Article Correctness Is Author's Responsibility: The Problem With Outlawing Distracted Walking

Texting while walking is so dangerous it should be outlawed. That’s the case one New York state lawmaker is making as he proposes new fines on pedestrians who use their mobile devices while crossing the street.

The proposed bill from State Senator John Liu, who represents a portion of Queens in New York City, calls for fines between $25 and $50 for a first-time offender, $100 for a second time, and $250 thereafter.

But can a fine on distracted walking really cut down on pedestrian-related traffic incidents? “This is just about common sense,” Liu told Gothamist earlier this week, saying distracted walking is an increasing public health concern, but adding he didn’t have data to back up that assertion.

While overall traffic deaths in New York City fell to a record low of 200 in 2018, 114 of those were pedestrians killed in traffic—an increase from 107 the year before.

But many street-safety advocates say Liu’s bill, which resembles a similar proposal in the state assembly last year, is just another car-centric policy that doesn’t address the primary reasons pedestrians are dying on the street.

Marco Conner at the nonprofit Transportation Alternative calls Liu’s proposal “well-intentioned,” but ultimately misguided and ill-informed. It could also lead to subjective and discretionary policing, he says.

At the heart of the opposition to the bill is that it places blame on the person that’s most often the victim of a traffic incident, not the culprit. New York City’s own data says as much: In a 2010 study of some 7,000 car crashes in a five-year period, researchers found that motorists were to blame for more the three-quarters of traffic fatalities and severe injuries involving pedestrians. Driver inattention accounted for 36 percent of those crashes, and the driver’s failure to yield accounted for another 20.6 percent. Another 8.3 percent were blamed on motorists driving at an unsafe speed.

“No city has ever fined pedestrians and achieved huge safety gains as a result,” says Ben Fried, spokesperson for the think tank TransitCenter in New York City. “Jaywalking enforcement is not a route to pedestrian safety, and this bill is not going to be a route to prevent traffic injuries and deaths."

New York isn’t the first to target phone users with distracted walking laws. Honolulu became the first major city to pass such legislation in October 2017, and smaller cities like Montclair, California, and Rexburg, Idaho, also passed similar laws. Meanwhile, Connecticut and New Jersey have also sought legislation on the state level.

Yet as the Honolulu Star-Advertiser reported in November 2018—a year after the city’s crackdown on pedestrian walking behavior—the number of pedestrian deaths actually doubled, from 13 the year before to 26. Only six involved a pedestrian in a crosswalk, and none of the victims appeared to have been distracted by mobile devices (though the newspaper does note that that’s usually hard to prove).

As CityLab wrote then, Honolulu’s law didn’t get to the bottom of the issue it was trying to solve: curbing the city’s unusually high rate of elderly pedestrian deaths. Never mind that pedestrian injuries related to mobile use are higher among younger folks, but the overall case for distracted walking as a traffic safety issue is weak. While the National Safety Council found that the annual number of related injuries quadrupled between 2000 and 2011, for example, they also noted that the majority of them “happened at home and not adjacent to roadways.”

Janette Sadik-Khan, New York City’s former transportation commissioner and a leading expert on street safety, told the New York Times that Honolulu’s bill lacked basis in any research. She said then that the focus should be on “proven” strategies, like better road designs, creating more bike lanes, and reducing vehicle speeds.

While Fried doesn’t think New York’s bill is likely to pass, Conner is less optimistic. “Historically, we know that ill-informed laws driven by disguised victim-blaming can pass,” he says. After all, in the 1990’s, then-Mayor Rudolph Giuliani ultimately made jaywalking a criminal offense, though enforcement has been inconsistent. If passed, advocates and lawyers worry it will become yet another tool for policing communities of color under the guise of safety.

The city’s prohibition on cycling on the sidewalk could serve as an instructive example of how that happens. A CUNY study in 2014 that found that between 2008 and 2011, the NYPD issued tickets primarily in minority neighborhoods. In fact, of the 15 neighborhoods that had the greatest number of summonses, 12 consisted mainly of black and Latino residents. “Some call it ‘stop-and-frisk by another name,’ the Village Voice wrote in 2014.

“We know for sure there is always disparity in enforcement,” says Scott Hechinger, public defender and policy director at the Brooklyn Defender Services, which annually represents tens of thousand of people facing arrest for misdemeanor and non-criminal charges. “The result is unnecessary police interaction and more opportunity for escalation.” A federal judge’s ruling in 2013 on the constitutionality of stop-and-frisk noted, for instance, that police ended up using force against African Americans in 23 percent of the nearly 700,000 stops made in 2011, compared to just 17 percent of stops of whites.

The fines themselves are another problem, as even $25 can be a hefty burden on lower-income families. And when they fail to pay that fine or to show up in court, it can lead to arrests down the line. In that sense, such a law also “criminalizes being poor,” Hechinger says.

Fried worries that if New York passes the bill, more states will follow suit. Despite the fact that advocates and researchers have long called the criminalization of pedestrian behavior ineffective and even counterproductive, such proposals continue to crop up across the nation. Why?

“It instinctually makes sense, coupled with a culture of victim-blaming that the police and the media has been complicit in fostering,” says Conner.  It’s true that people have a bad habit of texting while walking, and in doing so, make themselves more vulnerable to bumping into obstacles and other pedestrians on the sidewalk. And we can’t help but shake our heads while watching viral videos of distracted walkers fall into ponds and tripping over things.

Both Conner and Fried say that educational campaigns and more creative approaches can be effective at getting people to look up while walking. Fried, however, says those can’t be the main ways to prevent harm to pedestrians, and Conner cautions that cutesy interventions can also feed into the narrative that pedestrians are at fault when they collide with vehicles.

But the bigger point is that distracted driving and speeding remain huge obstacles in New York City’s Vision Zero goal to eliminate all traffic-related fatalities by 2024 , and those should be addressed first.

“There’s so much work to be done on addressing reckless driving, where the greatest responsibility lies, before we should even consider spending limited resources on something like this,” Conner says.