The “Freedom to Walk Act” adopted this month by California warms my libertarian heart. Contrary to some reports, the state hasn’t legalized jaywalking. But by protecting the rights of pedestrians who cross the street illegally but safely, the legislation challenges a century of thinking about roads.
It’s a bias with a history; and a history that involves bias.
Nowadays, we tend to take it for granted that pedestrians should be kept out of traffic, but matters were not always thus. In 1915, the New York Times editorialized that requiring that walkers cross only at corners would be “silly and intolerable” and inappropriate for “this complicated town.”
It was hardly an extreme view. At the time, streets were still contested territory. Most urbanites considered them public spaces, where anyone should be free to stroll. Ranged against this notion stood a coalition of interest groups – car dealers and auto clubs, among others – who insisted that safety required that pedestrians stay off the roads. In his excellent book on the battle, the historian Peter D. Norton summarizes the campaign this way: “motordom defended motorists as a persecuted minority suffering under a majority tyranny.”
These pro-regulation forces were determined to change public opinion. “Because jaywalker bore the right connotation of rural backwardness, it was just the tool for the reeducation effort,” Norton notes. But the main argument involved public safety. If drivers were maiming and killing pedestrians, the fault obviously lay with the victims.
The elites were soon on board. Civil engineers began designing streets with automobile traffic in mind. Governments in turn adopted new safety rules. By the late 1920s, jaywalking had been outlawed across the country. But the laws were rarely enforced.
After World War II, the popularity of the automobile — and the rise in traffic fatalities — led cities across the country to either adopt new regulations or revive the ones they had. When New York City’s ban took effect in August 1958, the Times reported with evident glee that city police issued 479 summonses on the first day.
In the end, the streets-are-for-cars forces prevailed. But, as so often, the nation took the benefits for granted without considering the costs. Now we know a lot more.
We know, for example, that although laws against jaywalking are generally defended on safety grounds, the data are more complex than we tend to think. (That’s a fascinating topic, but one for another day.) We also know that the sparkling new jaywalking laws often provided the legal excuse for arresting peaceful civil-rights demonstrators; and for exercising ordinary racial prejudice.
In 1962, a Black student at Ohio State University was locked up for jaywalking while two White friends who crossed the street alongside her were unaccosted. In similar vein, a 1957 letter to an Indianapolis newspaper complained about the enforcement of jaywalking laws by police officers watching Black pedestrians “from the shadows.”
The problem hasn’t gone away. Many cash-strapped municipalities have used jaywalking laws to raise revenue, a practice that tends disproportionately to burden the marginalized.
Finally, let’s not forget a fundamental libertarian caution: Every law, no matter how innocuous, carries the potential for violent enforcement, because enforcement entails an interaction between the citizen and the armed representative of state authority. In fact, in 1966, the Boston Globe reported that one George H. Calustian, the first person arrested under the city’s new jaywalking law, had been fined $20 for jaywalking ... and $100 for assaulting a police officer.
It’s fantasy to imagine that we can perfect these interactions so that they never turn sour.
That’s why, on the first day of law school, I always warn my students to support only laws for which they are, in principle, willing to kill. This isn’t an argument that we shouldn’t have laws; it’s an argument that we should be realistic in our expectations.
If that sounds extreme, consider: The softening of California’s law was sparked in large part by a 2020 incident where police in San Clemente shot and killed a Black homeless man who’d been stopped for jaywalking. The episode was hardly unique. In 2018, Sacramento agreed to pay $550,000 to settle a claim that one of its officers savagely beat a Black suspect who’d been arrested for the same offense. Atlanta faces a lawsuit by a Black man who was tasered during a jaywalking stop. During a 2014 anti-jaywalking campaign on Manhattan’s Upper West Side, an 84-year-old Asian-American restaurateur was knocked unconscious by police and woke up handcuffed to a hospital bed.
Anecdotes aren’t the same as data, but one needn’t be anti-police — I’m certainly not — to recognize that the fewer laws we have, the less chance for an interaction between police and public that could end in tragedy.
California’s reform of its jaywalking laws to favor walkers is … well … a step in the right direction.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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