Penn State Law Review
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 impact 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.
Michael L. Smith, Distracted Walking, 126 Penn St. L. Rev. 707 (2022).