Police in Honolulu on Wednesday will begin writing tickets for people who get distracted by their cellphones while walking in a crosswalk. Honolulu is the first major city in the country to pass such a law, citing a high rate of pedestrians being hit in crosswalks.
"Starting today, texting while walking in a crosswalk can get you a ticket," Hawaii Public Radio's Bill Dorman reports for our Newscast unit. "In fact, a downward glance at a screen of any kind will cost you — a phone, a tablet, a video game."
Under the new law, the only legal reason for a pedestrian to use a cellphone while crossing a street or highway would be to call 911 to report an emergency.One of the NPR reports claims that Fort Lee, New Jersey banned texting while crossing the street a few years ago, but its only support for this claim is a link to a story where police say that they are cracking down on pedestrians who are in the road illegally and are also on their phones. There is no indication that looking at a device without engaging in some other illegal activity was banned.
Because this apparently is the first major restriction of crossing the street while looking at devices, this post takes a deep dive into the ordinance. There are some quirks and questions that the ordinance raises, and I lay them out in painstaking detail after the break.
The text of the ordinance is here. Initially I was surprised, as it seems that the new ordinance bans viewing mobile electronic devices while walking but now permits driving while viewing mobile devices (as the prior restriction on driving while using mobile electronic devices is repealed). After a bit more digging, however, it appears that this is not the practical effect, as Hawaii has a statewide ban on driving while using mobile electronic devices. So while Honolulu may no longer have an ordinance banning driving while texting, the practice is still illegal.
Most outlets reporting on the ordinance state that it bans texting while crossing the street. It does, but the scope of the ordinance is broader than that. The ordinance applies not only to cell phones, but to any electronic device that either: (1) is capable of providing wireless or electronic communication between two or more people; or (2) is capable of "providing amusement." The ban includes but is not limited to cell phones, pagers, PDAs, laptops, video games, and digital cameras. The ordinance also states that it does not include "audio equipment."
This definition of "mobile electronic device" is of particular interest and concern to me, as I am one of the seven or eight remaining people in the country who does not use a smartphone to listen to music while walking. Instead, I use an iPod Nano -- and before you ask, yes, that's what I used before Baby Driver made listening to those devices cool again. The iPod Nano has a screen that displays information about each song, and that you can use to scroll through to select songs. iPods are not included on the list of banned devices - although the list is not exclusive, and the iPod has a screen and buttons that mirror some functions of smartphones. But, there is a strong argument that the iPod is "audio equipment," as its primary function is to play music.
The undefined "audio equipment" term is a holdover from the prior version of the ordinance which banned using electronic devices in vehicles. There, the term's application made a bit more sense -- you wouldn't be violating the ordinance if you were adjusting the volume of the radio in your car, for instance. But now that the ordinance has been reworked to apply only to viewing devices while walking, the scope of "audio equipment" is less clear.
The current ordinance's origin as a ban on devices in cars also raises some interesting questions about the how to interpret the terms of the ordinance. Under the original ban on devices in vehicles, the argument that the ban applies to looking at iPod screens seems more compelling in light of the "audio equipment" that already exists in nearly all vehicles, making it less likely that the "audio equipment" term applied to an iPod that one might bring into the car. Could this argument apply to the current version of the ordinance, which keeps the same "audio equipment" term, but repeals the various references to vehicles, or does the "audio equipment" term need to be reinterpreted in light of the rewording of the ordinance? I wouldn't be surprised to see this ordinance generate innumerable articles and books in which legal scholars do battle over the meaning of "audio equipment," and whether Michael Smith could be arrested for scrolling through his "Trial" playlist while jogging across the street (by no coincidence, my "Trial" playlist doubles as an excellent soundtrack for a run). To any law review editors in my audience who may receive these articles, please make sure that they cite to this blog post.
Another important term in the ordinance is "viewing," which the ordinance defines as "looking in the direction of the screen of a mobile electronic device." This means that speaking on a cell phone held to one's ear while crossing a street does not violate the ordinance. It would also apply to pedestrians who look at the back of their phones while crossing the street, in the event that anyone is interested in engaging in a particularly petty and pointless form of civil disobedience.
My issues with wording aside, there are arguments both for and against passing ordinances like this. On one hand, I understand the urge to cull the hordes of smartphone zombies that crowd city streets. People staring at phones run into objects and people, fail to cross streets in a timely manner, and may end up walking into the path of oncoming traffic in extreme circumstances. And putting down the phone for the several seconds it takes to cross a street is not a particularly heavy burden on pedestrians. On the other hand, the law may strike some as paternalistic and overreaching, and pedestrians may argue that they can remain alert to their surroundings while texting or emailing. And if pedestrians are injured in a traffic collision while on their phones, the doctrine of comparative negligence will likely reduce the damages that they can claim from the driver who injured them, as there is a strong argument that they should have been paying more attention.
Ultimately (again, problems with the language aside), the ordinance seems fine to me, as long as it remains limited to instances of pedestrians crossing the street and looking at screens on devices. This narrow set of circumstances should be easy enough for pedestrians to understand, and limited enough to avoid selective (and often biased) enforcement of the law. And as someone who wants to get as much money as possible from the driver who may one day crash into me in the madhouse that is downtown Los Angeles, I already model my own behavior after Honolulu's ordinance so that I may avoid a reduction of my potential damages due to a comparative negligence defense.
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