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.