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Interview: Scott Kocher on how to get a ‘win-win’ on traffic enforcement and safer streets

Posted by on December 29th, 2020 at 11:22 am

A Portland police officer cites a man downtown for bicycling on the sidewalk.
(Photo: Jonathan Maus/BikePortland)

This is the second part of our interview with Portland-based attorney and safety advocate Scott Kocher. In the first half of the interview, Kocher discussed speed limit laws and the “20 is Plenty” campaign. In addition to his legal work, Kocher is on the board of Oregon Walks where he’s working on an in-depth analysis of three years of traffic collisions that killed someone walking. Our conversation has been edited for clarity. (Disclaimer: Kocher’s firm, Forum Law Group, is a financial supporter of BikePortland.)

BikePortland: As a personal injury attorney, you get involved when the system has failed to keep someone safe. I imagine this gives you a unique perspective. What’s your view on enforcement as someone who represents crash victims?

Scott Kocher.
(Photo: Forum Law Group)

Kocher: One of the things I see when I talk to drivers in their depositions is that no one ever thought they’d be the one to cause a terrible crash. Even facing major consequences, the human realities of denial, poor decision-making, and often having major life problems are still there. Seeing that makes me question whether it’s realistic to pin our hopes on people changing their driving behaviors out of fear of killing someone, or going to jail. On top of that, jail or prison isn’t the right place for most of the people who cause serious crashes. Many should not be driving, but sending them to jail has huge personal and social costs, very little deterrence, and is probably less helpful in terms of keeping the community safe than ensuring they transition to not driving as an alternative to incarceration.

As for ticketing, I believe it does have an effect in terms of keeping most drivers within 10 mph of the speed limit, most of the time. That doesn’t mean it’s “working” for safety or other fairness criteria. It’s the other drivers I’m more worried about. And, the way we do ticketing is really broken.

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“There’s a lot of potential for simplistic, divisive thinking here. Instead, I see potentially huge win-wins”

BikePortland: This discussion often ends up being framed as a debate between road safety or fairness to people of color for whom a traffic stop can escalate to a traumatic or dangerous interaction with the police. What are your thoughts about that?

Kocher: People sometimes talk about safety as three Es: engineering, education and enforcement. Black Lives Matter has brought increased attention to enforcement. In response, some people have suggested that we can’t support racial justice goals — particularly around interaction between police and the public in the right-of way — because less enforcement would increase dangerous driving behaviors. There’s a lot of potential for simplistic, divisive thinking here. Instead, I see potentially huge win-wins. There’s a pretty big toolkit to improve fairness, reduce police-public interactions and reduce costs in ways that are consistent with eliminating fatal and serious crashes. It includes:

1) Get rid of petty pedestrian offenses. City Code makes it an offense to fail to cross at right angles. The same offenses that are susceptible to being misapplied disproportionately against people who are Black and Brown are the same offenses that were created as part of the early 20th Century transfer of rights from pedestrians to drivers.

2) Before enforcement, engineer streets for safety. No amount of ticketing was going to change the behavior of the man who killed Fallon Smart, or this impaired driver or this one. It should be impossible to drive 50 or 100 mph on our streets.

3) Bring back traffic calming. PBOT got rid of its Traffic Calming Division with budget cuts years ago. Before anyone asks for money for enforcement, ask Council to bring that back, and give it a real budget. Going safe speeds should be intuitive based on how PBOT and ODOT configure and operate their roadways.

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4) Where you can’t engineer or calm for safety, replace officer enforcement with cameras. Rotate dummy cameras from place to place, like Sweden does. That way drivers are mostly seeing cameras and slowing down, as opposed to mostly not seeing cameras and getting tickets.

Automated speed camera on SW Beaverton-Hillsdale Hwy.
(Photo: PBOT)

5) As a prerequisite for (4), change the fee schedule so that traffic fines go up with income. This would be easy, it costs nothing, and has been successfully implemented elsewhere. It’s unbelievable that we hand somebody a fine that could mean they miss paying rent, while somebody else can pay the same amount over and over and not even care.

6) Change after-hours parking enforcement from police to PBOT. PBOT is set up to do it, because their parking enforcement personnel do it during business hours. Having police respond to calls of improperly parked vehicles on evenings and weekends is expensive, and a setup for racially-charged interactions which have occurred in Portland.

7) Dust off the non-officer enforcement statute, ORS 153.058. This little-known law (a.k.a. the citizen-initiated citation) means you don’t need police officers to enforce most of the laws that are necessary for traffic safety. Non-officers could mean other City employees, such as at PBOT, or other civilians. In the past, PBOT has been reluctant to encroach on traditional police roles, even for minor offenses. Any non-officer enforcement would need to be community-driven, based on need, and implemented with oversight.

8) Last but not least, reassign primary crash response to PBOT. This is overlooked, and potentially a huge deal in terms of reducing police-public interactions by several thousand per year, as well as providing financial and safety benefits.

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“I was stunned that Oslo had only one fatality last year. One. It makes me think we can turn our numbers around.”

BikePortland: You expose yourself to a lot of tragedy, which has got to be difficult. Does your activism make that easier? What’s the balance there?

Kocher: I haven’t really analyzed it too much, but as a person who walks and bikes for most trips, and professionally is working with families after crashes… I can’t imagine being confronted with a problem, over and over, and not trying to do something about it. Beyond counteracting burnout, there’s meaning in working with people on fixes that we can see right here in our neighborhoods. I was stunned that Oslo had only one fatality last year. One. It makes me think we can turn our numbers around. (Note: Portland’s 55th traffic fatality of 2020 happened on December 23rd.)

BikePortland: When I take account of all the people I’ve known who have been injured or killed in a car crash, it’s staggering.

Kocher: One in 103 of us will be killed in a car crash. If you have two kids, that makes it about one in fifty that you will lose one of them in a car crash, over a lifetime. There are around 60 people injured for every fatality. It is staggering. Just like there are car dealerships and auto body shops, there are entire industries — including insurance companies and thousands of us lawyers who could be doing other things — that are built around car crashes.

BikePortland: Given your analysis of these tragedies, what do you think are the next steps Portland should take to keep people safe?

A memorial for Clayton Chamberlin, who was killed while rolling his wheelchair across SW Barbur earlier this month.
(Photo: Lisa Caballero/BikePortland)

Kocher: Provide street lighting with adequate brightness and uniformity, especially on east Portland arterials. Take trees into account when placing lights. Every place crashes are happening, slow it down. Use the speed setting laws we have, and traffic calming, even on bigger streets, in every neighborhood. We’re operating a system of humans, vehicles and streets, each with known characteristics. Something as simple as narrowing the lane widths can make a difference.

And don’t have drivers turning across the crosswalk at the same time as the walk signal phase.

If a street doesn’t have sidewalks, understand that people of all ages and abilities will be walking and biking in that street. Every shared use street needs to be a speed you’d be OK with your 11-year-old walking on alone. Understand that people experiencing homelessness are living along some of our most dangerous streets. Each agency, including transportation, has the same duties to them as to housed Portlanders. Understand that humans come in all shapes and sizes, and states of mind. We will make human errors. The consequence should not be death.

Keep listening to people. Try new things. This list might be different in five years.

As we enter the new year with a dedication to police reform and racial justice and a new commissioner-in-charge of PBOT, we’re in an opportune policy window to figure out which tools are going to work best, and make a change.

— Lisa Caballero, lisacaballero853@gmail.com
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qqq
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qqq

What a great interview. One line after another of insight and clarity.

 
Guest
 

Jail or prison isn’t the right place for most of the people who cause serious crashes. Many should not be driving, but sending them to jail has huge personal and social costs, very little deterrence, and is probably less helpful in terms of keeping the community safe than ensuring they transition to not driving as an alternative to incarceration.

I strongly agree with this sentiment. Sending people to jail for negligent vehicle operation doesn’t solve anything, and is nothing but vengeful — I believe that jails should only be used to house intentionally-violent or repeat offenders.

Instead, just take away their license and force them to commute by bike, transit, or such in the future, and have them do some community service to warn others about the dangers of irresponsible driving. Better that people educate others on why not to do what they did than spend time behind bars doing nothing productive.

And don’t have drivers turning across the crosswalk at the same time as the walk signal phase.

I think this is also incredibly important. Seems like a large proportion of crashes occur when people turn right and don’t look over their shoulder (as a runner, it’s easily where I feel the most danger and have had the most close calls). I can think of several solutions: make right turns only allowable on a green signal when the walk signal is red, or use a pedestrian-scramble phase.

Jon
Guest
Jon

I really like the idea o a lot of mobile dummy cameras mixed in with real ones. I see people speeding up right after they go through intersections with speed/red light cameras since they know they are home free once they have made it past the fixed location camera. It seems like most people on a regular car commute figure out where they have to slow down after a couple of months with the cameras. Adding dummy cameras that are moved around will make people less likely to speed in places they think are camera free. The fine based on income is a great idea also. Good interview!

Eric Leifsdad
Guest
Eric Leifsdad

Portland should stop allowing traffic enforcement to be a drain on the general fund budget. Require excess revenues from speed cameras to be used to reduce speeds on the street, if you’re afraid they will engineer streets just to extract maximum ticket revenue, I guess. Apparently it’s because we have no municipal court, the fines paid by motorists go to Multnomah County (and then into what budget?) Nobody seems to know how this works but we spent like $20M/yr from our general fund (not car/gas tax money) on the traffic division alone.

damiene
Subscriber
damiene

This interview dovetails neatly into the book I just finished – “Crash Course: If You Want to Get Away with Murder Buy a Car” by Woodrow Phoenix (https://www.powells.com/book/crash-course-9781951491017 – the War on Cars did an episode with Phoenix on the book).

I’ll second/third/etc the others that this interview with Kocher is very insightful.

NM
Guest
NM

These are great, actionable steps to improving traffic safety while decreasing interactions between armed officers and the public for things that most certainly do not require that. Not just keeping them from increasing, but actually decreasing them.

I do have concerns about the citizen initiated citations, especially given the growing number of incidents we hear about (and see via video) where people decide a law has been broken (often by a person of color) and that they must intervene. I wouldn’t want to incentivize more of that behavior…

But all the other items are spot on. I’d love to see these broken down into who the decision makers are to make them a reality – some are local, but some are state (traffic fine citation structure), and those certainly take different levels of strategy and capacity.

Thanks, Scott!

David Hampsten
Guest
David Hampsten

The idea of transferring traffic enforcement to PBOT sounds great until you understand City Council’s long-term relationship with PBOT. If at first City Council decides that PBOT must take over another bureau’s function that is currently paid for with general fund money (property taxes, hotel taxes, etc), at first they may give PBOT the funding it needs. But within one budget cycle they’ll cut that funding by 10-30%, then the next budget cycle an additional cut, and by the 4th budget cycle they’ll require PBOT to use its parking revenue to pay for traffic enforcement, instead of using it for sidewalks, bike facilities, rose lanes, etc.

So if you want some other bureau other than Police to do traffic enforcement, you need to consider what services you are willing to cut in later years from that same bureau to pay for traffic enforcement. I can imagine the public reaction if PWB (Water) was in charge of traffic enforcement – you speed and you’ll get your water cut off – but then we’d be using part of our water bill to pay for traffic enforcement within a few short years.

Bjorn
Guest
Bjorn

While I think there is some merit to fines being income based I think the larger need is for fines to step up on repeat offenders. If you get one speeding ticket over a 10 year period it probably doesn’t need to be very much money to get you to continue doing what you are already doing which is driving safely nearly all the time. However if this is your 3rd ticket this year then you clearly have a problem and the fines are not large enough to change your behavior. If the amount of a fine doubled for every previous ticket you had gotten over the last decade we would be doing a much better job of targeting the most dangerous drivers with the highest fines.

Steve Scarich
Guest
Steve Scarich

There is an old expression ‘statistics don’t lie, but liars use statistics’. This is a classic example. No, 1 out of 103 of us are not going to die in an automobile accident. What is true is that IF you are in an automobile accident, your odds of dying are 1:103. But, the average person gets in an accident every 18 years. Of course, the writer, and Mr. Maus, know all this, but choose to lie.

Evan
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Evan

Fantastic interview and perspective. Would be great to have a transportation commissioner with this type of insight.

qqq
Guest
qqq

“One of the things I see when I talk to drivers in their depositions is that no one ever thought they’d be the one to cause a terrible crash.”

This quote is also applicable to the “85th percentile rule” and why it’s fatally flawed. I know transportation agencies are dropping it, but the concept behind it–that people naturally pick a safe speed to drive–lives on with drivers.

Actually, they–even the 99th percentile drivers–pick the speed they THINK is safe. Similarly to the quote, no driver in a crash has ever thought they were driving too fast until it was too late.

Dead Salmon
Guest
Dead Salmon

I read the article and all of the comments. My thoughts:

1 – Not one word on what cyclists can do to be safer given the reality that motorists are not looking out for them that much – the motorist is concerned with getting hit by a car or truck, not by a bicycle, so that is what they are most attuned to watch for.
2 – How’s that vision zero working out for y’all?
3 – See that photo at the top of the page? One guy has a gun and ALL the power; the other guy has NO power. None. A LOT of people believe the guy with NO power should not even have the option of carrying (or even owning) a gun, knife or any weapon. Look again at the picture – how do you like that balance of power? Read any history lately?
4 – Quote: “BikePortland: This discussion often ends up being framed as a debate between road safety or fairness to people of color for whom a traffic stop can escalate to a traumatic or dangerous interaction with the police. What are your thoughts about that?”

What’s up with POC traffic stops escalating “to a traumatic or dangerous interaction”? Is this less likely to occur with Whites? If so, why?
5 – Quote from the answer to the BP question in #4 above: “Having police respond to calls of improperly parked vehicles on evenings and weekends is expensive, and a setup for racially-charged interactions which have occurred in Portland.”

There it is again: “racially-charged interactions”. Hmmmmmm……

Eliot
Guest
Eliot

When can Kocher please run for city commissioner and be in charge of transportation?

FDUP
Guest
FDUP

A ticket for riding on the sidewalk is a complete waste of time all around and shows that the system is not working for people who chose not to drive. Personally, I would be taking the lane there, but I know not everyone is comfortable with that.

Javier Sodo
Guest
Javier Sodo

You might want to disclose that Scott Kocher’s law firm advertises on your site. Remember there are huge societal costs imposed on American society by personal injury lawyers due to excessive litigation. Perhaps you could have asked how tort reform could benefit transportation safety? We could use the billions earned by trial lawyers (who get 33-40% of the settlement intended for the victim!) and put it towards improving traffic safety. Most other highly developed democracies operate with a fraction of the number of attorneys that we have in the USA.

https://www.researchgate.net/figure/Number-of-lawyers-in-different-countries-of-the-world_tbl1_270105553
https://www.alllaw.com/articles/nolo/personal-injury/lawyers-fees.html

Fred
Guest
Fred

When I reflect on why Oslo had ONE fatality this year and Portland had 50+, I can’t help thinking about how much harder it is to get a driver’s license in Europe than it is in the good ol’ US of A. Next time you get a chance to talk with an adult driver from Germany or Sweden or France, ask the person to describe the course she or he took to get a driver’s license. It will likely involve mandatory minimums of time on expressways, city streets, and other driving situations; practical and written examinations; and even time in a traffic simulator, which provides practice in handling situations (like meeting an emergency vehicle) that the student driver is unlikely to encounter in training. In other words, a country like Norway does a MUCH better job of training drivers.

I know from my own kids having gone through driver-ed classes (and seeing how they drive now) that Oregon driver training is nowhere near as rigorous as it could or should be. But more rigorous training is unlikely to happen b/c the huge automobile lobby would never allow legislators to create better training for new drivers. And we’re all complicit b/c driving a car is for all practical purposes a requirement of citizenship in the US.

Doug Klotz
Subscriber

I agree with everything Scott says and the changes he is calling for. In my opinion, many pedestrian-involved crashes are the result of not only the too high speeds of cars, (and often too-high speed limits), but also by the lack of having lighting consistently applied to crosswalks. Using existing street lighting standards may be adequate to enable other cars to be seen, but they are obviously not adequate to allow drivers to see pedestrians. Auto headlights have been allowed to become brighter than ever, since we went beyond standardized “sealed-beam” headlights. Brighter headlights are thought to be safer, but on city streets the increase in glare directed at oncoming drivers makes it more difficult for drivers to see pedestrians even if they were illuminated. 1/2

Doug Klotz
Subscriber

There are two ways to solve the headlight-glare-obscuring-views-of-pedestrians problem. One way would be to limit headlight brightness, when on city streets, to well below that which is now allowed for low beams.(A regulatory near-impossibility given that auto makers follow national mandates, and having Oregon headlight rules would be difficult to pass) The other way would be to increase the lighting of city streets to compensate for the increased glare of oncoming headlights. (Also, yes I know that new headlights have these sharp cutoffs in the pattern that are supposed to keep them from blinding other drivers. But that only works on level roads. If there’s a slight rise in the road, say at an intersection, or at the crest of a hill, then the new headlights will be aimed upward enough to blind oncoming drivers.) This second approach is to place streetlights on arterials at every crosswalk (marked or unmarked), upstream of the crosswalk, and aimed so as to illuminate the pedestrian on that half of the street. Another light is needed on the other side of the arterial, to illuminate pedestrians from the other side, for those drivers. Take footcandle readings falling on the pedestrian at the curb and while crossing. 2/2

Roberta Robles
Guest
Roberta Robles

Like all the ideas above. Especially bring back safety team. We should pay for it by closing out the freight team. They obstructed activist every step of the way and include people who don’t live in the city. It’s a regional function; should be administered and payed for by Metro. Not the city who tends to swing PBOT around at the same rate as PBOT Commissioners. Local PDX election laws weaken outer PDX voters and enables out of town corporate interest through the Freight Committee.

Lenny Anderson
Guest
Lenny Anderson

Long past time for PBOT to send the so-called Freight Committee packing!

Chris
Guest
Chris

I have never understood why we don’t hire more police officers to simply do traffic enforcement? The amount of the tickets written would certainly offset the cost of their salary, pension, benefits, etc. Heck whenever I ride on Terwilliger I would say 75% of the people are speeding. In my 26 years of riding this road on a regular basis I have seen a radar trap once. If people know the chances of being caught are minimal, they will keep on speeding.