Justice for Fred Lupke; Protect all nondrivers using the roadways. Update: more evidence points to the possibility that Lupke was crossing legally in the crosswalk, not driving his wheelchair at the side of the road with traffic as generally reported. Here is Councilmember Dona Spring's Oct. 14, 2003 item. The following is a letter to the editor regarding the tragic and preventable death of Fred Lupke; below that is a dialogue on the rights of pedestrians, in particular those who use wheelchairs, in the roadways. Published in the Berkeley Daily Planet, Oct. 14, 2003: BLAME CALTRANS Editors, Daily Planet: It has been widely misreported that Fred Lupke, much-loved Berkeley activist who was struck by motorcar while riding his wheelchair along Ashby Avenue and later died of his injuries, was breaking the law. This terrible untruth was first propagated by the Berkeley Police Department (which despite years of citizen efforts, holds an abysmal record on knowing and upholding the rights of non-drivers). Lupke rode his wheelchair in the parking lane on Ashby Avenue, where the sidewalk is dangerously impassible. There is no law against doing so; no law requires those who use wheelchairs (who are legally pedestrians) to stay on the sidewalk. Yet the driver of the vehicle that killed Fred certainly violated the unsafe speed law (CVC 22350) by driving into the setting sun -- which by her own admission, blinded her -- at such a speed as to throw him 55 feet! She also violated his basic pedestrian rights. But aggressive, kill-risky drivers are commonplace -- even as the police fail to cite or arrest them. The true culprits of this death are Caltrans, who engineered the dangerous condition there and have stubbornly refused to tender local control of Ashby Avenue to the city through which it passes, even after numerous similar tragedies. Perhaps they still pine to build the community-crushing Ashby freeway. Ashby is a trap lined with pedestrian and bicycle-slaying features. Caltrans' constantly changing lanes endangers drivers and non-drivers alike. The driver who killed Fred surely made a rapid lane switch into the briefly vacant parking lane where Fred was forced to ride. Such racetrack-style lane switches increase speeding and are especially deadly to pedestrians, unseen by drivers jockeying to pass. The vicious cycle perpetuates: another fellow activist against this madness has been cut down by it. It's time for the institutional biases to go, and for all travelers to be protected equally. Fred's death was no "accident." Jason Meggs California State Coordinator Bicycle Civil Liberties Union ---------- Forwarded message ---------- Date: Wed, 8 Oct 2003 11:06:31 -0700 From: Nancy Grimley Carleton To: Recipient List Suppressed: ; Subject: initiatives and discussion on making streets safer for all Dear Friends of Fred: Following is a discussion of some initiatives following Fred's death, which I have been asked to forward. The Daily Planet article discusses a proposal by Councilmember Spring. Following this is an analysis written by Jason Meggs, as well as some responses to that, and finally a copy of a letter to the editor of the Daily Planet written by Steve Finacom. I don't want to overwhelm any of you with forwards (I'm sensitive to that delicate point where being on a list can start to lead to unwanted email), so please know that I will limit forwards to once every week or two at the very most (and you can, of course, always request to be removed from this list). Other than that, you'll just hear from me on a few specific occasions (most likely to announce the first planning meeting for the Berkeley memorial, and then again with the specifics of the memorial itself). Nancy Carleton [If you are receiving this email, either you are on my list as having called me to ask about Fred, you are a person I believe knows Fred and would want to know what's happening in his memory, or you are someone who received this from someone who forwarded it to you. If this was forwarded to you and you wish to be added to a direct list, please email me at "Nancy Carleton." If you received this message and do not wish to receive further notices, please email me and I will remove you from the list. I will use bcc for these postings. ] ************************************ Make Streets Safe, Chair Riders Urge By MATTHEW ARTZ (10-03-03) Still mourning the loss of beloved friend Fred Lupke, Berkeley wheelchair advocates have started gearing up for a fight to make Berkeley streets and sidewalks safer. "Disabled people here in Berkeley need to use this as a lead to get together to do something," said Blane Beckwith, local chair of national disabled rights organization ADAPT. Councilwoman Dona Spring struck the first blow this week, authoring a measure to authorize emergency funds to repair and widen sidewalks along blocks of Ashby Avenue between Martin Luther King Way and Ellis Street-the same stretch where a car struck Lupke's wheelchair from behind. The measure-set to go before Council Oct. 14- would permit wheelchairs to use now off-limits bike lanes and direct the city staff to identify other pedestrian safety improvements along Ashby. "If there had been a passable sidewalk on that side of Ashby, Fred might be alive today," Spring said, adding that the two blocks she wants repaired are heavily traveled by disabled residents on their way from the Ashby Bart Station to the South Berkeley Senior Center on Ellis Street. Spring estimates the repairs will cost approximately $100,000. She hopes the city can find the money in its budget, but she said the situation is so dire that, if necessary, the city should dip into its $6 million reserve fund to pay for the repairs. "Right now Ashby is a death trap for people in wheelchairs," she said. The boulevard is designated as a state highway, meaning that the California Department of Transportation (Caltrans) is responsible for maintaining the road. Any call to widen the sidewalk along Ashby at the expense of the street would need state approval. Spring's measure calls on the city to explore civil and legal actions to compel Caltrans to improve pedestrian safety on the street, but a movement led by residents to wrest control of Ashby from Caltrans could put the city in the driver's seat. Berkeley Transportation Director Peter Hillier said he would like to follow through on long standing calls from residents to pursue city ownership of the street within the next two years. He said that while Caltrans was concerned primarily with upgrading traffic signals so that they could detect bicycles, they "did not seem to have interest in community concerns [like safety]." Hillier said the city recently accepted state grants that will pay for a lighted crosswalk at Ashby and Piedmont Street, with three more possible at the intersections of Ashby and Regent, Benvenue and California streets. In addition to Spring's Council proposal, Berkeley's Commission on Disabilities is planning to revive previous safety suggestions in hopes that city hall might be more receptive. Among a host of recommendations, the commission is seeking city help to crack down on cyclists crowding out wheelchair riders on sidewalks, chart traffic accidents involving wheelchairs, and aggressively enforce rules to keep sidewalks clear of overgrown vegetation, parked cars and garbage bins. "Fred had asked for some of these things for years," said Disability Commission Chair Emily Wilcox, who wanted the city's Department of Parks, Recreation and Waterfront to proactively inspect sidewalks for overgrown vegetation. Department head Lisa Caronna said budget cuts had recently forced her to slash a gardener and forester position, and that no money was available to pay for random inspections. Currently residents may complain about overgrown vegetation, and the city will give the property owner a 15-day notice to clear the sidewalk. While disabled advocates agreed the time was ripe to push the city for safety and accessibility improvements, the community remains unorganized. Most said they wanted to fight for safer roads but that no grassroots effort had begun. "We don't have a clubhouse," said Wilcox, noting that accessibility concerns made it difficult for locals to assemble even for commission meetings. She and other disabled residents said they hoped that high attendance at a planned memorial service for Lupke could lay the seeds for a unified movement. "This has just begun to stir. It isn't over by a long shot," said Michael Pachovas. In 1999, Pachovas was one of dozens of disabled activists who shut down Ashby Avenue for a day to demand safety improvements after Sharon Spencer was killed in her wheelchair as she tried to cross Ashby Avenue at Piedmont Street. The protest secured several concessions from the city, Pachovas said, but promised pedestrian right-of-way signs and other improvements never materialized. Pachovas and others interviewed hoped the Commission on Disabilities would take the lead in formulating proposals and lobbying the city. The commission will hold a transportation subcommittee meeting Friday to vet ideas and then use a Wednesday meeting to finalize an agenda to present to Council and city officials. Disabled advocates complained they didn't get a fair shake with Council and city officials and said that Spring, who uses a wheelchair, is sometimes at odds with activists on key issues. "People think that because there is a woman with a disability on city council that she speaks for us, but that is not true," said Pachovas, who noted that Spring has sided with bicycle advocates favoring speed bumps on residential streets, while many wheelchair riders insist the bumps cause pain. Spring, however, has full support from wheelchair riders in her drive to legalize wheelchair riding on residential streets. State law classifies wheelchair riders as pedestrians and relegates them to sidewalks-where they are at the mercy of painful bumps and divots that rattle their chairs. The law was reasonable decades ago, Spring said, when most wheelchairs were hand powered, but unrealistic now that motorized chairs travel up to 11 mph. California law states that wheelchair riders are allowed in bicycle lanes only if there is no sidewalk. The city attorney's office would not comment if Berkeley had the authority to supersede state law. "For me to get to BART takes fifteen minutes on the street," she said. "If I were to take the sidewalk it would take 40-45 minutes and I would be in so much more pain." Wheelchair riders already use side streets, but say changing the law would give police greater leverage to punish drivers who hit them. The woman who hit Lupke from behind said she was blinded by the setting sun. She was not charged or ticketed, police said, because under the existing laws, Lupke was at fault for riding down Ashby Avenue. "Right now, if someone in a wheelchair gets hit, the police perception is that we were doing something wrong," Pachovas said. "It's galling that someone can say the sun was in my eyes, kill someone and not even get a traffic ticket." Pachovas predicted a protest on Ashby similar to that one that followed Spencer's death. But as far as a cohesive agenda, he said, disabled advocates needed more time. "This shouldn't be a knee-jerk reaction," he said. "We need to figure out what we want to do." **************************************************************************** From: Jason Meggs Fellow travelers, By way of introduction: a new law has been proposed in Berkeley (authored by Dona Spring, and coming before City Council on October 14) intending to give those who ride wheelchairs the right to ride in bicycle lanes, and to use the roadway with all the rights of bicycle riders. The former has been controversial with some California bicyclists. I argue here that wheelchairs already have and should continue to enjoy the right to travel both in bicycle lanes and in the roadway (somehow, everyone seems to have assumed this right does not exist), and that the ordinance can at best only strengthen that existing right. I further illustrate that the ordinance cannot under state law grant riders of wheelchairs the identical rights of bicyclists -- nor should they want them all! The hubub over wheelchairs on the roadway rightly erupted when Berkeley lost a dearly loved local activist, Fred Lupke, after a motorcar "accidentally" struck him from behind and reportedly threw him 55 feet. I and many others will miss seeing him on the streets and in the hearing rooms. From this tragedy resulted the proposed ordinance to make riding wheelchairs in the streets (and bike lanes) legal. See Friday's story in the Berkeley Daily Planet: http://www.berkeleydaily.org/article.cfm?issue=10-03-03&storyID=17499 Presumably the police were the source of the misinformation that wheelchairs do not already possess that crucial right. As quoted in another local paper: "Wheelchair users -- even with motorized chairs -- are considered pedestrians and are technically not supposed to be riding in the street or bike lanes at all, said Off. Robert Rollings, from Berkeley's traffic division." http://www.oaklandtribune.com/Stories/0,1413,82~1726~1644994,00.html Bicycle activists have been urging the Berkeley Police Department to become familiar with bicycle and pedestrian rights for years now, with little success. The woman who killed Fred was not charged. The fact is, riding wheelchairs on the roadway with or against traffic is, quite arguably, already perfectly legal -- however, striking us is not. And to my knowledge, the City of Berkeley can't (legally) override state law on this one even if they wanted to revoke, rather than give, the right. CVC 21. Not that state law has ever stopped Berkeley before (behold the land of the misdemeanor violation for riding a bicycle on the sidewalk, and for locking to a parking meter). But the issue is not whether to prohibit wheelchair use on the roadway; it is whether to allow it. Berkeley could certainly emphasize and strengthen this right, which I very much support. People who use wheelchairs are, or should be, bicyclists' allies in the pursuit of safe and accessible travel. We face common barriers to travel and common dangers from cars. Modern motorized wheelchairs travel at reasonable speeds for bicycle lanes, and are only slightly wider than the average bicycle, and in some ways much more visible. A wheelchair should have the right to use the sidewalk, but at serious traveling speeds the chairs can actually endanger other sidewalk users (this debate is similar to the debate on whether bicyclists should be allowed to ride bicycles on sidewalks; riders of wheelchairs have actually injured people on sidewalks in Berkeley). Furthermore, as discussed below, sidewalks can be harmful or even impassible by wheelchair. It is imperative that the right to the road be assured to those operating wheelchairs. Some time ago, I was asked for input on an urgent opportunity to float a bill for pedestrian rights in California. As someone who regularly shares bicycle lanes with people riding wheelchairs; who has many friends with disabilities, and other friends who regularly assist people with disabilities (and I have done some attendant work myself); as one who has suffered disabling injuries inflicted by police brutality directed at me while I was demonstrating on bicycle in Berkeley; and as someone who has long advocated for solidarity amongst all the wheeled ones in our common goal of reducing the harms of motorcars, my first suggestion was a statewide law explicitly providing for wheelchair use of bicycle lanes. Then I realized the law may not be needed, although an explicit provision might be helpful or even important. Here is my legal reasoning to support that assertion: People with disabilities who use wheelchairs are considered pedestrians under California Law. (True, there are now bicycles available which are very similar to wheelchairs and which are designed for people with disabilities, but those are not a part of this discussion because they do not meet the technical description of a wheelchair under the law; that fact helps illustrate how unnecessary this discussion should be to begin with, since operators of those devices -- so similar to wheelchairs -- already have the rights of bicyclists to the roadways.) Under California Vehicle Code (CVC) section 467 (b): "Pedestrian" includes any person who is operating a self-propelled wheelchair, invalid tricycle, or motorized quadricycle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as specified in subdivision (a). Pedestrians are allowed to use bike lanes unless there is "an adjacent adequate pedestrian facility:" 21966. No pedestrian shall proceed along a bicycle path or lane where there is an adjacent adequate pedestrian facility. Sidewalks -- even when present -- may be problematic even for fully able-bodied pedestrians. For those who use wheelchairs, the situation is even more prohibitive. Even where curb cuts are provided, a sidewalk is not necessarily "adequate." Many who use wheelchairs have great difficulty navigating the uneven pavement of many sidewalks; some experience pain even on smooth sidewalks, simply from the curb cuts; all risk damage to their very expensive rides from uneven sidewalk surfaces -- and many lack funds to replace their crucial transportation. Finally, many regularly encounter outright blockades on sidewalks (e.g., motorcars parked callously and illegally across the sidewalk). CVC 22500(f). Good luck getting police to enforce that law. Furthermore, even on streets with no bike lanes, there is no law against pedestrians being in the street. Quite the contrary -- how else would drivers be able to enter their beloved motorcars, such to roar off and contribute to the roughly 2,300,000 preventable disabling injuries they collectively cause each year in this country? (National Safety Council). Most people don't know that under the CVC, pedestrians are allowed to "jaywalk" on streets in California, unless we are crossing between adjacent intersections controlled by traffic signals or police: 21955. 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. That's the vast majority of streets in California. However, and unfortunately for those who favor the freedom to walk, local jurisdictions may enact harsher laws about jaywalking: 21961. This chapter does not prevent local authorities from adopting ordinances prohibiting pedestrians from crossing roadways at other than crosswalks. Berkeley, the City under the spotlight for this issue, has only limited jaywalking in business districts: BMC 14.32.020 When pedestrian must use crosswalks. It is unlawful for any pedestrian to cross a roadway in any business district other than by a crosswalk It is important to realize that there is a major difference between jaywalking (crossing a street mid-block) and merely traveling along in the street without crossing. But whether one is jaywalking or merely riding one's wheelchair at the right of the roadway edge of the cars (like a bicycle might -- again, a very reasonable thing for a wheelchair to do), the law requires the pedestrian (including any person using a wheelchair) to yield, but also requires drivers to take "due care" for our safety: 21954. (a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard. (b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway. This right of ours to walk or roll upon a roadway is further strengthened by the law directing not whether, but *how* a pedestrian may use the roadway: 21956. (a) No pedestrian may walk upon any roadway outside of a business or residence district otherwise than close to his or her left-hand edge of the roadway. (b) A pedestrian may walk close to his or her right-hand edge of the roadway if a crosswalk or other means of safely crossing the roadway is not available or if existing traffic or other conditions would compromise the safety of a pedestrian attempting to cross the road. You might have noticed that in the laws above, the term "roadway" was repeatedly used to describe their scope of effect. Yet the area that a wheelchair uses is not necessarily the "roadway:" 530. A "roadway" is that portion of a highway improved, designed, or ordinarily used for vehicular travel. The key phrase here is "vehicular travel." A bicycle is not legally a vehicle, nor is a pedestrian (wheelchair). And the areas we travel in can be far enough off the road that we are arguably not in the "roadway" but rather in the parking lane or shoulder -- which are not "ordinarily used for vehicular travel." Moving cars keep their distance alongside other, parked, cars -- that buffer zone is not a traveled way and therefore not part of the "roadway." Note that any one of us traveling needs to keep a safe distance from the opening of parked car doors (the "door zone") if our speed is high enough that we might be struck if such a door opens in front of us. Of particular interest, Fred Lupke was reportedly riding "along the edge of Ashby...in the right lane, about seven feet from the curb" when he was struck. Sounds like he was in the parking lane, not on the roadway, and therefore should be even more protected in his right to travel there. Many different laws and policies support the idea that we are allowed to walk or roll at the side of the road in the direction of traffic. Most importantly, I have not been able to find any law explicitly prohibiting such behavior. Yes, it is true, that this overall argument of the right to travel in the street as a pedestrian can be attacked. For instance, some insensitive lawyer, judge, or police officer might choose to ignore all the legal support and argue that one who rides a wheelchair at the side of the road is not yielding right of way to motorcars as required by CVC 21954(a) above. But we can argue right back at them; that's the nature of the adversarial court system. Here is where a new law could help to put off those who wish to argue against our fundamental rights. But such a law should not be necessary to prove our rights. We have the moral and ethical high ground, and a broad base of legislative foundation on our side (only a part of which is outlined above). Walking is a right, and driving a mere privilege. In the spirit of the Americans with Disabilities Act, or ADA (I'm not yet sure if the ADA guarantees access to roadways in a way that controls this issue, but legislative intent can be highly persuasive in deciding a legal issue) it is a civil right to provide for those who must use wheelchairs. It is a compounded injustice to suggest that those who use wheelchairs -- again, similar to bicycles -- are not allowed to ride along at the side of the road even if it might at times inconvenience a motorist. This is true all the moreso because those harshly driven roadways chop up the pedestrian environment even as they chop up and cut down we pedestrians. Motorists need to exercise due care; it can be argued strongly that the issue of yielding right-of-way does not apply to a pedestrian traveling with traffic, as supported in part by additional laws referenced above. This is supported further by not only the legislative intent of some of the above laws, but by this explicit pronouncement of the legislature: 21949. (a) The Legislature hereby finds and declares that it is the policy of the State of California that safe and convenient pedestrian travel and access, whether by foot, wheelchair, walker, or stroller, be provided to the residents of the state. (b) In accordance with the policy declared under subdivision (a), it is the intent of the Legislature that all levels of government in the state, particularly the Department of Transportation, work to provide convenient and safe passage for pedestrians on and across all streets and highways, increase levels of walking and pedestrian travel, and reduce pedestrian fatalities and injuries. Key phrase, "provide convenient and safe passage for pedestrians ON AND ACROSS ALL STREETS AND HIGHWAYS." (Emphasis mine.) The increased presence of bicycle and wheelchair traffic acts as natural traffic calming and increases driver awareness, thus contributing to our collective safety (as is supported by a recent study) and to fulfill the legislature's mandate to "reduce pedestrian fatalities and injuries." Note that pedestrians may be prohibited from (un)freeways, so there is no need to raise the alarm about wheelchairs on freeways. CVC 21960(a). Not that there is any reason wheelchairs cannot use freeways, just as bicyclists and other pedestrians do, when need be and/or when the law allows. * * * I appreciate the sentiment which brought on the Berkeley ordinance, and (not having yet been able to read it) do not expect to oppose it even if it is redundant. The wrinkle is that the City of Berkeley arguably can't give people using wheelchairs the same rights as people using bicycles. Nor do riders of wheelchairs necessarily want to be classified in exactly the same way! For instance, right now a wheelchair rider can safely run a stop sign with impugnity. As bicyclists, they could be charged with an infraction and subjected to a hefty fine unless an exception were granted (which ought to be granted). They could also be subjected to mandatory registration, which is counterproductive and encourages theft. And riders of wheelchairs would also be subject to the unreasonably strict and severe (yet rarely properly enforced) prohibition on riding bicycles on sidewalks. Etceteras. Bicyclists shouldn't be subject to many of these restrictions, either. While irresponsible sidewalk riding hurts us all, responsible sidewalk-riding bicyclists (some of whom do so due to disabilities) are wrongfully penalized, while education is nowhere to be found. Red light fines run $271 for bicyclists, despite the fact that the fine was tripled to that amount because of the thousands of injury and fatality crashes each year caused by red-light running motorists (not bicyclists). Arguments for changing how stop signs and red lights work for bicyclists -- which relates very strongly to issues of disability such as repetitive stress injuries and avoiding collisions with motorcars -- may be found at this website: http://www.bclu.org/stops/ I hope that this latest Berkeley ordinance is not the only proposal to honor the dedicated life of activism of Fred Lupke, and the others who have given their lives and abilities to the motor-dominated roadways in Berkeley and beyond. The biggest goal should be the prevention of further tragedy, while expanding and strengthening the retention of maximum liberty and care for those who walk and roll. The inequity and danger enforced by "our" ubiquitous urban infrastructure and the endless deadly stream of motorcars which rule it must be brought into balance. Berkeley is woefully behind in its mission to calm traffic, reduce automobile dependence and provide safe and ready equal access to all. Jason Meggs California State Coordinator Bicycle Civil Liberties Union **************************************************************** From: Roger Marquis On Mon, 6 Oct 2003, Jason Meggs wrote: > By way of introduction: a new law has been proposed in Berkeley (authored > by Dona Spring, and coming before City Council on October 14) intending to > give those who ride wheelchairs the right to ride in bicycle lanes, Note that Dona's proposal would not just allow wheelchairs in bike lanes where there is no sidewalk or curb cut. State law already allows that. What Dona's proposal would do is allow wheelchairs in any bike lane regardless of the sidewalk or curb cuts. Putting aside the fact that the city does not have jurisdiction to enact such a law it would be wise to consider the broader costs and benefits. Has anyone enumerate the benefits to wheelchair users beyond slowing for pedestrians and curbs? Among the costs would be bicycle safety. We all know how dangerous it is to pass skaters and bladers in a bike lane, especially given the aggressive traffic on streets like Telegraph and Oxford. Even the most powerful electric wheelchairs travel as slow or slower. Bike lanes are intended, and funded, to facilitate the safe passage of bicyclists on otherwise hazardous streets. Is this safety really a lower priority than the convenience of wheelchair users? If so perhaps we should use funds currently allocated to wheelchair safety to replenish the recently gutted bicycle facilities budget? A second cost is wheelchair safety. Few wheelchair users would argue that many roadways are safer than the adjoining sidewalk. This is why virtually all Berkeley streets have sidewalks after all. > The hubub over wheelchairs in bicycle lanes rightly erupted when Berkeley > lost a dearly loved local activist, Fred Lupke, after a motorcar > "accidentally" struck him from behind and reportedly threw him 55 feet. Let's hope the city's loss of Fred will result in sensible changes to foot, wheelchair and bicycle traffic by the council. Among those is Dona's other proposal to fix the sidewalk that forced Fred into the street. I'd also propose A) recommendations to households to put their trash and recyclables in the street and not on the sidewalk, and B) better law enforcement i.e, towing, of vehicles parked across a sidewalk. Berkeley is a beautiful place to walk. This is one of the reasons many of us live here. Let's make it a better place to bicycle too, not by outlawing bicycles from sidewalks like San Pablo Ave, not by deemphasizing cyclists' important right of way on what few bike lanes the city has striped, but by improving both sidewalks and streets and facilitating the use of both alternate modes of travel. -- Roger Marquis http://www.roble.net/marquis/ ******************************************************************** From: Jason Meggs On Mon, 6 Oct 2003, Roger Marquis wrote: > On Mon, 6 Oct 2003, Jason Meggs wrote: > > By way of introduction: a new law has been proposed in Berkeley (authored > > by Dona Spring, and coming before City Council on October 14) intending to > > give those who ride wheelchairs the right to ride in bicycle lanes, > > Note that Dona's proposal would not just allow wheelchairs in bike > lanes where there is no sidewalk or curb cut. State law already > allows that. What Dona's proposal would do is allow wheelchairs > in any bike lane regardless of the sidewalk or curb cuts. I am aware of that fact from newspapers and discussed it, although I didn't manage to find the text of the ordinance on the City's website when I looked. > Putting aside the fact that the city does not have jurisdiction to enact > such a law it would be wise to consider the broader costs and benefits. > Has anyone enumerate the benefits to wheelchair users beyond slowing for > pedestrians and curbs? Can you propose a criteria by which the costs and benefits would be analyzed? Damage to chairs, pain, outright obstruction, and significant travel delays sound rather compelling given that wheelchairs can be operated similarly to bicycles. Would you like to be constrained to the sidewalk? And are you disagreeing with my legal analysis that users of wheelchairs already have the right to use the road? > Among the costs would be bicycle safety. We all know how dangerous it > is to pass skaters and bladers in a bike lane, especially given the > aggressive traffic on streets like Telegraph and Oxford. Even the most > powerful electric wheelchairs travel as slow or slower. Bike lanes are > intended, and funded, to facilitate the safe passage of bicyclists on > otherwise hazardous streets. Is this safety really a lower priority > than the convenience of wheelchair users? If so perhaps we should use > funds currently allocated to wheelchair safety to replenish the recently > gutted bicycle facilities budget? Riders of wheelchairs already use the street on a regular basis. I don't expect the practice to change in any major way, whether there is a law or not. How many times a week do you have to pass someone riding a wheelchair? Compare that to how many double-parked cars or other obstructions (or bicyclists for that matter) you have to pass. I don't see the problem. > A second cost is wheelchair safety. Few wheelchair users would argue > that many roadways are safer than the adjoining sidewalk. This is why > virtually all Berkeley streets have sidewalks after all. The law doesn't necessarily require people using wheelchairs to use the roads, it would give them the choice (if one exists at all -- some may not really have a choice). State law still treats them as pedestrians. But are sidewalks really safer? The proximity to intersections (esp. driveways) and, correspondingly, visibility, is increased. Many bicycle advocates are constantly warning of the dangers of sidewalk riding, even in residential areas. Yet many bicyclists want that choice (yourself included, from a recent Bicycle Subcommittee meeting). Why deny that choice from people who already have so little choice about how they can get around? Sincerely, Jason Meggs California State Coordinator Bicycle Civil Liberties Union > > The hubub over wheelchairs in bicycle lanes rightly erupted when > > Berkeley lost a dearly loved local activist, Fred Lupke, after a > > motorcar "accidentally" struck him from behind and reportedly threw > > him 55 feet. > > Let's hope the city's loss of Fred will result in sensible changes to > foot, wheelchair and bicycle traffic by the council. Among those is > Dona's other proposal to fix the sidewalk that forced Fred into the > street. I'd also propose A) recommendations to households to put their > trash and recyclables in the street and not on the sidewalk, and B) > better law enforcement i.e, towing, of vehicles parked across a > sidewalk. > > Berkeley is a beautiful place to walk. This is one of the reasons many > of us live here. Let's make it a better place to bicycle too, not by > outlawing bicycles from sidewalks like San Pablo Ave, not by > deemphasizing cyclists' important right of way on what few bike lanes > the city has striped, but by improving both sidewalks and streets and > facilitating the use of both alternate modes of travel. > > -- > Roger Marquis > http://www.roble.net/marquis/ > ************************************** From: "Spring, Dona" Date: Wed, 8 Oct 2003 10:30:35 -0700 My proposal does not ask that wheelchair users be able to use busy commercial streets like Telegraph. ************************************* From: "Dan's Charter Account" Jason has written a long and not well focused post attempting to justify the Berkeley wheelchair law. What follows is a traffic law and safety rule based development describing the flaws with the Berkeley law: 1) Unclear/confusing use of terms: Wheelchairs, Shoes, Bicycles and Motor Vehicles do not have rights, these are inanimate objects. The handicapped, pedestrians, and vehicles drivers (motorists and cyclists) are people that have rights AND duties under the California Vehicle Codes or CVC (remembering that bicyclists are vehicle drivers per CVC 21200 even though bicycles are not legal vehicles in California). . 2) Legal definition of wheelchair users as pedestrians: Wheelchair users, and this applies whether the wheelchair is powered or un-powered, are defined as pedestrians in the CVC. See relevant CVC sections in Appendix A) at the end of this post. . 3) Lighting requirements for pedestrians: Pedestrians do not have legal requirements to use front lights nor have rear lights or reflectors for night time operation. Therefore Wheelchair users are also not required to have said lights and reflectors. . 4) Lighting requirements for vehicle drivers: Vehicle drivers are required to have lights and reflectors for safe night time operation. See CVC sections concerning cyclists in Appendix B) at the end of this post. . 5) Road travel laws for pedestrians: Pedestrians are required to walk in the road facing traffic so that they can react to oncoming traffic that may not see them. This is crucial for night travel because peds are not required to have lights/reflectors. If night time peds without lights and reflectors walk in the road with traffic, they have little chance to react to drivers who cannot see them, whether the drivers approach from the rear or make turns across their path at intersections. Wheelchair users are legal pedestrians so this rule and the underlying safety logic also apply. See the CVC sections in Appendix C) at the end of this post. . 6) Problems with night time wheelchair road use: Allowing wheelchair users to use the road at night as vehicle drivers moving with traffic flow, whether in a bike lane or not, exposes wheelchair users to extremely dangerous overtaking and intersection collision modes because wheelchair users without lights/reflectors are essentially invisible. This is a hazard not only to the wheelchair user, but also any cyclists that may be in the immediate proximity of the wheelchair user. . 7) The Berkeley law is incomplete: The people that wrote the Berkeley law meant well, but the law is overly simplistic because it grants rights without assigning duties that are also necessary to ensure the safety of Wheelchair users and other road users. These duties include lighting/reflector requirements or duty to stay left of right turn pockets so as to not violate the normal traffic flow rules and laws. This is a classic example of the law of unintended consequences, wherein a not well thought out law, in attempting to solve one problem, ends up creating a host of other potentially more serious problems. . 8) Requirements for safe operation in traffic by wheelchair users: If Wheelchair users are to operate safely in the road then they must be subject to the same rights AND duties as vehicle drivers and not function as partially in the vehicle driver realm and partially as pedestrians, for the clear safety reasons cited above. The same rights and duties already hold true for cyclists as defined in the CVC. . [An aside to Jason on the subject of stop sign compliance: Cyclists have the same rights and duties as vehicle drivers, so stop signs mean "stop and then yield" for all drivers of vehicles, not just motorists. This equality is the essence of the motto used by the integrated cycling community: same roads, same rights, same rules! Which is another way of stating the integrated cycling principle: Cyclists fare best when they act as and are treated as drivers of vehicles. We cyclists are not rolling pedestrians, we are vehicle drivers.] . . Appendices: . Appendix A) Vehicle Code Sections defining wheelchair users as pedestrians: 415. (a) A "motor vehicle" is a vehicle that is self-propelled. (b) "Motor vehicle" does not include a self-propelled wheelchair, invalid tricycle, or motorized quadricycle when operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian. 467. (a) A "pedestrian" is any person who is afoot or who is using any of the following: (1) A means of conveyance propelled by human power other than a bicycle. (2) An electric personnel assistive mobility device as defined in Section 313. (b) "Pedestrian" includes any person who is operating a self-propelled wheelchair, invalid tricycle, or motorized quadricycle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as specified in subdivision (a). (c) The amendments made by this section shall become operative on March 1, 2003, and this section shall remain in effect only until January 1, 2008, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2008, deletes or extends that date. 467. (a) A "pedestrian" is any person who is afoot or who is using a means of conveyance propelled by human power other than a bicycle. (b) "Pedestrian" includes any person who is operating a self-propelled wheelchair, invalid tricycle, or motorized quadricycle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as specified in subdivision (a). (c) This section shall become operative on January 1, 2008. ---------------------------------------------------------------------------- ------------------ . Appendix B) Vehicle code sections defining cyclists as drivers of vehicles and lighting requirements Laws Applicable to Bicycle Use: 21200. (a) Every person riding a bicycle upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to, provisions concerning driving under the influence of alcoholic beverages or drugs, and by Division 10 (commencing with Section 20000), Section 27400, Division 16.7 (commencing with Section 39000), Division 17 (commencing with Section 40000.1), and Division 18 (commencing with Section 42000), except those provisions which by their very nature can have no application. . Bicycle Lights: 21201.3. (a) A bicycle or motorized bicycle used by a peace officer, as defined in Section 830.1 of, subdivision (a), (b), (c), (d), (e), (f), (g), or (i) of Section 830.2 of, subdivision (b) or (d) of Section 830.31 of, subdivision (a) or (b) of Section 830.32 of, Section 830.33 of, subdivision (a) of Section 830.36 of, subdivision (a) of Section 830.4 of, or Section 830.6 of, the Penal Code, in the performance of the peace officer's duties, may display a steady or flashing blue warning light that is visible from the front, sides, or rear of the bicycle or motorized bicycle. (b) No person shall display a steady or flashing blue warning light on a bicycle or motorized bicycle except as authorized under subdivision (a). Added Sec. 65, Ch. 877, Stats. 1998. Effective January 1, 1999. . Reflectorized Equipment: 21201.5. (a) No person shall sell, or offer for sale, a reflex reflector or reflectorized tire of a type required on a bicycle unless it meets requirements established by the department. If there exists a federal Consumer Product Safety Commission regulation applicable to bicycle reflectors, the provisions of that regulation shall prevail over provisions of this code or requirements established by the department pursuant to this code relative to bicycle reflectors. (b) No person shall sell, or offer for sale, a new bicycle that is not equipped with a red reflector on the rear, a white or yellow reflector on each pedal visible from the front and rear of the bicycle, a white or yellow reflector on each side forward of the center of the bicycle, and a white or red reflector on each side to the rear of the center of the bicycle, except that bicycles which are equipped with reflectorized tires on the front and rear need not be equipped with these side reflectors. (c) Area reflectorizing material meeting the requirements of Section 25500 may be used on a bicycle. Amended Ch. 399, Stats. 1980. Effective July 11, 1980 by terms of an urgency clause. ---------------------------------------------------------------------------- --------------------- . Pedestrian on Roadway: 21956. (a) No pedestrian may walk upon any roadway outside of a business or residence district otherwise than close to his or her left-hand edge of the roadway. (b) A pedestrian may walk close to his or her right-hand edge of the roadway if a crosswalk or other means of safely crossing the roadway is not available or if existing traffic or other conditions would compromise the safety of a pedestrian attempting to cross the road. ************************************ Date: Tue, 7 Oct 2003 03:29:32 -0400 (EDT) From: Jason Meggs On Mon, 6 Oct 2003 wrote: > Jason has written a long and not well focused post attempting to justify > the Berkeley wheelchair law. What follows is a traffic law and safety > rule based development describing the flaws with the Berkeley law: Dan, You must not have read my post carefully. Again, I have not yet read the proposed ordinance, because I could not find it online. No one has sent me a copy yet. It souinds like you have a copy. Please send me it post haste. Note that any proposed language might change, even if something along these lines is eventually passed into municipal law by the City Council. All I have to go by are news accounts. What my post in fact was intended to do -- which was stated quite clearly in the opening paragraph -- was to "argue here that [riders of] wheelchairs already have and should continue to enjoy the right to travel both in bicycle lanes and in the roadway (somehow, everyone seems to have assumed this right does not exist), and that the ordinance can at best only strengthen that existing right." My primary regret with regards to that post at this time is that the subject line was written in the spirit of a news headline, and mis-stated that "wheelchairs have the right." I chose that subject line which was likely to be understood at first glance, and to fit in its entireity on a wider array of email client programs. Despite care taken throughout my analysis to discuss the rights of "people using wheelchairs" and "riders of wheelchairs/bicycles," etcetera, I also misused the term "wheelchairs" as a shorthand for "people riding wheelchairs" in at least one case, just as people use "bicycles" or "bicyclists" as shorthand for "people riding bicycles." I apologise. As for the idea that riders of wheelchairs should have lights and reflectors, etc., when using the roadway, at present no such requirement exists to my knowledge, but it is a very good idea. In the case of a civil action, one's lack of visibility would certainly be an issue. As someone proposing such, I presume you'd be in agreement with at least that portion of the reported goal of the proposed ordinance: to treat the riders of wheelchairs using the roadway as bicyclists, thereby requiring reflectors ("where applicable"? -- CVC 21200). On the other hand, the motorist who struck Fred was violating the "Basic Speed Law:" 22350. No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. Thank you, Jason Meggs California State Coordinator Bicycle Civil Liberties Union ************************************ From: "Dan's Charter Account" Jason, No need to apologize. In the past I was guilty of using terminology that confused the vehicle with the person using it, so I am sympathetic. As a satellite systems engineer and traffic cycling safety instructor I have learned from painful experience that clear terminology fosters better communication and policies than the use of imprecise terminology. . I presumed the Berkeley law only granted rights because this was how it was described by several authors. I have not seen the text of the proposed law. I wrote my response to your post because I wanted to let the Berkeley officials know that the ordinance, at least what I knew of it, indicated that it would unnecessarily endanger wheelchair users, and cyclists at night, create potentially unsafe movements (even in daylight) and open up the city to potential litigation, for the reasons cited in my response. . You suggested: "I presume you'd be in agreement with at least that portion of the reported goal of the proposed or as someone proposing such, I presume you'd be in agreement with at least that portion of the reported goal of the proposed ordinance: to treat the riders of wheelchairs using the roadway as bicyclists, thereby requiring reflectors ("where applicable"? -- CVC 21200)" . I would agree that any road user should be treated as a vehicle driver, which is what CVC21200 does for bicyclists, so a wheelchair enabling equivalent to CVC21200 would be needed, and new lighting requirements (similar to CVC21201) would have to be developed for wheelchair users (I don't know of any standards for wheelchair lighting). In addition movement rules have to be considered and/or developed (cyclists have CVC21202 and CVC21207 to govern their movements on roadways and when in bike lanes respectively). Creating a law to allow a subset of the pedestrian user class to become legal vehicle drivers is tricky and can have unintended consequences if not handled properly. This is why I stressed in my last post that bicyclists are vehicle drivers, because this gives them significant duties in addition to the rights they receive. Such rights and duties, especially the details of the duties, do not appear to have been completely worked out for wheelchair users. . I would also like to make it very clear to everyone on this list that I support the access rights granted to the handicapped in the federal ADA, and I am sympathetic to the spirit in which the Berkeley law was proposed. All I am asking is for those in elected officials in Berkeley and their staff to carefully analyze all of the systemic traffic safety implications (day and night requirements, movement rules, etc.) to ALL road users, not just the wheelchair users, in drafting such legislation. . . - Dan Gutierrez - Aerospace Cycling Club, Founder and current President ************************************* http://www.berkeleydaily.org/opinion_article.cfm?issue=10-07-03&storyID=17533 PUT 'EM BACK (letter to the editor, Daily Planet) Editors, Daily Planet: While some street and sidewalk improvements to better provide for wheelchair users may take a long time to bring about in Berkeley, there is one improvement that the city can make right away. The city could immediately instruct and require sanitation and recycling workers to place emptied garbage cans, plant debris, and other recycling containers so they do not obstruct the sidewalk. In my neighborhood, for instance, residents are usually very good about putting out their containers where they won't block the sidewalk. Every pick-up morning one sees neat lines of gray, green, and blue containers carefully placed either in the "verge" (the area between curb and sidewalk, or in driveways, off the sidewalk. Once the city workers pass by, however, the sidewalks are cluttered with containers that have been emptied and hastily swung, pushed, or tossed aside. This creates obstacles to pedestrians and wheelchairs throughout the day, because many residents are away at work and aren't there to move the containers out of the sidewalk until evening. The city's Public Works Department could and should require that its workers not only bring containers back to the curb but also place them where they are not blocking the sidewalk. Usually this would mean the simple act of putting a container back where the resident originally placed it for pick-up. The city should also make allowances for the increases in time required to do this work with care. My impression has been that the sanitation workers are typically moving so fast down the street-presumably to stick to a schedule-that they don't have time to do more than quickly drag or swing a container aside once the contents have been dumped into the collection truck. They perform an intricate and energetic ballet, but the end result is often sidewalk clutter. It was only about two decades ago in Berkeley that sanitation workers routinely came into yards, picked up garbage cans from storage areas, emptied them, and then carefully returned them to the place they came from. While the days of yard pickup are gone (in part because of the back problems caused by carrying heavy cans), it is not too much to expect that the part about "putting it back where it came from" should be among the city's axioms for sanitation workers. Steven Finacom
Justice for Sharon Spencer.