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New: Compassionate Sidewalks Plan
RECOMMENDATION:
- Direct the City Manager to convene a working group of representatives of City Council, City staff, the Homeless and Police Review Commissions, and other stakeholders, such as business owners, homeless persons, attorneys representing homeless clients, students, and service providers to develop a Compassionate Sidewalks Plan to specifically focus on:
B. What new laws are needed, if any?
C. Consideration of community-appropriate standards of behavior and maintain a common commitment to enforcing those behavior-based standards
D. How we can create more affordable housing, to create a path to self sufficiency?
E. Where is there a gap in services and how can we improve the delivery of existing services and/or provide additional services?
F. How we can expand or improve the effectiveness of the Ambassador program?
G. What can we do to improve the safety and vitality of our commercial districts?
- Request that the City Manager, Chief of Police and City Attorney look at existing quality of life laws and explore whether laws need to be modified to ensure more effective enforcement. Explore employing a behavior-based enforcement approach to existing laws, not necessarily focusing on whether someone is sitting on a sidewalk, but whether they are engaged in an activity that substantially interferes with other people’s use of the sidewalk and public safety. It is important to not criminalize essential functions of daily life and focus on specific behavior that is disorderly and may pose a threat to public safety.
Explore amending B.M.C. Section 13.36.015 (Stationary Dogs/No Lying) to:
a. Prohibit stationary dogs at one specific location for more than 4 hours, except for guide dogs, signal dogs, or service dogs, as provided by state law; and
b. Whether to require stationary dogs to be muzzled after a 2 hour period
Explore the enforcement of existing city laws relating to regulating objects on sidewalks.
Employ warnings prior to any issuance of a citation issued for nonthreatening behavior in the public space that does not pose a danger to public safety to try to achieve voluntary compliance.
- Referring to the Budget Process a request for year round funding for the YEAH youth shelter.
- Direct the City Manager to:
b. Explore expanding the Host Ambassador program to other commercial districts in Berkeley and the possibility of having late evening Ambassadors, including the funding needed to expand the program.
c. Encourage the hiring of licensed mental health clinicians to accompany Ambassadors in their patrols.
d. Explore the Community Policing Policy and Walk the Beat strategy which would have been established in San Francisco under Proposition M (copy attached) and look at how we can increase police foot patrols in commercial districts.
e. Modify City rules to allow businesses to sell merchandise on city sidewalks.
f. Look at how lighting can be improved on Telegraph Avenue and in other commercial districts.
g. Explore amending the Zoning Code to allow businesses to stay open later.
h. Re-open the public restroom behind 2180 Milvia Street, allowing it to stay open during the day and evening hours.
i. Explore how we can increase the number of public restrooms Downtown and on Telegraph Avenue.
j. Explore in all of Berkeley’s commercial districts the installation of benches, parklets and café seating, the resources needed to install more seating and open space.
k. Explore access to 24/7 emergency housing/shelter and respite/recreation facilities for use during the day.
- Bring back to Council a staff analysis in response to the Council referral on the establishment of a vacancy registration fee for commercial property, with options for Council to decide which tools to use to deal with vacant storefronts.
5. Direct the City Manager to provide a report to Council on existing resources to fund affordable housing for the homeless population, and how we can modify existing policies, such as the Housing Trust Fund Guidelines, to prioritize funding for affordable housing with supportive services, housing for transition-aged youth and other people who are homeless and extremely low income.
INTRODUCTION:
On June 12th, City Council voted to draft language for the November 2012 ballot that would amend the municipal code to prohibit sitting upon a commercial sidewalk. The issue was contentious with more than 90 members of the public participating in over 2 hours of public comment; comments reflected concern for both the impact of anti-social sidewalk behavior on small businesses and their patrons, as well as the far-reaching consequences of the proposal on the chronically homeless and indigent.
As the tough economy heightens the visibility of the homeless, there has been a proliferation of local “quality of life” measures that criminalize “acts of living,” such as sleeping, eating, sitting, or panhandling in public spaces. The current “anti-sit” proposal is a part of that unfortunate trend that seeks to minimize the visibility of the street homeless through law enforcement. Such an approach compounds, rather than addresses the underlying causes of the problem, contributing to a costly “revolving door” that perpetuates homelessness (“Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness” 7).
As a pioneer in the rights of all people, it is incumbent upon Berkeley to find a finely-tuned alternative that is behavior-based and well-researched so that it better balances the needs of all parties. An “anti-sit” law would simply sweep an intractable problem off the sidewalks, but while other communities have reacted in frustration, we should remain resolved in our compassion and unrivaled capacity to find thoughtful solutions –that’s Berkeley at its best.
Far-reaching and consequential, the implications of “anti-sit” demand more in-depth research and discussion than is currently provided. The issues of homelessness are incredibly complex and any proposal addressing street homelessness requires an in-depth understanding of the demographics of the homeless, the causes of homelessness, existing law and practices, and an evaluation of similar proposals, among other things, if it is to be effective and successful.
BACKGROUND:
According to a memo from the City Manager’s office, Alameda County conducts a point-in-time homeless count every odd year and the City of Berkeley participates in that count. However, we do not get Berkeley-specific data from the biennial count unless we contribute extra funding to increase the size of Berkeley sites that are sampled. The last year the City of Berkeley obtained city-specific data was 2009.
As of 2009, the number of homeless individuals in Berkeley totaled 680, while the County totaled 4,341. Though the County total decreased slightly to 4,178 in 2011, it is not clear at this present time if Berkeley’s homeless population has also decreased, particularly when it is widely agreed upon that homeless youth are vastly undercounted (“State of Homelessness in America” 1). Additionally, the numbers do not distinguish between “sheltered” and “unsheltered” homeless, a differentiation that will be elaborated in the next section.
Moreover, homeless numbers tend to lag behind unemployment and poverty indicators; according the a report by the National Alliance to End Homelessness, homelessness is projected to increase by 2% over the course of the next year as the lingering effects of the recession and constant budget cuts continue to aggravate deep poverty levels (“Increases in Homelessness on the Horizon” 4).
Who are the Homeless?
Salient to the discussion of “anti-sit,” is the concept of “street homelessness,” which is comprised of both sheltered and unsheltered homeless who inhabit public spaces during the day. Those experiencing street homelessness can be primarily classified into two categories based on access to shelter. Those categories include:
1) The “unsheltered homeless,” who are those living on the streets, in cars, abandoned buildings, or other places not meant for human habitation (“Searching Out Solutions” 6). Roughly 4 in 10 homeless individuals fall into this category (“State of Homelessness in America” 10) and many unsheltered homeless are chronically homeless individuals.
2) The “sheltered homeless,” are those who reside in nighttime-only shelters but are unable to avoid occupying public spaces during the day (“Searching Out Solutions” 6).
“Street homelessness” affects people of all ages, races, ethnicities, and geographies and they are characteristically diverse, though racial and ethnic minorities are overrepresented among homeless individuals (Kuhn & Culhane, 1998). They range from the recently or chronically unemployed to aged-out foster children and run-aways. They range from domestic abuse victims to veterans. They include temporary or transitional homeless individuals to the chronically homeless, who suffer disabling conditions, such as mental illness or chronic substance abuse.
Causes of Homelessness
Decades of scholarship strongly suggest a close historical relationship between homelessness and broader economic conditions, such as wages/income distribution, employment rates, housing burden costs, foreclosures, access to health insurance, etc. Additional structural risk factors also contribute to homelessness, such as the level of individuals “doubling up” in housing, the rates of people discharged from prison and young adults aging out of foster care, and social policies regarding marginal populations. Shockingly, the odds are 1 in 6 that young adults aging out of foster care will experience homelessness (“State of Homelessness in America” 2, 29-30).
Individualized factors also play an important role, often in combination, in the causes of homelessness, such as mental and physical health, substance abuse and addiction, childhood experiences of family stability, sudden increases in expenses and/or decreases income, etc (“Causes of Homelessness” 3-6).
However, the debate over the causes of homelessness can often pit structural versus individual factors as the dominant modes of explanation. According to Dr. Paul Koegel, a nationally recognized researcher in mental health, substance abuse, poverty and homelessness, these modes are interrelated and cannot sufficiently explain homelessness without the other (“Causes of Homelessness” 2). Both sets of factors interact to create homelessness: structural factors create the conditions of pervasive homeless and individual vulnerabilities mark those who are most susceptible to structure-induced problems “that leave a given person less able to compete for scarce social and economic resources and thus elevated risk for homelessness in a structural context that makes homelessness inevitable” (“Causes of Homelessness” 6).
In this view, it is fallacious to primarily attribute street homelessness to personal predilections, which enables one to wrongly discount a homeless individual’s situation and to “blame the victim.” Surely, street homelessness is unacceptable, but that is a reason to address the underlying issues and offer assistance rather than citations. Accountability is better applied to conduct rather than condition.
Current Homeless Services and Programs
The City of Berkeley’s commitment to the homeless is laudable –it provides generous services at levels and rates higher than that of most other municipalities. In FY 2012 alone, the City spent more than 2.8 million dollars on various programs and services that assist homeless individuals and families, ranging from shelter services and rehabilitation programs to employment assistance and homelessness prevention (See attached Memo re: Homeless Programs). Unfortunately, our generosity has been unable to accommodate all of our homeless population and their needs.
According to a memo from the City Manager’s office, City funds emergency shelter for up to 50 people during severe weather and has provided motel stays for 49 families and 20 individuals last winter. Additionally, nonprofit organizations operate all the emergency shelter and transitional housing in Berkeley. The beds provided by nonprofits are as follows:
135 year round emergency shelter beds
70 seasonal (winter) seasonal shelter beds
163 transitional housing beds
Though there were 680 homeless individuals at last count residing in Berkeley, only 418 individuals can be theoretically accommodated with existing shelter at peak capacity during limited times of the year, and that the City can provide at least additional shelter assistance for 49 families and 20 individuals as evidenced by last year. In total, 438 individuals and 49 families can be assisted at one time during extreme weather in the winter.
In the context of the “anti-sit” proposal, which would prohibit sitting or lying in a commercial district from 7am to 10pm, Berkeley only has 5 daytime drop-in resources, as identified in the City Manager’s memo, to serve as respite and assistance for homeless individuals. Those centers include the Boss Multi Agency Service Center, the Berkeley Drop-in Center, and the Women’s Daytime Drop-in Center, among others. The cumulative capacity of all 5 daytime sites is not immediately clear, but it is doubtful that the facilities can accommodate all the street homeless residing in Berkeley at any given time. Theoretically, homeless individuals residing in Berkeley have public parks, residential neighborhoods and some churches also available for respite to avoid “anti-sit,” though those may not be the intended destinations accounted for by proponents of “anti-sit.”
Rationale Behind “Anti-Sit”
The impetus of the “anti-sit” proposal lies in the current down economy and declining sales, though proponents contend that the presence of the homeless, particularly problematic individuals, exacerbate the economic downturn by discouraging patrons from frequenting local businesses. Unfortunately, history is replete with examples of “scapegoating” classes of individuals during times of economic hardship –most recently with undocumented immigrants in the United States, despite evidence that unauthorized immigration rates have been sharply declining since before the Great Recession and overall population has subsequently decreased (“U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade” 1).
That there is a relationship between homelessness and the state of the economy, it is generally accepted that the prevalence of homelessness is indicative, rather than causal, of an economic decline. However, the foundation of “anti-sit” is based on the supposition by proponents of a correlation between the anti-social behavior associated with some of the street homeless and a degree of decline in local economic activity. In fact, this supposition is referenced multiple times in the findings contained in the drafted “anti-sit” ordinance, such as homelessness having caused a “loss of patronage” and that patrons “increasingly choose not to conduct business in Berkeley commercial areas, but instead go to other cities where the shopping areas are perceived to be safer, cleaner and generally more hospitable (See Item 28 on the July 10, 2012 City Council Agenda).
The economic decline felt by local businesses has been experienced globally and can be largely explained by the 2008 Financial Crisis that led to a significant decline in consumer wealth (“The US Financial and Economic Crisis” 7). An October 26, 2010 report to City Council by the Office of Economic Development corroborates this point by stating that “the retail downturn in Berkeley occurred from the same factors that affect the whole country: people who are unemployed or underemployed have been forced to cut back their expenditures.”
Additionally, the recent decline seen by many local businesses is neither confined to, nor worse in commercial districts in Berkeley with a visible homeless population. In fact, steeper declines have been seen in other commercial districts with virtually little to no visible homelessness, according to sales tax information provided by Economic Development (2009-2010 Sales Tax Geographic Area Summaries). To the extent that the presence of homelessness has negatively affected local business is not supported by a review of sales tax data.
For example, the Downtown and Telegraph Districts are the two areas with the majority of the visible homeless population, yet the both districts were the largest sales tax generators, with the exception of the large West Berkeley Plan Area. While the growth of revenue was mixed throughout the city, the Downtown saw a 2.3% increase and Telegraph saw a -3.4%. By comparison, other districts with relatively little to no visible homeless have seen larger decreases –most notably, North Shattuck and Solano, which are considered more “upscale,” with respective decreases of -4.5% and -5.0%. Moreover, in the year ending March 2008, Downtown and Telegraph experienced the lowest decline in retail sales of any other district in Berkeley (Economic Development Report Oct. 2010). The sales tax data suggests that the presence of homeless individuals is a marginal factor, if one at all, amongst a larger set of interacting factors that determine the economic outcome of our commercial districts.
Last, the notion that the homeless are a major factor in many Berkeley residents shopping in other cities is entirely unsubstantiated. As acknowledged by Economic Development, some residents shop in neighboring cities due to retail sales becoming increasingly concentrated in large formats that cannot be accommodated by our infrastructure and zoning (Economic Development Report Oct. 2010). The abundance and ease of parking in neighboring shopping districts has also been generally accepted as a large factor. It bears noting that the neighboring City of Emeryville, known for its “big-box” retailers, has seen massive declines in retail sales tax generation since the recession (“A City That Shopped Till It Dropped,” NYT). Over the span of 2007-2009, Emeryville experienced over a -13% decrease in sales tax generation from retail and food services while Berkeley experienced a decrease less than 9% (2007-2009 Taxable Sales By City, Board of Equalization).
Existing “Sidewalk” Laws
The City of Berkeley has existing Disorderly Conduct laws and other applicable laws that are directed toward the anti-social behaviors cited as problematic and a threat to public safety on the sidewalks of commercial districts. Below is a selected summary of local laws relevant to anti-social sidewalk behavior with enforcement comments:
California Penal Code Section 647c – this section states that any person who “willfully and maliciously” obstructs the free movement of any person on any street, sidewalk, or other public place or on or in any place open to the public is guilty of a misdemeanor. This is the law that generally governs obstructing streets and sidewalks in California. In order for law enforcement to cite someone for violating this law they need to determine that it is not only “willful” but also “malicious”, “willful” when applied to the intent with which an act is done or omitted, implies a willingness to commit the act. “Malicious” is defined as someone wishing to vex, annoy, or injure another person, or an intent to do a wrongful act. The requirement of malicious in this section supplies necessary criminal intent. So one simply cannot just willfully obstruct the sidewalk, but there has to be a criminal intent. Someone who is obstructing a sidewalk simply because of they are homeless is not sufficient grounds to cite under 674c. If someone is repeatedly obstructing the sidewalk or is obstructing it in a way that clearly creates a safety hazard, then the police can use this section.
However, this section does permit counties or cities to “regulate conduct” upon any street, sidewalk or other public place, thus allowing for local governments to adopt their own standards regarding obstructing sidewalks and behavior on public sidewalks.
BMC Section 13.36.010: Obstructing free passage of persons or vehicles in public ways prohibited when. You cannot “intentionally” stand, sit or lie in or upon any street, sidewalk or crosswalk so as to prevent the free passage of persons or vehicles
Ultimately as long as an individual is not blocking an entrance to a building or significantly disrupting pedestrian traffic one may sit on a sidewalk.
BMC Section 13.36.015: Creation of accessibility on commercial sidewalks- Related restrictions: This code section establishes restrictions on stationary dogs and persons lying on public sidewalks in commercial districts between 7 am and 10 pm Monday through Saturday and 10 am and 6 pm on Sundays and holidays.
No person can lie upon a commercial sidewalk or upon any object on such sidewalk
No more than two stationary dogs are allowed within a ten-foot area on a commercial sidewalk, except for guide dogs, signal dogs, or service dogs.
For restrictions on stationary dogs, the law requires that the police inform the owners of the ordinance requirements on the number of stationary dogs and giving them an opportunity to voluntarily reduce the number of dogs.
Additionally this law requires that a warning be issued prior to citing for violating the ordinance.
BMC Section 13.36.020: Obstructing entrance to or exit from public or private buildings: No one can “intentionally” stand, sit or lie, on or at any driveway, entrance or exit of a church, hall, theater, place of public assembly, store, business plant, industry, private residence or private property so as to prevent the free passage of persons or vehicles.
Additionally, California No Trespassing laws allow the police to enforce at the request of the owner, either through a verbal request, or through “No Trespassing” signs posted in the entrance, as well as in visible locations on the property.
Aggressive solicitation
BMC Section 13.37.020
Infraction to solicit persons for money 1. In a manner that coerces, threatens, hounds or intimidates the person solicited, 2. Within 10 feet of an ATM after a warning.
Laws prohibiting placing objects on sidewalk
The City has various laws which regulate what objects may or may not be placed on sidewalks. The Traffic Ordinance prohibits the placement of objects on sidewalks unless authorized. Tables, chairs, and umbrellas may be placed on the sidewalk under certain circumstances and subject to obtaining a permit. Newsracks are permitted in certain areas Downtown if a permit is obtained and are regulated in other commercial areas as well. Street vending table are permitted under the Street Vending Ordinance. The Zoning Ordinance also regulates what types of objects may be placed on private property adjacent to the sidewalk.
BMC Title 20 and Section 20.16.010.A states that “No sign, poster, placard, card, sticker, banner or other device calculated to attract attention of the public shall be posted, printed, stamped, stuck, or otherwise affixed or upon any public sidewalk, crosswalk, curb, lamppost, hydrant, tree, utility pole, any fixture of the fire alarm or police alarm system of the City, except for legal notices…general advertising placed on bus shelters…except for ground signs as Permitted in Section 20.16.190.
A-Frame signs or sandwich board signs are prohibited in Berkeley during specific times of year.
BMC Section 14.48.020 generally prohibits a person to place or cause to be placed on sidewalks or roadways anything which will “obstruct, restrict, or prevent the use of any portion of such sidewalk or roadway…”
This law could be interpreted as prohibiting any objects not expressly permitted by the City on any portion of a public sidewalk. So even if someone has one backpack and it is not in the middle of the sidewalk, Police under this code section have the discretion to cite someone for placing objects on the sidewalk.
There are exceptions for deliveries, newsracks, public telephones, sidewalk seating, and free speech tables.
Placing tables on sidewalks outside of businesses to sell goods is prohibited., unless you have a street vendor permit.
Public Drunkenness laws:
BMC Section 13.36.070 and 13.36.075 prohibits public consumption of alcohol. Violations can be cited as a misdemeanor or infraction.
California Business and Professions Code Section 25620 prohibits open alcohol containers near parks.
California Penal Code Section 647(f) prohibits being drunk in public. It is illegal to be in any public place under the influence of alcohol in such a condition that you are unable to exercise care for your own safety or the safety of others, or to interfere with, obstruct or prevent the free use of any street, sidewalk, or other public way.
Criminal Loitering:
There are laws prohibiting Criminal Loitering, loitering for drug related activities (California Health and Safety Code Section 11352)
No-smoking law:
BMC Section 12.70 prohibits smoking in most public places such as restaurants, bars, enclosed public places, outdoor public places, parking garages, work areas, 25 feet of an entrance, 25 feet of a bus stop, as well as sidewalks in commercial zones.
Amplified Music:
BMC Section 13.40.070 requires a permit.
State Penal Code Section 415(C) relates to unreasonable noise
Disturbing the Peace:
Penal Code Section 415(3) prohibits the use of offensive words, the words must be inherently offensive words, directed at a specific person, and likely to provoke an immediate violent reaction. Anyone violating this section is guilty of a misdemeanor.
Dogs in Public:
In addition to BMC Section 13.36.015 prohibiting more than two stationary dogs, BMC Section 10.04.090 prohibits dogs running at large, except if they are under voice control within 6 feet. BMC Section 10.04.030 requires dogs to be licensed. BMC Section 10.04.140 requires removal of feces, except if the person is visually impaired or disabled. BMC Section 10.04.170 relates to vicious dogs.
Litter/Human Waste
BMC Section 12.40.080 prohibits littering of garbage and state Penal Code Section 374.4 prohibits public urination and defecation.
Sleeping in parks:
Most City Parks are closed between 10 pm and 6 pm, making it illegal for anyone to be in a city park after that time and therefore illegal to sleep in a park.
Sleeping on private property: It is illegal to lodge on private property unless you have the permission of the owner. (California Penal Code Section 647(j))
Implementation of Existing Law
I recently participated in a police ride-along in the Telegraph/South Campus area to get a better sense of how these laws are enforced on the ground. I observed how BPD enforces laws on obstruction when people are sitting on the sidewalk. People can sit in the part of the sidewalk in between the sidewalk and the curb where tree wells are located. State Penal Code Section 647c states that someone has to “willfully and maliciously” obstruct the sidewalk. If someone, despite being warned repeatedly, refuses to move and is creating a “significant disruption to pedestrian traffic” and an unsafe situation, or based on his or her behavior it is clear that the person is intending on disrupting pedestrian traffic, then they are acting with malice and can be cited. From what I observed, most people sitting down did not rise to the level of obstructing the sidewalk and moved after being warned.
Though some “sidewalk laws” have a limited application, such as “intentional” obstruction, there are helpful laws to address common anti-social sidewalk behavior that are relatively easy to enforce, such as littering, smoking, and having belongings on the sidewalk (BMC 14.48.020). In fact, BMC 14.48.020 is structured is a similar manner as the proposed “anti-sit” ordinance, triggered by an easily identifiable violation (objects obstructing any portion of the sidewalk), though a warning prior to enforcement is not legally required as in “anti-sit,” though it is customary practice.
Ultimately, what I came away with is that our existing laws are being enforced, and enforced in a way to discourage disorderly conduct, to ensure the free flow of people on sidewalks and to protect public safety. Nevertheless, we should continue to look at how existing laws are enforced and whether laws need to be changed so that we can address the many issues related to problematic street behavior. Using warnings to ensure voluntary compliance appeared to be an effective tool in getting people to comply with laws.
However, the findings contained in the “anti-sit” ordinance proposal assert that effective “enforcement of such laws…is infeasible, because it would require a level of police presence and resources that are not available, and would divert public safety resources from more serious crimes.” If such a claim can be accepted for the sake of example, the question inevitably rises: if there are not enough officers and resources to enforce the current law regarding possessions on the sidewalk, among others, how will the enforcement of “anti-sit” be any different?
Since possessions on the sidewalk are nearly as ubiquitous as sitting, the truth is that “anti-sit” will be enforced with virtually little to no more frequency than an existing, nearly identical law. In short, current laws exist that are no less effective than the proposed “anti-sit.” However, rather than being targeted and behavior-based, “anti-sit” needlessly and broadly criminalizes a necessary life-function. The new law will not, in and of itself, improve enforcement and will require an increase in dedicated resources if its enforcement is to exceed current results.
“Anti-Sit” Laws
Unfortunately, the trend of criminalization of the homeless is not slowing; from 2006-2009, cities across the US have seen a 7% increase in laws prohibiting “camping” in particular public places, an 11% increase in laws prohibiting loitering and increases in anti-panhandling laws (“Homes not Handcuffs: the Criminalization of Homeless in U.S. Cities” 10-11). In 2010, San Francisco joined the ranks of Santa Monica, Santa Cruz, Seattle, Portland, and Palo Alto, among others, in enacting some version of an “anti-sit” ordinance, despite heated debate and public protests over what many considered to be a violation of the civil rights of one of the most vulnerable populations.
Constitutionality of “Anti-Sit”
While the proposed initiative states that it will be enforced in a constitutional manner, by its very nature, the proposed “anti-sit” law is unconstitutional.
First the measure is written in a way that is narrowly focused on a specific population of people – the homeless.
Throughout the findings it talks explicitly about the “homeless, mentally ill, and other disadvantaged residents”. It describes the $2.8 million dollars in services for the homeless that the city funds annually. It also states that public spaces have become inhospitable because of “groups of individuals, often with dogs, have taken over sidewalk areas in those districts” “obstructing pedestrian access, intimidating pedestrians…” “These encampments also result in litter, debris and waste”. There are already a number of laws to deal with obstructing the sidewalk, intimidating and harassing individuals, and littering, which can be enforced to deal with problems resulting from encampments.
It continues to talk about “encampments” and states that “Although state and local laws address various specific problematic behavior … enforcement of such laws to an extent sufficient to reverse the trend described above is infeasible, because it would require a level of police presence and resources that are not available, and would divert public safety resources from more serious crimes.” That statement is a good reason why we should not adopt an “anti-sit” law. While it will be on the books, ultimately without creating more affordable housing and helping connect people to housing and services, we are not going to solve the problem but instead push people to different parts of the city, whether they may be other commercial districts or even residential neighborhoods. It would also would take our Police away from addressing other crimes, thereby affecting public safety, and would require significant resources in terms of police time, and the jail and prison costs if the individuals end up receiving warrants and become arrested. The financial implications have not even been discussed or quantified and are not described in the ballot question or City Attorney’s Analysis of the proposed measure.
The findings which describe the legislative intent of the measure, specifically state that the purpose of this measure is to deal with the homeless, mentally ill and disadvantaged persons who sit on sidewalks and create encampments on sidewalks.
The way the measure is also crafted, includes a number of exemptions that exclude situations in which the non-homeless would sit on the sidewalk, such as “A public bench or bus stop”, city permitted events like “Off the Grid”, and sidewalk seating at restaurants, while allowing the homeless to be cited for sitting on the sidewalk.
Also stating that the law will not be “applied or enforced in a manner that violates the US Constitution or California constitutions” when by the way it is written it likely violates the constitutions, is absurd. Also since its overt purpose is to be enforced to deal with homeless individuals, it appears that it would be unconstitutional in how it would be applied.
It appears that the measure facially is unconstitutional under the Fourteenth Amendment since its overt purpose is targeted enforcement and the removal of particular people, based on economic and housing status or their perceived offensiveness, independent of any criminal wrongdoing, and would not ensure equal protection under the law. In the City of Chicago v. Jesus Morales (199 527 U.S. 41), Justice John Paul Stevens wrote for the court that freedom to remain stationary in public “for innocent purposes is part of the “liberty” protected under 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.
Moreover there are laws already in place to deal with obstructing sidewalks and problematic behavior. Any criminal behavior can be addressed separately.
Alms begging is a state constitutionally protected activity in California, as found in Jack Carreras v. City of Anaheim (1985 768 F.2d 1039). An “anti-sit” law would most likely have a disproportionate impact on panhandlers, given that panhandlers frequently sit as part of their expression of supplication. In Berkeley Community Health Project v. City of Berkeley (902 F.Supp 1084) the US District Court Northern District California found Berkeley’s anti sit/lie law to be unconstitutional. Numerous laws in Cincinatti (Clark v. City of Cincinatti), Salida, CO (Case No. 97CR62, Colo. Dist. Ct. 1998), and Portland OR (Oregon v. Kurylowicz) have had laws prohibiting sitting and lying thrown out in court on the same constitutional grounds.
Additionally, Berkeley’s proposed anti-sit initiative could be found unconstitutional Eighth Amendment grounds of Cruel and Unusual Punishment. In most cases, people do not sit on sidewalks with malicious intent and those that do have malicious intent typically are engaged in other methods to “vex, annoy or injure”.
In Florida v. Earl L. Penley (276 So.2d 180 Florida Second District Court of Appeal), the court found:
“We find that there is a marked similarity between this ordinance and most vagrancy legislation in that both provide for punishment of unoffending behavior…the ordinance here under scrutiny draws no distinction between conduct that is calculated to harm and that which his essentially innocent.”
In Jennings v. Superior Court the court stated “the welfare of San Francisco, if jeopardized at all by obstructers of the sidewalk, is jeopardized only by those who act with malice.” Sitting, absent other criminal activity, is an innocent activity. If someone is sitting in a way to deliberately obstruct the sidewalk, after being warned, then that is a criminal act and they can be cited.
In Jones v. City of Los Angeles the Ninth Circuit found that “Whether sitting, lying or sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human”. While the Jones decision was depublished it was not depublished for any flaws in legal reasoning but due to settlement between parties.
These cases illustrate how a legal challenge to the proposed anti-site law could find the law unconstitutional. Additionally, it is duplicative of existing laws already on the books.
Efficacy of “Anti-Sit”
The passage of “anti-sit” by San Francisco, our neighbor across the Bay, provides a unique opportunity to analyze its implementation and preview its likely impact in Berkeley. Earlier this year, the City Hall Fellows in San Francisco released a report titled “Implementation, Enforcement and Impact: San Francisco’s Sit/Lie Ordinance One Year Later,” which documented the implementation of the law in the Haight, which is considered “ground zero” for issues of street homelessness.
Unsurprisingly, the report found “anti-sit” to be ineffective. 90% of the citations issued were to repeat violators of the law, and more than half were issued to just four individuals. “Anti-Sit” disproportionately impacted the chronically homeless individuals who suffer from serious mental, health and/or substance abuse issues and more than 85% of citations were issued to individuals over 30 years of age –generally not the transient youth cited in much of the debate leading up to the passage of “anti-sit.” Additionally, the report found that 58 percent of merchants in the Haight said that the number of homeless in front of businesses remained the same or even increased since passage of the law.
Costs and Consequences of “Anti-Sit”
While the background report for the proposed Anti-Sit initiative lists the financial implications as $26,000 for placing the measure on the ballot, the actual real costs of implementing the measure have not been quantified and are significant not only financially, but also morally.
There are costs to the City in terms of police time spent enforcing the law, arresting individuals who have outstanding warrants, and going to court, which most likely will involve the use of overtime. The more police spend time enforcing an anti-sit law means that less time and resources are available to focus on more serious crimes.
People who are homeless most likely do not have the resource to pay hundreds of dollars in fines for sitting on the sidewalk. While the law is written to allow community service as an option for the first citation, the more times an individual is cited the more money they have to pay in fines. If people cited do not pay fines they would have to appear in court, and if they fail to appear (which most likely would happen) a bench warrant would be issued and they would have to serve time in jail.
Additionally, if an individual is cited multiple times they could face a misdemeanor, which would most likely require serving time in jail. If individuals have to serve jail time there are costs involved with arresting and booking inmates as well as court costs. Our jails are already impacted due to the approval last year of Realignment legislation, which requires counties hold more inmates. Having to make room for individuals cited due to quality of life crimes will further impact our jails and create additional costs to Alameda County’s budget.
So there are real costs in terms of police time, Mobile Crisis staff time, if needed, staff time involved in education about the new law, and court and jail costs, with very little to be gained from enforcing this law.
That is not even including the costs of having to defend the law in court since it most likely will be challenged. If the City loses, we not only would have to pay for all of the time spent defending the law, but also pay attorneys fees and possibly damages. At a time when our city has faced multi-million dollar deficits, putting the city in a position of liability is not a wise or responsible course of action.
The impacts of the anti-sit law on the homeless in accessing services are also significant. Criminalization measures make it more difficult for service providers to stay in contact with homeless individuals and establish a relationship with homeless individuals. Additionally, if individuals have outstanding bench warrants for failure to appear or for misdemeanors they would be ineligible for a variety of cash assistance and social services, which they need. An anti-sit law would further alienate an already marginalized segment of our population and would make matters worse in trying to get people out of homelessness.
An anti-sit law will not solve the underlying causes of homelessness and will result in significant costs to the City. It will create a revolving door that will push people out of the streets and into the criminal justice system.
Statistics from the Lewin Group show that in nine cities (San Francisco, Seattle, Los Angeles etc) that the amount of money spent per person in placing people into Supportive Housing or Shelter is significantly less than putting people in Jail or in Hospitals. Supportive Housing or shelter is critical in helping get people off the streets and cheaper than enforcing laws and putting people in jail.
Despite the ineffectiveness of criminalization measures, the number of communities across the country who have instituted anti-homeless laws is growing. According to statistics from the National Law Center on Homelessness and Poverty and the National Coalition for the Homeless, there have been increases in laws throughout the country over the past 6 years.
This trend towards cities adopting criminalization measures led the United States Interagency Council on Homelessness to release a report “Searching Out Solutions: Constructive Alternatives to the Criminalization of the Homeless”, which outlines a number of strategies that would be more affective at addressing homelessness such as:
- Developing “Housing First” Permanent Supportive Housing
- Ensure 24-hour Access to Emergency Shelter
- Create Street Outreach Teams and Provide Safe Havens
- Countywide Collaboration through Education, Volunteerism and Donations
- Improve Access to Mainstream Benefits for Persons Experiencing Homelessness
The United States Conference of Mayors at its June annual meeting adopted a resolution “Supporting Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness”
Specifically the Mayors Conference resolution stated “that the U.S. Conference of Mayors affirms the value of USICH commends its initiatives to support mayors as they work to end homelessness in their cities and urges its members to review and adopt the recommendations in the report”.
The main finding of the report is that criminalization measures are ineffective strategies to solve homelessness, and that cities should work towards creating shelter, housing and services to help move people out of the streets and into stability. Unfortunately, the proposed Anti-Sit law completely ignores this reality and instead is pushing a divisive, redundant and ineffective approach to solving a complex social problem.
Conclusion
There is no ethical, legal or practical justification for the proposed Anti-Sit law. While it stems out of frustration over the state of our commercial districts and the uncomfortable nature of seeing people on public sidewalks, it is a last resort attempt to solve a complex social problem with an overly simplistic, blunt appraoch, and ultimately will not get people off of our streets, but will make it more difficult for homeless individuals to get the assistance they need to get out of the cycle of poverty. It criminalizes rather than confronts the problem. It is also redundant since we already have existing laws to deal with obstructing sidewalks and problematic behavior. Here are some of the reasons why the proposed Anti-Sit law is bad public policy:
- Structural factors such as economic conditions (wages/income distribution, employment races, housing costs, access to health care as well as people discharged from prison and aging out of foster care play significant roles in creating homelessness, which often exacerbate individual factors such as mental and physical health, substance abuse and addiction, family stability etc. This creates a situation where a person is less able to compete for scarce social and economic resources and has a higher risk for homelessness. It is wrong to primarily attribute street homelessness to personal choice. The root causes of homelessness are lack of access to housing, economic challenges, and personal and health challenges. The only way to lift people out of homelessness is to provide access to stable housing and services to help move them on a path to self sufficiency.
- Despite a count of over 680 homeless in Berkeley, only 418 individuals can be theoretically accommodated with existing shelter at peak capacity during limited times of the year. During winter months up to 438 individuals and 49 families can be accommodated in a shelter, which still leaves a gap in which a large number of homeless people cannot access shelter. Berkeley only has 5 daytime drop-in resources, their cumulative capacity is unclear. Also the youth shelter at YEAH is only open during the winter months, so young people on the street, including youth who have aged out of foster care do not have many places to go. There is also a significant shortage of housing with social services in Berkeley. Despite the fact that we spend 2.8 million a year in services, there are clearly significant gaps, and we do not have enough places for people to go.
- There is no economic correlation between homeless people sitting on the sidewalk and the decline of our commercial districts. There are a variety of factors that have had an effect, such as the current recession and less disposable income, square foot rents, and changing retail needs. According to statistics from the city’s Economic Development Office, Downtown and Telegraph, two of the commercial districts which have the largest concentration of homeless individuals, have seen some of the highest rates of sales tax revenue in the city.
- We already have many laws on the books to deal with obstructing sidewalks and problematic street behavior. The fact that they are enforced and problems still remain suggest that we need to fine-tune and improve the way we enforce these laws and that enforcing laws alone will not solve the root causes of homelessness. Adopting a redundant, ineffective law with serious consequences is a step back, not a step forward.
- An anti-sit law would likely be found to be unconstitutional and would be declared invalid. It would also violate people’s constitutional rights.
- The costs to the City of Berkeley in enforcing an anti-sit ordinance are significant and the costs to the homeless to have to pay citations, serve jail time and likely as a result be denied cash assistance and benefits is significant and will have only make matters worse, not help solve homelessness.
- Existing sit laws have been shown to be ineffective at getting people to stop sitting on the sidewalk. We already have existing laws to deal with obstructing sidewalks and problematic behavior.
Ultimately, passing an Anti-Sit Law would require the city to spend significant resources with very little measurable benefit; it would further marginalize an already alienated segment of our society; and would not help people break the cycle of homelessness. We need to work together as a community to come up with constructive solutions that will improve people’s lives, not push divisive proposals. My proposal seeks to bring together stakeholders to talk about these very real problems and work together to develop solutions. Homelessness and the problems of people sitting on our sidewalks is not going to be solved through sound bites and cynical political proposals, but through dialogue and a real commitment to working together and investing in housing and services. It is my hope that this proposal can serve as a starting point for discussion, but we should not rush into putting this divisive and redundant measure on the ballot, and instead do what is right, and take the time to work to seek long term, positive solutions. Berkeley has a long reputation as a compassionate city, a city where we respect everyone, regardless of their status, and where free expression is permitted. By moving forward with a thoughtful alternative we can be proud of, we can continue to reflect the values of our community and make Berkeley a model for how we rise to the occasion and not back down from confronting homelessness.
FINANCIAL IMPLICATIONS:
Unknown, some staff time
CONTACT PERSONS:
Jesse Arreguín, Councilmember, District 4 981-7140
ATTACHMENTS:
- 2009-2010 Sales Tax Geographic Area Economic Summaries
- “Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness.” United States Interagency Council on Homelessness. 2012
- Berkeley Police Department Training and Information Bulletins #188, 228, 262, 268, and 276
- “Costs of Serving Homeless Individuals in Nine Cities.” The Lewin Group. Nov. 2004
- “Implementation, Enforcement and Impact: San Francisco’s Sit/Lie Ordinance One Year Later.” City Hall Fellows. Mar. 2012
- Text of San Francisco’s Measure M, “Walk the Beat”
CITATIONS:
- “Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness.” United States Interagency Council on Homelessness. 2012
- “State of Homelessness.” National Alliance to End Homelessness. Jan. 2011
- “Increases in Homeless on the Horizon.” National Alliance to End Homelessness. Sep. 2011
- Koegel, Paul et al. “Causes of Homelessness.” Homelessness in America. 1996
- Passell, Jeffrey and D’Vera Cohn. “U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade.” Pew Hispanic Center. Sep. 2010
- Baily, Martin Niel and Douglass J. Elliott. “The US Financial and Economic Crisis: Where Does It Stand and Where Does It Go From Here?” The Brookings Institute. June 2009
- Stone, Brad. "A City That Shopped Till It Dropped." New York Times. 20 Dec. 2008
- “Homes not Handcuffs: the Criminalization of Homeless in U.S. Cities.” National Coalition for the Homeless. July 2009
- “Costs of Serving Homeless Individuals in Nine Cities.” The Lewin Group. Nov. 2004
- Kuhn, R. & Culhane, D.P. “Applying cluster analysis to test of a typology of homelessness: Results from the analysis of administrative data.” American Journal of Community Psychology, 17(1), 23-43. 1998.
