Forthcoming Article on Distracted Walking

Since 2017, I have been fascinated by laws prohibiting "distracted walking," which is most typically defined as walking across the street while using a phone or electronic device. I've blogged about ordinances and proposed laws banning this practice repeatedly, starting with Honolulu's ban in 2017 and other states' and cities' ordinances and proposed legislation here, here, and here.

Those readers interested in a longer treatment of the subject should check out my forthcoming article, "Distracted Walking," forthcoming in the Penn State Law Review. You can find the current draft here. Here's the abstract:

Throughout the United States and across the world, cities are enacting bans on “distracted walking.” These bans target cell phone users who cross the street while using a telephone. Doing so in certain cities may result in a fine, community service, or even jail. Drawing inspiration from municipalities, lawmakers in several states have proposed similar statewide legislation. Pushback against these measures is rare—as many people have either directly, or indirectly, experienced the slow and oblivious behavior of “smartphone zombies.”

This Article surveys these laws and demonstrates that the science is, at best, mixed on whether device usage results in distraction significant enough to put pedestrians at risk. Studies of pedestrian deaths and injuries suggest that pedestrian distraction plays a minimal role in pedestrian injuries. And those who are most at risk of serious death or injury—elderly pedestrians—are barely mentioned in debates over distracted walking bans. This Article argues that these distracted walking prohibitions are not only poor traffic policy, but also exemplify a trend of blaming pedestrians for deaths and injuries caused by drivers. What’s more, by criminalizing common behavior, these bans create a further opportunity for selective enforcement by the police. Those most likely to suffer the penalties from distracted walking prohibitions are racial minorities and others living in areas deemed “high crime.” Distracted walking bans therefore contribute to selective enforcement of criminal law and burden the most disadvantaged members of society with additional fines and penalties.

Distracted walking bans have never been addressed in academic legal scholarship. They are barely examined or criticized when they are proposed—instead attracting widespread media attention for their quirkiness. But odd little crimes like these can have significant negative impacts on people’s lives, fail to help those who they are meant to aid, and implicate wider systemic injustices in the legal system. It is therefore worthwhile to examine these overlooked laws more closely, consider less burdensome and more effective alternatives, and realize that perhaps many other similar, neglected infractions are deserving of similar critique and attention.

Comments and feedback are welcome! The article is on a pretty fast schedule to publication, though, so if any feedback is to be incorporated, you'd better let me know soon.

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.

City in Japan Proposes Broad "Distracted Walking" Ordinance

The Independent reports:

Politicians in Yamato, about 25 miles southwest of Tokyo, have put forward a bill that could make it illegal for people to gaze at their devices while walking. 

The bill was submitted to the city’s assembly on 1 June. If passed, the law would come into effect from 1 July.

Officials said that people were unlikely to be punished for flouting the proposed new measures. 

Instead, the law has been designed to keep pedestrians safe when crossing roads, officials added. 

People are being encouraged to use their devices while standing in a spot where they are unlikely to pose a hindrance to others passing by.

The Daily Mail reports on the ordinance as well, claiming that city politicians "allegedly claim there has been an increase in injuries among people walking while distracted by their phones," and that this ordinance, if passed, would be the first such restriction on phone use while walking in Japan.

Both outlets cite various statistics regarding injuries resulting from distracted walking. The Independent cites a study by a Japanese telecom firm which simulated what would happen if 1,500 people crossed the Shibuya pedestrian crossing in Tokyo if all were looking at their smartphones--noting that there would be: "446 collisions, with 103 people getting knocked down while 21 others dropped their phones." The Independent and Daily Mail also refer to this study authored by researchers at the University of Calgary, which reviewed 14 studies and found that mobile phone conversation and text messaging increased rates of hits and close calls in intersections--with texting having a greater impact and resulting in decreased rates of looking left and right prior to crossing the street.

Because I cannot find a full text version of the cited University of Calgary study, it is difficult to evaluate--although the authors note that "a variety of study quality issues limit the interpretation and generalisation of the results." As for the telecom firm simulation, its assumption that absolutely everyone in the intersection would be on their phone is somewhat extreme. Indeed, researchers working for the city observed far lower rates of cell phone use, reporting a 12 percent user rate after observing 6,000 people at two "stations" in Yamato.

This proposed ordinance would be far broader than ordinances in US cities such as Honolulu, Hawaii, and Montclair, California. While those ordinances apply to cell phone use while crossing a street, the proposed Yamato ordinance would apply to "city streets and sidewalks as well as 'shared public spaces' such as plazas outside train stations." While the impact of the statute is offset by its lack of a punishment provision, its application to pedestrians who are not crossing streets is the first such ban of which I am aware.

I generally oppose bans on "distracted walking," as they tend to be based on studies and statistics that are uncertain at best, and because they criminalize common behaviors, which invites selective enforcement of the law. Yamato's ordinance is even broader, as it targets pedestrians both on and off the street. Additionally, the ordinance appears to have little basis in evidence, as most studies warning of potential injuries from pedestrian cell phone use stem from use of phones while crossing the street. Here's hoping that the ordinance fails, as it otherwise may serve as a model for other cities, states, and countries eager to implement their own bans.

New York City Department of Transportation Report Finds "Little Concrete Evidence" That Distracted Walking Contributes to Pedestrian Fatalities and Injuries

Proposals for laws and ordinances that restrict "distracted walking" (walking while texting or using the internet on phones) have been all the rage. Now, however, it appears that governments are finally examining the issue and are (unsurprisingly) finding that the perceived plague of distracted walking is disconnected from reality.

New York City's Department of Transportation has issued this recent report finding "little concrete evidence that device-induced distracted walking contributes significantly to pedestrian fatalities and injuries." Coverage of the report is here, here, and here.

The report surveyed United States cases of pedestrian fatalities between 2010 and 2015 and found that were approximately 38 fatalities "involving pedestrian use of portable electronic devices" out of a total of 28,642 pedestrian fatalities. Additionally, the report surveyed New York City fataility reports from between 2014 and 2017 and found that cell phones were involved in two incidents where pedestrians were killed -- one where a pedestrian was texting, and another where the pedestrian was reaching for a dropped "mobile device." This was out of a total of 856 pedestrian fatality cases with available narratives.

The report included estimates of "cell phone-related injuries" on streets and highways--although most of those injuries involved cases where "a driver, passenger, or cyclist" was using a cell phone rather than the injured pedestrian. Even with this broader categorization, the percentage of injuries involving cell phone use was fairly low, ranging from 2.4 to 5.3 percent of all pedestrian injuries from 2009 to 2015.

While the report acknowledges that cell phones can be distracting, and includes several citations to studies regarding distraction, it notes that drivers remain the most important target for regulation. The report states that "the most significant gains in reducing pedestrian fatalities and severe injuries can be made by continuing to target the most dangerous behaviors -- such as driver speeding and failure-to-yield -- and by implementing street improvement projects that reduce the severity of crashes."

Legislators on the state and local level typically focus on anecdotes or instinct when it comes to passing overly broad restrictions against distracted walking. As I have noted before, these restrictions -- which target commonplace conduct -- will likely result in law enforcement officers having broad discretion in deciding who to cite, a scenario that lends itself to selective enforcement. Hopefully, lawmakers considering these regulations will see the New York City Department of Transportation report and note that their efforts to curtail pedestrian deaths and injuries would be better served by other means.

City of Baguio To Again Consider Distracted Walking Ordinance

By now, it should be clear to readers of this blog that I have a Google alert set up to notify me of proposed laws or ordinances related to bills restricting "distracted walking," a practice typically defined as walking while looking at a cell phone or other electronic device (almost always while walking across streets).

Yesterday's notification brought me news from the City of Baguio in the Philippines. The City Council has calendared for second reading an ordinance that will restrict pedestrians from walking across streets while distracted. The Philippine News Agency reports:

The city council here is hearing a proposed ordinance, authored by the Councilor Scout Official For a Day (SOFAD), that prohibits and regulates the use of mobile devices and other distractive devices while walking and crossing the streets and sidewalks to ensure public safety.

“The said ordinance aims to prohibit pedestrian walkers (from using) any distract(ive) tools that could lead them to an accident," Councilor Peter Fianza, member of the Committee on Public Protection, Safety, Peace and Order, said in an interview Tuesday.
The proposal was calendared for second reading during Monday’s regular council session.

Fianza said once approved, the ordinance requires all pedestrians to be vigilant when they walk on the street and not to use gadgets, such as mobile phones, books and other objects “that distract someone’s line of sight.”

What is this about a Councilor Scout Official For a Day?

The city government has institutionalized the scouting program during October, annually giving boy and girl scouts, from elementary to high school who are enrolled in private or public schools, to sit as officials for a day after a screening process conducted by the Girl and Boy Scouts of the Philippines.

I see. Well, since there is no link to the ordinance, and since the City website's link to the legislative monitoring system appears to be broken, do we know exactly what kind of conduct the ordinance bans, and, in particular, whether the ordinance defines "distractive devices?"

[I'm afraid not. Like nearly all journalists, I refuse to put a link to the text of the ordinance in my story even though this would be very helpful to readers, particularly those who read and apply laws for a living and who may provide more in-depth commentary on the law or case being discussed].

Shoot. Well do we at least know what sort of punishment there would be for a violation of this ordinance? I'd guess that the penalties aren't that high, since comparable laws and proposals in the United States only involve relatively low fines like $20.00 per violation.

Once approved as an ordinance, violators will be meted a penalty of a PHP1,000 fine or render community service for the first offense . . .

Okay, PHP1,000 seems to be about $19.00 in US dollars--

. . . PHP2,000 and community service for the second offense or one to 10 days imprisonment; and PHP2,500 and community service or imprisonment of 11 to 30 days for the third offense.

Ouch! Where would someone get an idea for a law like this in the first place?

Fianza said the concept of the proposed ordinance was based on the anti-distracted walking measure in Honolulu, Hawaii.

As far as I can tell, Honolulu was the first city in the United States to ban "distracted walking" while crossing the street, and it has kicked off a bit of a trend of other cities and at least one state (Connecticut) considering or enacting similar bans. This is the first instance of which I am aware where a city in a different country has proposed a similar ban that is explicitly inspired by Honolulu's ban.

Notably, though, this is not the first time a ban like this has been proposed in Baguio. The Herald Express reported in December 2017 that City Councilor Leandro B. Yangot, Jr. proposed a similar ban, although that report indicated that the measure would prohibit a person from crossing "a street or highway while viewing a mobile electronic device in a manner that averts his or her visual attention to the said device." Again, this is only a quote from the report, as I cannot locate the text of that previous ordinance. The penalties for that 2017 proposed ordinance would have been:

[C]ommunity service of 15 days for the first offense, community service of 30 days for the second offense, and a fine of P5,000 or imprisonment or both, upon the discretion of the court, for the third offense.

Tough, although I presume that this previous ordinance did not pass in light of the recent, similar proposed ordinance. The old proposal was at least a little more narrow, however, as the most recent proposal would ban looking at objects like books in addition to the typical phone or electronic device.

Without the text of the ordinance, there is not much more for me to say other than to repeat my point that such bills are misguided because they ban common practices and will likely lead to selective enforcement. They also will likely not deter people from walking while distracted, because the danger of being struck by a vehicle is apparently not enough of a deterrence. This most recent proposed ordinance is particularly notable as an example of how lawmaking in the United States -- including silly lawmaking -- may have an expansive impact, not only in other American cities and states, but in other parts of the world.

Connecticut Legislature to Consider Ban on "Distracted Walking"

The Hartford Courant reports on a "Distracted Walking" law that is making its way through Connecticut's legislature. From the report:

The General Assembly’s transportation committee was voting Wednesday on a bill that would make it a fineable offense to cross the street while looking at your cellphone.

“This is really about trying to protect the person who should be aware when they’re putting themselves in front of a two or three ton vehicle barreling at them … if they’re not paying attention they will lose that battle,” said Sen. Carlo Leone, D-Stamford and co-chair of the committee.

Rep. Roland Lemar, D-New Haven and the committee’s other co-chair, said he started out opposing the bill, reasoning that walkers “present the least danger” in terms of causing traffic accidents.

“As I heard from more and more people, this is a shared responsibility that we have,” he said. “We do have things like distracted driving, so distracted walking is a reasonable standard that we should establish.”

The bill is S.B. No. 825 and can be found here. The bill is of note because it is, to my knowledge, the first state-level legislation that would restrict the use of electronic devices while walking across streets. A few towns have passed restrictions like this, but I am not aware of any states that have done so.

From the text of the bill:

Section 1. (NEW) (Effective October 1, 2019) (a) For the purposes of this section, "mobile electronic device" means any hand-held or other portable electronic equipment capable of providing data communication between two or more persons, including, but not limited to, a mobile telephone, a text messaging device, a paging device, a personal digital assistant, a laptop computer, equipment that is capable of playing a video game or a digital video disk, or equipment on which digital photographs are taken or transmitted, or any combination thereof, and "viewing" means looking in the direction of the screen of a mobile electronic device.

(b) Except as provided in subsection (c) of this section, no pedestrian shall cross a highway while viewing a mobile electronic device.

(c) The provisions of subsection (b) of this section shall not apply to (1) the use of a mobile electronic device for the sole purpose of communicating with any of the following regarding an emergency situation: An emergency response operator, a hospital, physician's office or health clinic, an ambulance company, a fire department or a police department, or (2) any of the following persons while in the performance of their official duties and within the scope of their employment: A peace officer or firefighter, as those terms are defined in section 53a-3 of the general statutes, or any emergency medical responder, emergency medical technician or paramedic, as those terms are defined in section 19a-175 of the general statutes.

(d) Any person who violates the provisions of this section shall, for a first violation, receive a warning and, for any subsequent violation, be fined twenty dollars.

This restriction is narrower than Honolulu's ban (examined in painstaking detail here). Connecticut's proposed restriction applies to a smaller range of devices, as it includes the important qualification that a "mobile electronic device" affected by the bill must be capable of providing data communication between two or more persons. Honolulu's ban, on the other hand, applied to devices that either provided for communications between two or more people OR were capable of "providing amusement." This means that even if someone is fiddling with an iPod while crossing the street, they will not violate this law, provided that their iPod is a model that cannot send messages or texts to other people. Of course, it seems that no one (including me, for the most part) listens to music on anything other than their phones while walking anymore, but now there may be a reason to dust off the old devices.

Unlike Montclair, California's terribly-drafted ban, the Connecticut bill only applies to instances where pedestrians are "viewing" the device, which the bill defines as "looking in the direction of the screen of a mobile electronic device." Honolulu uses a similar definition. This is narrower than Montclair's ban, which also applies to listening to devices with headphones.

As I've noted before, I generally oppose restrictions like this. Bills that prohibit common practices like this are likely to be unequally enforced in light of widespread violations will occur, and enforcement will be left up to the discretion of law enforcement officers. Broad grants of discretion like this are likely to disproportionately impact racial minorities, the poor, and others who officers believe are "suspicious." While this bill isn't as broad as Montclair's ban, it is still more than is necessary. And, as I've also noted before, while proponents of the bill may argue that its twenty-dollar fine is low, this amount is still burdensome to some and it can add up for those who are repeatedly cited -- a likely occurrence for a prohibition on common activity.

And as for Rep. Roland Lemar's change of heart on the bill in light of restrictions on distracted driving, this ignores the fact that pedestrians are not the ones who are likely to cause harm to others if they are walking while distracted. Distracted driving rules make sense, as vehicles can cause significant injury or death if their drivers aren't paying attention. As for people who are walking, they may well end up injured if they are walking while distracted, but they are not going to injure others like distracted drivers. That Lemar cannot recognize this distinction is unsettling.

As for the status of the bill, on March 20, 2019, the Transportation Committee voted in favor of the bill, and as of today, the bill has been submitted to the Legislative Commissioner's Office. From there, it may be voted on by the legislature or it may proceed to a different committee (at least, that's what I've been able to grasp from this cheat sheet on Connecticut legislative procedure). Hopefully the bill will be referred to another committee to die, or the legislature will vote against it, as it is an unnecessary restriction that may prompt other states and towns to follow suit.

Honolulu Bans Looking at Cell Phones While Crossing The Street

NPR reports here and here on a recent ordinance passed by the City and County of Honolulu that prohibits people from "viewing" "mobile electronic devices" while crossing a street or highway. From NPR:

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.