Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

A recent editorial from TN Online reports:

State Rep. Karen Boback, a Republican whose district includes parts of Luzerne and Lackawanna counties, says she is going to introduce legislation that provides penalties for walkers who are inattentive while crossing a street or highway.

In a memo to legislative colleagues seeking co-sponsors for her bill, Boback said that distracting walking is a “very real and serious issue.”

Boback is most concerned with pedestrians who are inattentive because they are engrossed in conversations on their cellphones or are listening to music or other programming.

“Technology has invaded our life, and, as a result, people have stopped paying attention to their surroundings,” Boback wrote.

More reporting on this is available at Patch. It isn't clear why Boback is choosing to take a stand against "distracted walking." The TN Online writer notes that fewer pedestrians were killed by drivers in 2020 than in 2019. Of those 145 deaths, there is no indication how many of them, if any, were due to pedestrians who were distracted. 

Seeking to do Boback's job of justifying her proposed policy, the article cites a Governors Highway Safety Association Report which purportedly shows that "texting while walking has taken on a key role in pedestrian death in recent years as communication devices have become more mobile, compact, and numerous." The article fails to link to the report, or provide a year for when it was written. It may be citing this 2016 report which speculates that pedestrian distractions are contributing to pedestrian deaths and injuries, although it explicitly states that it "remains unknown" how many pedestrians killed in crashes with distracted drivers were themselves distracted. The report cites instances and studies suggesting that pedestrian distractions are on the rise, but does not draw a link between such distractions and traffic deaths. Indeed, a New York study specifically investigating whether distracted walking contributed to pedestrian fatalities and injuries found "little concrete evidence" of a connection.

The Pennsylvania law appears to be in its early stages, as it does not appear that a statute has been drafted yet. Hopefully Boback will give the bill some more thought and conclude that it isn't worth it. Indeed, her basis for contemplating the bill appears to be anecdotal notions of technology "invading" people's lives. Reports on her proposal have to do the work themselves to dig up evidence supporting measures restricting texting while walking, and these reports often fail to confirm a link between instances of distracted walking and increased pedestrian deaths. As I have noted before, legislators seeking to prevent traffic deaths, and particularly pedestrian deaths, would do better to focus on infrastructure by making cities and towns safer for pedestrians. This includes increasing the number of crosswalks, ensuring adequate lighting, lowering speed limits, and reducing the width of streets, among other measures. Boback herself appears to have been involved in such infrastructure measures in the recent past, which makes it all the more surprising that she is seeking to put the onus on pedestrians--who are most at risk of death or serious injury. A statewide restriction on distracted walking is a blunt instrument that targets the wrong actors and ignores factors that lead to greater risks of pedestrian death and injury.

In addition to being misguided from a public safety perspective, laws against distracted walking criminalize ubiquitous behavior, which promotes selective enforcement. Many people check their phones while walking, including while crossing the street. As a result, police officers tasked with the enforcing the law will use their discretion to determine who to stop and ticket for these violations, meaning that the brunt of any law will likely fall more heavily on people in poorer neighborhoods and racial minorities.

A few cities and municipalities in the United States and other countries have banned various forms of walking while on the phone or while using other electronic devices. All of these measures target a phenomenon that most have likely observed or experienced, but which has little ultimate impact on pedestrian safety--at least when compared with other measures that legislatures can take to reduce traffic deaths and injuries. This story is notable because it suggests that a statewide ban may be possible. One can only hope that the bill, if it is ever written, will fail to gain the support necessary to become law.

How Many Times Can a Complaint Be Amended?

This post aims to answer a simple question: what is the highest number of amendments to a complaint that has ever been allowed by a court in the United States?

A bit of background first. This post concerns civil litigation, where plaintiffs typically file a complaint setting forth various causes of action against defendants who have allegedly wronged them. These complaints are often amended. Sometimes plaintiffs add or remove parties. Plaintiffs may also add or remove causes of action or factual allegations in support of their causes of action. A defendant may move to dismiss a complaint, and if they succeed, the court may grant the plaintiff leave to file an amended complaint. Granting leave to amend at least once is common--unless a defendant has clearly demonstrated that a plaintiff's case is completely futile, a court will likely give the plaintiff another shot.

While many cases I've litigated have involved amended, second amended, or even fourth amended complaints, I was curious about the maximum number of amendments courts have allowed. A first amended complaint isn't too hard for a plaintiff to get. But when a court is confronted with a complaint that has been drafted and redrafted multiple times, the probability that the court will give a plaintiff yet another chance decreases.

From my exhaustive research (searching for "tenth amended complaint" and increasing the numbers until I could find no further results), it appears that the most amended complaint on record was amended twenty-two times.  The case is Mirarchi v. Boockvar, and it's a recent one--with the original complaint filed on January 12, 2021 in the US District Court for the Eastern District of Pennsylvania (case no. 5:21-CV-00126). A publicly-accessible link to the docket is here.

I've answered the question I set out to investigate, but I dug into the case itself, as I was curious about what would give rise to so many amendments. For those of you brave enough to dive into that nonsense, read on:

How to Get Away With Unethical Lawyering, Season 1, Episode 3

At the time I am writing this post, I have seen all of Seasons One and Two of How to Get Away With Murder. To date, about two minutes of Season One, Episode Three remain my favorite moment of the show, as they contain a perfect storm of outrageous ethical violations resulting not in prosecution, expulsion, or reprimand, but in reward for one of the show's main characters. It's outrageous, egregious, preposterous, and represents the law-ignoring mayhem that makes How to Get Away With Murder such fun for nitpickers like myself.

This is the third in my series of posts detailing the ethical violations in How to Get Away With Murder. My first post from a year and a half ago is here, and my most recent post on Episode Two is here. As always, the Pennsylvania Rules of Professional Conduct are my go-to authority on the characters' ethical violations.

That's it for the background, now on to the condemnation...

How to Get Away With Unethical Lawyering, Season 1, Episode 2

Long ago I wrote a post on the first episode of How to Get Away With Murder detailing the plethora of ethical violations committed by the characters. After writing that post, however, work got busier, other legal issues grabbed my attention, jobs changed, and How to Get Away With Murder was not yet on Netflix. My attention turned to other things, and the show (and even blogging) fell off my radar.

Today, I begin to remedy this state of affairs.

This is the first of a regular series of blog posts in which I issue-spot the ethical violations in How to Get Away With Murder. Unlike other commentators who highlight the broader inaccuracies in the show's portrayal of the legal profession, these posts will focus primarily on the ethical violations committed by the show's characters. As with my first post, I will cite to Pennsylvania's Rules of Professional Conduct.

This post (and those to follow) contain spoilers for those who have not yet seen the show. My posts will start with Season One and both seasons of the show are on Netflix, so those of you who want to watch the show and avoid spoilers should have no difficulty catching up.

Pennsylvania Supreme Court Votes to Suspend Justice McCaffery

Dave Hoffman at Concurring Opinions writes that the Pennsylvania Supreme Court has voted to suspend Justice Seamus McCaffery. At How Appealing, Howard Bashman has links to further coverage. The per curiam opinion of the court cites numerous scandals -- including allegations that Justice McCaffery improperly contacted a traffic court judge over a traffic citation issued to Justice McCaffery's wife, claims that Justice McCaffery and his wife improperly gathered referral fees through Justice McCaffery's official capacity, and a recent scandal involving a vast exchange of sexually explicit emails between Justice McCaffery and people at the office of the Pennsylvania Office of the Attorney General.

Meanwhile, an ethics investigation of Justice McCaffery will move forward. Justice Todd dissented from the Court taking an active role in the matter.

The bottom of the per curiam opinion indicates that Chief Justice Castille wrote a concurring opinion. That opinion is available here, and it is merciless and unlike any opinion I have ever read. I cannot do justice to the opinion with descriptive terms, so I conclude this post with the parts of the opinion that I found particularly noteworthy (though I recommend you read the entire thing):

Justice McCaffery blames me for a series of egregious acts of misconduct on his part. However, it was not I who caused his wife to be cited for driving the wrong way on Market Street. It was not I who caused Justice McCaffery to meet with the main Philadelphia Traffic Court ticket fixer, an admitted felon, to “discuss” his wife’s ticket which was then dismissed by a Traffic Court judge who later pled guilty to federal crimes arising from ticket fixing. It was not I who subpoenaed his wife’s traffic ticket file which was then officially brought to my attention as part of the review of Philadelphia Traffic Court – that was the work of the FBI. It was not I who gave his wife, a Supreme Court employee, permission to run a law practice out of a Supreme Court chambers, earning millions of dollars. It was not I who referred that matter to the US Attorney’s Office. It was not I, but it was Justice McCaffery, who hired Chadwick Associates to assist in reforming Philadelphia’s criminal courts and who was lawfully compensated for his services to the Philadelphia Court system for his professional work. 

. . . 

Justice McCaffery is correct in one of his allegations against me. I have been attempting to remove Justice McCaffery from this Court. In my two decades of experience on this Court, no other Justice, including Justice Joan Orie Melvin, has done as much to bring the Supreme Court into disrepute. No other Justice has failed to live up to the high ethical demands required of a Justice of this Court or has been the constant focus of ethical lapses to the degree of Justice McCaffery. 

. . .  

As a prosecutor in the Philadelphia District Attorney’s Office, I often had the occasion to review pre-sentence psychiatric reports, although I do not claim to be an expert in the field. One pathology that I do recall, and as confirmed in a review of a prominent medical journal, describes the pathology of an individual who has the personality traits of not caring about others, thinking he or she can do whatever is in that person’s own self-interest and having little or no sympathy for others. The most telling pathology is that when that person is caught, or called out for his transgressions, that person does not accept blame but instead blames others for his or her own misconduct. Those pathological symptoms describe a sociopath. So far in the blame game, Justice McCaffery has blamed the US Marine Corps, the US Air Force, the Philadelphia Police Department, Chadwick Associates, the US Attorney and the FBI, Attorney General Kathleen Kane, now Justice Michael Eakin, and myself for the consequences arising from actions all initiated by him, but thought by him to be of little consequence: just a few “cooked up controversies” by his perceived tormentors. 

How to Get Away With Unethical Lawyering: Episode 1

I recently watched the pilot episode of ABC's How to Get Away With Murder. I blogged about the show back in May when the trailer first came out. I noted that the show appeared to be "(1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter."

After watching the pilot, I think it's safe to say that I was right.

The show is centered around a criminal law professor, Annalise Keating (played by Viola Davis), at a fictional law school in Pennsylvania. She teaches criminal law while simultaneously running a highly successful criminal defense firm out of her home. For her assignments, she tells students the facts of cases she is defending and asks them to provide their own defense theories. Students who do the best are promised a job at her law firm.

The show also highlights several of her students, in particular, Wes Gibbins, played by Alfred Enoch. Gibbins, a bright-eyed first year law student starts out by making the classic mistake of not being prepared for the first day of class. He soon dives into Keating's world of criminal defense and intrigue.

With a premise like this, how can't there be a slew of ethical violations? After the break, I discuss the specific ethical problems that I noticed in the pilot episode. Because the show seems to take place in Pennsylvania, I will use Pennsylvania's Rules of Professional Conduct in determining whether ethical violations have occurred, and any reference to a "rule" will be to these rules unless I note otherwise. Warning, spoilers ahead.