Taking a Stand to Keep Sitting Legal

Taking a Stand to Keep Sitting Legal

San Francisco is poised to become the latest in a string of cities to adopt a law making it a crime to sit on the sidewalk. While it is the case that some of these other cities are known as being among the more liberal in the nation (e.g., Portland, Seattle, Boulder, Austin), no city with such a deep progressive history has sought to impose anything like a citywide ban on sitting such as is being proposed for San Francisco. The fact that these draconian ordinances have generally withstood legal challenges due to the intricacies and inanities of the justice system is no small comfort to the homeless people who are the primary targets, nor to the activists and community members concerned about the social and ethical implications of such punitive laws. In San Francisco, many of these folks – activists and the homeless alike – are mobilizing against the proposed law in the name of justice and common decency.

First, a bit of disclosure and a statement of bias: I have spent over a decade investigating and analyzing anti-homeless legislation such as these “no sitting on the sidewalk” ordinances (also known as “sit-lie” laws because they prohibit sitting and lying down). In 1999, I led a challenge against the law in Tempe, Arizona, while I was a graduate student at Arizona State University. There, we went through all of the channels of dissent to take on a law that many in the community perceived as unnecessary, cruel, unusual and really just plain asinine. Community activists and homeless street people packed city council chambers, launched media campaigns and (once the law was passed) staged sit-ins in open defiance of and protest against the no-sitting law in particular and the criminalization of homelessness in general. Interestingly, the Tempe law actually took effect on Martin Luther King Day, a fact that we were able to use to highlight the argument that sitting is an important form of legitimate social protest.

While these laws are aimed at homeless people, they diminish everyone’s rights in the process. The regulation of public spaces and the restriction of forms of communication are serious First Amendment matters that should not be lightly swept aside in the rush to “clean up” our cities. These points in particular framed a lawsuit that I filed in federal district court against Tempe’s sit-lie law; although I was not homeless, I was an activist engaged in “expressive sitting” on the downtown sidewalks and so was able to get legal “standing” to represent myself in challenging the law’s application to protests. This was really just a principled way of getting into court to take on the entire law, which had previously been upheld by the Ninth Circuit Court of Appeals in a case arising out of Seattle. Still, I managed to convince a federal judge that my case raised novel issues and, indeed, he wound up issuing an injunction against the Tempe law and thus wiping it off the books on First Amendment grounds.

This decision was later overturned on appeal by the Ninth Circuit, following a special hearing held at the ASU College of Law. The court’s decision wasn’t unexpected, but neither was it determinative of the larger issue. In the process of litigating the case and organizing in the streets, many crucial facts that ultimately tipped the balance were brought to light, including: the removal of benches in the downtown area, the privatization of some of the sidewalks, the lack of adequate alternatives such as shelters in the city, the elimination of public restroom facilities and the inordinate influence that the business community had on the city council. I wound up writing my doctoral dissertation on these and other related issues, resulting in two books on the subject, the most recent of which is “Lost in Space: The Criminalization, Globalization and Urban Ecology of Homelessness” (LFB Scholarly, 2008). I mention all of this in no way to promote my own work, but merely to admit to a profound inclination against these laws derived from years of personal immersion and professional research alike.

Thus, we arrive in San Francisco, circa 2010. As is often the case, the ordinance has been proposed by a political figure – in this case Mayor Gavin Newsom – citing tried, true and trite “safety and civility” concerns. Supporting the mayor are the local police interjecting typically hyperbolic rhetoric such as references in the media to “bands of thugs blocking sidewalks and bullying merchants, pedestrians and neighborhood residents.” The mayor himself claims to have decided to put forward the new law “after walking along Haight Street with his infant daughter and seeing someone smoking crack and blocking the entrance of a business.” Not only are such allusions right out of the demonization playbook, but they are also completely disingenuous since the behaviors referenced – blocking sidewalks, harassing people, smoking crack and restricting access to businesses – are already illegal under existing laws. Proponents almost always will claim that it is “conduct, not status” being punished with these sit-lie laws, but the conduct that is often cited is already prohibited, begging the question of why relatively innocuous acts like sitting are being placed into the criminalization loop. And, please, don’t buy the arguments that the police need more tools, and that existing laws are too cumbersome because they require complaining witnesses or the like – our criminal justice system easily seems to procure more than enough convictions every day, even operating within the limits of such tedious constraints.

The main reason for the preference toward criminalization of low-level behaviors is fairly straightforward. Under our legal system, “status crimes” are generally taboo, so the easiest way to attack a particular group is to isolate a behavior common (or even exclusive, if possible) to it and criminalize that conduct. Think of other public-place laws regarding skateboarding (targeting youth), “cruising” (youth of color) and even congregating (youth “gangs”); these are often sold as neutral prohibitions on conduct that apply equally to everyone even though it is widely understood that only certain demographics regularly engage in the behavior – recalling Anatole France’s famous remark that “the law in its majesty draws no distinction, but forbids rich and poor alike from begging in the streets or sleeping in the public parks.” By criminalizing sitting on the sidewalks, the law is singling out a group of people who generally lack better alternatives in terms of places to sit, such as sidewalk cafes or their own living room couches. Moreover, for many street people, sitting is understood as a passive posture that can convey need in a nonthreatening manner while doing so visibly and without shame.

In this regard, sitting is an expressive behavior. It has been utilized for purposes of political transformation on innumerable occasions, in places ranging from buses and lunch counters to university offices and, yes, sidewalks. With available spaces for public demonstration rapidly shrinking in the era of privatization, regulation and consumption, it is vitally important that we resist further colonization of the remaining public spaces of our cities. Sidewalks are part of that small class of “traditional public forums” where First Amendment rights of expression, assembly and petitioning for redress apply and, thus, sidewalks (like streets and parks, as the Supreme Court observed in the 1939 Hague case) “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions.” The fact that these precious and eroding public forums are being lost in the name of commercialism and sanitization is all the more troubling.

Indeed, cities sometimes have found that when they attempt to “clean up and clear out” their public spaces to create more business-friendly environments, things can go awry and the very qualities that make for an interesting “destination point” can be lost in the process. This is particularly true of an area such as Haight-Ashbury, one of the primary tourist locales in San Francisco and also ground zero for the proposed no-sitting law. People likely to be found sitting on sidewalks there include poets, musicians and artists in addition to homeless people and youths. A recent USA Today article highlights many of these concerns and further notes that the law “would also make lounging near the entrance of Golden Gate park” illegal as well. Yet, while certain alleged behaviors and competing community values in the Haight are central to the public dialogue, the primary version of the ordinance being proposed (two versions were initially proffered) would enact the no-sitting ban on a citywide scale from 7:00 AM to 11:00 PM, rendering it one of the nation’s most restrictive sit-lie laws. Tellingly, the text of the proposed law notes that “the prohibition applies Citywide in order to prevent displacement of violators from one district or neighborhood to another,” but it makes no mention of where people will in fact be displaced to if a citywide ban is imposed. Simply running them off to neighboring cities is shortsighted and counterproductive in the larger struggle to address the complex social issue of homelessness.

We are living in a time where drawn-out recession has caused a spike in homelessness, not just among the unemployable or substance-addled, but also among working class people, families, veterans and children. Many of the young people frequenting the public sidewalks are in fact refugees of a sort, oftentimes fleeing from abusive situations even as they express their defiance and autonomy in ways that can sometimes be seen as incompatible with social norms of civility. Rather than the punitive arm of the law being brought to bear – with violators potentially receiving fines of up to $500 and terms of imprisonment of up to 30 days just for sitting down! – We ought to be expending our collective energies and political capital on constructive and compassionate solutions that protect everyone’s rights and interests rather than privileging those of one class against another. Time and again, cities opt for these patterns of criminalization and demonization, which do nothing whatsoever to address the underlying problem and, in fact, make it worse by stigmatizing certain groups and undermining community cohesion.

Predictably, despite such concerns, the public seems to support the ordinance, at least based on the initial stories and quotes featured in the media and likewise local news outlets, which have editorially endorsed the law as well. This is par for the course, especially in the early stages of the debate where primarily police and politicians have their views reflected in the popular consciousness. Yet, critical voices have begun to emerge in the community, including one local columnist who described the law as “an overly broad, complicated and expensive option for fixing a very specific problem…. It’s like killing a housefly with a flamethrower.” Another blogger has accused the mayor of “political opportunism” and notes that the Board of Supervisors ironically met to discuss the sit-lie issue on the same day that the US Interagency Council on Homelessness was meeting in the city to gather public input on a strategic plan to end homelessness, concluding with this cogent suggestion: “start with ‘don’t outlaw sitting.'” And a local television report included comments from a citizen member of the Police Commission Board calling it “a draconian law,” and an ACLU representative observing that the law would be “criminalizing innocent conduct” and is a “backward step” in addressing the root issues.

In fact, community voices are only just beginning to be heard. Activists held an all-day “Sidewalks Are for People!” citywide event on March 27, with demonstrators occupying and celebrating their public spaces in as many as 50 locations around the city. A concomitant web site and Facebook page have been established around the theme of “Stand Against Sit-Lie,” drawing myriad postings and testimonials against the ordinance. Concerned residents like Andy Blue, a local organizer, told me that the proposed law “doesn’t represent what this city is about…. We want to show that San Francisco is unified in its celebration of public space, civil liberties and a tradition of compassion.” Many organizations that work with homeless populations will be offering their views about how to address the matter in nonpunitive ways. One such group, the Coalition on Homelessness (COH), focuses in particular on empowerment-based strategies that strive to foster “the active participation of homeless and low-income San Francisco residents and front-line staff in the struggle for economic and social justice.” In this manner, as civil rights organizer Bob Offer-Westort of the COH recently told me, local organizations have been “turning homeless youth from the Haight-Ashbury out for hearings” and striving to ensure that “homeless people were able to be part of the hearing process.” This is crucial to not merely opposing a bad law, but to further articulating contrasting perspectives and inclusive alternatives in its stead.

This task has been undertaken from a number of fronts including, as Offer-Westort noted, “a group of students in a journalism program [who] interviewed merchants on Haight Street to get varying perspectives on the proposed law. Everyone they spoke to either opposed the law because it was mean-spirited and constitutionally [problematic], or because they thought that it was a dumb idea that wouldn’t really make homeless kids go away. They were unable to locate a proponent.” On the question of public polling showing support for the ordinance, he observed that the poll question was posed in a demonstrably loaded manner: “Would you support a law that prohibited people who were sitting or lying down from obstructing the sidewalk and harassing pedestrians?” (Note that the proposed law criminalizes any act of sitting and, thus, targets neither obstruction nor harassment.) Based on his experiences as a homeless rights advocate, Offer-Westort concluded, “because the hatred of homeless people is still so socially acceptable, [big business interests] see sit-lie as a good wedge issue to turn the electorate conservative,” and likewise that due to the ongoing recession, “poor people get scapegoated [and] it’s way easier, psychologically, for some merchants to think that they can do something about the situation by attacking homeless youth” than to address the issues in more direct and comprehensive ways.

The presence of individuals and organizations with sophisticated critiques and longstanding connections to the issues bodes well for a positive outcome for all residents – homeless and housed alike – in this potentially divisive matter. As one of the true jewels of America, San Francisco occupies a unique place in the cultural and political workings of the past half-century. The forward-thinking, transformative and eclectic perspectives embodied by the people that call the city their home have served as something of a beacon of hope for those of us scattered among the more reactionary environs of the country. The fact that a city as creative and dynamic as San Francisco would even consider replicating the failed strategies of less innovative locales is troubling. Fortunately, the contest is only just beginning and the tide is already starting to turn away from knee-jerk criminalization regimes and toward the longer-lasting promise of compassionate and constructive resolutions to pressing issues.