Montclair Is Misguided In Penalizing Supposed “Distracted Walking”

Does Montclair targeting pedestrians really make them safer? DTLA pedestrians photo via LADOT
Does Montclair targeting pedestrians really make them safer? DTLA pedestrians photo via LADOT

The media has had a hard time approaching the application of “distracted walking” laws, or the supposed phenomenon of “distracted walking,” with anything close to a reasonable amount of rigor, objectivity, or skepticism.

An example is the Los Angeles TimesFebruary 25, 2018, article on the city of Montclair’s new “distracted walking” ordinance, which makes the use of a cellphone, or headphones, while crossing the street a ticketable offense. Right off the bat, the Times piece gets it wrong:

Chances are, you’ve had this experience: You’re behind the wheel at a stop sign or traffic light and have the right of way, when a pedestrian, looking down at a cellphone, steps off the curb in front of your car.

Chances aren’t that I and a lot of other people who do not or only rarely drive have had that experience. I don’t own a car, and I don’t typically step off a sidewalk into busy, fast-moving traffic like some clueless Mr. Magoo. Chances are that those of us who walk, bike, or ride transit have experienced drivers taking any advantage they can, legal or illegal, that allows them to drive faster and with fewer delays. But that’s another story I guess.

More to the point, the Montclair ordinance is at best a well-intentioned but misguided attempt at making safer streets – legislated by city leaders who suffer from extreme windshield bias. It’s also one more example of our car-centric society’s tendency to classify city streets as spaces solely for automobiles and place the responsibility for safety on anyone who is not driving.

The first question is whether “distracted walking,” as a determinant of collisions, warrants a new law and enforcement to back it up – or whether other behavior is more impactful. From January of 2012 to December of 2016, according to CHP SWITRS data, “Unsafe speed” (22 percent of collisions) was the most prevalent primary collision factor for collisions in Montclair. This makes sense; nationally, speeding is one of the most common factors in motor vehicle crashes, according to the federal National Transportation Safety Board. For collisions in Montclair involving a pedestrian, a violation of code section 21950 (failure by a driver to yield to pedestrian right of way in a crosswalk) was the number one factor, constituting 34 percent of all crashes.

Phone or no phone, speeding and moving violations seem to be an issue in the city of Montclair.

There’s no consideration in the Times article, or the law itself, of how current distracted driver laws (which operate under the problematic assumption that the hands-free use of electronics by motorists is okay) actually perform in terms of decreasing distracted driving and increasing safety. The city of Montclair’s website blithely states, “Distracted drivers differ from distracted pedestrians in the fact that distracted driving has policies and interventions in place to improve safety,” without any discussion of whether those policies and interventions have actually done anything to decrease distracted driving and improve safety for all.

This new law also warrants the question, seemingly unasked: how would enforcement be equitable? Besides issues of equity between enforcement of driving violations (where the vehicle can kill) and walking violations (where the human body cannot) as well as the inherent issues of racial profiling that come with any enforcement action, there are issues concerning class and geography that should give us pause. Over two years ago Steve Lopez wrote in the L.A. Times about inequity in downtown L.A. pedestrian ticketing. Last week, Sahra Sulaiman of Streetsblog L.A. highlighted the needless prolonged detention and harassment of an East L.A. jogger. Given our understanding of what the most common factors in Montclair’s crashes are, it raises the question of why pedestrian enforcement, and the problems that come with it, seems to be how the city government wants to make streets safer.

Think also of the reality a law like Montclair’s envisions: while driving you are not supposed to hold your phone in your hands, but you can still place it on your dashboard and interact with it. Your car might have a touchscreen, possibly with web browsing options. You can have your music cranked up to 11 with the windows up while driving. But outside the car, while walking across the street, you can’t use the phone at all. Jogging with headphones, something people have done since the Walkman, is now criminalized.

The privileges are for inside the car, not outside, and the responsibility for ensuring safety for people walking is placed outside the car, not inside.

The sad fact is that, by and large, we already accept that sure, there are bad drivers here and there, but by and large traffic is just a natural, unstoppable, flowing force. It follows that the only thing people walking and biking can do is get out of the way.

This windshield bias is what causes people to react skeptically to solutions that make streets safer for all road users, including people who walk, bike, and drive, children, seniors and people with disabilities – in other words: everyone. Windshield bias is also what leads to calls for “personal responsibility” by people walking. But much like in national politics, the punitive measures enforcing personal responsibility tend to apply harshly to the most vulnerable people, while the larger factors affecting those without power go unaddressed.

Rather than tackle the major determinants of our traffic violence (and the rate of traffic fatalities in the United States far exceeds that of other developed nations), Montclair is now spending its time and money developing laws that it insists will increase safety for its most vulnerable road users by penalizing them.

Montclair will ticket 15-year-olds crossing the street with ear buds but won’t ask why a Toyota Celica should be able to go 100 mph.

It’s absurd. Should we try to reduce our gun deaths by giving everyone a Kevlar vest and ticketing those that don’t use a mirror to check around corners? Or should we try and just reduce the amount of damn guns we have?

So what should Montclair be doing?

It should look to the examples of progress made in cities like New York and San Francisco, which have adopted Vision Zero plans aimed at completely eliminating traffic fatalities. Both cities had the lowest number of traffic fatalities last year since they began keeping records more than a century ago. In both cases, they’ve attacked speed and unsafe driving, which are by far the two biggest causes of traffic deaths.

If someone is hit by a car traveling 20 mph, he or she has a 10 percent risk of death. At 40 mph, the risk increases to 80 percent. Lowering speed limits, making road design changes to reduce speeding, making design and signal changes to intersections, and providing more physical space and protection for people walking are all proven ways for Montclair to boost pedestrian safety. They all beat targeting people walking who pose no significant risk to any other road users.

Mehmet Berker is a cartographer and GIS specialist living in Los Angeles.

  • Jenni Phoebe

    How about we just make it illegal to run over people using your car, phone or no phone?

  • com63

    “Chances are, you’ve had this experience: You’re behind the wheel at a stop sign or traffic light and have the right of way, when a pedestrian, looking down at a cellphone, steps off the curb in front of your car.”

    People need to go back to driver’s ed. There are very few situations where you could be at a stop sign in a vehicle and have the right of way over a pedestrian crossing ahead of you or beside you. The pedestrian does not have a stop sign. If there is any chance of the pedestrian stepping off the curb, then the driver has to yield, even if the driver got to the stop sign before the pedestrian steps into the intersection.

  • James Fujita

    Honestly, I think we do need either more rules about cellphone use in general or to enforce the rules we already have. We shouldn’t be using cellphones while driving, motorcycling, bicycling, walking or jogging. It shouldn’t be a cars vs. pedestrian issue.

  • Nancy Johnson

    There is a difference between having to yield the right of way, and having the right of way. A pedestrian doesn’t have the right of way over a car if he/she is about to jaywalk, mid-block on a commercial street. But once the pedestrian does enter the roadway, the car has to “yield” the right of way.

  • com63

    midblock, this is correct. At an intersection with stop signs however, the pedestrian always has the right of way.

  • Nancy Johnson

    This is where the pedestrian activists become so entrenched in their war against cars that they ignore common sense. Two days ago I watched a woman crossing the street while using her cell phone. She wasn’t paying attention and hit the lip of the lowered curb and went face first into the ground. This had nothing to do with cars, pedestrians versus cars or right of way. Another example not involving cars is my friend who was riding his bike on a shared bike/ped path and a pedestrian using a cell phone didn’t look before he crossed the path and my friend fell to avoid him and got a mild concussion. Again, didn’t involve a car but resulted in an injury.

    It is just common sense from a safety perspective that when you are walking, skating, cycling, skiing, driving, etc., you should pay attention to what you are doing. And this is even more important when you are crossing a shared roadway. So if we want to eliminate all traffic fatalities, then prohibiting using a cell phone while crossing a roadway helps achieve that policy.

  • dexter

    I’d be willing to bet a lot of money jaywalking doesn’t mean what you think it does. Crossing midblock is not jaywalking in many instances. But let’s not let facts get in the way of what we want to think.

  • dexter

    midblock this is NOTcorrect. see CVC 21955

  • dexter

    also true at intersections with no stop signs. y’all be safe out there and be on the lookout for com63 and nancy!!

  • Nancy Johnson

    Once the pedestrian enters the intersection, yes. But if the car starts to drive before the pedestrian enters, then the car has the right of way (because pedestrians are prohibited from stepping off the curb in front of a car), but the car has to “yield” the right of way once the pedestrian does enter. So if a person is using their cell phone and doesn’t see the car, it could lead to a preventable accident where the car wasn’t at fault.

    Either way, if the goal is zero fatalities then prohibiting distracted driving helps achieve that goal.

  • com63

    What about when a pedestrian with headphones, has the walk sign and is crossing in a crosswalk and a turning car hits them? The pedestrian was paying attention, but can’t get out of the way of a car that violates their right of way. Having a law on the books that faults the headphones will absolve the driver of blame. That is not fair.

  • dexter

    Outlawing cars will help achieve that goal too, and much more effectively. Can we count on your support for that one?

    And like I said, you do not understand what jaywalking is. Please be careful as you are out there taking people’s lives in your hands. That person stepping off the curb on the phone isn’t going to hit you and kill you, you get that right?

  • com63

    Only if the pedestrian “suddenly” enters the intersection. If the pedestrian is about to cross and the driver starts proceeding anyway, then the driver is at fault. This is true even if the pedestrian had not yet stepped off the curb when the driver began moving. The The driver needs to observe the pedestrians near the intersection and yield before proceeding.

  • Nancy Johnson

    Straw man argument. You don’t need to hear in order to walk. You do need to see in order to walk. So while wearing headphones may inhibit your ability to hear a car, it doesn’t inhibit the most important sense needed to walk which is sight. And not only does a cellphone impair sight, it also causes a mental distraction because your mental focus is on what you are reading or typing and not your surroundings.

  • Nancy Johnson

    I specifically said mid-block on a commercial street because that is jaywalking.

  • Nancy Johnson

    There is a difference between right of way and fault. You can have the right of way but fail to exercise due care and be at fault. Even if someone is jaywalking mid-block (either pursuant to 21954 or 21955) and the car has the right of way, if the car intentionally doesn’t brake or swerve out of the way they may still be at fault.

    And there is nothing to support that a car has to yield in anticipation of a pedestrian “about” to enter the roadway. The statutes say pedestrians “crossing a roadway” or “within a crosswalk” (21950) have the ROW. The only reference to a pedestrian “approaching” is with respect to a pedestrian on a sidewalk when a car is crossing over the sidewalk. (21952).

  • Nancy Johnson

    21954

  • Nancy Johnson

    You are using jaywalking as being the only factor that determines right of way, which is not the case. There are specific instances that may not be considered “jaywalking” but where the car has the right of way over the pedestrian such as a mid-block crossing that is not between signaled intersections.

  • Hugh Shepard

    I think it’s ridiculous that bike riders are not allowed to wear earbuds or headphones in many jurisdictions across the USA while drivers of motor vehicles are allowed to operate a heavier, faster, and more lethal vehicle in a sound-proof case.

  • Hugh Shepard

    Sure, phones cause distraction. That’s common sense. But why ban people crossing the street legally from using them while allowing people who drive to use them? Laws banning texting while driving do not technically ban viewing or using a mobile device while driving. Driving a two-ton vehicle capable of going 100+mph requires a whole lot more concentration than walking.

    My point is that banning drivers from using smartphones is a more important and obvious safety priority than banning people who cross the street and ride a bike from using smartphones.

  • Nancy Johnson

    We shouldn’t allow people to use cell phones while in their cars. And since drivers cannot be trusted with them I’d even support banning them from being in cars. They should also not allow touch screens or anything that forces you to take your eyes off of the road. It used to be the case that cars had minimal controls that were laid out such that you could control them all by touch without taking your eyes off of the road.

  • Hugh Shepard

    Yeah, but unfortunately this law is making it a car vs. pedestrian issue. Under this law, pedestrians would not be allowed to look at their phones or wear earbuds while crossing the street, while drivers of cars are allowed to look at their phones as long as they’re not texting and operate their vehicle from inside a sound-proof case.

  • davistrain

    Outlawing cars? That train left the station over 100 years ago. How about buses and streetcars (or today’s light rail vehicles)? People get run over by them, too, and they are larger and harder to stop.

  • gneiss

    If you want to understand the real reason why the city of Montclair debated and passed this law within the month of November, you need look no further than this nugget in the Times article:

    “Yessica Gonzalez, at the time a 15-year-old high school student, was walking to Montclair High School one morning in September. As she stepped into a marked crosswalk, she was hit by an oncoming vehicle.
    The crash left Gonzalez hemiplegic and with severe brain damage. “She has mental wherewithal of between a 1- and 3-year-old,” said her attorney, Ernest Algorri.
    City officials say she was on her phone, with her earbuds in. Algorri, who is suing the city for damages, disputes that and called the new law an attempt to taint the jury in his upcoming trial.”

    This is about the city trying to reduce it’s liability payments for their terrible pedestrian infrastructure by elevating the potential for contributory negligence from either wearing earbuds or being on the phone while walking legally in their crosswalks.

  • RedMercury

    […] my friend who was riding his bike on a shared bike/ped path and a pedestrian using a cell phone didn’t look before he crossed the path and my friend fell to avoid him and got a mild concussion.

    Yup. Those darn pedestrians who don’t look…

    My story: A couple of years ago, I was riding along a shared-use path. There were two people walking abreast (*giggle*). Coming up behind them was a jogger and coming up behind the three of them was me. Now, as I went to pass, the jogger suddenly stepped out in front of me to also pass the two people. I swerved off the road into sand and fell back onto the path, breaking my humerus.

    Darn jogger didn’t look before she stepped out!

    Of course, when I got out of the hospital, I uploaded my GPS to look. Sure enough, I was traveling at about 10 MPH at the time of the crash. The shared-use path posts a 5 MPH speed limit, when pedestrians are present.

    Oh. I was going too fast.

    But if the jogger hadn’t been wearing headphones, she wouldn’t have gotten in my way! See? It’s not my fault for going too fast! It’s someone else’s fault for not paying attention! I was injured, therefore I’m the victim here!

    I’m always annoyed at how cyclists complain about motorists not paying attention and driving too fast but you put them on a shared-use path with pedestrians and they start making the same complaints as motorists. “They should walk single file! They should be paying attention and not step out in front of me!”

    Or maybe they should slow down. If they slow down, there’s less chance of them being injured or injuring someone else. Nah, can’t have that

  • RedMercury

    If there is any chance of the pedestrian stepping off the curb, then the driver has to yield, even if the driver got to the stop sign before the pedestrian steps into the intersection.

    I would think so, too, but it doesn’t work that way here in California. The pedestrian is protected in the crosswalk, but not on their way to the crosswalk. You’re not supposed to step out in front of car.

    Check it out here.

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