ragged edge magazine online



Issue 5
September, 2001




photo of shoe in street Mean Streets

By Ed Eames

Sitting around the large conference table in Room 4017 in Fresno's City Hall on March 16, we heard the usual topics discussed. Little did we realize when Elias Gutierrez, with palpable fear in his voice, again noted the danger he faced on a daily basis traversing the streets of our city, that two days later he would be the victim of the city's lack of concern and wanton disregard for the safety of its citizens.

Guiterrez family sues Fresno
Sacramento told to cut 50,000 curbs

Most of the regulars were at the meeting. There were people from the Fresno Center for Independent Living, The National Federation of the Blind and the California Access Network. As chair of the Advisory Council, I was delighted to welcome several new wheelchair users to the group. In addition to disabled members of the community, representatives of the Fresno city administration were present.

Dr. Bob Quesada, Deputy City Manager, acting as liaison between the city and the Advisory Council, sat on my right. Scattered around the table were representatives of the Fire Department, Convention Center, Public Works and Traffic Engineering. The Fire Department reported that of the more than 1,000 fire hydrants inspected in the last month, none were in violation of the minimum mandated clear path of travel of 48 inches.

The Convention Center representative indicated the water fountain had been lowered to the required height and the women's toilet was being renovated to meet codes. Traffic engineering spokesperson reported on traffic signals where the crossing time had been extended to give pedestrians a fighting chance to get across the street. The Public Works representative talked about the proposed installation of audible pedestrian signals at several high-traffic pedestrian crosswalks.

Gutierrez, a member of the Advisory Council for more than a year, pressed the city representatives on what they were doing to remove parked cars blocking the sidewalks in his neighborhood. These vehicles were forcing him out into the street on a major road leading to the airport, he said, and he had had several near-accidents.

He was told that the area in question was a county pocket within Fresno, and the city could do nothing about ticketing the drivers or removing the cars.

We all joined Gutierrez in expressing our dismay at this impasse. The discussion then turned to the lack of curb ramps in the city. Once again Gutierrez spoke, telling of his inability to get to bus stops because of the lack of curb ramps. All Fresno city buses are equipped with wheelchair lifts, he said -- but what use were they when you couldn't get to them because you couldn't get up or down the sidewalks? Others voiced the same complaint.

Ever since joining the Advisory Council, Gutierrez had been complaining about the lack of sidewalks and curb ramps in Fresno. He had been forced into the streets to travel from his home to stores, recreation centers and friends' homes.

Gutierrez was foretelling his own death.

Two days after the meeting -- on Sunday, March 18 -- the 60-year-old activist was killed when he was struck by a car as he was traveling in his power wheelchair next to the curb on Palm Avenue near Cornell.

That evening, Fresno television stations broadcast the image of an overturned wheelchair on the sidewalk of Palm, and a single shoe in the street. It made a profound emotional impact.

The news report that night did not mention Gutierrez by name. We didn't know until the Fresno Bee published his name in a follow-up story the next day that the man killed had been our Elias Gutierrez.

Learning of his death, I became depressed, as did most of the Advisory Council members.

The motorist who killed Gutierrez admitted he was driving 40 miles an hour on a local street when he decided to switch lanes. The 40 miles an hour was the posted speed limit, even though it was a residential area. The motorist had not seen the wheelchair until it was too late.

For years, members of the Advisory Council had been exhorting city traffic engineers to lower speed limits and prolong crossing times at traffic signals. The city would always respond that our needs as pedestrians had to be balanced with the needs of motorists who had to get where they were going as quickly as possible. We were continually told that any increase in time for motorists at red lights would lead to more road rage, resulting in even more violence against pedestrians and other drivers. Our right to safe passage seemed never to enter the equation.

Gutierrez's daughter arrived in Fresno several days later to go over his things. She told me that in his journals Gutierrez constantly wrote of the fear he felt every time he went out in his wheelchair.

For many of us, depression soon turned to anger when we learned that the motorist who killed Gutierrez was being only cited for driving without a license. Had Gutierrez been nondisabled, his death would have been considered manslaughter, we felt sure.

Enraged by the incident and the manner in which it was being treated, we scheduled a public meeting on May 2. The city would have to answer some questions.

Our press conference May 1 had been planned to coincide with a City Council meeting. The four local network affiliates and the Fresno bilingual TV station all covered our statements, weaving in footage of the spot where Gutierrez was killed. The coverage helped spread the word about the next day's event.

The public meeting the following day was packed. Gutierrez's daughter from Connecticut and his former wife from New Mexico were there as well.

Calling the meeting to order, I asked the group for a moment of silence in tribute to our dead activist I had given considerable thought to what I wanted to see accomplished in this session. I wanted the city to know we would not let this incident go unnoticed. I wanted members of the disabled community to seize the opportunity to express their fears, hopes and anger in the presence of city officials and the press. I wanted to begin the development of a plan of action to avoid a repetition of this tragedy. As I sat in the seat reserved for the President of Fresno City Council, I thought about how unresponsive this body had been to the needs of Gutierrez and other wheelchair users.

When Sgt. Jim Lusk of the Traffic Division confirmed that driver had merely been cited -- for driving without a license -- disabled people demanded to know why charges of vehicular or involuntary manslaughter had not been lodged. Lusk said it might take up to six months to complete the investigation; it would then be up to the district attorney's office whether to press manslaughter charges. We were dismayed to hear the police say they had no idea as to the whereabouts of the driver.

We were told that since 1992 fewer than 400 corners in the city had been retrofitted with curb ramps. We learned the city had written to the Department of Justice in 1996 requesting an exemption from the ADA Title II mandate requiring curbs be ramped! The city had told DOJ there were more than 10,000 corners in Fresno needing curb ramps; despite this, a spokesperson said the Fresno Public Works Department was asking the city for only $175,000 for the next fiscal year -- to install 130 ramps.

We disabled people were stunned. We felt betrayed by the city.

The meeting wasn't just about curb ramps. City officials were asked about increased time for pedestrians to cross at traffic lights, installing audible pedestrian signals, removing barriers on sidewalks, providing access over railroad crossings. An amazing number of wheelchair pedestrians told the meeting that they, too had been involved in accidents, or nearly missed being hit. Over and over we heard, "We need sidewalks! We need ramps! We need time to get across streets!"

Our anger was permeating the chamber. A city staffer said he "sympathized with the plight of wheelchair users." "We don't want sympathy, we want action!" an Advisory Council member roared back.

Something had to be done, we all agreed, to avoid a repetition of the events leading to Gutierrez' death. The city had to lower speed limits. It had to install curb ramps. It had to increase pedestrian street crossing time at traffic signals. It had to enforce the laws about cars and obstacles obstructing sidewalks.

At an emotional budget hearing held on June 5, members of the Advisory Council urged the City Council to allocate $500,000 for cutting curbs, up from the $175,000 that had been sought. When the final budget was adopted, the recommended $500,000 allocation for curb ramps had been reduced to $225,000.

In July, the Fresno police department finished its investigation of the incident. They found the driver was going 48 mph and was at fault for not having a clear view of the road on the right when he decided to pass the car in front of him. They recommended to the district attorney that vehicular manslaughter charges be lodged against the driver.

A county-wide campaign is underway to pass a half-cent sales tax to appropriate funds for transportation. As a member of the Steering Committee convened to plan expenditures of the new tax income, I am working to include funding for audible pedestrian signals, sidewalk curb cuts, longer crossing time at signals and pedestrian overpasses at high traffic intersections -- so members of the Fresno disabled community will have a fighting chance to stay alive.

Sacramento told to cut curbs throughout city

In Sacramento, California's capitol, the City Council approved a plan in January to spend $4.5 million annually installing or retrofitting more than 50,000 ramps over the next several decades. The plan came about as a result of a lawsuit filed years ago -- 1992 -- by the Oakland-based Disability Rights Advocates. In November, U. S. District Judge Milton L. Schwartz ruled ruled that Sacramento had "failed to meet its obligations" under the Americans with Disabilities Act by not installing cuts or repairing bad curb cuts when it resurfaced streets. But whether the ADA also requires cities to remove obstacles on sidewalks -- bus shelters, benches, poles -- that block access -- is a question that's now been appealed to the 9th Circuit Court of Appeals.


Ed Eames is Chair of the Fresno Americans with Disabilities Act Advisory Council.

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