Texting In The First Degree

It’s definitely a problem in cities, as you try to walk down the street only to have some jerk walk into you because his eyes are laser-focused on his iToy and he’s got absolutely no clue what’s happening around him and can’t bring himself to care. It’s likely a problem everywhere, as the problem occurs wherever people can’t manage to walk without staring at their phone.

And then there’s the schadenfreude that occurs when they walk into a wall or sign post, which can be very damaging and painful, even if caused by their own inability to get their head out of their…phone. But is making texting while walking a crime the way to fix it?

Officials in Montclair, in Southern California, decided that their 39,000 residents needed a heads-up — literally. There were accidents that resulted in part from pedestrians burying their noses in smartphones with their minds miles away. Something had to be done about these “cellphone zombies,” Edward Starr, the city manager, said. So Montclair made it illegalto cross streets while on a phone, texting or listening to music with buds in both ears. Fines of $100, and as much as $500 for repeat offenses, will go into effect in August.

The good, ol’ “something had to be done” excuse, giving rise to yet another new crime. From the perspective of a government guy, what else can he do? He’s only got a hammer, so everything that needs something done has to be a nail. It’s not his fault that fines and, dare I say it, incarceration are the only available solutions.

Other places have had the same idea. Honolulu enacted a comparable lawmonths ago. Rexburg, Idaho, a town about the same size as Montclair, adopted a similar ban in 2011 after the shock of having five pedestrians die. It hasn’t had a single pedestrian fatality since. Legislation along the same lines has been contemplated in several states and major cities. In New York, Mayor Bill de Blasio said on Thursday that he, too, was open to the idea.

For the “most progressive mayor ever,” Bill de Blasio really loves him some new crimes. But I digress. And being “distracted,” as it’s kindly called, is becoming a matter of increasing concern.

Maybe it’s time for every municipality to get serious about distracted walking, as it’s called, even though distracted driving is plainly a bigger concern. This is the belief theologically held by many motorists that they can read email, text friends, call the office and all the while stay fully focused on the road. They’re delusional. They’re also dangerous.

But there is a significant distinction between distracted driving and walking. The former is about the harm the driver can do to others as his 2000 pound missile hurtles into some poor schmuck minding his own business and driving safely. The latter is an annoyance, for sure, but not exactly a threat of death and destruction.

While many of us, particularly those of us who don’t obsess over how many likes we got on Facebook, find “those people” who bump into us, or around whom we’re constrained to navigate, a pain in the butt, is it really that “horrifying” that we need to turn it into a crime?

Enforcing an ordinance like Montclair’s won’t be easy. You can’t put police on every corner. And as sure as a sunrise, some people will wail about personal freedoms being violated. But there’s a social contract to be observed. When you venture forth in public, you assume certain responsibilities, be it preserving your own life or having regard for others. Even in nonlethal situations, who isn’t driven crazy when blocked on the sidewalk by people ambling so s-l-o-w-l-y, with eyes glued to their screens?

Of course there’s “a social contract to be observed,” and it goes well beyond being a mindless cellphone drone. We don’t pick our nose in elevators and fling the buggers at the person standing next to us. And we don’t get arrested if we do.

And then comes the sequelae of this, as any, offense against the “social contract.” Whenever behaviors are controlled by the police, there is a profound question to be asked: Is it worthy of execution? Enforcement always carries the potential of death, no matter how insignificant the offense. Should anyone, ever, be killed for texting, no matter how annoying they are?

But what of the new offense’s pretext potential? Will it be used as an excuse for the cops to go after someone they want to stop for ulterior reasons, to get an ID or to question someone they would otherwise have no justification to bother? What of the right to be left alone?

As it takes a cop to nail a texter, and the police have this peculiar tendency to deploy in certain neighborhoods and not others, what are the chances this will have a far greater impact on minorities? Not that white kids aren’t as likely to engage in the heinous offense of distracted walking, but if there are no cops on the streets where they walk and plenty of cops hanging around Martin Luther King Boulevard, the burden will fall more heavily on a certain color of folk than another.

If this was a serious offense against the social contract, maybe it would be understandable, even unavoidable. And it’s not that it doesn’t present some degree of risk for the unwary, most notably the fools who engage in the distraction, turning it into the newest offense raises issues and problems that just aren’t worthy of their consequences.

Why not a public service campaign to make texting while walking unattractive, rude and offensive? Insufficient to stem the need to stare incessantly at the phone? Maybe, but far better than yet another round of criminalization of trivial conduct, with all its consequences.

54 thoughts on “Texting In The First Degree

  1. B. McLeod

    Hey, new criminal laws are the way to fix everything, and we don’t have enough of them yet.

    1. SHG Post author

      Once we’ve lost count of how many crimes we’ve created in our quest for the Great Utopia, what’s one more?

  2. David Meyer-Lindenberg

    Rexburg, Idaho, a town about the same size as Montclair, adopted a similar ban in 2011 after the shock of having five pedestrians die. It hasn’t had a single pedestrian fatality since.

    Post hoc ergo propter hoc is a hell of a drug.

    1. SHG Post author

      If, after the shock of the first dolt who walked into traffic while looking at his phone, people didn’t grasp that this could be risky behavior, perhaps this is just a Malthusian means of thinning the herd.

  3. REvers

    “We don’t pick our nose in elevators and fling the buggers at the person standing next to us.”

    Speak for yourself.

    And, I think that should be “booger”. Bugger is something else entirely.

    1. W. Justin Adams

      “We don’t pick our nose in elevators and fling the buggers at the person standing next to us. ***And we don’t get arrested if we do.***”

      I am ashamed to say that the first thought that came into my mind was: “I wonder if flinging boogers at someone meets the definition of simple assault (the offensive touch flavor)?” I did not, however, aggravate my offense by actually looking up the statute.

        1. the other rob

          Wasn’t someone recently arrested for farting on a plane? It may be that no hypothetical is safe.

  4. Jim Majkowski

    “Ignorance is bold, and knowledge is reserved”

    “… the two things most opposed to good counsel are haste and passion; haste usually goes hand in hand
    with folly, passion with coarseness and narrowness of mind.”

    “Of all manifestations of power, restraint impresses men the most.”

    ― Thucydides, History of the Peloponnesian War

  5. PDB

    Twice I have been on a city bus where the bus driver had to brake really hard because some idiot walked against the light while texting. Perhaps society would have been better off had those people been flattened. Maybe we need a return to Spencerian evolution – survival of the fittest, the idiots who put themselves into harm’s way in such a manner shouldn’t have the opportunity to let their DNA propagate.

    1. PseudonymousKid

      I was that idiot once. I haven’t been that idiot since. Should I still go through with the vasectomy, or will your eugenics program spare me?

      Though your point stands. Society really might have been better off.

      1. SHG Post author

        I want grandchildren, but maybe I should raise them rather than you. Then again, the flaw of that reasoning seems obvious.

          1. SHG Post author

            They cost a lot to buy and aren’t nearly as much fun to create, yet still have all the same problems as your own. Just sayin’.

  6. Patrick Maupin

    Why not a public service campaign to make texting while walking unattractive, rude and offensive?

    A few big civil awards for PTSD by drivers against the families of dead teen texters would help to do the trick. But it might be difficult to get juries to ignore that level of apparent heartlessness. Much more politically expedient to simply fine the road-crossing texters who are (a) caught and (b) still alive.

    Enforcement always carries the potential of death, no matter how insignificant the offense.

    The chances of decriminalizing every minor offense are probably zero. But speaking of public service campaigns, has anyone tried one aimed at public servants? Sure, they get scolded a lot, but how about the useful psy-ops that a public service campaign foists off on the rest of us? The chances of inserting a meme into cops that some offenses just aren’t worth killing for might actually be a tiny bit bigger than zero. The chances of inserting a meme that any idiot with a cellphone can call 911, and the 911 operator is engaging in a game of chinese whispers anyway? They already know all that; some of them just don’t think to question the assumptions they’ve been handed often enough. Some sort of public service campaign, one police force at a time, when they feel a little bad (bad enough to order an extra donut?) because of some egregious local “police involved” incident could be useful. Like DARE, but with the cops listening.

      1. Patrick Maupin

        On the one hand, you do good.

        On the other… Do you actually take maple bacon cronuts down to the precinct and lecture there?

  7. Dan

    Seems a simpler solution would be in the civil law–if a pedestrian walks heedlessly into the path of a lawfully-oncoming (i.e., not running a red light, grossly speeding, etc.) vehicle, the resulting accident is the pedestrian’s fault. Natural selection will take its course, as you suggested above, and drivers wouldn’t be unduly penalized.

    As to the slow people in front of you on the sidewalk, or those who bump into you because they aren’t watching where they’re going, what’s that phrase you quote? De minimis non curat Lex?

    1. SHG Post author

      If getting run down isn’t bad enough to teach people not to be morons, then not having a cause of action for wrongful death isn’t likely to help.

      1. Dan

        I wasn’t thinking so much that the lack of a case for wrongful death would deter the pedestrians, but rather that we shouldn’t be penalizing drivers for pedestrians’ recklessness. As you say, “not only will this kill you, but it will hurt the whole time you are dying” should be plenty of disincentive for the pedestrians–and if it isn’t, well…

        1. Skink

          You’re right. But gibberish buys wife’s shoes. It’s a hard let-go.*

          This is a problem without criminal solution. It also isn’t much of a problem, anecdotal references aside, but an annoyance. Legislating a solution is merely criminalizing dumb, which only makes for busy work and a self-righteous feeling of having done something. Cops won’t enforce it because it’s embarrassing: “I popped this guy for texting and walking. . . .” That leads to a bunch of jokes from other cops.

          *I have never, ever done PI work. I’d do CD, first.

          1. PseudonymousKid

            As if PI work is beneath you guys. Come on. A buck is a buck. Smoked wings don’t grow on trees.

          2. RB

            “… I’d do CD, first.”
            Isn’t it solicitation if you’re accepting money while CD? Seems risky.
            I’m speculating that you’d have to buy more shoes, possibly in a larger size, for full time work. Then again, I have no idea what the rates are. It could be viable.

    2. Patrick Maupin

      In a lot of places, the law is already this way. Not every state follows California’s “the pedestrian is king” rule.

  8. Ken Mackenzie

    Before iToys, did New Yorkers read and walk the old fashioned way, with books and such? It was common on the London Underground 15 years ago, shuffling through the tunnels, lost in novels and artfully folded newspapers. Always with care and practised skill. No need for the Old Bill to police it. A fall would be too mortifying, but worse, to block the way, that would be ghastly.

  9. Casual Lurker

    Some of this is propelled by your brethren on the tort end of things.

    There are plenty of law firm ads telling us they’ll “hold them [the offender] accountable for distracted driving”, citing the three forms of distraction:

    [Ed. Note: Link really, really deleted, because rules and what the fuck are you thinking?]

    For Comrade de Lousy-O, it will be just another revenue stream.

    Of course, New York, the Vampire State (I think it even says it on our license plates? ;-)) will want it’s share of the spoils, and will probably also want to put points on your driver’s license, notwithstanding the lack of motor vehicle involvement.

    But you’re right, in some localities, with the smell of marijuana no longer providing an excuse to stop, question, and frisk, a new reason is needed to provide reasonable suspicion. And yes, it will be selectively enforced, with higher levels of enforcement in minority neighborhoods.

    In other news, water is wet.

    1. SHG Post author

      The heirs may take note of the TV commercials, but the dear departed won’t really see how it relates to their life.

      1. Casual Lurker

        “[Ed. Note: Link really, really deleted, because rules and what the fuck are you thinking?]”

        I was thinking it’s a graphic (which, unfortunately, I could not embed). However, it’s also Tuesday, so maybe Tuesday rules applied? Well… apparently not. Them’s the breaks. Apologies.

        1. SHG Post author

          Infographics are filled with backlinks. That’s why people create them, to try to trick clueless idiots into posting them so they get the benefit of selling the backlinks.

        1. LocoYokel

          When you combine this with everyone’s need for a comfort animal I’m seeing a boom economy for seeing eye dog trainers.

  10. Frank

    What a great way to get people to respect the law and the police. Not.

    As for de Blather, someone found a 42-pound rat in a NYC sewer the other day, Wags have taken to naming it “Hizzoner Da Mayor.”

  11. Erik H

    Not only is it stupid, but for chrissakes, it’s *municipal*?

    “Welcome to Stupidtown! In Stupidtown, we have decided to fine people for walking around with headphones. Yes, we know it is perfectly legal everywhere else on the planet; we don’t warn you; surprise!!”

        1. W. Justin Adams

          Or brain booger. I thought I clicked reply on the correct thread but must have missed it.

  12. Jake

    Meh. But then again, I think the appropriate penalty for texting while driving is the removal of the offender’s thumbs.

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