New York State to Ban Pedestrian Use of Handheld Devices?

A New York state senator has announced his plan to introduce legislation that would ban the use of electronic devices such as iPods, BlackBerrys and cell phones while crossing streets in major cities.

State Sen. Carl Krueger, a Democrat who represents New York's 27th district in the New York City borough of Brooklyn, claimed that the phenomenon of "iPod oblivion" has led to a number of fatal accidents on urban streets. While he did not cite any statistical studies that have indicated a rise in such incidents, he referred to the January death of a 23-year-old Brooklyn man who, tuned into his iPod headphones, walked into the path of a city bus.

Very recently, I briefly blogged about the various levels of judicial review, which is the process that judges in appellate courts apply when determining whether or not a governmental action is or is not constitutional. Judicial review isn't a power of the courts that is spelled out in any law. Rather, it is found in common law, and essentially it is a power that the United States Supreme Court gave itself and other appellate courts. However, common law isn't something that the Supreme Court Justices created out of thin air; common law has a long history in the British (England's) legal system. Most American common law is based on and derived from the English common law system.

As any first year law student would be able to tell you, the first instance of judicial review in the United States is generally and widely accepted to have been created by common law in Marbury v. Madison, 5 U.S. 137 (1803), wherein the Court reasoned that it had the authority to review and declare constitutional or unconstitutional acts of the other two branches of government. The actual underlying issue in the case was not very complex; however, in order to reach a decision about it, the court first had to determine whether or not it had the authority to make such a determination in the first place. Thus was born the concept of judicial review. There's a great article that goes into a very good explanation of the case, and why something decided more than two hundred years ago is still quite relevant to this day.

Now, as I just blogged about, there are three levels of judicial review: rational basis (the government must show that the challenged classification/law is "rationally related" to serving a "legitimate state interest"), intermediate scrutiny (the government must show that the challenged classification/law serves an "important state interest" and that the classification/law is "substantially related" to serving same), and strict scrutiny (as before, the classification/law must serve a "compelling state interest" and the classification/law serves a "required state interest" (or that the classification/law is required to serve same). It is this last level of scrutiny -- strict scrutiny -- that I believe should be applied to determining whether or not this proposed law would be constitutional; however, I also will look at the law under rational scrutiny (intermediate scrutiny is pretty much reserved to cases where one's sex is a factor in government action).

As a reminder, there are three "prongs" to the strict scrutiny test:

1. The classification/law must be justified by a compelling state interest;
2. The law/policy must be narrowly tailored to meet this compelling state interest; and
3. the law/policy must use the least restrictive means to achieve such compelling state interest.

Now, this isn't an either/or situation. In order to survive a strict scrutiny standard of judicial review, all three prongs of the test must be satisfied. So let's take a look at this piece of legislation that New York State Senator Carl Krueger has proposed and apply the strict scrutiny test:

1. The compelling state interest is the safety of the state's citizens: PASS.
2. I can't seem to locate the actual proposed bill on the Senate's web site. If someone can find it, then I can take a look and see how it's tailored: UNCERTAIN.
3. Banning all forms of electronic devices while crossing a street is an extremely restrictive means of ensuring the public's safety, especially as there are other, less restrictive means of accomplishing the same goal (for instance, a law could be passed requiring pedestrians to look both ways before crossing the street, or to pay attention to traffic while crossing a street, or to use assistance while crossing the street (e.g., for the visually impaired), etc.) FAIL.

Because this legislation cannot survive just one of the three prongs of the strict scrutiny test, I do not believe that it would be constitutional. Unfortunately, however, if this legislation were to become law and be challenged, the court most likely would use a rational basis standard of review, as that is the default for governmental action, and crossing the street is not a guaranteed constitutional right (although one could make the argument that government is restricting one's liberty and pursuit of happiness, in which case strict scrutiny would kick in).

Under a rational basis standard of review, the government need only show that what it is doing is rational and related to a legitimate state purpose. Protecting the public safety is a legitimate state purpose, and one could argue that preventing people from using electronic devices, thus forcing them to pay attention to the street crossing and not otherwise, is rational.

As a civil libertarian, this legislation is quite disturbing to me, and my only hope would be that the court can be convinced to use a strict scrutiny standard of review based on the legislation attempting to infringe upon one's constitutionally-protected right to the freedom of liberty and the pursuit of happiness.