see our national scold get criticized for the slow reaction to the blizzard.  I chuckled when Jim Treacher explained that “[i]f you really want Mayor Bloomberg to do something about the snow, just tell him that people are enjoying it.”  And that laughter faded when I read that a newborn baby died after waiting nine hours for emergency help.  Some of the heart-breaking details:

A blizzard baby delivered inside the lobby of a snowbound Brooklyn building died after an emergency call of a woman in labor brought no help for nine excruciating hours.

The baby’s mother, a 22-year-old college senior, was recovering Tuesday night at Interfaith Medical Center, where her newborn was pronounced dead at 6:34 p.m. on Monday. That was 10 hours after the first 911 call from the bloody vestibule on Brooklyn Ave. in Crown Heights.

“No one could get to her. Crown Heights was not plowed, and no medical aid came for hours,” said the student’s mother.

By the time a horde of firefighters and cops finally trooped to her aid through snow-covered blocks, the baby was unconscious and unresponsive, sources said.

And then this morning I read this:

Sanitation Department’s slow snow clean-up was a budget protest…

Selfish Sanitation Department bosses from the snow-slammed outer boroughs ordered their drivers to snarl the blizzard cleanup to protest budget cuts — a disastrous move that turned streets into a minefield for emergency-services vehicles, The Post has learned.

Miles of roads stretching from as north as Whitestone, Queens, to the south shore of Staten Island still remained treacherously unplowed last night because of the shameless job action, several sources and a city lawmaker said, which was over a raft of demotions, attrition and budget cuts.

As they say, read the whole thing.

But the headline of this post is my question.  How is this not criminally negligent homicide on the part of every person who slowed down the snow removal on purpose?  I mean there is a factual question of whether the child could have lived if s/he had received timely help.  And assuming that question is answered in the affirmative, I wouldn’t be surprised if the standard is gross negligence.

But doesn’t this count as gross negligence?  The classic case on the subject is Massachusetts v. Welansky, involving the fire at a night club.  Welansky was its owner and was literally not even on site when it happened.  And there was no finding of liability in the actual setting of the fire—it was considered “just” an accident.  But the deaths of many patrons were considered gross negligence and/or reckless homicide, because of a simple fact: the fire doors were locked.  From the opinion:

The door at the head of the Melody Lounge stairway was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.

Whether the fire was caused by any criminal act (including negligent acts), was irrelevant:

To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.

In other words, no matter how careful you are, fires will happen.  So the negligent act isn’t the fire, but not being prepared for its eventuality.

Likewise, I see a parallel here.  It was inevitable, or at least highly likely, that a life-threatening situation would arise while the streets were insufficiently plowed and this would impede emergency workers.  Therefore slowing down snow removal literally threatened their life.  So in my mind, this seems to be obvious gross negligence.

The only possibility for relief from liability that I can envision is if there is any kind of sovereign immunity for state employees.  I will confess a lack of knowledge on that subject, especially in New York State.  But except for that, it seems very likely to be gross negligence and thus criminally negligent homicide.

At the very least, a grand jury should be convened and hopefully will be.

Update: Apparently the state can charge and convict the police of criminally negligent homicide in New York.  So state actors are not generally immune from liability.  But if the negligence is based on pure inaction, instead of negligent action, that might be a different matter.

[Posted and authored by Aaron Worthing]

95 Responses to “If True, How is This Not Criminally Negligent Homicide? (Many Updates)”

  1. grand jury convened??? when the politicians and AGs need the union vote? The crimes of the teachers’ union against the children of the city in toto probably exceed this incident in severity, and the only reaction has been – raise their salaries.

    great unknown (261470)

  2. I think gross negligence would be going soft. In a just world a Federal case would be made against the city’s sanitation department, and RICO indictments handed down to its supervisors with the racketeering activity being extortion; that by ordering the plow drivers to delay the clearing of snow in order to extort the city of budget dollars, the sanitation department was in fact operating a protection racket.

    I can’t believe this sort of nonsense can be tolerated. If the sanitation department had any integrity it would investigate the issue, terminate those responsible, and turn over their findings to the state AG.

    But nothing will be done about this. The city most likely will restore the sanitation department’s funding by taking from another department that has less power to extort the city.

    Nate_MI (8efdaa)

  3. Except there have been multiple court cases in the past that have ruled that the government is under no obligation to protect you and is not liable for failing to respond to 911 calls.

    Chris (8721a9)

  4. the club owner had a direct responsibility to his customers, I’d hate to have to argue that sanitation workers (individually or as a group) had the same kind of responsibility to NYC residents.

    on a broader note, as much as I am not a fan of municipal unions, I also dislike an attempt to criminalize their actions/inactions. What’s next, a murder charge because someone dies after slipping on an unpicked-up banana peel?

    And isn’t this something akin to decisions which ruled that police failure to prevent a crime did not amount to negligence?

    steve (116925)

  5. I see Chris made my point… but earlier.

    steve (116925)

  6. chris

    i have only seen that happen in the context of claiming that federal civil rights were violated. i am talking about state criminal law. do you know of any case involving state criminal law?

    steve

    and the people charged with cleaning the streets don’t have a responsibility to people in the city.

    As for not picking up a banana peel, that might count as negligence, but not gross negligence.

    Aaron Worthing (e7d72e)

  7. You’ve also got a causation problem. The bad snow-removal response was not ONLY caused by the worker slowdown, but by budget cutbacks that happened before the worker “slowdown”.

    Given the amount of snow and the cutbacks, query whether the baby would have received timely help even if there had been no worker-orchestrated slowdown.

    Kman (d30fc3)

  8. kman

    you think a jury will split that hair?

    Aaron Worthing (e7d72e)

  9. I’m curious about the newborn baby story. Did the baby and mother stay in the vestibule of the building for nine hours ? Did no one offer her aid ? Maybe this is another Kitty Genovese story. Newborns, if kept warm, should survive OK. There was a a case in Oregon some years ago where a mother and baby were trapped by a blizzard and she and the baby were sheltering in a snow cave. She was nursing the baby, which was somewhat older than newborn. When they were found, the mother had died of hypothermia aggravated by the nursing but the baby was fine.

    Mike K (568408)

  10. I’m not sure you could get a conviction against any one individual, even those assigned to the specific street (causation, proximate cause) but what about a RICO criminal suit against the union in general — and break the union.

    rbj (65c648)

  11. There’s a difference between locking doors in a night club and not plowing a whole bunch of streets on a timely basis. One takes perhaps a minute; the other can take days depending on the snowfall and resources available. Parts of NY are still not apparently plowed.

    And how are you also going to prove that it was the slowdown that caused the death, rather than the lack of resources and the amount of snow that came down?

    Jim (8de501)

  12. AW – kmart is just being its normal douchey self.

    JD (b98cae)

  13. you think a jury will split that hair?

    If it gets to a jury, yup.

    And if you think they will be so overwhelmed by anger/grief over a dead baby that they’ll just pin it on whoever is named as the defendant, I strongly disagree. Juries are smarter than that.

    Kman (d30fc3)

  14. Except there have been multiple court cases in the past that have ruled that the government is under no obligation to protect you and is not liable for failing to respond to 911 calls

    I don’t know if that disposes of the issue for two reasons. One, this would be a criminal case brought by the State, not a private suit by individuals. In negligent homicide cases, the duty involved is the general duty owed to society not to act in a way that creates a high probability of causing death, not the duty owed to the individual victim, as it would be in a civil case for damages.

    Two, this is not a claim against the governemnt –it would a claim by the government against the sanitation workers and their union for not fulfilling their duties to perform their job. As to THAT, there probably is a contract between the city and the union, and there are laws, at least in NY, which forbid public unions from striking, at least where safety is involved. So they do indeed owe a duty to the City to perform their jobs.

    Bored Lawyer (c8f13b)

  15. It sure is great that a public employee union can hold the taxpayers hostage so they can get a pay raise.

    JD (85b089)

  16. Further to my last post, here is a short blurb about NY’s Taylor Law from Wikipedia:

    The Public Employees Fair Employment Act (more commonly known as the Taylor Law) refers to Article 14 of the New York State Civil Service Law, which defines the rights and limitations of unions for public employees in New York.

    The Public Employees Fair Employment Act (the Taylor Law) is a New York State statute named after labor researcher George W. Taylor which authorizes a governor-appointed State Public Employment Relations Board to resolve contract disputes for public employees while curtailing their right to strike. The law provides for mediation and binding arbitration to give voice to unions, while work stoppages are made punishable with fines and jail time. The United Federation of Teachers and the Uniformed Sanitationmen’s Association challenged the Taylor Law at its 1967 inception. Following a 2005 strike, Transit Workers’ president Roger Toussaint was incarcerated for three days as per a Taylor Law ruling

    Bored Lawyer (c8f13b)

  17. Outlaw public sector unions. They are nothing more than the voter turn out wing of the Democrat party, they are corrupt and bankrupting our states.

    snackrabbit (eae549)

  18. A few years ago Philly settled a suit for failing to respond in a timely manner to a 911 call. A high school student died after being kicked in the head by a gang of other students, no help arrived for at least 45 minutes after the first calls. I don’t know if it went to trial or not. The main portion of the settlement was that Philly had to invest in millions of dollars of new equipment to update the 911 system. I don’t know if the boys parents got anything at all, except maybe court costs. They really wanted the problem solved, not retribution.

    If it can be documented that there was a purposeful work slow-down, then in my common-sense evaluation the people involved in that, not anyone with the city budget, should be liable. If the streets dept could prove they did their best, but couldn’t do better because of budget cuts, then I think it would be another matter.

    If the city chooses to do nothing about it, then I think the city should be liable.

    Of course, all very sad for the individuals involved, but this is a great time for people to be reminded that actions have consequences, and if those actions were knowingly a priori irresponsible, there should be consequences for the perpetrators.

    Reagan fired all of the air traffic controllers. Once the snow is cleared, winter is a great time to revamp the Sanitation Department, garbage doesn’t stink so bad in January. Besides, if they weren’t cleaning the streets anyway, how much worse can it get? Call out the National Guard to clear trash while people get hired if necessary.

    If the unions manage to manipulate Bloomberg and company to their adavntage over this, I think time would be right for a NY “Tea Party” uprising saying enough is enough and get someone elected who can at least keep the streets safe.

    I think the “snitches” mentioned in the story probably need to go into a witness protection program.

    MD in Philly (3d3f72)

  19. Of course Mike K. is correct that there is no reason a newborn from a normal birth should need to die without medical attention- maybe it wasn’t a healthy child from a normal birth. As usual, more details are necessary.

    MD in Philly (3d3f72)

  20. I think BL has a point, as this parallels the PATCO situation somewhat, and whichever “civil servant” gave the “go-slow” order to his minions should be piloried.
    A “crusading district attorney” would ride this one all the way to Albany/DC.

    AD-RtR/OS! (1acacf)

  21. Imagine if corporate executive, instead of union bosses, ordered the slowdown. Wouldn’t Al Sharpton and his cronies would be on every channel screaming for jail sentences? Wonder what their reaction will be here.
    On the legal side, causation would seem to be an almost insurmountable problem.

    lasue (ed9852)

  22. “Except there have been multiple court cases in the past that have ruled that the government is under no obligation to protect you…”

    We have a rememdy for that attitude. It’s called altering or abolishing the government.

    Dave Surls (4ffc7b)

  23. Even if there was no possible chance of a conviction, wouldn’t it be fun to watch the city or state force the union to spend millions of dollars in a protracted defense of their actions? Normally I am not a fan of such legal shenanigans, but since unions so often advocate for this sort of slow bleed when it is business interests in the cross-hairs, I think it would be great for them to get a dose of their own medicine.

    JVW (4463d3)

  24. My answer is this is negligent homicide or manslaughter

    http://strata-sphere.com/blog/index.php/archives/15719

    AJStrata (083265)

  25. What about a car driver who ventures out into the snow unprepared and gets stuck, impeding plows and emergency vehicles? Would they be criminally negligent too?

    DaveO (25b47f)

  26. The only possibility for relief from liability that I can envision is if there is any kind of sovereign immunity for state employees.

    Wouldn’t be a surprise if there is.

    Blacque Jacques Shellacque (e09322)

  27. Kman

    > And if you think they will be so overwhelmed by anger/grief over a dead baby that they’ll just pin it on whoever is named as the defendant, I strongly disagree. Juries are smarter than that.

    No, but if you think that a jury will go for the argument of “sure we slowed down work. But trust us, if we hadn’t slowed down our work, we still wouldn’t have gotten to her in time,” you are kidding yourself.

    Bored Lawyer

    Good point about the state v. private distinction.

    MD

    > As usual, more details are necessary.

    Absolutely. I do wonder what killed the baby and could it have been helped. we might even suspect the mother was negligent, although I wouldn’t go after her over this, but just say, “folks, this is what not to do.”

    AJ

    GMTA. Oh, wait, that isn’t possible when I am one of the minds.

    Aaron Worthing (e7d72e)

  28. No, but if you think that a jury will go for the argument of “sure we slowed down work. But trust us, if we hadn’t slowed down our work, we still wouldn’t have gotten to her in time,” you are kidding yourself.

    No, of course not, and only a stupid lawyer would adopt the “but trust us” argument. But you overlook the fact that the prosecution that has the burden of proof. They would have to show (i.e., no “trust us”) that the baby died as a result of the “wanton or reckless disregard” of the defendant, as opposed to something else. And given what we know of the facts, that looks like a hail mary right now.

    Kman (d30fc3)

  29. > Kman

    > And if you think they will be so overwhelmed by anger/grief over a dead baby that they’ll just pin it on whoever is named as the defendant, I strongly disagree. Juries are smarter than that.

    Really? Tell that to the doctors John Edwards sued on his way to a mansion and a Senate run.

    kaz (e7a67c)

  30. Will there be an investigation into whether the Sanitation Department orchestrated a slowdown if Bloomberg caves first?

    The staff reductions and the deputy mayor’s scheduled demotion of 100 sanitation supervisors in January – putting them back in sanitation trucks and cutting the pay of many of them – has led to growing tension and made Goldsmith a hated figure in the department.

    Those supervisors normally check that city trucks and private contractors do their routes properly. In some cases, some angry workers appear to have slowed down their work during the storm.

    City Hall appeared yesterday to recognize the problem and may be backtracking on some of those demotions, several sources say.

    DRJ (d43dcd)

  31. More info on the newborn – apparently the baby was unconscious when delivered:

    The pregnant woman was walking from her home to the nearby hospital in the still-swirling snow when she ducked into the building lobby, unable to make it any farther.

    The young woman had not told her family she was pregnant – she didn’t want to disappoint relatives – or that she and her college boyfriend had decided to put the child up for adoption.

    An 8:30 a.m. 911 call was made, with the caller saying the birth wasn’t imminent, a Fire Department source told the Daily News. The call received a low priority, and the city unsuccessfully tried twice to contact the caller during the next few hours, the source said. A second, more urgent 911 call at 4:30 p.m. reported the woman was bleeding and the baby was crowning – and the call was upgraded to level two, the source said.

    An hour later, the NYPD contacted the FDNY/EMS to report the baby had been delivered but was unconscious. Cops cut the umbilical cord and tried to revive the newborn, police source said.

    The call was then upgraded to level one – highest priority – and an FDNY crew arrived in 12 minutes, sources said. EMTs were on the scene at 6 p.m.

    The city medical examiner will do an autopsy today on the baby.

    Dana (8ba2fb)

  32. DRJ

    its not just up to bloomberg, though. the relevant DA is the decider on whether to pursue criminal charges. and the Atty. Gen. might have relevant authority, too, depending on what powers the office carries.

    Aaron Worthing (e7d72e)

  33. If emergency services are paid for by taxes, I don’t understand how it can be true that the government is not obligated to protect you and is not liable for not responding.

    If I pay taxes for a service, I have a rightful expectation that those services will be provided.

    I wonder what the 911 operator told the caller in terms of when to expect a response. If the caller was immediately told that help would not come, at least the caller may have know to attempt to get to a fire house or police station or medical location. On the other hand, if the caller was simply told “we’ll get to you as soon as we can” that DOES imply that the caller should expect help to arrive.

    chitownmom (c696ca)

  34. Dana, it sounds like the “10-hour-delay” story has gotten hyped.

    Kman (d30fc3)

  35. Dana

    thanks for that info. you can see i updated appropriately.

    Aaron Worthing (e7d72e)

  36. I believe the Governor spells his last name with one “t” — Paterson — and I doubt he reads anything online given his eyesight. But it would be nice if PP were on his list.

    DRJ (d43dcd)

  37. Cuomo is a union lapdog.

    The unions can continue killing babies, people and doing whatever they want.

    He will be the most corrupt person ever to occupy that office, and for anyone who knows history, that’s saying a lot.

    democratsarefascists (5a5d33)

  38. DRJ

    thanks for the correction on spelling.

    But as for whether he reads anything online, i have known people with similar levels of blindness, and i suspect he might. besides they have ways to “read” online material for the completely blind.

    Aaron Worthing (e7d72e)

  39. This would only be a “negligent homicide” if you had traditional or conservative people in the judicial system, not activists. To activists, this is not a crime…I honestly do not believe they believe there is anything that is a crime!

    sharinlite (68bdd6)


  40. Except there have been multiple court cases in the past that have ruled that the government is under no obligation to protect you and is not liable for failing to respond to 911 calls.


    +

    Indeed:

    You’ll TAKE what we give you, peon, and be grateful for every crumb, tidbit, and morsel.

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  41. sharin

    that is a little unwarrentedly harsh. most liberals do want most criminal laws enforced. i don’t know many who wouldn’t want this kind of thing punished.

    Aaron Worthing (e7d72e)

  42. Comment by DaveO — 12/30/2010 @ 9:27 am

    The car driver, if guilty of anything, would be negligent by omission.
    The bureaucrat who commanded a slow-down of the snow clearance, is guilty of negligence by comission – he should have known, or been aware of, the consequences of his direct action.

    AD-RtR/OS! (1acacf)

  43. By the way, kettle of worms.

    Kman (d30fc3)

  44. Kman

    holy, crap. i figure it out. Kman means, “Kenye Man” you’re kenye west. so you believe that the reason why the FG didn’t respond is because Bush doesn’t care about black people.

    Aaron Worthing (e7d72e)

  45. Thanks for the additional info, Dana. Maybe in a few days a good account of the event will shake out.

    Whether or not a DA can get a criminal conviction, and whether or not anything can officially be done against the unions depending on how NY laws are written, there should be hell to pay for those in positions of authority who encouraged or enabled the work slowdown. When one works for a governmental service, and that governmental service is required to function in an emergency capacity, that is what one is paid to do. You don’t do the job, you don’t have a job.

    If the contracts are so protection riddled it can’t be done, publicly hound those responsible so they run before the tar and feathers catch them.

    As I said before, if nothing is done to address this, somebody with political aspirations should run on a reform campaign for mayor the next election- promise that if people get paid for doing work for the city, they do it, and if not, they get fired, from the newest part-time hire to the highest paid hired employee- and if the mayor doesn’t do his job, the people fire him next election.

    MD in Philly (3d3f72)

  46. that is a little unwarrentedly harsh. most liberals do want most criminal laws enforced. i don’t know many who wouldn’t want this kind of thing punished.

    Are you sure about that? DC, the Liberal Democrat headquarters of the US, has beat the rap multiple times in court where they were basically given carte blanche to do nothing in response to emergency calls. I believe this has gone to the USSC at least once too. You have no individual right to any sort of emergency response from local government thanks to their thorough efforts.

    JD Pruett (d4767c)

  47. Sheesh, Kman, now you are citing Wikipedia?

    And equating a blizzard to a Cat 4 hurricane?

    Unbelievable. I couldn’t write this kind of comedy.

    SPQR (26be8b)

  48. “Remember Reginald Denny!”

    AD-RtR/OS! (1acacf)


  49. on a broader note, as much as I am not a fan of municipal unions, I also dislike an attempt to criminalize their actions/inactions. What’s next, a murder charge because someone dies after slipping on an unpicked-up banana peel?

    And isn’t this something akin to decisions which ruled that police failure to prevent a crime did not amount to negligence?

    While I thoroughly doubt that there will be any kind of blowback from this (I personally hope the mother buys several large caliber guns with high capacity clips and visits the @%$#@ sanitation union headquarters. *I* certainly wouldn’t convict…), I consider this argument to, in fact though likely not in law, be quite specious — there is a distinct difference between deliberate inaction resulting in harm to an individual and inadvertent failure to be superhuman resulting in chance accident or issue.

    It’s a question of something the legal term for which is depraved indifference:

    From USLegal.com — a NY State decision, no less

    To constitute depraved indifference, the defendant’s conduct must be ‘so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.

    In one case, People v Register, 60 NY2d 273, 469 NYS2d 599 (1983),while exploring the meaning of “depraved indifference recklessness” the Court of Appeals ruled that intoxication is not a defense or excuse to “depraved mind murder,” although it may be to intentional murder. Its analysis started with distinguishing reckless manslaughter from the “depraved indifference recklessness” necessary for murder:

    “to bring defendant’s conduct within the murder statute, the People were required to establish also that defendant’s act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind. . . . . The crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct.” 60 NY2d at 274.

    I believe that a deliberate snarling of traffic and access under atypical emergency conditions DOES qualify, though my opinion is hardly a legal one.

    It seems to me clear and self-evident that a deliberate, intentional failure to clear the roads sufficient for the access of emergency vehicles is a rather blatantly deliberate failure to perform an assigned and accepted social responsibility, and that those responsible should be held seriously accountable. At the very least, the people responsible ought to be cashiered, and it should be made clear that this sort of “protest” — one which directly endangers the lives of others — is absolutely unacceptable.

    Be nice if we had some public officials who had the same kind of spine that Reagan had when he fired the Air Traffic Controllers for less. This is New York State, though… they only elect Libtard Jellyfish — Chordata, regardless of political persuasion, need not apply…

    I will say this — put me on a jury and I’m prepared to seriously consider the notion of conviction on that basis.

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  50. so you believe that the reason why the FG didn’t respond is because Bush doesn’t care about black people.

    Nothing of the sort.

    I’m just amused at the people here who complain about the “nanny state” government, but then want to prosecute somebody when the government doesn’t deliver its services.

    As for a criminal prosecution based on criminal negligence, all I’m saying is that one can point to a number of potential defendants (both on the fed and state level) for Katrina. Which is part of the reason why I think such a prosecution is bogus.

    Kman (d30fc3)


  51. If emergency services are paid for by taxes, I don’t understand how it can be true that the government is not obligated to protect you and is not liable for not responding.

    If I pay taxes for a service, I have a rightful expectation that those services will be provided.

    Silly, silly peon — You vill tek vut ve gif yu und yu vil like it!

    If not ve can and vil make an example uff yu.

    Un Bureaucrat Grande (c9dcd8)

  52. Kman

    > I’m just amused at the people here who complain about the “nanny state” government, but then want to prosecute somebody when the government doesn’t deliver its services.

    Yeah, we believe the government should do less, but what it does do, it should do competantly. Gosh, that is so hard to understand!

    > As for a criminal prosecution based on criminal negligence, all I’m saying is that one can point to a number of potential defendants (both on the fed and state level) for Katrina

    Except for this to be analogous, you have to talk about someone deliberately refused to help them for corrupt reasons, and didn’t just fail to plan properly or something like that. hence the “bush doesn’t care about black people” snark.

    Aaron Worthing (e7d72e)

  53. I think the main point as the President of the UAS pointed out, is that the conscious decision to be derelict of duty is an action punishable in itself, and a level of responsibility exists much greater than when city employees/officials are unable to get a good result in spite of being responsible in their actions.

    When a person is murdered in an assault when the police didn’t get there in time that is one thing; if the reason the police officer is late is because he/she took another 5 minutes to finish their coffee after hearing the call then that is another matter, at least it should be.

    MD in Philly (3d3f72)

  54. *Union boss taking to the public*

    There is nothing to see here, we are busting our balls trying to get this city back in order, it’s a dangerous, hard job that we are,in heroic fashion trying to complete…….Oh, and we are grossly underpaid.
    Also, I feel it my duty to inform all “non” union citizens,if we see some smarty pants out there shoveling snow with shovels, we are gonna hammer ya harder than we did the Boy Scouts for picking up litter.

    *Same boss whispering to Bloomy on the phone*

    Come off the cash Bloomy or we gonna give it to ya twice as hard the next time it snows….Bi__h

    Drider (b003e1)


  55. most liberals do want most criminal laws enforced.

    Only against for-profit corporations and conservatives, Aaron, only for them

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  56. Except for this to be analogous, you have to talk about someone deliberately refused to help them for corrupt reasons….

    “Deliberate”? “For corrupt reasons”? Do you bother to read your own post, or the cases you cite within them?

    Or perhaps you missed law school on the day they talked about “negligence”.

    Kman (d30fc3)

  57. Kmart is aggressively mendoucheous today.

    JD (306f5d)

  58. I’m just amused at the people here who complain about the “nanny state” government, but then want to prosecute somebody when the government doesn’t deliver its services.

    Yeah, we believe the government should do less, but what it does do, it should do competantly. Gosh, that is so hard to understand!

    Yeah, for some idiots, it’s an impossibly “nuanced” difference, Aaron.

    If The State claims it should be in charge of a service, then yes, we have a reasonable expectation, as taxed citizenry, that it perform that service in a minimally competent manner. Otherwise it should GTF outta Dodge, and arrange for private services to do the job they clearly cannot do.

    Ya see, if there was a private service contracted to keep the streets clear, and this happened, would there be people screaming for the heads of that corporation and its employees? Would there be calls that “this was ‘too important’ a service to leave in the hands of a private organization”?

    Tell me –
    …Does an Ursiform Mammal Defecate Amongst the Tall Deciduous Flora…?

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  59. I love Jim Treacher’s line: “If you really want Mayor Bloomberg to do something about the snow, just tell him that people are enjoying it

    SPQR (26be8b)

  60. “As for a criminal prosecution based on criminal negligence, all I’m saying is that one can point to a number of potential defendants (both on the fed and state level) for Katrina.”

    Kman – Please expound on your theories of federal criminal negligence for Katrina. I need a good laugh.

    daleyrocks (a82d72)

  61. Kman

    > “Deliberate”? “For corrupt reasons”? Do you bother to read your own post

    yes. have you?

    > Or perhaps you missed law school on the day they talked about “negligence”.

    You are saying that these union dicks should be investigated for intentional murder? or were you asleep when they talked about criminal intent?

    For one thing, you would then know there is a difference between negligence and gross negligence. *rolls eyes*

    Aaron Worthing (e7d72e)

  62. “I’m just amused at the people here who complain about the “nanny state” government, but then want to prosecute somebody when the government doesn’t deliver its services.”

    Are you now?

    So, you figure that the government should force us to pay for “services” that we don’t want at the point of a gun (i.e. via taxation), and then not deliver the service using the fact that we didn’t really want said service as their excuse for not delivering?

    Sounds like lefty logic at its finest to me.

    That being said, if I lived in a place where there was snow, I wouldn’t object to kicking in some tax dollars to have it cleared, but if I pay, I expect to get the service whether I object to it or not.

    Dave Surls (4ffc7b)

  63. Kman – Please expound on your theories of federal criminal negligence for Katrina. I need a good laugh.

    Well, for example, it has been alleged that, during the critical days when people were drowning/trapped, FEMA made hundreds of firefighters who had volunteered to help rescue victims endure 2 days of training classes on topics including sexual harassment and the history of FEMA.

    A.W.’s point is this: if you can show that the death of the baby was attributable to the decision by the contractors to conduct a work slow-down, then those guys are criminally culpable (under a negligence theory). And all I am saying is, fine, then why couldn’t the same criminal charge be made on behalf of dead Katrina victims vis-a-vis the decision to have responders take two days of training classes, under the same theory?

    That’s my only point.

    Kman (d30fc3)

  64. A.W.:

    “Deliberate”? “For corrupt reasons”? Do you bother to read your own post?

    yes. have you?

    Then what does “for corrupt reasons” have to do with anything? Did the defendant in Massachusetts v. Welansky have “corrupt reasons” for locking his door?

    Kman (d30fc3)

  65. The mother in the baby story sounds really stupid. I wonder what her major is.

    Mike K (568408)

  66. > have to do with anything?

    sure, what does it have to do with whether two situations are analogous? sheesh yer dumb.

    Aaron Worthing (e7d72e)

  67. David

    that’s so logical, kman will never understand it. he thinks we are beyond libertarians but instead anarchists.

    Aaron Worthing (e7d72e)

  68. The myths of Katrina have become concrete fact in the leftist mind. It is pathetic.

    JD (0d2ffc)

  69. sure, what does it have to do with whether two situations are analogous? sheesh yer dumb.

    Geez, AW. That’s like saying “one is a blizzard; one is a hurricane, so they’re not analogous”.

    They are analogous from a legal standpoint. And even assuming that someone acted “for corrupt reasons” in the blizzard situation, that’s a distinction without a difference… because any lawyer worth his degree should know that acting for corrupt reasons — i.e., malice (or lack of it) — has no bearing in a criminal negligence matter.

    Lawyer fail.

    Kman (d30fc3)

  70. I’m just amused at the people here who complain about the “nanny state” government, but then want to prosecute somebody when the government doesn’t deliver its services

    What an imbecilic comment. First, unless you are an anarchist, most people think government has some proper functions, just not the expansive functions that the left wants to impose.

    There is no contradiction in believing that (1) clearing city streets of garbage and snow is best done by the local government while (2) the federal government should not be running healthcare and determining how much I may pay for my medical insurance and what doctor I may see. Note that in (1), we are talking about public property (streets and sidewalks) while in (2) we are talking about private arrangements for medical insurance and care.

    Second, whether or not you think this particular task should be run publicly or privately, the fact is that there exists a Santitation Dept., it employs people who are paid from taxes, and their union has a contract with the city to clear the streets — including during an emergency. Even if one thinks it would be better to privatize their work, until that happens, we, the public, have paid and are continuing to pay for work it turns out they have not done. This is a breach of contract, at minimum, and may be worse.

    Bored Lawyer (c8f13b)

  71. Maybe Bloomberg reduced or eliminated snow removal from the budget, because global warming meant no more snow for NYC.
    I’m semi serious. I wouldn’t be shocked to find some ninnies somewhere in snow country who’ve slashed snow removal because they saw Gore’s infomercial.

    NYC has taxes, fees, regulation compliance charges, assessments etc. etc built into nearly every above the table transaction.
    (I’m sure the underground economy thrives on these rules)

    There may be people in the city may object loudly and claim they pay too much, and government is too bloated. I don’t know how it could be amusing to anyone here to find that people want basic community services done extremely well at a competitive price.

    Nearly everyone agrees that we can’t expect the individual people within NYC to dispose of and process all their trash and sewage; provide their own protection from fires and criminals; to shovel and remove the snow etc.
    Nearly everyone agrees that there are more than enough taxes collected to provide these basic services at competitive rates.

    I’d assume most people would expect the fees, taxes etc. that are collected for specific things like sanitaion/snow removal to be allocated exclusively toward achieving that immediate task well at the lowest possible cost.

    I’d like to think that the union should be fined, rank and file leaders fired, workers disciplined, union bosses jailed. But it is doubtful.

    SteveG (cc5dc9)

  72. Kmart is just trying to distract from the actions of his union comrades. Bugger off, leftist.

    JD (6e25b4)

  73. Bored Lawyer:

    …most people think government has some proper functions, just not the expansive functions that the left wants to impose.

    Of course. But it’s amusing to me nonetheless. The anti-government and anti-tax rhetoric from the right is often so strident and dogmatic, that to hear them suddenly acknowledge that government has some proper domestic functions that, you know, cost money and should be paid for… it’s amusing.

    Kman (d30fc3)

  74. Kman

    except when you allege that a government acting to rescue people didn’t do a good enough job, you bet your ass whether malice is involved will matter. Because without malice involved, you will have to prove that they fell below a very low standard of conduct.

    Courts and jurors are loathe to throw a person in jail just because of a screw up. if they do, the screw up has to be really, really severe and obvious. you know, like blocking fire doors. but what specific act of criminal negligence would you charge in katrina that is even comparable to that?

    i am pretty critical of the response, especially of mayor nagin. but nothing he did qualifies as criminal negligence.

    my guess is you don’t know the difference between criminal and regular negligence.

    Aaron Worthing (e7d72e)

  75. Kman

    > that to hear them suddenly acknowledge that government has some proper domestic functions that, you know, cost money and should be paid for… it’s amusing.

    Again, who says that the government should do nothing?

    Can you cite even one example?

    Aaron Worthing (e7d72e)

  76. AW – it is a sophist, period. And it is arguing with the voices in its head.

    JD (822109)

  77. my guess is you don’t know the difference between criminal and regular negligence.

    Unlike you, I know malice doesn’t enter into it either way. If malice were a factor, than it wouldn’t be criminal negligence we’re talking about.

    The best way to think of this is drunk driving, which is the way (in many states) criminal negligence often comes up.

    Joe goes out drinking with his buddies. He’s drunk. He gets behind the wheel of a car.

    Is he driving “for corrupt reasons”? No. Does he have “malice”? No. He’s just f’ed up, and making a bad decision.

    So when he drives into a bunch of pedestrians, killing three of them, is he guilty of criminal negligence (a subset of involuntary manslaughter)? You bet. Guilty as hell, despite the lack of “corrupt reasons” and lack of malice.

    And despite what you say, juries DO convict people for “screw-ups” like that. All the time.

    Class dismissed.

    Kman (d30fc3)

  78. You can usually tell when a troll starts talking about scenarios, other than the one in question, that they are being a twatwaffle.

    JD (d56362)

  79. What should a government do?

    NYC pays people to provide non basic services and pays still more to administrate and oversee them.

    NYC has also expanded the umbrella definition of basic services out to a point of absurdity (bureaucratic creep).
    Would it be too much to stretch the sanitation budget out to cover an office that dreams up customer education ideas like hand puppet shows and art exhibits about trash?
    I’ll concede that customer education in large operations can significantly reduce pick up costs too… but where would you draw the line?
    Hip hop dance troupe?
    Condom disposal video?
    Joint health and sanitation effort to pay to staff free hypodermic needle pick up/drop off kiosks?
    Recycling bin police?

    Any of the above?
    None?

    SteveG (cc5dc9)

  80. And all I am saying is, fine, then why couldn’t the same criminal charge be made on behalf of dead Katrina victims vis-a-vis the decision to have responders take two days of training classes, under the same theory?
    That’s my only point.
    – Comment by Kman

    Even if true, if FEMA was following regulations, and not refusing to do their responsibility, there is a difference. If what you say is true, the bureaucrat who wrote up the rules should be charged (half sarc).

    My fellow participants here at P’sPs, I cannot recall who we previously decided to ignore on a thread due to making such ridiculous remarks that playing whack-a-mole didn’t even seem worthwhile; (see, it worked, I ignored so well I forgot who it was!) but if it wasn’t Kman, he sure is fighting for the honor here.

    MD in Philly (3d3f72)

  81. As a New Yorker, I can attest to the fact that the response to this particular blizzard has been the worst in my memory (I’m 38). Everyone dropped the ball. Bloomberg did not declare an emergency until the storm was well underway, meaning the employees who would have been called in to prepare for the storm were already trapped. The Sanitation Dept threw a hissyfit and engaged in a deliberate “rules” slowdown, making the situation worse. The MTA did not institute their most severe weather emergency plan (highest is plan 4, they called a plan 1, one more appropriate to a thunderstorm watch). That led to all the trains being stranded on the road and frozen in place in their yards. Same thing for the buses, which operated as usual throughout the entire storm, causing hundreds to be trapped mid-route.

    My mother says this botched response was even worse than the infamous Mayor Lindsay disaster of 1969 (look it up). On Sunday evening she was trapped at her dialysis center because her transportation service the city provides for things like this decided to shut down AFTER delivering thousands of people TO their treatment centers. My brother and I had to go get her.

    This was an epic fail all around. Even today, sanitation trucks are being pelted with snow as they drive by. Many are too afraid to actually get out and collect the garbage that has been piling up since Saturday.

    I MISS MAYOR GIULIANI!!!!

    East Coast Chris (c31a9b)

  82. Did I forget to mention that a system-wide fare increase goes into effect today for MTA commuters as well?

    East Coast Chris (c31a9b)

  83. Kmart approves of th pubic unions throwing a temper tantrum to try to change policy, costing people their lives.

    JD (07faa1)

  84. The MTA did not institute their most severe weather emergency plan (highest is plan 4, they called a plan 1, one more appropriate to a thunderstorm watch)

    It’s good to hear a firsthand account, East Coast Chris.

    I hadn’t read this re the MTA’s lack of preparation: was this a miscalculation of some sort, or was it somehow tied in with the Sanitation Dept.’s protest?

    Dana (8ba2fb)

  85. I hadn’t read this re the MTA’s lack of preparation: was this a miscalculation of some sort, or was it somehow tied in with the Sanitation Dept.’s protest?

    These plans are usually called the night before an event, or if on a weekend, the Friday night before. Since Friday was a major holiday, Plan 1 was initiated on Thursday night, before we had a real idea of how bad this storm was. Had Friday not been Christmas Eve, no doubt Plan 4 would have been implemented Friday evening, when all forecasts called for major snowfall. Plan 4 requires all employees involved with train operations to report 2 hours before their shift begins, the cancellation of express service on all lines and the movement of as many trainsets as possible from their outdoor storage yards onto these express tracks so they are shielded from the weather. Plan 4 was eventually called on Saturday night. Since it was Christmas, thousands of employees were either unavailable or unwilling to answer the call to report for duty. Some who lived in the suburbs were physically unable to report. So no one was available to do what was necessary. Trains froze in yards. Trains got trapped out in service. Buses ran until the streets became impassable, then were abandoned.

    Had Plan 4 been initiated on Thursday evening, most employees would have been able and available to report for duty (dereliction of mandatory overtime is a serious offense for MTA employees) that night (Dec 23) and would have had 2 whole days of dry weather in which to prepare. There is no connection to the Sanitation Dept slowdown. These two unions do not get along. I have nothing but scorn for the Sanitation Dept, but I admire those MTA workers who managed to get into the city and report for work despite the chaotic conditions and the unbelievable incompetence of their managers.

    East Coast Chris (c31a9b)

  86. I should also add that it didn’t help matters that the local weather forecasters predicted a possibility of major snowfall the weekend before this past one, and nothing at all happened. Said storm remained too far off shore to produce any local precipitation.

    East Coast Chris (c31a9b)

  87. “…during the critical days when people were drowning/trapped, FEMA made hundreds of firefighters…”

    Multiple thousands of people in NOLA were rescued by members of the Coast Guard Auxiliary using non-government boats, in an unpaid capacity, and I don’t believe any one of them was required to sit through any indoctrination classes.

    Of course, “firefighters” being the professionals that they are, must have required that extra schooling – perhaps to show them how to put on their PFD so they wouldn’t drown if they fell out of a boat.

    AD-RtR/OS! (1acacf)

  88. AD, Kman, and Wikipedia, don’t understand that FEMA was not in charge of first-responders.

    SPQR (26be8b)

  89. Wow! I left for the hospital in a white-out blizzard in Feb of 1978, (my water had broken at home /c meconium in it, but I did not know that was a problem) turned around 1/2 way to the hospital because I had forgotten my birthing book. (It did not occur to me that the hospital may have an extra copy of said birthing book.) Returned to attempt to get to hospital. Sixteen hours of hard labor and dilation of only 3cm I received an emergency C-section. My good fortune I was at a University Medical Center where some very tired residents delighted in delivering my 21.5″ 8# 12.5oz son who had an APGAR of 0. My good fortune, too, I was private pay; if I had been ObominationCare, I probably would have been allowed to deliver a stillborn-child. 1978 was a trying time in the world of preventive obstetrics.

    Malachi Grace (da4684)

  90. Kman

    > Unlike you, I know malice doesn’t enter into it either way.

    See, you keep getting hung up on doctrine, and I am talking persuasion. I understand that a jury is going to be much more willing to send them to jail if they are doing this because they are d—ks as opposed to trying their best and failing.

    > He’s just f’ed up, and making a bad decision.

    Two things. First, it is an important doctrine in criminal negligence that generally if you violate another criminal law you are engaged in criminal negligence.

    Second, the drunk driver’s not just making a mistake. He is deliberately setting out on a course of conduct he knows has a high probability of ruining someone’s day.

    By comparison… well, what the f—k are you even talking about with Katrina? What specific acts are you claiming are grossly negligent? You have yet to name any one of them. But I can’t think of any of them that can’t go into the category of honest mistake. It’s the difference between getting in a car drunk on one hand, and being sober and just not seeing the pedestrian in time to hit the brakes. You are pretending that all screw ups are created alike. They are not.

    What you keep doing is confusing what is bright-line, obviously stupid–indeed often independently illegal conduct–and equating it to someone doing their best and just lacking the skill to carry it off, or making less obvious mistakes in judgment. Getting in a car drunk is not the same category of stupid as, say, failing to keep the schoolbuses from being submerged.

    Aaron Worthing (1a6294)

  91. AW, all of the rhetorical questions you ask of Kmart can be answered with just the simple incantation of:
    I Blame Bush!
    (rinse & repeat)

    AD-RtR/OS! (1acacf)

  92. Kman sez:

    “Well, for example, it has been alleged that, during the critical days when people were drowning/trapped, FEMA made hundreds of firefighters who had volunteered to help rescue victims endure 2 days of training classes on topics including sexual harassment and the history of FEMA.

    “A.W.’s point is this: if you can show that the death of the baby was attributable to the decision by the contractors to conduct a work slow-down, then those guys are criminally culpable (under a negligence theory). And all I am saying is, fine, then why couldn’t the same criminal charge be made on behalf of dead Katrina victims vis-a-vis the decision to have responders take two days of training classes, under the same theory?”

    If your facts are correct, which I sort of doubt, here’s your answer:

    Would FEMA have been liable for failing to hold a mandated training if one of the workers who wasn’t trained had then done something — say, for example, sexually harassing a fellow worker? My guess would be yes. That’s why they hold those trainings, after all. And my guess is that if they hadn’t done what they were supposed to do, and something had happened, you and yours would be at the head of the lynch mob.

    In short, you’re trying to construct an analogy between at least one person who died in NYC because the agency in charge of clearing the roads told people NOT to do their jobs, thereby not doing ITS job — and some indeterminate amount of people not being helped in New Orleans because the agency in charge held legally-mandated training for its volunteer workers, thereby DOING ITS JOB — on the grounds that if the first agency’s not doing its job constitutes negligence, then so does the second agency’s actually doing its job. Uh…huh.

    Kman, the rest of the class is dismissed, but you’ll have to stay behind to talk about your failing grade.

    Demosthenes (fc02fe)

  93. Kman

    I apologize. You did mention one potential example of negligence. The problem is that you were completely mendouchous in your example. i tracked down what you were talking about and it was this AP article.

    http://www.usatoday.com/news/nation/2005-09-07-firefighters-ga-katrina_x.htm

    Your example gave the impression that these firefighters were held back from the front lines. In fact, they were never destined for the front lines. They were instead hired to do clerical work and similar tasks. in that context a course even in the history of FEMA makes sense because they were not to be front-line rescuers.

    And of course you would also have to talk about why they were forcing them to take these courses. especially in the case of the sexual harrassment thing, you have to figure it is a legal requirement, as Demo suggested.

    Aaron Worthing (1a6294)

  94. 1. Governments do have some legitimate functions; “to secure these rights, governments are instituted among men”. Defending us against foreign attackers, such as al Qaeda, is the federal government’s purpose; it’s why we have a federal government in the first place. So conservatives and libertarians, anyone short of anarcho-capitalists, have no problem with it doing so. But it is decidedly not the job of the federal government to deal with the immediate aftermath of a hurricane, let alone to clear snow from the streets of Brooklyn.

    Katrina response was primarily the responsibility of the state and local governments; FEMA wasn’t expected to show up for at least several days, and in fact showed up faster than expected. Plowing my street, on the other hand, is not the job of the USA, or even the state, but of the city. I don’t blame Obama or even Paterson for the fact that my street didn’t get plowed until Thursday afternoon; I blame Bloomberg. Unless this union story pans out, in which case I blame them.

    Oh, and don’t even start with the cutbacks; they didn’t affect the response in the least. The same number of plows were available and working as there were in last year’s big blizzard. Having more workers sit around doing nothing wouldn’t have changed the result.

    Milhouse (ea66e3)

  95. I’m sorry about the baby. It sounds like the mother was trying to make it to the hospital and just couldn’t go any further. It’s nice that she and her boyfriend were going to place the baby for adoption.

    I think we need more info on this story, including what was said when 911 was called. Could someone in a 4 wheel drive vehicle have gotten her to a hospital? Or were they afraid the baby would get too cold if they took it outside?
    If the unions are responsible for anyone dying or not getting the emergency care they needed then anyone involved should be prosecuted. If the unions were prosecuted and convicted this could become a landmark case.

    Sheri (225b7c)


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