Challenging Berkeley’s Anti-Sitting Measure

Elisa Della-Piana, director of the Neighborhood Justice Clinic in Berkeley decried the anti-sitting measure as punitive. “It will achieve nothing except create division in the community,” she said. “Enforcement of the ordinance would keep people homeless and create criminal records that could prevent them from getting housing or jobs.”

by T.J. Johnston

 

The measure to ban sitting or lying on sidewalks in Berkeley’s commercial areas isn’t the first attempt to regulate such activity in the city. Nor is it the first law on any municipal books imposing penalties for reclining outside a public place.

The initiative, which the Berkeley City Council placed on November’s ballot, would prohibit sitting or lying in front of businesses from 7 a.m. to 10 p.m.

It also comes on the heels of an evaluation of San Francisco’s year-old ban on sitting and lying on sidewalks. City Hall Fellows, a nonpartisan public service corps, reported that enforcement has not deterred the homeless people from resting outside.

Similarly, the National Law Center on Homelessness & Poverty and the U.S. Interagency Council on Homelessness concluded that enforcing quality of life laws is largely ineffective in changing homeless people’s public behaviors.

Elisa Della-Piana, director of the Neighborhood Justice Clinic in Berkeley, also decries the measure as punitive.

“It will achieve nothing except create division in the community,” she said. “Enforcement of the ordinance would keep people homeless and create criminal records that could prevent them from getting housing or jobs.”

Other cities also attempted to pass their own sit-lie laws. If Berkeley passes its initiative, it would join other West Coast cities that attempted to place restrictions on when and where people are legally allowed to hang out.

Berkeley officials passed a similar ordinance in 1994, but the Berkeley Community Health Project succeeded in challenging it. The court found the law violates constitutional rights to free assembly, due process and equal protection. Four years later, the City Council enacted a law that forbids lying down on commercial areas. That law remains in effect.

“Stand Up For the Right to Sit Down.” Young people have created many outspoken protest signs to protest the sitting ban. Janny Castillo photo

 

Seattle’s ordinance is the model for existing sit-lie legislation. Palo Alto and San Francisco passed their own Seattle-style laws, apparently emboldened by the city’s successful defense in a 1997 challenge. A Washington state appeals court upheld the law. In 2010, Palo Alto’s expansion of an area-specific ban to the whole city also withstood a county-level ruling.

In June of the same year, the San Francisco Board of Supervisors defeated a similarly intended proposal. The following November, a ballot proposition sponsored by then-Mayor Gavin Newsom passed with 54 percent of the vote.

The existing law in Santa Cruz is unusually prohibitive. It encompasses sidewalks and bus stops. It also establishes no-sit zones. A 14-foot distance must be kept from buildings in city limits, as well as a 50-foot-wide berth from ATMs.

Other laws struck down or modified included one in Los Angeles that required enforcement be stopped if no shelter beds were available and another in Portland that was found to preempt state law.

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