The reasonably careful jaywalker

If you have noticed more pedestrians confidently stepping into the street outside of marked crosswalks since the start of this year, that is because the "Freedom to Walk Act" took effect Jan. 1.

The Freedom to Walk Act has effectively done away with jaywalking in California. Although the Act does not fully decriminalize jaywalking, it allows pedestrians crossing the roadways to be free from costly citations. In fact, the fine for jaywalking in California is more than parking tickets and even some traffic violations.

Under the Act, California Vehicle section 21955 now reads:

(a) 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.

(b)(1) A peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, shall not stop a pedestrian for a violation of subdivision (a) unless a reasonably careful person would realize there is an immediate danger of a collision with a moving vehicle or other device moving exclusively by human power.

(2) This subdivision does not relieve a pedestrian from the duty of using due care for their safety.

(3) This subdivision does not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within the roadway.

In sum, 1) peace officers are not permitted to ticket for jaywalking, and 2) both drivers and pedestrians alike must still exercise due care.

The Code applies to both residential and non-residential areas, and everyone is still encouraged to use crosswalks whenever possible.

What is Jaywalking?

The California Vehicle Code defines jaywalking as crossing the street outside of a crosswalk when there is an adjoining intersection controlled by a traffic signal device or police officers.

Does the Act Prohibit Jaywalking Pedestrians from Bringing Suit if Struck by a Driver?

No. Pedestrians may still sue a driver if they are hit, however, the new law may result in a steep increase of the percentage of comparative negligence assessed to the pedestrian if more pedestrians experience incidents while venturing through the streets recklessly. Thus, a pedestrian's own negligence will still be considered when assessing fault and damages in personal injury and negligence actions.

Any Caveats?

Yes.

Although pedestrians no longer have to take the long and treacherous journey to the nearest light/crosswalk, California still has an interest in protecting the safety of pedestrians and drivers, so the Act only prohibits ticketing unless the pedestrian creates what a reasonably careful person would consider to be immediate risk of collision with a moving vehicle or other moving transportation device controlled by a human, including bikes.

Thus, the Act does not permit jaywalking at times where it would create a perilous situation for the pedestrian or others. In fact, the Bill was previously vetoed because the caveat of still permitting citation where pedestrians failed to exercise caution and due care did not initially exist.

Reasonableness is Still the Standard

Now, if a jaywalking ticket is given to a jaywalker, it is assumed they did not act as a reasonable person would in the face of immediate danger. "Immediate danger" remains undefined and will likely be assessed under a subjective, totality of the circumstances standard by Courts which can still lead to arbitrary enforcement. However, it is safe to assume that if you can see a car coming your way, it is best to wait that few extra seconds when the coast is completely clear, then cross.

With this, the Act sets the expectation that jaywalkers will have stopped, looked, and listened before stepping out into the roadways, or suffer the same consequences as if the Act did not exist. This standard embraces the spirit of the standard for negligence we know all too well from our 1L torts class, where individuals have a duty to act as a reasonable person would in the same or similar circumstances. Some would say this was the motivation for my Torts Illustrated moniker.

Some Californians are opposed to the Act because they feel it places a greater burden of care on drivers since drivers will now need to look out for what is likely to be greater numbers of pedestrians in the street where they are not otherwise expected. However, the Act aimed to balance out this issue by still allowing for citation where a pedestrian acts imprudently and holding both pedestrian and driver to the same duty and standard of care.

Impact on Profiling

The drafter of the Act also wanted to see if the Act realized to move toward more equal policing amongst communicates of color. Generally, lower-income and minority communities are cited for jaywalking at significantly higher rates than other communities, and African-Americans are on average 4.5x more likely to be cited for jaywalking than the rest of the population. In San Diego, African-Americans have made up approximately 16% of the city's jaywalking citations since 2015 although they are only 6% of the population. Thus, the Bill will ensure what many would agree is a universal act, walking, equitable between all communities as far as prosecution under the law goes.

This Bill will be reevaluated in 2028 to determine its impact on traffic safety. Until then, we can tell those tickets, get to steppin!...because these boots were made for (jay)WALKING.