Episode 53: Cars and the Law with Greg Shill

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Doug Gordon: This is The War on Cars. I’m Doug Gordon. In our last episode, Honk If You Loved 2020, Aaron, Sarah and I discussed the many ways in which cars and trucks played an oversize role in the presidential campaign. If you haven’t heard that one, you might want to go back and give it a listen. This episode does stand on its own, but you can consider this one a companion piece or a deeper dive on one of the subjects we talked about a couple of weeks ago.

Doug: So if you were paying attention in the week prior to the election—and let’s face it, who could tear themselves away from the news or refreshing their phone—then you probably saw video from Friday, October 30, of a Biden-Harris campaign bus on I-35 in Texas. And it was surrounded by a Trump train, a caravan of pickups and SUVs, many flying Make America Great Again flags. In videos posted online, the drivers of these trucks are seen getting really close to the bus. One even crashes into a white SUV—maybe intentionally. This SUV was later reported to have been carrying Biden campaign staffers.

Doug: Politically-motivated vehicular violence is sadly nothing new in this country, but something about this particular incident seemed like a major escalation. It was something we hadn’t quite seen before. And there were two things that personally disturbed me about it. One is that the news of the events in Texas basically flew by without much discussion—almost as if our country sort of decided that this was just another wacky day in the 2020 campaign. That’s partially due to the firehose of information we’re all trying to drink from, and it makes stopping for deep conversation a bit tough. But it was hard for me not to be a little concerned by how little people were concerned about this event.

Doug: The second thing that I found really disturbing was that the entire thing was basically celebrated at a campaign event in Florida featuring United States Senator Marco Rubio.

[ARCHIVE CLIP, Marco Rubio: Listen, I saw yesterday a video of these people in Texas. Did you see it? All the cars on the road with a—we love what they did, but here’s the thing they don’t know: we do that in Florida every day!]

Doug: Now, Senator Rubio has plausible deniability here, because technically he is comparing the Trump train to the boat parades we saw in Florida and other parts of the country. And in those events, no one was running a Biden-Harris boat out of the water. But still, something about his joking really disturbed me.

Doug: To help me make sense of it all, I spoke to someone who has written extensively on cars and driving and their place in the American legal system, Greg Shill. Greg is an associate professor at the University of Iowa College of Law. On Election Day, The Atlantic published his article about what happened in Texas, and the broader trend of vehicles as political weapons. As always, we want to thank all of our listeners for your support. Now here’s my interview with Greg Shill.

Doug: Greg Shill, thanks for joining The War on Cars.

Greg Shill: Thanks for having me.

Doug: As far as the incident in Texas on I-35 goes with the Biden-Harris campaign bus, you know, I was struck by how few people condemned it, and so many people actually encouraged it. And what struck me about that was that we often do just sort of excuse away traffic violence, but here we had a political act of violence committed using traffic and really, people thought almost nothing of it. Why do you think that is?

Greg Shill: I think the reason many elected officials and other conservatives have found it difficult to condemn, and have even encouraged actions like the Trump train operation against the Biden-Harris bus in Texas, is these kinds of operations exist in a gray area where a lot of the relevant actors have plausible deniability. They know also that law enforcement is going to be reluctant to bring the hammer down. And there weren’t any reported injuries in that case. In a sense, what was happening was obviously illegal and violated core democratic norms, but in another sense, you’re talking about a bunch of vehicles on a highway that have a legal right to be there. So I think what you’re looking at is a particularly vile form of opportunism that plays with this gray area category that we put vehicles in.

Doug: In your article in The Atlantic, you make a lot of comparisons to the differences between how we treat gun violence and how we treat vehicular violence. And you mentioned this sort of opportunism, you know, that cars belong on the road, so if violence happens on the road, there’s a plausible deniability there. Whereas with guns, you know, even if someone has a legal right to carry one, if someone brings one into a movie theater or a school classroom, we tend to think that’s a gross violation of what we think the gun is for. But with cars, they belong on the road. So if something happens, there’s nothing stopping anyone from saying, “Well, I was on the road. This was just an accident. We happened to see the bus and wanted to—” you heard people say this. “We were just accompanying it. Giving it a good Texas welcome.” And so there’s a sort of wink, wink, no big deal aspect to a lot of this as well.

Greg Shill: To me, that’s obviously pretextual and nonsense, but those are the types of excuses that are regularly heard and validated by law enforcement, DMVs, courts and so on. And so we just—the water found the hole in the roof, if you will. The hole in the roof was this status that cars and driving enjoy that makes it beyond critique. And so you’re going to have bad actors flood into that once that’s well understood.

Doug: And in fact, in your article in The Atlantic, you said participants in the Trump train had a reason to think they could get away with this, which is that our legal system forgives few acts of violence so readily as those committed with a motor vehicle, even those done on purpose.

Greg Shill: Yeah. I think, you know, if we can zoom out for a moment here and maybe away from the specific events on a highway and think a little bit more about conflict on the street—and not even necessarily political conflict, like, suppose your rival football team wins the Super Bowl and, you know, the fans are out in the street. And maybe you’re annoyed because you’re a fan of the other team, or maybe you’re just annoyed because you’re trying to get to work or trying to buy a jug of milk, right? And you have to kind of navigate that. So there’s—you know, if you’re both on foot, there’s the potential for some jostling and so on. And of course, fights do break out in that type of setting. So there can be deliberate acts of violence. But the stakes are a lot lower, right? When you’re talking about people that are just on foot, and the potential for true destruction and loss of life is a lot lower. That’s one type of conflict, and you could expand that to political conflicts as well. We’ve seen many of those this year. And when vehicles and guns are not used, similarly, they’re basically peaceful demonstrations, even when there’s a counter-demonstration. And you don’t even necessarily need law enforcement to keep it peaceful, because in the absence of a kind of trump card, if you will, in the form of a truck or a gun, they will stay more naturally peaceful.

Greg Shill: But then you have this huge disparity in power when you have people marching or playing in the street or literally crossing the street on the one hand, and people operating heavy machinery that, with the push of a button can go 60 miles an hour in three seconds, which is the promise of the new Hummer with 1,000 horsepower. That’s a different situation. I mean, that’s a conflict, I suppose, but it’s different in kind rather than in extent from the type of jostling that you might have after the Jets win the Super Bowl. And that’s not something that our legal system is prepared for.

Doug: Why do you think that is?

Greg Shill: We, over the last century—as you know, I’ve written about this elsewhere—we’ve bent our legal frameworks in service of automobility, right? So in service of driving. And so you could make a—you could do kind of a legal analysis of all of the ways that that’s negatively impacted walking and safety and public health and racial equity and all of that. But, you know, the root of that is the presumption of automobility as the priority. If you’re prioritizing driving over the other things, then suddenly it makes sense to fold these other considerations away, push them under the rug.

Greg Shill: So, you know, if the goal is to enable fast, free driving, then suddenly things like what happens if an errant driver injures somebody who is not following the law, that just suddenly becomes, like, not a hard problem, you know? It’s not a tier-one policy priority. And that’s what’s happened. And so when you have an overriding priority in any domain, you can expect lots of other priorities to just suffer. And so the problem here is that that priority is—the one that we chose, has a lot of pros and cons. I think the pros and cons, the trade offs vary a lot based on where you are. And one argument I make in the article is it’s really important to develop more kind of spatial sensitivity about where cars are appropriate and where they’re not, just like we do with guns. But this all proceeds from the assumption that cars and that driving is the activity that we want to prioritize. And so these are what we’re talking about when we’re talking about a stroller being crushed or a Trump train, you know, intimidating protesters, these are all different sides of the same die.

Doug: That prioritization of moving traffic at sort of at all costs becomes a thing then that law enforcement exploits. I mean, here in New York and other cities, when protesters take to streets, one of the biggest things that people on foot can be charged with is obstruction of traffic. You have one foot off the sidewalk, and suddenly the cops now have an excuse to arrest you and clear you out of the area.

Greg Shill: There’s a history of police officers using unlawful presence in the street as an excuse for an armed intervention. And there are a lot of pieces to that, right? Like the fact that we universally arm police officers, race, police contracts. I mean, it’s a many-sided problem. But one unavoidable aspect of it, if you’re thinking about reform, is the fact that our laws empower armed intervention when someone is in the street in a place where they’re not supposed to be, one. And two, the law is a little unclear about where you’re allowed to be in the street, actually. And a lot of police officers don’t know the law. And often they apply an interpretation that comports with their opinions rather than the actual text of the traffic law, which is—it’s not a subject that’s well taught, or where compliance is treated as an authentically important subject. It’s much more of a kind of vehicle for flushing out uses other than driving. And so in that sense, the details don’t matter as much.

Doug: So I want to get back to your article a little bit. You wrote, “Unlike people who commit gun violence, drivers who hit people benefit from a certain ambiguity.” And in the case of the protests that we’ve seen, whether it’s the Trump train or Black Lives Matter protests, there is this sort of plausible deniability. So if a car is surrounded by protesters, the driver can merely say, “I was afraid for my life, and that’s why I then hit the gas and plowed into them.” And in fact, that’s sort of what happened over the summer here in New York when two police cruisers were surrounded, and one of them just lurched forward. The drivers went right through the crowd of people. And our police chief here in New York, Dermot Shea, basically said the officers were afraid for their lives and they had to therefore go right forward, even though there was plenty of space right behind them. You write about this in the article a little bit. You know, was the driver acting out of fear? Were the protesters in the street? Did they belong there? It seems like that’s also exploiting a lot of this ambiguity that we have in non-protest situations.

Greg Shill: It is. It’s also—so I think there are two pieces there. One is the justifiable use of force in self-defense, when you reasonably fear for your life or safety. And then the other is the car context. But the first one is totally well established as a principle of law, and you also see it in many other contexts. Building into the second point, you also see that defense used with gun violence. Think back to the Trayvon Martin killing, right? That’s one example. More recently, Kyle Rittenhouse, the right-wing extremist who went up to Kenosha and opened fire on some protesters there with his AR-15. He also said he feared for his life. The difference is that the legal system knows how to handle that problem. That doesn’t mean it always reaches the right result. But a lot of people hear that excuse and think either that it’s pretextual or that they want to learn more. Like, they don’t accept it on its face. And so Kyle Rittenhouse is now standing trial for murder. George Zimmerman stood trial for murder. He was acquitted. But nevertheless, like, the legal system knows what to do with that.

Greg Shill: In the driving context, I think this summer’s events really underscore this. Ari Weil, who I know you had on the show recently and is very deep in studying these vehicular-ramming incidents, you know, he looked at 104 incidents over the summer, and determined that charges have been brought in only 39 cases. You know, many of them were immediately deemed accidents. Others were in kind of a gray area. And then some of the ones where charges were brought, they’re brought for what I would call glorified traffic offense, like reckless driving, even where somebody was seriously injured. So we clearly just are not equipped to handle this, because this is a category where for a century we have said we don’t want to scratch too much on the surface here because the overriding goal is facilitating driving. And so once we start peering in too closely, it could be me. The policymakers here—and for that matter juries, it’s not only an elite story—are worried that it could be them next.

Greg Shill: And the thing is that doesn’t really seem to happen in the context of guns. Even when you have gun owners, right? There’s a very deep divide in this country about gun control and the extent of gun safety regulation that is appropriate. But when you’re talking about the use of a gun in an offense, there’s no debate about that at all. There’s bipartisan consensus. We have sentencing enhancements for crimes at the federal and state level. If you literally have a gun on you that is unloaded, does not work and is not brandished or physically shown during the crime, you can go to jail for an extra five years or longer. You know, we have this universal consensus on the potential harm of guns and the need to prohibit the unjustified use of guns.

Greg Shill: In the vehicle space, we view the product itself more benignly than we view guns. I mean, some Americans view guns as benign. Many more see them as things that have the potential to do harm, but not necessarily. Kind of like a kitchen knife, right? Where if you see somebody brandishing it, you know that somebody’s abusing it, but there’s nothing intrinsically bad about it. And for cars, we’re at another remove where we aren’t willing to even subject them to the type of regulation that we would a kitchen knife. If you walk around Times Square with a kitchen knife, people are going to move away from you very quickly. If you’re going 15 miles an hour over the speed limit in Times Square, I mean, some people who see you will move out of the way faster, but generally speaking, that happens every day. There’s nothing newsworthy or notable about that. We don’t have a nuanced sense of where it is appropriate to drive and how to drive in those places, versus where it’s not appropriate.

Doug: So that makes me think of another part of your article where you talk about J.J. MacNab, an expert at George Washington University, where he was talking about an incident in which a man approached protesters, revs his engine, he drives into a crowd. But he was a Klansman, he was flying a Confederate flag. It was very clear what his motivations were. But oftentimes the motivations are not clear, even though we might look at a video and say, “Oh, for sure. This person intentionally drove into those people.”

Greg Shill: The fact that this person is charged and that’s held up as an example of accountability, it really underscores the limited nature of accountability for vehicular assaults. So think about this again in the context of outside of vehicles. Suppose someone uses another weapon, and they shout at the person a racial epithet and then they attack them, and then they get prosecuted for a hate crime, but there’s also a charge, just the underlying assault or attempted murder. And suppose the jury doesn’t accept that this person yelled a racial epithet. There’s conflicting testimony and they say, “You know, beyond a reasonable doubt, we can’t say.” But the person clearly committed the assault or the attempted homicide. So that person is going away for a very long time, even though it’s not a hate crime. In this case, the assailant has given the prosecutors a gift by leaving a paper trail documenting their extremist ideology that will be very easy to connect that to the motivation of the driver at the time that he drove through the Black Lives Matter protesters, right?

Greg Shill: But suppose he didn’t give prosecutors that gift. Suppose instead, he just harbored these views and maybe shouted at them out of the window and then drove through. Now he’s going to say that he feared for his life. Which is, of course, what he would also say if he used a baseball bat or a gun. The question is, which interaction is our legal system better prepared to manage? And we are very practiced at sweeping, quote, “accidental collisions” under the rug. It’s going to be a lot easier for him to say, “Yeah, I yelled at them because I wanted them to get away from my car and I don’t agree with them. Is that a crime? We have the First Amendment here. But I never intended to hit them. Of course not. God forbid.” That’s just much more plausible when somebody is a driver than when they’re shooting a gun or wielding another weapon.

Greg Shill: Now some of that is, as I say, encoded in our legal system, but I think there’s another aspect as well, which is your visibility from inside the car is limited, especially if you’re talking about things that are—if you’re the driver, things that are happening on the right hand side of the car or behind the car, and your sense of space and distance, depth and proportion and so on, your ability to assess the motivations of people outside the car or where they’re likely to walk, all that is very limited. And so the question is, what do we do with that? Well, our current response is to throw up our hands and just hope that it works out. Like, pray for the people who are doing these things intentionally, that they also have a paper trail. Like, that’s great, okay? That’s a tiny minority of even collisions in this context, even vehicle rammings that are political and intentional. Then you expand—that, of course, is a small minority of total vehicle-pedestrian conflicts. And so if you expand it beyond there, you’re really talking about basically lawlessness, and then there are tiny exceptions where somebody has been very conspicuously hateful. And that’s a pretty indefensible system, I think.

Greg Shill: And so the way to reform that, in my view, is not to outlaw the use of the vehicle in public space the way we do to varying degrees with guns, but rather to develop a keener sense of where it’s appropriate to use and how it should be used in those contexts. Right now, we treat the streets of New York City, the densest, biggest city in the country, pretty akin to the way we treat highways in Iowa. And I don’t think that really can be defended.

Doug: I was thinking also in your answer that, in just the sort of average, everyday vehicular violence that we read about that’s not politically motivated, here in New York, prosecutors and district attorneys have established what they call the rule of three, which isn’t really based on legal precedent. But basically what they say is that, in order to prosecute a driver who injures or kills someone else, a pedestrian or a cyclist, you usually have to prove that the driver was committing sort of three separate acts. So if they run a red light and kill someone, that alone is not going to be enough to pursue a case. But if they run a red light and you can prove that they were texting and they fail a breathalyzer test, then chances are you’re going to be able to secure a conviction. And so, you know, in thinking about the incident we talked about with the Klansman, it has to be this egregious act where, like you said, the person who commits the crime gives prosecutors, like, an unassailable gift, that they just can’t really explain it away through some other means.

Greg Shill: I couldn’t agree more. I think there are a lot of pieces there. So one is the fact that, whether that decision is motivated by ideology, or on the other, whether that’s rooted in the experience of unsuccessful prosecutions. And it’s an empirical question that I don’t know the answer to. My hunch is that it’s a mix. And I think that just suggests that there’s a lot of levers that one could pull on. If you’re thinking about reform, that reform could take place maybe at the prosecutorial or law enforcement level. But you’re also thinking about judges and culture, like, shaping perception of these interactions. You’re also thinking about increasing—and this going to sound a little bit of a bank shot—but, you know, the less people identify as a driver, the less they’re worried about being in that position. And so that’s not really a plausible response in most of the country. But in a place like New York, to the extent the city can be urbanized more than it already is, that’s one way to help manage this. There’s also a kind of a sociological angle. I mean, one question I would be interested to know is whether, like, DMV judges, who are also known to be very lax on drivers, like, do they receive free parking with their assignment? You know, that’s going to affect the composition of the bench.

Greg Shill: So I think there are—I mention this less as a specific way of targeting one cohort of people, and more as a way of thinking about, like, what are the levers that one could push on to try to effect change. And the work that you’re doing with the podcast is a big part of that, because there is just no shortcut. There is no way to change this without changing hearts and minds.

Doug: It seems like some of this also has to do with attention, because there is a time not too long ago before social media when an attack on a campaign bus would have dominated the news for days, if not an entire week. But now, it just sort of flits on by and we’re on to the next thing.

Greg Shill: It happened that President-elect Biden was not on that bus, and neither was Vice President-elect Harris. But Wendy Davis, who was the Democratic nominee for the Senate recently, she was on that bus. And it certainly is possible that the president-elect could have been on that bus, and that there could have been more violence, not just that one collision. And yet there’s been really no national conversation since then about the risk of these types of operations. Contrast that with the assassination of JFK. I know that’s not a perfect analogy. He was actually assassinated, and he was president and so on, but you might expect there to be, like, 10 percent of the conversation that happened after that, and that’s not happened. A dozen firearm bills were introduced after his assassination. Lee Harvey Oswald, the assassin, had bought his gun by mail. And, you know, a ban on purchases by mail was immediately introduced in Congress. It took several years. In fact, it wasn’t until his brother RFK was assassinated in ’68 that LBJ signed the Gun Control Act into law, that actually did ban mail-order sales, and so on.

Greg Shill: And we continue to debate gun control to this day. It’s not like a settled question. However, the unjustified use of firearms is settled. You know, how we manage that is settled. And we are much more able to identify when the use is justified and when it is not. And none of that is true for cars.

Doug: Greg Shill, that is an interesting note to end on. Not particularly optimistic about where this is headed, but this is a really fascinating area of discussion. And I really thank you for joining us.

Greg Shill: Thanks for having me.

Doug: That’s it for my interview with Greg Shill. I will put a link to his articles and other material in the show notes. Many thanks to our friends at Cleverhood. You can get one of their stylish rain capes designed for walking and biking by visiting cleverhood.com/waroncars. Enter code “waroncars”—that’s all one word—at checkout, and you will get 20 percent off your purchase. If you’ve been enjoying The War on Cars, go to thewaroncars.org, click on “Become a Patreon Supporter,” and starting at just $2 a month, you’ll get stickers, other goodies and access to exclusive bonus episodes. You’ll also join the ranks of a lot of great people, including our top sponsors, Charley Gee of Human-Powered Law in Portland, Oregon, the law office of Vaccaro and White in New York, Drew Raines and Virginia Baker.

Doug Gordon: This episode was produced, recorded and edited by me. Our music is by Nathaniel Goodyear. Our logo is by Dani Finkel of Crucial D. Design. On behalf of Aaron Naparstek and Sarah Goodyear, I’m Doug Gordon and this is The War on Cars.