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Government Intervention and Suburban Sprawl pp 129–147Cite as

Palgrave Macmillan

Making Walking A Crime

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Abstract

Police, prosecutors, and government child protection agencies limit Americans’ ability to walk in two ways. First, anti-jaywalking laws slow down pedestrians by instructing that they can only cross certain parts of a street; this chapter shows that these laws are rooted in special-interest politics rather than concern for public safety, and criticizes the justifications for such laws. Second, child protection agencies and police have sometimes interpreted vague laws prohibiting “child neglect” to mean that children must be supervised by their parents at all times, and thus may not walk alone. This chapter criticizes the safety justifications for those laws, and suggests a model state law to protect child pedestrians and their parents.

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Notes

  1. 1.

    In addition, a walker who sues a driver for negligence in an action arising out of a collision is more likely to be held contributorily negligent if she was jaywalking at the time. See, e.g., Leonard v. Irwin, 280 A.D.2d 935 (A.D. 4th Dept. 2001). But because most states have comparative negligence systems (allowing a plaintiff’s negligence to be weighed against that of a defendant, rather than barring recovery) this practice often merely reduces a plaintiff’s recovery rather than eliminating liability. See Coleman v. Soccer Association of Columbia, 432 Md. 679, 712, 69 A.3d 1149, 1168 (Md. App. 2013) (all but four states have adopted comparative negligence).

  2. 2.

    See Peter D. Norton, Street Rivals: Jaywalking and the Creation of the Motor Age Street, 48 Technology and Culture 331, 331–32 (2007), https://muse.jhu.edu/journals/technology_and_culture/v048/48.2norton.pdf.

  3. 3.

    Id. at 332 n. 6 (“over 210,000 Americans were killed in traffic accidents” and three-fourths of them were walkers).

  4. 4.

    Id.

  5. 5.

    Id. at 339.

  6. 6.

    See City of Chicago, Landmark Designation Report: Chicago Motor Club Building 3, 11, http://www.cityofchicago.org/dam/city/depts/zlup/Historic_Preservation/Publications/Chicago_Motor_Club_Bldg.pdf (describing Hayes and Motor Club).

  7. 7.

    See Norton, supra, at 340.

  8. 8.

    Id. (citation omitted).

  9. 9.

    Id. at 343 (citation omitted).

  10. 10.

    Id. at 343–45.

  11. 11.

    Id. at 342.

  12. 12.

    Id.

  13. 13.

    Id. at 345.

  14. 14.

    Id. at 350.

  15. 15.

    Id. at 356.

  16. 16.

    Id. at 354 (describing organization).

  17. 17.

    Id. at 356.

  18. 18.

    Id. at 350–52.

  19. 19.

    Id. at 351.

  20. 20.

    Id. at 357–58.

  21. 21.

    See Philip M. Nichols, Are Facilitating Payments Legal? 54 Va. J. Int’l L. 127, 140 (2013) (“Most states and municipalities prohibit jaywalking”). I note that jaywalking is not technically a crime in every jurisdiction. See State v. Tyler, 7 P.3d 624, 628, 168 Or. App. 600, 605 (2000) (in Oregon, jaywalking is a “violation” rather than a “crime” and thus not subject to imprisonment). But see State v. Barton, 2007 WL 1,429,625 (Ohio Ct. App. 2 Dist.) (jaywalking a misdemeanor).

  22. 22.

    See infra notes 24–25 (citing examples).

  23. 23.

    See infra note 32 (citing examples).

  24. 24.

    See, e.g., Fla. Stat. Ann. § 316.130 (1) (Thomson/Reuters 2014) (a “pedestrian shall obey the instructions of any official traffic control device specifically applicable to the pedestrian”); 625 Ill. Comp. Stat. § 5/11-1001 (similarly worded) (Matthew Bender 2008); Or. Rev. Stat. § 814.010 (State of Oregon, 2013) (pedestrians may generally cross streets where they are facing traffic control devices with green lights, but not when they are facing traffic control devices with yellow or red lights); Alliance v. Bush, No. 2007CA00309, 2008 WL 2,878,321 at *3 (Ohio Ct. App. July 21, 2008) (citing Alliance, Ohio traffic ordinance providing that no pedestrian or driver “shall disobey the instructions of any traffic control device”).

  25. 25.

    See, e.g., 75 Pa. Cons. St. Ann. § 3543(c) (Thomson/West 2006) (“Between adjacent intersections in urban districts at which traffic-control signals are in operation pedestrians shall not cross at any place except in a marked crosswalk.”); Cal. Veh. Code § 21,955 (West 2000) (“Between adjacent intersections controlled by traffic control signal devices or by police officers, pedestrians shall not cross the roadway at any place except in a crosswalk.”); State v. Shorts, No. 11CA009965, 2011 WL 6016525, at *7 (Ohio Ct. App. Dec. 5, 2011) (citing Akron, Ohio ordinance providing that “Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except marked crosswalk[s].”) (citation omitted). A more moderate version of this statute provides that pedestrians crossing outside crosswalks shall yield the right of way to vehicles. See, e.g., 625 Ill. Comp. Stat. § 5/11-1003(a) (Matthew Bender 2008); code of ga. ann. 40-6-92(a) and (c) (Thomson/West 2008) (where adjacent intersections not signalized, a pedestrian outside a crosswalk need only “yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway”; however, “Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.”).

  26. 26.

    See Jones v. Cont’l Elec. Co., 182 A.2d 168, 170 (N.J. Super. Ct. App. Div. 1962) (“crossing in the middle of the block [is] jaywalking”).

  27. 27.

    See Adrian Glick Cudler, Los Angeles Might Finally Do Something About the Dumbest Jaywalking Tickets, CURBED (May 5, 2015), http://la.curbed.com/archives/2015/05/los_angeles_might_finally_do_something_about_the_dumbest_jaywalking_tickets.php. Cf. Jon Hilkevitch, More Pedestrians to be Put on Clock, Chicago Tribune, Mar. 20, 2006, http://articles.chicagotribune.com/2006-03-20/news/0603200209_1_countdown-signals-intersections-walk (describing “countdown clock” concept).

  28. 28.

    See Cudler, supra (Los Angeles tickets cost between $190 and $250); Joe Linton, Interview with Luke Klipp of Jaydancing, Streetsblog (June 16, 2015), http://la.streetsblog.org/2015/06/16/interview-with-luke-klipp-of-jaydancing (in same city, parking tickets only $70).

  29. 29.

    See Wayne Logan, After The Cheering Stopped: Decriminalization and Legalism’s Limits, 24 Cornell J.L. & Pub. Pol’y 319, 338 (2015) (citing case upholding warrantless arrest for jaywalking).

  30. 30.

    Dave Huddleston, Jailed for Jaywalking: Pedestrian crime lands some behind bars, WSB-TV (Nov. 3, 2015, 3:14 PM), http://www.wsbtv.com/news/news/local/jailed-jaywalking-pedestrian-crime-lands-some-behi/nhygy.

  31. 31.

    See, e.g., Judicial Council of California, Uniform Bail and Penalty Schedules 16, http://www.courts.ca.gov/documents/Final-2012-JC-BAIL.pdf (listing fines for various pedestrian offenses; for example, $194 fine for violation of “Don’t Walk” sign); N.J.S.A. 39:4-36 (setting forth $200 fine for variety of offenses, including a pedestrian’s failure to yield to automobiles when former not in crosswalk); H.R.S. § 291C-73(d) ($100 fine for various violations of traffic code by pedestrians, including crossing outside crosswalk).

  32. 32.

    See Arizona Bikelaw, Jaywalking in Arizona, http://azbikelaw.org/blog/jaywalking-in-arizona/ (“In Arizona, cities are authorized to enact their own pedestrian regulations”); Kiera Hay, Committee Kills Jaywalking Ordinance, Albuquerque J., Jan. 23, 2013, http://www.abqjournal.com/162568/north/committee-kills-jaywalking-ordinance.html (describing city council’s rejection of proposal to increase jaywalking fines).

  33. 33.

    See Marcus K. Garner, The Atlanta Journal-Constitution, Jaywalking Mom’s Appeal Denied (Sept. 7, 2012, 8:28 AM), http://www.ajc.com/news/news/local/jaywalking-moms-appeal-denied/nR5Sq/.

  34. 34.

    Id.

  35. 35.

    See State v. Nelson, 731 S.E.2d 770 (Ga. Ct. App. 2012) (upholding lower court’s decision to grant trial rather than dismissing charges). Ultimately, the county reversed itself and dropped the charges, settling for a $200 fine. See Jaywalking mom avoids retrial for son’s death, 11 atlanta (June 13, 2013, 11:59 AM), http://www.11alive.com/story/news/crime/2014/03/05/1938418/.

  36. 36.

    Cf. Tom Vanderbilt, When Pedestrians Get Mixed Signals, N.Y. Times, Feb. 2, 2014, http://mobile.nytimes.com/2014/02/02/opinion/sunday/when-pedestrians-get-mixed-signals.html (“the times we came closest to being hit by cars were when we had the ‘Walk’ signal and a driver attempted to make a turn.”).

  37. 37.

    Crosswalks, Wash. State. Dep’t of Transp., http://www.wsdot.wa.gov/Operations/Traffic/crosswalks.htm (making argument, and pointing out that unmarked intersections have fewer pedestrian/vehicle collisions).

  38. 38.

    See Federal Highway Administration, 2009 Manual on Uniform Traffic Control Devices, Ch. 3B.18, Standard 9, http://mutcd.fhwa.dot.gov/htm/2009r1r2/part3/part3b.htm (discouraging crosswalks on streets where speed limit is over 40 miles per hour, and number of vehicles exceeds specified amounts).

  39. 39.

    Brendan Murphy, David Levinson & Andrew Owen, Estimating the “Safety in Numbers” Effect With Estimated Pedestrian Activity, http://nexus.umn.edu/Papers/SafetyInNumbers.pdf.

  40. 40.

    Id. at 14. See also Peter L. Jacobsen, Safety in numbers: more walkers and bicyclists, safer walking and bicycling, http://injuryprevention.bmj.com/content/9/3/205.full (reaching similar conclusions, but comparing cities rather than intersections within individual city).

  41. 41.

    See US Department of Transportation, Traffic Safety Facts 2013 Data 2, http://www-nrd.nhtsa.dot.gov/Pubs/812124.pdf (only 20 percent of pedestrian deaths at intersections) (“Safety Facts”); Tom Vanderbilt, In Defense of Jaywalking, Slate (Nov. 2, 2009), http://www.slate.com/articles/life/transport/2009/11/in_defense_of_jaywalking.html (citing claims that most pedestrians injured or killed by cars are jaywalkers).

  42. 42.

    Id. (“[L]ess than 20 percent of fatalities occurred where a pedestrian was crossing outside an easily available crosswalk.”).

  43. 43.

    What Every Brit Should Know About Jaywalking, BBC News (Jan. 12, 2007), http://news.bbc.co.uk/2/hi/6251431.stm.

  44. 44.

    Facts on Pedestrian Casualties 2, Department of Transport (June 2015), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438072/pedestrian-casualties-2013-data.pdf.

  45. 45.

    See Worldometers, U.K. Population, http://www.worldometers.info/world-population/uk-population.

  46. 46.

    See Safety Facts, supra, at 5.

  47. 47.

    Id. at 1 (every year between 2004 and 2013, there were between 4300 and 5000 pedestrian deaths in the USA).

  48. 48.

    See Michael Lewyn, Sprawl in Europe and America, 46 San Diego L. Rev. 85, 91 (2009) (17 percent of British trips are on foot or through some other method that is not an automobile, mass transit or bicycle, as opposed to 7 percent of Americans). On the other hand, the higher number of British pedestrians may itself be a cause of Britain’s lower death rates. See supra notes 39–40 and accompanying text (discussing “safety in numbers” theory).

  49. 49.

    On the other hand, this is hardly an “other things being equal” comparison. Cf. Lesson 23: International Approaches to Bicycle and Pedestrian Facility Design, Federal Highway Administration University Course on Bicycle and Pedestrian Transportation, http://www.fhwa.dot.gov/publications/research/safety/pedbike/05085/chapt23.cfm (describing numerous practices that make European nations, including Britain, more pedestrian-friendly than the United States). However, I am not arguing that the absence of jaywalking laws causes Britain’s better safety record, merely that Britain’s lack of jaywalking laws is not harmful enough to prevent Britain from being safer.

  50. 50.

    See Eric Randall, Why Wouldn’t You Jaywalk in Boston? Boston Daily, July 23, 2014, http://www.bostonmagazine.com/news/blog/2014/07/23/wouldnt-jaywalk-boston/, citing Mass. Gen. L. 90-18A.

  51. 51.

    See Safety Facts, supra, at 8.

  52. 52.

    Id. at 9.

  53. 53.

    See supra notes 24–25 and accompanying text (citing examples).

  54. 54.

    See supra note 32 (citing examples).

  55. 55.

    See Edward H. Ziegler, American Cities and Sustainable Development in the Age of Global Terrorism: Some Thoughts on Fortress America and the Potential for Defensive Dispersal II, 30 Wm. & Mary Envtl. L. & Pol’y 95, 111 n.73 (2005).

  56. 56.

    See SRTS Guide, The Decline of Walking and Bicycling, http://guide.saferoutesinfo.org/introduction/the_decline_of_walking_and_bicycling.cfm.

  57. 57.

    See National Academy of Sciences, Physical Activity: Moving Towards Obesity Solutions: Workshop Summary 97 (2015).

  58. 58.

    See Craig N. Oren, Getting Commuters out of Their Cars: What Went Wrong? 17 Stan. Envtl. L.J. 141, 160–64 (1991) (auto travel almost doubled between 1965 and 1990 while public transit use declined); Brian McKenzie, Modes Less Traveled: Bicycling and Walking to Work in the United States: 2008–12, https://www.census.gov/prod/2014pubs/acs-25.pdf (percentage of Americans walking to work decreased by half between 1980 and present).

  59. 59.

    Gaia Bernstein & Zvi Triger, Over-Parenting, 44 U.C. Davis L. Rev. 1221, 1231–41 (2011) (describing “over-parenting” trend; for example, today’s parents more likely to use technology to monitor children and confront teachers over children’s academic problems); David Pimentel, Criminal Child Neglect and the “Free Range Kid”: Is Overprotective Parenting the New Standard of Care? 2012 Utah L. Rev. 947, 953 (noting that preteen children once allowed to baby-sit, but that this is far less common today) (“Criminal Child Neglect”).

  60. 60.

    See David Pimentel, Fearing the Bogeyman: How the Legal System’s Overreaction to Perceived Danger Threatens Families and Children, 42 Pepp. L. Rev. 235, 260 (2015) (“Bogeyman”).

  61. 61.

    Id.

  62. 62.

    Id.

  63. 63.

    Id. at 262.

  64. 64.

    Id.

  65. 65.

    Id. See also Scott Shackford, Ohio CPS Wants to Snatch Kid Away from Family that Has Taught Her Self-Sufficiency, Reason, Hit & Run Blog (Apr. 3, 2013), http://reason.com/blog/2013/04/03/ohio-cps-wants-to-snatch-kid-away-from-f.

  66. 66.

    See Tom McKee, Jeffrey Williamson: Dad arrested after son, 8, skips church to play, WCPO Cincinnati (July 2, 2014), http://www.wcpo.com/news/local-news/warren-county/blanchester/jeffrey-williamson-dad-arrested-after-son-8-skips-church-to-play.

  67. 67.

    See Bogeyman, supra, at 263; Peter Gray, Meet Danielle Meitiv, Fighting for Her Kids’ Rights, Psychology Today (Apr. 11, 2015), https://www.psychologytoday.com/blog/freedom-learn/201504/meet-danielle-meitiv-fighting-her-kids-rights.

  68. 68.

    See Donna St. George, Maryland’s “Free Range Parents” Cleared of Neglect in One Case, Wash. Post, May 26, 2015, http://www.washingtonpost.com/local/education/marylands-free-range-parents-cleared-of-neglect-in-one-case/2015/05/25/deb30e12-0093-11e5-805c-c3f407e5a9e9_story.html.

  69. 69.

    See Bogeyman, supra, at 263.

  70. 70.

    Id.

  71. 71.

    See Donna St. George, “Free Range” parents are cleared in second case after kids walked alone, Wash. Post, June 22, 2015 (charges dropped in 2015 against Meitivs); Donna St. George & Brigid Schulte, “Free-Range” Flap in Maryland Fans Flames of National Debate on Parenting, Wash. Post News Service (Apr. 18, 2015) (charges dropped against Nicole Gainey) (available on WESTLAW but no WLNR number listed).

  72. 72.

    Bogeyman, supra, at 265 (parents’ “risk management decisions must incorporate the risk that the state will intervene”).

  73. 73.

    Tierney Sneed, What’s Behind the Arrests of Mothers For Leaving Their Children Unattended? US News & World Report (July 13, 2014), WLNR 21,073,851 (describing, but not endorsing, comment).

  74. 74.

    Id. See also Bogeyman, supra, at 258 (police officer justified decision to arrest parent by asking “is that safe for the child?”), 263 (while trying to build a case against parents who allowed their children to walk outside, CPS workers raised threat of kidnapping).

  75. 75.

    See Disaster Center, United States Crime Rates 1960–2014, at http://www.disastercenter.com/crime/uscrime.htm

  76. 76.

    See Jessica Culverhouse, Parks: A Place for Play, Parks & Recreation (Oct. 1, 2014), at 52, 2014 WLNR 32,847,481. It could be argued that parental refusal to allow children outside is responsible for this decrease, and thus should be mandated by law. But this claim is a “heads I win tails you lose” argument: that is, if crimes against children decrease, partisans of the status quo will claim victory, while if crimes were increasing, they would argue that the dangers of the modern world require children to be kept inside.

  77. 77.

    Criminal Child Neglect, supra, at 960.

  78. 78.

    See Christopher Ingram, There’s never been a safer time to be a kid in America, Wonkblog, (Apr. 14, 2015), http://www.washingtonpost.com/news/wonkblog/wp/2015/04/14/theres-never-been-a-safer-time-to-be-a-kid-in-america/.

  79. 79.

    See supra Ch. 1-2.3 and accompanying text.

  80. 80.

    Pierce v. Soc’y of Sisters, 268 U.S. 510, 534 (1925).

  81. 81.

    Id. at 535.

  82. 82.

    Troxel v. Grandville, 530 U.S. 57, 66 (2000).

  83. 83.

    See In re Neglected Child, 130 Vt. 525, 530–32, 296 A.2d 250, 253–54 (1972) (Pierce does not bar states from enforcing child neglect laws because of importance of state interest in preventing such neglect).

  84. 84.

    It could even be argued that government decisions to the contrary are unconstitutional. See Ilya Somin, How the Constitution protects “free range” parents, Volokh Conspiracy (Apr. 16, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/16/how-the-constitution-protects-free-range-parents/. Although states clearly have a right to regulate child neglect, any unreasonable government decision violates the Due Process Clause. See Neglected Child, 130 Vt. at 531, 296 A.2d at 254 (state child neglect law valid because it established “reasonable standards.”). So if a prosecutor decided that “child neglect” included allowing a 10-year old to walk to school, and if a court thought the prosecutor’s decision was unreasonable, prosecuting the 10-year-old’s parents would violate due process. However, I have found no case law on point.

  85. 85.

    Bogeyman, supra, at 258.

  86. 86.

    See Unsupervised outings help children be more active, Ryerson University (Jan. 22, 2015), http://www.ryerson.ca/news/news/Research_News/20150122-unsupervised-outings-help-children-be-more-active.html.

  87. 87.

    See Surgeon General, supra.

  88. 88.

    See Catherine Malina & John M. Balbus, Environmental Interventions to Help Address the Obesity and Asthma Epidemics in Children, 17 Duke Envtl. L. & Pol’y F. 193, 194 (2007) (obesity rates “have nearly tripled among children ages two to five and twelve to nineteen years” and “more than quadrupled among children ages six to eleven years.”).

  89. 89.

    Id.

  90. 90.

    See Criminal Child Neglect, supra, at 987; see also NHTSA, Occupant Protection, http://www-nrd.nhtsa.dot.gov/Pubs/812153.pdf (noting 214 deaths of occupants aged 4 or younger, 199 deaths of occupants aged 4–7, and 225 of occupants aged 8–12).

  91. 91.

    Victimization Data Categorized by Age and Type of Crime, US Dep’t of Justice, Office of Justice Programs (Nov. 2014), http://www.ovc.gov/pubs/NIBRS/victimizationdata.html.

  92. 92.

    See Erika Harrell, Violent Crimes Committed by Strangers, 1993–2010, vol. 2, at 10, http://www.bjs.gov/content/pub/pdf/vvcs9310.pdf (majority of robberies committed by persons unknown to victim, while only one-fourth of rapes and 42 percent of assaults involved strangers; 19.3 percent of “stranger homicides” arose out of robberies).

  93. 93.

    Cf. Ex parte Giles, 632 So. 2d 577 (Ala. 1993) (robber murdered parents and children); Gonzalez v. State, 136 So. 2d 1125, 1152–53 (Fla. 2014) (prosecutor allowed to mention that children present while parents murdered).

  94. 94.

    See Bogeyman, supra, at 266 n.172.

  95. 95.

    Id. at 266.

  96. 96.

    Id. at 274.

  97. 97.

    Id.

  98. 98.

    Id. at 275.

  99. 99.

    Id. at 242 (CAPTA is perhaps “the most significant of these legislative actions” related to child welfare).

  100. 100.

    Id.

  101. 101.

    Pub. L. No. 111–320, § 142(a) (2010); see also Bogeyman, supra, at 270 (citing similar state laws).

  102. 102.

    Id. at 245.

  103. 103.

    Mich. Comp. Laws Serv. § 722.622(j)(ii) (Thomson/Reuters 2011). See also Criminal Child Neglect, supra, at 975–76 (citing other examples).

  104. 104.

    P.L. 114–95, sec. 8034. See also The White House, White House Report: The Every Student Succeeds Act, https://www.whitehouse.gov/the-press-office/2015/12/10/white-house-report-every-student-succeeds-act (noting that President signed bill).

  105. 105.

    Or. Rev. Stat. § 163.545(1) (State of Oregon 2013). This law does not mean that anyone leaving a nine-year old alone is automatically guilty of child neglect; rather, it provides that the law is violated if “with criminal negligence, the [parent or guardian] leaves the child unattended…for such period of time as may be likely to endanger the health or welfare of the child.”

  106. 106.

    See supra notes 60–70 and accompanying text.

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    Michael Lewyn

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Lewyn, M. (2017). Making Walking A Crime. In: Government Intervention and Suburban Sprawl. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-349-95149-9_5

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