Sit-Lie Laws: Criminalizing Homelessness

Dyne Suh
Law for the People Intern

This November, residents of Berkeley will vote on whether to further criminalize homelessness. Last month, Mayor Tom Bates proposed a city ordinance to implement a measure – modeled after San Francisco’s infamous sit/lie Measure L – that would ban sitting on sidewalks of Berkeley’s commercial district between 7am to 10pm with penalties ranging from $75 fines or community service to misdemeanor charges and up to six months in prison.

Proponents of the ordinance insist that such a policy is necessary in order to protect Berkeley’s businesses and public health and safety. In other words, proponents believe that the prevalence of a transient or homeless population in the city’s streets drives away potential customers and home buyers, based on irrational fears and stigmas prescribed to the underclass that suggest they present a threat to Berkeley residents’ well-being. Instead of expanding mental health care accessibility, affordable public housing, or shelters, proponents of this ordinance seek to evict homeless persons from where they are most visible.

However, ACLU legal director and NLG member Alan Schlosser, a critic of the ordinance, states that “there are already numerous ordinances in the Berkeley Municipal Code that give the police power to confront people who are engaged in disruptive street behavior,” including “ordinances prohibiting the obstruction of sidewalks and entrances to buildings, the solicitation of illegal drugs, and aggressive panhandling.” And thus, he calls the proposed ordinance strictly “a law against sitting.”

Activists against the measure, including the NLG’s Ann Fagan Ginger, have protested by sitting on the steps of City Hall and the floor of City Council meetings bearing signs reading, “Stand Up for the Right to Sit Down!”

The UC Berkeley student government voted 18-1 against the proposed ordinance. Many, including students, view the ordinance as a timely assault on the Occupy Movement, which emerged just last September, and has employed tactics of sit-ins and encampments in commercial areas. The prohibition of sitting and encampments between business hours criminalizes the demonstration tactics employed by the Occupy Movement, and thus raises concerns of First Amendment rights. Others have added that the proposed ordinance also violates the Fourth and Ninth Amendments.

In addition, as Ginger states, “the proposed ballot measure/ordinance violates the provisions in the UN Charter and the International Covenant on Civil and Political Rights, the International Convention Against Torture, and the International Convention on Elimination of all forms of Racial Prejudice – all of which include commitments by the signatory nations to respect the human dignity of every person.”

LGBT activist groups also criticize the ordinance as an attack on LGBT youth, because while 3.5% of the U.S. population identifies as LGBT, 20% to 40% of the homeless youth population identifies as LGBT, as a result of hegemonic homophobia and youth being forced out of their homes and communities.

Implementation of the ordinance would not resolve systemic problems, but rather displace the current homeless population in Berkeley’s commercial areas into residential areas or other parts of the Bay Area.

As Jack Jackson, board member of the Homeless Action Center writes, “The proposed ordinance is quite simply a calamity for political freedom ... These ordinances strike at the very heart of a democratic culture: economic activity is valued above all political value; the right of assembly is devalued to a hyper-regulated nothing; the promise of equal protection is made a mockery; and the police are, yet again, empowered and deployed against fundamentally non-criminal behavior.”

For the NLG – an organization that supports human rights over property interests and is critical of the criminal justice system – this is a clear cut issue: Berkeley should not use city resources to enable police to oppress poor people at the urging of business interests.