At a bachelor party a few weeks ago, traveling around the city, my friends and I discussed in detail various survival strategies should someone fall onto the subway tracks. We all agreed that trying to climb back up onto the platform was the most dangerous move. You want to go into that middle area so trains are rushing past you on either side. Or you want to book it down the track, because just inside the tunnel there are stairs for workers.

Of course, in the heat of the moment, if I actually were pushed in front of an oncoming train, I’d probably turn and yell at it and be very surprised when it didn’t stop to listen to what I had to say.

It’s really not an uncommon conversation for New Yorkers, because falling onto the tracks is kind of a persistent nightmare in this city. Much more real than getting hit by a falling air conditioner or being hit by a taxi cab. The reason why jumping back up onto the platform is a bad idea is because the track is much deeper than it appears, so you can’t standing-jump that. And so then you’re in a situation where you need to do a half-pull up and… not everybody can do that.

It’s hard to pull yourself back up without help. And in NYC, you can’t count on help. Which of course brings us to Tuesday’s tragedy on the tracks….

Ki Suk Han died when Naeem Davis allegedly pushed him onto the subway tracks in front of an oncoming train. A freelance photographer snapped a picture of Han moments before the train struck him, that picture appeared in the New York Post… and it appears that the entire journalism industry spent Wednesday discussing whether or not the Post should have published the picture.

Yes, because when a man dies when nobody is able or willing to help him, we should all worry about whether a newspaper that publishes upskirt photos of celebrities getting out of cabs did the right thing.

You know what the Post didn’t publish? A picture of all the passengers who were totally stoked they didn’t have any duty to rescue Han.

Again, I’m not terribly concerned with whether or not the Post should have published the controversial photo. In general, I think making a big deal about the photo just makes more people go look for the photo (see, e.g., all of the people who are now furiously Googling the photo).

The more interesting question involves the guy who took the picture, and whether or not he should have done otherwise. Freelance photographer R. Umar Abbasi took the photo for the Post. He claims he took the picture accidentally. In the Post, Abbasi said that he saw Han flying onto the tracks out of the corner of his eye. Then he went toward the action:

I just started running. I had my camera up — it wasn’t even set to the right settings — and I just kept shooting and flashing, hoping the train driver would see something and be able to stop.

I had no idea what I was shooting. I’m not even sure it was registering with me what was happening. I was just looking at that train coming.

It all went so quickly; from the time I heard the shouting until the time the train hit the man was about 22 seconds.

At the same time, the perp was running toward me. I was afraid he might push me onto the tracks.

It’s… convenient that Abbasi got such a clear picture in 22 seconds while running and waving his arms. It’s also convenient that either somebody told Abbasi how long it took the train to hit him upon entering the station, and/or that he is a man who thinks in 22-second increments. And I’m not sure that anybody could credibly think that flashing the conductor would accomplish anything.

But fine. Non-New Yorkers need to understand that these subway platforms are incredibly long. It’s unlikely that a freelance photographer could process the situation and cover any significant distance and get there in time to help. Unless his name is Peter Parker. Whether or not his decision to snap pictures — sorry, “set off his flash” — was productive is a matter for another day.

Still, there’s a self-serving line in Abbasi’s piece that caught my attention:

The train hit the man before I could get to him, and nobody closer tried to pull him out.

Look, the only man legally responsible for this is the man who allegedly pushed Han onto the tracks, Naeem Davis. Even if he wants to argue that he had some kind of legitimate fight with Han, Davis is the one who created the harm and should have helped Han back up. According to prosecutors, that’s not at all what he did:

Assistant District Attorney James Lin told the judge that Davis watched the train strike Han before calmly gathering his jacket and coffee cup and leaving the 49th Street station.

“The defendant never once offered any aid to the victim as the train approached the platform, and, in fact, this defendant watched the train hit the victim,” Lin said.

Notice how this claim that Davis watched the train hit Han contradicts the photographer’s claim that the “perp was running toward me” as Abbasi, valiantly, rushed towards Han. But I digress.

What about the other onlookers? Were none of them in a position to help Han scramble back onto the platform? Were they all afraid, in the moment, that they might get pushed onto the tracks too? We don’t have a duty to rescue in ordinary situations because it seems unfair to punish people for not acting in the most courageous way in an instant. In October, we did a story about a Seton Hall law student who did jump onto train tracks to save a person. It seems altogether better to praise heroes than to punish cowards or people who don’t think quickly.

And yet, if you see somebody trying to scramble back up on the train tracks, you should help them. Even if you can’t be legally obligated to help, you should feel morally ashamed if you don’t.

Anguished fotog: Critics are unfair to condemn me [New York Post]
‘Killer’: I blame victim [New York Post]

Earlier: Law Student of the Day: A Good Samaritan Hero


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