Since I am a resident and retail business owner in the Haight, you might think that this article is yet another complaint about the homeless and that I am going to implore you to vote in favor of proposition L, also known as the civil sidewalks law or the sit/ lie law.  Many of my customers, friends, and neighbors have been rallying for the sit/lie law for months.  If the law passes at the ballot in the November elections, my retail business might benefit and there would be fewer hassles to deal with in my daily life.  If I had stopped thinking at this point, I would have simply gone along with the overwhelming public opinion and voted for the sit/ lie law.  But I couldn’t stop thinking because something was wrong with the story that was being told to justify the sit/ lie law.  When I asked a few questions, I got a confusing barrage of claims and counter-claims but not enough facts.  To satisfy my curiosity, I decided to do a little research.  One thing led to another, and before I realized it, I had embarked on a one-man mission to dig up obtuse legal documents, seek out experts from around the country, and research the topic more deeply than it has been covered by any media outlet so far.  What I discovered is that the arguments for the sit/ lie law don’t really add up.

The narrative being circulated by the sit/lie’s political campaign has three major components.  The first component is the statement of the current situation: Gangs of thugs are overrunning Haight Ashbury and other parts of San Francisco picking fights with residents, vandalizing businesses, spitting on kids, and taunting women and old people.  Validation of this narrative comes from quotes by affected residents and merchants and media pictures of groups of dirty looking street people camped out on sidewalks accompanied by scary looking dogs.  It all sounds and appears very evil. 

The second part of the narrative talks about residents and merchants asking the elected politicians and the police to help contain the terror on the streets, and leaders of San Francisco Police Department (SFPD) expressing their helplessness due to limitations in current laws. This is the problem statement. 

The last part of the narrative involves the proposed solution in the form of a new law, which will enable our city’s police officers to deal with this problem so we can feel safe walking and shopping in our neighborhoods.  Taken together, these three components form the prevailing public story about the proposed sit/ lie law as it is being told and retold in numerous public conversations and media reports.

Let’s begin by examining the current situation in the Haight.  Homelessness is a national problem and not unique to the Haight.  What makes it more of an issue in the Haight is that it is hard to talk about it in abstraction.  Like my neighbors, I too am confronted by the sight, smells, and actions of the homeless people every day.  A few of them appear drunk or on drugs, some seem mentally ill, and others appear to be just hanging out.  Their behavior ranges from quiet introversion to loud exhibitionism.

Routinely, I am asked for spare change and leftovers, sometimes I am offered “buds,” and practically every day I have to make my way around a group of homeless people who are blocking my way on a sidewalk.  Rampant pan-handling, pot smoking, and drunken behaviors are on exhibition by some of the homeless people blocking our sidewalks and sleeping in our doorways.  These people pose a sensory challenge to our civilized sensibilities – they look dirty, smell terrible, and often say offensive things.  If a few homeless folks are huddling together in a pack with a fierce looking dog and talking loudly, it appears like a riot is about to break out. 

But the problem with the sit/ lie campaign’s story is that I don’t see any riots.  I don’t see the homeless people assaulting residents, vandalizing businesses, or creating a public safety hazard.  I agree that the Haight seems to have more than its fair share of homeless people, dog poop, and graffiti.  But most of the homeless people are harmless!  To the best of my knowledge, in the entire three years we have owned a retail bookstore on Haight Street, we haven’t had a single incident where a homeless person has compromised the safety of anyone related to our business.  In fact, it’s rare to come across a homeless person who poses a real safety threat.

The sit/ lie campaign’s story is based on sweeping generalizations about the homeless people.  The police chief refers to them as street thugs, the San Francisco Chronicle calls them bullies and punks, and the Wall Street Journal recently declared them to be gutter punks.  The common thread here is the application of these vilifying labels to ALL homeless people even if they are not hassling anyone or causing any problems.  The word homeless by itself is a broad label which hides the underlying nuances of the labeled person’s individual circumstances.  Based on my conversations with dozens of homeless people I have found that the group we refer to as homeless include a broad cross-section of folks ranging from disabled war veterans, kids who have run away from bad homes or aged out of the foster care system, artists and musicians travelling through this area while on their self-discovery journeys, and many others.  Most of these people don’t display the aggressive behaviors that seem to create, in the media at least, the illusion of a mob taking over our streets.

Merchants and residents like me face some real challenges, but most have little to do with people squatting on sidewalks.  The people shoplifting books and magazines in our bookstore are rarely the homeless.  I have real experience in catching shoplifters in action and video footage from our security cameras to back this up.  From my personal experience, it seems that the sit/ lie campaign is grossly exaggerating some problems, and attributing others to the wrong set of people.  I am not the only one who feels this way.  In a recent meeting of Haight Street merchants, many of them voiced  concerns  that the sit/ lie campaign was creating a distorted and unfairly negative picture of the historic neighborhood.

If the proclaimed gangs of thugs and rein of terror are mostly imagined, what might be the source of the anger and frustration that’s fueling the demand for the proposed sit/lie law?  Having participated in numerous neighborhood meetings to discuss the situation, the complaints I have heard are mostly about the chronic squalor and degradation that has plagued the neighborhood for decades. People are fed up with the seemingly hopeless and unending job of trying to keep their shop-fronts and home entrances clean.  People are angry at our city government’s inability to do something about the situation.  These are legitimate issues, but these are different issues than what the rhetoric of sit/ lie’s political campaign would lead you to believe.  The difference between the on-the-ground reality and the campaign’s story is the difference between the mere existence of homeless people and actual threatening behaviors by them.

Leaders of SFPD have gone on public record with their claims of helplessness and their need for new tools to fight this proclaimed menace.  In my personal experience, 9 times out of 10, it’s extremely easy to get a homeless person to leave if I feel they are creating a nuisance in front of our bookstore.  Most times a polite request does the job.  Recently I went out to confront a kid who had been sprawled in front of the store for a few hours.  Within a few moments of my showing up, the kid noticed my presence and preemptively offered to move “You want me to go away?  Ok, man… I am leaving, don’t call the cops on me.”  I didn’t even have to open my mouth, and was barely able to say “thanks” before he took off.  The few times I have had to ask someone to not bother my customers, they usually comply although sometimes they will grumble about it.  Once in a rare while we have had to call the cops if someone is being really troublesome and not responding to polite requests.  Normally the cops show up quickly and the problematic individual is sent packing in short order.

The San Francisco Controller’s office performed an analysis of 81 emails sent to the Mayor, Board of Supervisors, and Police Chief in support of the proposed sit/ lie law.  Their content analysis indicated that about 50% of the people were concerned about aggressive panhandling.  But, this isn’t a good reason for passing the sit/lie law since there are already specific laws which address aggressive panhandling, specifically San Francisco Municipal Police Code section 120-2, and Section 647(c) of the California Penal Code.  In 2008, SFPD officers issued 867 citations citywide for aggressive panhandling.  So, if laws exist and they are being used, is there still a legal gap? 

Several police representatives have publicly stated that they are required to have a citizen complaint before they can take action and a new law is needed to enable them to act without a citizen complaint.  But this argument also seems to be without merit.  San Francisco law firm O’Melveny & Myers LLP recently conducted a review of appropriate legal codes and concluded, “These laws can be enforced by police officers without requiring citizens to complain of violations prior to their enforcement.”  SFPD’s argument is further weakened by an analysis of SFPD’s own computer aided dispatch system which shows that “In 2008 there were 15,529 calls for service on and around Haight Street, of which 4,462 were citizen-initiated and 11,067 were officer initiated.”  The leading cause of officer-initiated calls was “suspicious people.”  Not only are SFPD’s claims inconsistent with the letter of the law, but also their own internal data shows they already pursue law enforcement routinely without citizen complaints.

The legal analysis by O’Melveny & Myers LLP also refers to several other laws currently available to the San Francisco police including laws for obstruction of sidewalks, obstruction with belongings, loitering, aggressive pursuit, stalking and harassment, and for crowds to disperse on order of police officer.  There are additional laws about drinking in public, camping in parks or cars, urinating in public, littering, theft of recyclables, maintaining a public nuisance, interfering with a business, and peddling without a permit.  In total, the San Francisco Human Service Agency’s Quality of Life citation database shows nearly 12,000 citations were issued citywide in 2008 across six major categories of violations.  I learned that just about anything a homeless person can do is already illegal!  This punitive and legalistic approach towards homelessness earned San Francisco the dubious distinction of a spot on the list of Ten Meanest Cities in America compiled by the National Law Center on Homelessness & Poverty (NLCHP) in their July 2009 report on the Criminalization of Homelessness. 

In all my research, I have been unable to find examples of any problematic behaviors that can’t be prosecuted under existing law.   Why would Mayor Newsom and leaders of SFPD claim they are helpless due to limitations in existing laws?  Perhaps because the residents are asking the police to do something that the police are not set up to do.  They are asking the police to go beyond dealing with real crime and take on the role of becoming our street sweepers.  And what is being demanded to be swept away is not just regular trash, but as one of my neighbors wrote “quality of life degraders such as panhandling, trash, homeless, street kids, etc.”  In one sentence, separated by commas she brought it all down to the same level – human beings, behaviors we find annoying, and the by-products of these people’s existence.  The Mayor and SFPD leaders are correct that they have no mandate today to arrest and lock up people simply because they exist and live on our sidewalks creating an inconvenience for us.  But that’s not what the political campaign for the sit/ lie law wants you to be thinking about.  The political campaign is busy spinning a web of misinformation that isn’t being challenged – misinformation about street thugs who challenge police officers quoting their civil rights, misinformation about police helplessness, misinformation about citizens being too afraid to make complaints or too busy to go to court, misinformation about inadequacy of current laws to deal with problematic behaviors.

As I started to share my findings about this proposed legislation, one comment I kept hearing from neighbors is why not pass the law anyway.  “What harm can it do to give the police another tool to use?” said one regular customer of our bookstore.  Intrigued by this argument, I decided to examine the potential consequences if the law passes at the ballot.

By it’s very definition the sit/lie law will require police officers to discriminate among the population based on their appearances.  Opponents have raised concerns about the potential abuse of police power since the law proposes to grant broad discretionary power to the police regarding enforcement.  During a hearing of the Board of Supervisors, San Francisco Public Defender Jeff Adachi said that “one of the things we look at in raising a constitutional challenge to a crime is whether or not a crime will treat all people equally… similarly the law should be understandable to the police officer so they know what conduct is prohibited and it shouldn’t give them too much discretion.”  While the proposed law makes several exceptions for acceptable sitting and lying situations, it fails to make specific exceptions for several other perfectly legitimate reasons why people may sit or lie on sidewalks including street performers, day laborers, resting tourists, retail workers on their legally mandated fifteen minute breaks, and children.  With such broad language, the proposed law appears to fail the Public Defender’s test and makes it likely that the Defender’s Office will mount a challenge to the law if it passes. 

The US constitution also places several restrictions that would hinder San Francisco government’s desire to expand it’s mandate to regulate the innocuous behavior of sitting or lying in a public space.  Legal experts cite at least three major challenges that can be made under the first amendment (freedom of speech and assembly), eighth amendment (cruel and unusual punishment), and fourteenth amendment (due process and equal protection).  It is also helpful to look at San Francisco’s own previous attempts on this front.  San Francisco passed a similar sit/lie law (MPC 20) in 1968 and then repealed it in 1979 after being sued.  Yet another attempt to pass a similar law failed at the ballot in 1994.  San Francisco is not the first city to flirt with such a law, nor would it be the first one to get sued to block it.  While it’s hard to predict the outcome of a constitutional challenge, it is virtually guaranteed that if the measure passes at the election in San Francisco, it will get challenged in courts.

According to the proposed law, the penalty for the first offense will be a fine of $50-100 and/ or community service, and subsequent offenses will get fined at higher levels going up to $500 and imprisonment in the county jail of up to 30 days.  It’s hard to see much good coming from issuing more such citations with a new law because San Francisco County Jail has rather limited capacity (estimated at 2,200 seats), which is far outnumbered by the current homeless population in San Francisco (estimated at over 6,000 people).  We couldn’t possibly lock up every homeless person even if we were legally allowed to.  The July 24th issue of the Economist had a cover story on America’s record of locking up people.  According to the Economist, “America incarcerates five times more people than Britain, nine times more than Germany, and twelve times more than Japan.”  Noted criminologist Michael Tonry has decried America’s over-reliance on the criminal justice system as a lack of “political maturity and public civility.”  It’s ironic that proponents of the rebranded civil sidewalks law think they are promoting civility.

Next, let’s examine what would happen if the sit/lie law succeeds at putting homeless people away in jails for sitting or lying on public sidewalks.  The criminalization of these people is guaranteed to have consequences.  Previously homeless people coming out of jail after serving their 30 day sentences will now have criminal records making it even less likely that they would succeed at finding jobs or housing.  Countless studies have documented that prison culture is breeding ground for violence, distrust, and alienation.  Sociologist Teresa Gowan recently published a book documenting years of her research with homeless men in San Francisco.  In her words, “Imprisonment and homelessness (have) become a mutually reinforcing nexus, one through which thousands moved both backward and forward with little respite.  Every day men were released from the system with little money, damaged social ties, and minimal job prospects, and many fell fast, even instantly, to the street.  In turn, living on the street was very likely to send them back inside, sanctioned for quality-of-life offenses and parole violations.”  It is not hard to project that the sit/lie law might result in turning harmless homeless people into hardened criminals who will end up back on our streets.  And this time around they would have less trust in the service providers trying to help them, they might be more prone to seeing us as the cause of their problems, and they might be more comfortable with resorting to violence to meet their needs.  By emphasizing incarceration over integration, the sit/ lie law takes a dangerous step towards accelerating the cynical revolving door between prisons and streets.

Since this legislation appears nearly guaranteed to fail, I can’t help but wonder about the real reasons many of my friends and neighbors are pushing for it.  I know many of these people and they are normal and reasonable folks, they have good educations and careers, and they can critically think through issues.  I don’t have to look far for the answer since I nearly went along with this law myself.  I had to force myself to sit back and analyze my thoughts.  I had to admit to myself that the way certain people look can make us afraid.  We don’t like to be confronted by a human condition that appears so alien and dirty.  Such confrontations bring out strong negative feelings in us – feelings of fear, disgust, and disbelief.  Overcome by fear, our minds blow any real problems out of proportion and we end up championing disproportional solutions like the proposed sit/ lie law.  We want these people gone, these uncomfortable appearances to disappear so we can surround ourselves with a world of our choice.

Come November, voters in San Francisco are going to be asked to vote on the deal that’s on the table.  Some folks have asked our political leaders to make it easy for us.  They have promised they will turn their eyes if the homeless people are whisked away in a police car and locked up in some remote jail, or hassled enough that they leave San Francisco and go somewhere else.  And the politicians have responded by crafting this proposed law that will give them the mandate to do just that.  Voting YES will be people who want clean hassle-free sidewalks and don’t care about how that goal is accomplished.  These people have rationalized that what’s at stake here is their right to have clean hassle-free sidewalks just like their friends in other neighborhoods do.  Voting NO will be people who are morally outraged by what’s being proposed in this law, those who think it is bad public policy, those who are turned off by the campaign of misinformation about this proposed law, and those who believe that, as a society, we can come up with better solutions.  And finally, there will be some people who are simply confused with the coming crossfire of sound bites urging them to decide between “civility” and “civil rights.”  They will be asked to decide whether “It’s not about the homeless” or “It is about the homeless.”  They will have to decide whether they want to “Stand against Sit/ Lie” or “Stand up for it.”  I hope after reading this article you won’t find yourself in the last group.