Montclair Passes Broad Ordinance to Combat "Distracted Walking"

The city of Montclair in Southern California recently passed an ordinance that bans crossing the street while talking on the phone, looking at the screen of an electronic device, or wearing headphones or earbuds on both ears (regardless of whether they are playing music).

Many outlets have reported on this ordinance. I learned about it this morning from a teaser for a local public radio report that you can find here. Illustrious publications such as the LA Times reported on the ordinance. Local outlets as well report on it here and here.

Because I'm a lawyer with a blog and not a "journalist," I'm going to depart from the standard practice that all of these reports have in common, which is to fail to provide a link to the text of the ordinance. Here it is. You're welcome. Here, also, are the minutes for the December 4, 2017 meeting where this Ordinance was approved.  The minutes contained the ordinance number (17-791), which finally led me to the text. (Two links to the text in one post. I'm out of control.) 

To make things even crazier, here's (most of) the text of the municipal code sections that the ordinance added to the Montclair Municipal Code (and which became effective on January 3, 2018):

8.02.010. Definitions. 
As used in this Title, the following definitions shall apply. For purposes of Title 8, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.  

Emergency Responders include, but are not limited to, public safety officers of either a municipal or county police department or fire department, emergency medical technicians, paramedics, private ambulance service responders, emergency management workers, and federal and state law enforcement and fire service officers on duty and responding to an emergency service request.  

Mobile Electronic Device means any handheld, head- or body-mounted, or portable electronic equipment capable of providing wireless and/or data communication between two or more persons or a device for providing amusement, including but not limited to a cellular phone, smart phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, video/audio player, digital photographic device, or any other similar electronic device. 

Pedestrian means a person who is afoot or who is using any of the following: (1) a means of conveyance propelled by human power other than a bicycle; or (2) an electric personal assistive mobility device.  

Personal Audio Equipment means any device placed in, on or around a person's ears capable of providing an audible sound, including but not limited to headphones or ear buds.  

Viewing means looking in the direction of the screen of a mobile electronic device.  

Chapter 8.28 PEDESTRIANS  

8.28.020. Pedestrian Use of Mobile Electronic Devices.  

A. No pedestrian shall cross a street or highway while engaged in a phone call, viewing a mobile electronic device or with both ears covered or obstructed by personal audio equipment.  

B. Upon presenting evidence, it is an affirmative defense to any citation for a violation of subsection (A) that the cited person was engaged in, or making, a "911" emergency communication with a mobile electronic device.  

C. Emergency responders viewing a mobile electronic device, or whose ears are covered or obstructed by audio equipment, while in the performance and scope of his or her official duties are exempt from subsection (A).  

D. Persons with medically prescribed hearing aides [sic] are exempt from subsection (A).  

E. Any person who violates any provision of this Chapter is guilty of an infraction violation punishable in accordance with Chapter 1 .1 2 of Title 1 of this Code.

A few things.

Drone Licenses in Jackson, Mississippi?

That seems to be what members of Jackson's City Council are proposing in this WAPT News Report. Councilwoman Larita Cooper-Stokes recommends a policy that would require "everyone who's using drones in the City of Jackson" to register, noting that "we need to know who you are and we need to know what you're doing." Councilman De'Keither Stamps points out that privacy concerns are motivating the call for restriction, and worries about the prospect of people using drones to look through other people's windows.

The Clarion-Ledger reports on the story here, and notes that other cities have restricted the use of drones. This includes Iowa City, which banned the use of police drones last summer. A universal licensing requirement, however, would not be limited to government drones -- it would affect everybody.

While drones may be used to spy on people in ways that alternative technology could not facilitate, I think that calls for a drone registry are alarmist. Gregory McNeal argues that a lot of journalism about drones is "sensational," but that many of these reports end up covering incidents where the drone use was far more benign than initially reported. For example, a Seattle woman claimed that a drone had been spying on her through her window, and this caught the attention of the media. But it turned out that the drone was only being used to survey a site for a new building.

I also think that Cooper-Stoke's vague description of drone registration was concerning, namely that she wants to know what people are doing with their drones. It is not clear to me what sort of information would be collected by this registration scheme, and it is also unclear how this would help prevent the invasive use of drones.

While I am all for clearer regulation of drone technology, I think that the danger of private drones invading people's privacy is currently fairly low. Universal registration is far too blunt of an instrument to address the complicated question of regulating drones.

California Mulling Statewide Ban on Plastic Bags

The New York Times has an interesting article about the rise of plastic bag bans and the politics of these bans:

The case against plastic shopping bags is simple and, with more than 150 communities across the country embracing some kind of anti-bag laws, increasingly familiar. Plastic bags are used once or twice but can last up to a millennium. Only a small fraction of the bags are recycled, in large part because they jam sorting machines at recycling plants and so must be separated from other plastics. Many bags end up snagged on trees, stuck in storm drains or sitting in landfills.

. . .

Hilex Poly, one of the nation’s largest manufacturers of plastic bags, single-handedly spent more than $1 million lobbying against a bill to ban plastic in California in 2010. That bill failed, as did another attempt in 2013. Hilex Poly, based in Hartsville, S.C., has made political donations to every Democrat in the California Senate who joined Republicans in voting against last year’s bill. 

. . .

But support has been steadily growing in the California Legislature. The Los Angeles Times endorsed a statewide ban last week, and several senators who voted against the ban last year have come out in support of it this year. Some environmentalists say they now believe they have the momentum to push bans across the country, starting with California.

The article does a compelling job of presenting the environmental impacts of plastic bags and the benefits that follow in the wake of plastic bag bans. Speaking from firsthand experience, I can say that it has not been particularly easy to adjust to the Los Angeles plastic bag ban -- I often forget my reusable bags (or make an impromptu trip to the store from school) which has caused me to wind up with an influx of paper bags. But I will begrudgingly admit that the plastic bag ban is probably the most environmentally friendly approach to this issue.

News Agencies Cannot Clearly Cover Whether New York Bans Bottomless Brunches

The New York Post reports:

A little-known New York State law prohibits “selling, serving, delivering or offering to patrons an unlimited number of drinks during any set period of time for a fixed price” according to the State Liquor Authority’s website.

The Post goes on to conclude that restaurants cannot give patrons unlimited alcoholic beverages. For example, "bottomless brunches," where restaurants offer unlimited mimosas for a certain fee with brunch food, are prohibited. Or so the Post claims:

Latin hot spot Calle Ocho on the Upper West Side offers a $15 special that keeps customers swimming in unlimited sangria as long as they have a plate of food sitting in front of them, which is illegal under the SLA law.

Town Hall laments that this is "big government at work." The New Republic tells us that this will prevent people from eating and drinking more than they should. Jezebel warns that serious enforcement is on the way and that "s**t's about to get real."

But wait! Before accepting these conclusions, it might be good to look at the law itself. Here is the relevant provision: N.Y. ABC. LAW § 117-a:

The Origins of Anti-Jaywalking Laws

The BBC reports:

Enforcement of anti-jaywalking laws in the US is sporadic, often only triggered by repeated complaints from drivers about pedestrian behaviour in a particular place. But jaywalking remains illegal across the country, and has been for many decades. 

The first known reference to it dates to December 1913, says Peter Norton, a history professor at the University of Virginia and author of Fighting Traffic - The Dawn of the Motor Age in the American City. That month a department store in Syracuse hired a Santa Claus who stood on the street with a megaphone, bellowing at people who didn't cross properly and calling them jaywalkers. 

. . . 

A key moment, says Norton, was a petition signed by 42,000 people in Cincinnati in 1923 to limit the speed of cars mechanically to 25mph (40kph). Though the petition failed, an alarmed auto industry scrambled to shift the blame for pedestrian casualties from drivers to walkers. 

Local car firms got boy scouts to hand out cards to pedestrians explaining jaywalking. "These kids would be posted on sidewalks and when they saw someone starting to jaywalk they'd hand them one of these cards," says Norton. "It would tell them that it was dangerous and old fashioned and that it's a new era and we can't cross streets that way."

Automobile companies then began to work with journalists by providing information on the traffic situation of journalists' cities in return for news coverage that was favorable of vehicles rather than pedestrians. Between this tactic and lobbying of school boards and legislatures, automobile companies were instrumental in cities' adoption of anti-jaywalking laws.

Quirky Law Review Article of the Week: Banning Lawns

Here's an article I discovered a little while back.  I took a look at it before its destination was finalized, but it looks like it ultimately got picked up by the George Washington Law Review.  The article is Banning Lawns, by Sarah Schindler.  I think that the abstract does a pretty good job of showing how the article caught my attention:

        Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.        Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.          In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.

 I recall that when I first read the article, Schindler did not address the political problems raised by her thesis.  It looks like she may have done more to deal with this issue, though I still have my doubts over whether towns will ever adopt the policies she suggests.  Nevertheless, it is a very interesting article with a lot of compelling arguments showing that lawns are very, very bad.