What is a sit-lie ordinance?

A sit-lie ordinance is a local law that prohibits people from sitting or lying down on any public sidewalk. The proposal in San Francisco would make it illegal to sit down on the sidewalk itself, or on top of a chair or blanket on the sidewalk (though fixed public benches would be exempted). Most people don’t see sitting on a sidewalk by itself as a “criminal” activity: Sit-lie laws are used to target particular groups of people who it is difficult or impossible to treat as criminals through existing laws—most frequently because these people have done nothing illegal but are disliked by people in power. With a sit-lie law, police don’t have to discover any illegal behavior before they can issue people tickets or take them to jail: People are automatically guilty just by existing in a public place.

But there are exceptions for all the valid uses of sidewalks, right?

The sit/lie proposal in San Francisco has eight exceptions, which you can read about in our legal summary. The problem with criminalizing innocent activity, however, is that you can’t make exceptions for every valid action. For example: There’s no exception for people selling things like lemonade or Girl Scout cookies while seated. There’s no exception for people with disabilities who need to take a rest. (Unless that person has an assisted walking device, which many people who have real disabilities just don’t need.) There’s no exception for senior citizens. There’s no exception for sitting on a lawn chair in front of your own house or apartment. There’s no exception for sitting on the sidewalk while waiting for MUNI.

The police have to warn people before they issue citations, right?

That’s true. But for people who have to be outside all day or who have disabilities, that’s not going to be enough to prevent their exhaustion from sending them to jail: They will eventually have to sit down. And once they’ve been warned once, taking a rest will run them afoul of the law.

Whom would a sit-lie law effect?

All of us. A sit-lie law attacks the essence of a neighborhood: The ability of people to gather and interact in public places. Laws can’t be discriminatory in the United States: If it’s illegal for black people or homeless people to exist in public places, it’s illegal for everyone. And if it’s illegal for us to exist in public, we can no longer legally have a neighborhood. People who work on the sidewalk such as day laborers and buskers wouldn’t be allowed to rest while working. Children wouldn’t be allowed to sit while playing games or selling lemonade. None of us would be able to sit on the sidewalk while waiting for MUNI. People with disabilities that don’t require walkers or wheelchairs, and senior citizens who just get tired wouldn’t be allowed to sit down to rest.

But the police wouldn’t really use it that way, would they?

Since these laws don’t target any truly criminal behavior, but instead just target people whom powerful people don’t like, they mostly get enforced against homeless people, people of color, queer people, people with disabilities, and youth. If you’re housed, middle class, and white, you’re probably safe. But if we’re asking the police to enforce a new law against one group of people, but not against another, we’re asking for a segregated neighborhood and a discriminatory legal system.

You can’t really think that police would misuse the law, can you? It’s barely been used in Palo Alto and Santa Cruz!

Palo Alto’s law looks very little like San Francisco’s. Santa Cruz’s is more similar, but Santa Cruz is 1/14th the size of San Francisco. The real comparison is Los Angeles, especially given that our Police Chief was involved in a campaign to use LA’s sit/lie law extensively back when he worked for LAPD. Between January 1, 2003 and March 4, 2004, LAPD made 1,474 arrests for that city’s sit/lie law. The law was successfully challenged before the 9th Circuit, and the Federal Department of Justice is now investigating the LAPD for its abuses through that law.

What’s more, San Francisco police have stated in public hearings that they do not intend to apply the law universally. That’s a straight-up violation of the Fourteenth Amendment to the Constitution.

Would a sit/lie law be Constitutional?

That’s for a judge to say, but judges have been pretty consistent in saying, “No.” Sit-lie laws have been challenged over a dozen times in recent years across the United States. In the few cases where the plaintiffs did not win, the municipality settled. Portland, Oregon was enjoined by the courts from enforcing its sit-lie law just this past year. As one example picked at random, Pottinger v. Miami cost the City of Miami (76 F.3d 1154, 11th Cir. 1996) $600,000 in damages alone, and paved the way for the creation of Dade County’s massive Umoja Village tent city (which has since burned down).

There are two sit/lie laws that have been vindicated by the courts. Both were very different from San Francisco’s law, and were challenged in a way that San Francisco civil rights attorneys agree was not strategic. No sit/lie law has ever been heard before the Supreme Court. But a recent decision on loitering is instructive. In City of Chicago v. Jesús Morales et al. (199 527 U.S. 41), Justice John Paul Stevens wrote for the Court that the freedom to remain stationary in public,

…for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution… Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “part of our heritage…” or the right to move “to whatsoever place one’s own inclination may direct…” (emphasis added)

If sit/lie is just going to get thrown out by the courts, why worry?

Court cases take time. If San Francisco passes a sit-lie ordinance, the time between the law’s passage and its being struck down by the courts will be a period of time during which this City instructs its police officers to violate the Constitution and abuse the rights of poor people, during which we’ll be criminalizing our neighborhoods, and during which our City Attorney will be spending lots and lots of money: all just in order to pay damages or a settlement at the end of the day.

But how else are we to deal with rude and threatening behavior on our sidewalks?

Impoliteness is a social problem. But it’s not a criminal justice issue. We need to keep in mind the distinction between rudeness and threatening behavior when we talk about how to address our very real problems.

Threatening someone else’s safety is assault. Assault is a crime everywhere in the United States. Obstructing the sidewalk is a crime throughout California, and San Francisco has its own law in addition to the state law to address this. That law is enforceable and is regularly enforced. When that law is not being enforced, we’ve got a very local policing issue, rather than a citywide legal issue. Aggressive panhandling is a crime in San Francisco.

But police need a citizen’s complaint before they can enforce our sidewalk obstruction laws, don’t they?

This is not true, and this claim has been disproven many times. Nothing in either Police Department General Order 5.03 or 6.11 requires a citizen’s complaint for enforcement of both MPC 22 and PC 647c (both sidewalk obstruction laws). Most recently, in the Board of Supervisors’ Public Safety Committee hearing on May 10, Assistant Chief Kevin Cashman admitted that a citizen’s complaint was not needed to cite someone for obstructing the sidewalk; Nicolas King of the Mayor’s Office of Criminal Justice was unable to identify where this requirement lay in the General Orders when pressed. On being proven wrong on their initial claim, proponents of sit/lie changed arguments, and had Assistant District Attorney Paul Henderson claim that the courts required a citizen’s complaint. The Lawyers’ Committee for Civil Rights has been able to document cases in which the courts have accepted police officer testimony and convicted without a third party complaint. Proponents of sit/lie have been able to provide neither opposing case law or a statement from either of the two Traffic Court commissioners.

If you still have any doubts about the enforceability of the existing sidewalk obstruction law, you should check out this report (762 KB PDF) by an independent San Francisco private law firm.

Is there another option?

When people break laws, we don’t pass new laws that make it illegal to look like a criminal: When we’re worried about white serial killers, we don’t criminalize whiteness just to be able to prosecute actual killers. When we’re worried about adult heterosexual males abusing their children, we don’t criminalize heterosexuality. We use the laws that we already have against murder and child abuse. The complaints that we’ve recently seen in the Chronicle are about behaviors that are already crimes: Police just need to focus their efforts on enforcing the serious laws they already have. Every half hour that a police officer spends writing a jaywalking ticket is a half hour that that officer does not spend on real crime. And if we want to address homelessness, we need to address its root cause: The lack of safe housing in this country that is affordable for poor people.

We all need our communities’ public spaces to be safe—day laborers and white-collar office workers, homeless people and housed people. We can find a much less divisive option than sit/lie.

While Chief Gascón has been playing with scare tactics (when is he going to stop talking about the terrorist threat?), our communities are working on real solutions:

  • The Board of Supervisors has created an investigatory body that will help create real public safety solutions for the Haight that don’t play games, and that will bring the community together to talk about commonalities, rather than capitalize on divisiveness.
  • Supervisor Ross Mirkarimi is working on legislation for foot patrols that will make sure that police are around to respond to neighborhood safety issues.
  • Chinese for Affirmative Action is the only organization to have proposed an actual solution to the violence issues in the southeast, while conservatives have been floundering on this very real public safety issue. The CAA plan has four components:
  1. actual documentation of the issue, plus victim support for people who experience violence;
  2. a civilian escort program to help vulnerable San Franciscans get from MUNI stops to their homes safely;
  3. more interpreters so that people who don’t speak English as a first language can report crimes;
  4. a real conversation among community organizations about the public safety impacts of racism.