CIVIL LIBERTIES UNDERGROUND:
CAN YOU GO TO THE NEXT CAR
WITHOUT PAYING A $75 FINE ?

By Henry J. Stern
June 28, 2005

Public issues are often quite complex, with the preferred outcome depending on expert testimony, economic projections, statistical probability studies accompanied by spreadsheets, cost-benefit analyses and evaluation of various alternatives.  The human factor easily becomes submerged in the technical potpourri.  
 
That is why it is refreshing to deal with one issue that can be understood relatively easily, and its merits evaluated by citizens on the basis of their own experience and personal preference.
 
The question is:  Should subway riders be allowed to move from car to car, without let or hindrance, or be fined $75 for attempting the passage?  Under what circumstances is changing cars reasonable?   If not the rider, who is to make that determination?
 
The MTA Transit Committee considered the matter yesterday morning at a hearing in the Board's meeting room, on the fifth floor of an office building at 347 Madison Avenue, a structure considerably less costly than 2 Broadway, a crime scene in which the hapless agency sank hundreds of millions of dollars for the privilege of leasing an office building with views of New York Harbor.  The hearing took place two days before the MTA Board is scheduled to take up the issue and adopt the proposed rules.  The public was invited to testify, although there was no notice in newspapers of general circulation.  Attendance was sparse, primarily officials of other agencies, security personnel, and reporters (five newspapers and Channel 2).
 
The proceedings are described competently and extensively in today's Times.  Sewell Chan's account is on pp A1 and B7, with the droll headline (for the Times): WATCH THOSE CHANGING RULES: FINISH SODAS ON THE PLATFORM.  Chan's lead: "Subway riders afflicted by broken air-conditioning, foul odors, children selling candy bars  for occasionally dubious causes and even the random groper have long sought relief by quickly switching cars.  No more."
 
The Sun's Jeremy Smerd's informative story starts on A1, MTA READIES FINE FOR RIDERS WHO CHANGE CARS: Approval Due Today of New Subway Rule. "Among the compelling reasons to change subway cars while a train is in motion are a threatening situation, a malodorous neighbor, and the eternal hope of a rush-hour seat.  Soon, however, riders may face a $75 fine for moving between cars.  It will be up to a police officer to decide whether a rider was justified in flouting the new prohibition, under a plan scheduled to be ratified tomorrow by the Metropolitan Transportation Authority and take effect October 1."
 
The possibility of different interpretations of the proposed rule appeared in a news story by Pete Donohue on p8, MTA PUTS BRAKES ON CAR HOPS.  The News quotes NYPD Transit Bureau Chief Henry Cronin who said "officers will use common-sense discretion asking riders why they are moving between cards before handing out the $75 fine.  Moving between cars to avoid foul odors, or to get to the front of a train because a rider's station exit is near the front of the train, would be 'reasonable' explanations, he said.  'That's not going to be summonsed', he said  But that seems to fly in the face of exactly the type of unauthorized movements Transit Authority officials said they want to stop."  

The question of what movement of passengers is 'reasonable' is clearly yet to be determined. Also unknown at this time is who will decide that question: the police officer on the train, Chief Cronin, NYCTA president Reuter, or the MTA board.  They may have differing views on the subject.  The proposed rule permits enforcement, but it does not require it.
 
In Newsday, pA12, COMMITTEE OKs RULES FOR SUBWAY, Joshua Robin wrote: "The MTA moved yesterday to outlaw a series of underground activities familiar to most any subway rider: walking between cars and putting feet on seats. ... Riders see walking between cars as a familiar escape from smelly or hot cars, menacing people or to position themselves closer to a particular exit at their destination."
 
Sam Gustin, p8 of today's Post, MTA PLANNING SOME RAIL-Y TOUCH NEW RULES, listed the new offenses, "putting one's feet on a seat, straddling a bicycle, wearing roller skates and moving from one car to another"  Since 1996, thirteen people have died and 117 were injured riding between cars, according to NYCT.
 
Only one witness spoke at the public hearing.  As luck would have it, it was your reporter, who, in the two minutes allotted to him delivered what he thought was a spirited attack on the proposed new rule restricting subway riders' changing cars.  "We are creating a nanny state," he warned, using a pejorative phrase which indicates an objection to government interference with  an activity usually regarded as traditionally within the discretion of a sane adult individual.
 
These are numerous circumstances in which passengers might want to move from one subway car to another: danger or the threat of danger from hoodlums, pickpockets or flashers; the sight or smell of garbage or decaying food, other odors more vile or nauseating than might normally be anticipated, obscene or ethnic graffiti or scratchitti, passengers shouting or playing boom-boxes, excessive charitable solicitations (either direct or involving the sale of  M & Ms or other food or merchandise), horseplay, jostling, loud or unexpected noises, shouts or shrieks, other persons paying so much attention to you or your attributes that you, reasonably or unreasonably, feel uncomfortable, the presence on the floor or seats of various human secretions, fluid or solid, no longer confined to the body whence they originated.

Another motive for prompt departure from a subway car would be mechanical failure in the lighting or air-conditioning,  in consequence of which the car would become hot, dark or both.
 
A reasonable passenger might also wish to leave an overcrowded car, in search of another car which might have an empty seat, especially helpful if the subway trip were lengthy.  One could be trying to meet a friend who said that he/she would be on the train, or a passenger could be en route to a car closer to his or her intended exit.  Stations are 700 feet long, and people may not want to traverse their length at night.  It is safer to move on a train, in the presence of other passengers, than on a lonely platform.  These are legitimate reasons for wanting to change the car in which one is riding.

What we have tried to say, in the preceding paragraphs, is that subway cars can be pretty gross, and people can have sound and sufficient reasons for wanting to leave them at once, without waiting until the train arrives at the next station.  Please forgive our indelicacy of expression, but the passengers we describe are likely to be in the midst of it, rather than simply reading about it.
 
With regard to the risk of injury, the speaker pointed out that the cheerful but legless beggar who rides the Lexington Avenue subway on a wooden dolly, propelling himself by his hands, one of the more successful panhandlers on the system, manages to go from car to car so he can reach more potential donors. 

If a man without legs can do it, certainly healthy people with two legs should be able to manage.

The witness knew that he was not a nimble American, one of those gifted by God with the agility and grace that many of us so admire in others. However, despite these limits, he had found the passage between subway cars to be simple and safe since he was ten years old, at which time the fare was five cents, and his mother allowed him to ride the subways and elevated lines without fear.
 
According to MTA figures, there were 41 deaths on the transit system last year caused by encounters between trains and people.  Of these, only two were definitely attributed to passenger movement from car to car, although the number may go up to six.  No specific evidence was offered as to how these accidents occurred, for example whether alcohol was involved.
 
The speaker feared that, with passengers caged in the moving cars at the mercy of whoever else was riding there, subway cars would become prison cells for New Yorkers and tourists who have done nothing wrong. As we were recently reminded at a series of centennial celebrations, the New York City subway system is over one hundred years old.  Why is it suddenly necessary in 2005 to deny passengers a right of transit that they and their forbears have enjoyed since most of them came to America - the land of freedom.

As far as the lawyers' unending fear of potential litigation, that's why the MTA has hundreds of lawyers - to handle litigation.  And even if the practice of moving from car to car were to be officially forbidden, the agency could, and would, still be sued for failure to enforce the prohibition, or for not posting the rule in English and  Spanish, or in letters of insufficient size or above or below the eye level of the passengers to whom it is addressed.  Take warn, this is not a joke although it sounds like one.  I learned about this first-hand when Parks was sued in similar situations while I was Commissioner.
 
No city agency, or defendant anywhere, is immune to the ingenuity and effrontery of trial lawyers, and in some cases the plaintiffs are in the right.  The Corporation Counsel has done relatively well on behalf of the City in recent years, because of early settlements of cases, and possibly because the tide of anti-government sentiment may have yielded somewhat to people's realization that it is their taxes that pay the judgments which some juries, particularly those in the great borough of the Bronx, award with such cheerful abandon.

To sum up:  reasonable rules for passenger conduct are appropriate.  The many confusing issues of enforcement make it impossible to predict how the proposed rules will work in practice.  But we believe that a passenger who wants to change cars should not be subject to the whim, or possibly the greed, of a police officer as to whether he will have to pay $75 (about the price of a full month's Metrocard) for the privilege of proceeding peacefully from one subway car to another.