SF Penal Code – 168(B) MPC
Intent of Law
The Civil Sidewalks Ordinance, Section 168(B) of the San Francisco Penal Code, commonly known as the “Sit/Lie” Ordinance, finds it unlawful for the people of San Francisco to sit or lie on public sidewalks of commercial districts or corridors between the hours of 7 A.M. and 11 P.M. This ordinance was voted into law on the November 2010 ballot and became effective December 17, 2010. The intent of the law is to improve public sidewalk conditions for the merchants of the area, create tools for police to engage with persons who are not breaking the law but are publicly acting out, provide tangible services for those experiencing conditions that cause them to be continual offenders of the Sit/Lie ordinance, and to increase public safety (Cassella 2012).
Content of the Law
Through the passage of the Sit/Lie ordinance, police may approach persons sitting or lying on public sidewalks and ask them to move (a verbal communication is required before handing out a citation). Should they not move, police can give them a citation ranging from $50 – $100 and/or community service (SFPD). After a first offence, and if within 24 hours, citations increase to $300 – $500 as well as possible community service and a possible 10 days in the local county jail. If a second offense is committed within 120 days, fines increase to $400 – $500 and may additionally be punished by up to 30 days in jail. Exceptions include: persons lying on the sidewalk because of medical emergency, wheelchair use, patronizing an establishment on a local sidewalk given that the establishment already has a permit, sitting on a fixed bench or chair, sitting in line for goods and services, children in strollers, and any area designated for pavement to parks projects (SFPD). The police are supposed to offer services to those they give citations to, such as social services and health care. These services are offered either verbally or are written down and given to the person in question.
History
The Civil Sidewalks Ordinance was originally brought to the San Francisco Board of Supervisors by Mayor Gavin Newsom and Supervisor Michela Alioto-Pier on March 3, 2010 (Cassella 2012). After this introduction, local commissions who stood to be affected by this Ordinance submitted letters to the Board of Commissioners on their views of the matter. Ultimately, the San Francisco Small Business Commission wanted approval and made modifications such as limiting the Ordinance to only public districts and corridors and requiring the Public Safety Committee to hold quarterly hearings about the Ordinance (Cassella 2012). This was defeated by the San Francisco Board of Supervisors in a vote of 3-8. However, Mayor Newsom placed the Ordinance on the November 2010 ballot as Proposition L which included two new sections about providing tangible and immediate social services and evaluation of these programs regularly to those in violation of the Sit/Lie Ordinance.
Proponents and Opponents of the Law
Those in favor of this Ordinance thought this to be an effective tool for the police to engage with people acting out publicly without breaking laws, thus enforcing public safety and smooth pedestrian traffic flow in busy commercial areas. Among those in favor of the Sit/Lie Ordinance are Senator Diane Feinstein, the San Francisco Police Chief George Gascon, merchants from the Upper Haight, Polk Street, Irving Street, Market Street, Mission Street, the Tenderloin, Lower 24th Street, and various coalitions for SF neighborhoods (Cassella 2012). Meanwhile, those in opposition of the Ordinance thought that instead of implementing new laws to address homelessness and street congestion, SF police should use current laws more effectively to address these issues. Prop L was seen by many opponents as a poorly disguised effort to criminalize homelessness and found the proposition to be in violation of civil rights. For example, in Berkeley Community Health Project v. City of Berkeley (1995), the Berkeley Community Health Project challenged an ordinance passed in 1994 that prohibited sitting and lying on the sidewalk by claiming it violated first and 14th amendments. Those in opposition include the majority of the San Francisco Board of Supervisors, the “Sidewalks are for People” movement, the San Francisco Democratic Party, the San Francisco Green Party, the ACLU, and other homelessness groups. The opposition contended that this ordinance would target the most vulnerable residents of the city and be tantamount to giving the city a tool to abuse people. As a rebuttal on Smartvoter.org, the opposing Supervisors, the SF Democratic Party, and the SF Green Party urged voters to consider that Prop L would be an impingement on the right of residents to enjoy public spaces by making it a crime to sit (Campos 2011).
Implementation of the Law
The implementation of the Sit/Lie Ordinance is supposed to be enforced solely by the San Francisco Police Department by taking a course of action as mandated by the law. However, the police are also supposed to recommend social services and oftentimes healthcare, as they see fit, either verbally or by writing. The police are supposed to log all this information into a database, although, as an evaluation by City Hall Fellows has shown in 2012, the San Francisco Police Department’s tracking system is not in sync with the actual number of citations being given out. The database is also not reliable in tracking those individuals who have been offered social services on account of their violations (Cassella 2012). In this same evaluation, City Hall Fellows found the services offered by police to not be proper resources to address the issues at hand (Cassella 2012).
Procedures of Enforcement
The Sit/Lie Ordinance is straightforward in its enforcement – should a person be sitting or lying unlawfully on a public sidewalk in a commercial area, a San Francisco Police Officer may ask the person to move and educate them about the Sit/Lie Ordinance. If a person refuses to move, they are given a citation and potentially community service. After the first violation, citations and punishments incrementally increase. If an individual is cited again within 24 hours of the first citation, they are then charged with a misdemeanor and can face fines of up to $500 and 10 days of imprisonment. If they repeat the offense again within 120 days of being charged with a misdemeanor, the individual can face up to 30 days in County Jail. As enacted, the Municipal Police Code mandates that the City maintains a neighborhood outreach program to provide social services for those disproportionately affected by the ordinance (SFMPC). As an additional requirement, officers learn more about adequate ways to enforce protocol by attending a one-day class.
Court Decisions
As Sit/Lie Ordinances have been passed throughout the country, they have been met with several lawsuits attempting to prove the unconstitutionality of such laws. In 1996, the Berkeley Community Health Project challenged the City of Berkeley over its “Sitting Ordinance,” claiming that the ordinance violated first amendment rights of those seeking alms. The plaintiffs contended that sitting allows for a clear communication that they are in dire need and are not aggressors, effectively lowering risk of intimidating those who may give alms. The 9th Circuit ruled in favor of plaintiffs and ordered the City of Berkeley to desist in taking action against any individual sitting and soliciting, however, they made no ruling against the prosecution of those lying down – a move that facilitated the proposition of the sit/lie ordinance in San Francisco (Berkeley Community Health Project v. Berkeley 1996). More recently, a lawsuit was filed in Boise, Idaho by a group of six formerly homeless individuals who asserted that the Sit/Lie ordinance of the city was a violation of the 8th amendment. The 9th Circuit sided with the plaintiffs, ruling that prosecuting people who have no other recourse than to sleep outside is a violation of the prohibition against cruel and unusual punishment (Martin v. City of Boise 2018). As this ruling occurred in September of this year, coastal cities under the jurisdiction of the 9th Circuit are still trying to determine how they will be affected by the court’s decision. In San Francisco, District Attorney George Gascón recently announced that the City would no longer prosecute any person for residing in illegal encampments if there are no alternative shelters available. The District Attorney did clarify, however, that they would continue to enforce citations if any person refuses an offer of available lodgings in a nearby shelter (Egelko 2018).
Patterns of Selection
As it stands, San Francisco has been shown to give more citations for these violations than for any other prohibited activity (Selbin 2015). In the first year of this law’s implementation, there were at least 306 citations citywide, 90% to repeat offenders, and over half of these citations from just four individuals who were experiencing homelessness and had medical conditions (Cassella 2012). In practice, surveys conducted by the Coalition on Homelessness in San Francisco have suggested that most people in violation of the Ordinance who are asked to move will just move to a different public space (COH 2015). Further complicating matters, studies have shown that different police stations in the city are enforcing the Ordinance with high variability (Cassella 2012). Procedures for supplying social services and other health care to individuals in danger of violating Sit/Lie are also variant. As it is written, the manner with which individuals are connected to services remains at the discretion of the police. The police essentially decide are forced to decide what care an individual may need and how best to offer services (Cassella 2012). In 2015, police had over 8,000 incidents related to the Sit/Lie ordinance. In all, laws related to prohibitions on the homeless have cost over 20 million dollars to the city, with Sit/Lie related offenses accounting for a large portion of the cost (Budget and Legislative Analysis Office 2016).
Effectiveness
Citations and violations are supposed to be logged into a database to track repeat offenders and the services they are receiving in order to address the issue of public sidewalk use in the long-term (Cassella 2012). However, many discrepancies have been found in the SFPD central tracking system and the actual number of citations given out (Cassella 2012). For example, in 2011, the Park Station handed out 152 citations, but their central tracking system only accounted for 115 of these citations (Cassella 2012). The Sit/Lie Ordinance is meant to keep commercial areas cleared out for merchants and local businesses. After a year of the Ordinance in action, 60% of merchants surveyed agreed that not much had changed and felt that other methods to address homelessness and street loitering may be more effective. It was also found that in most cases, while a person being cited for sitting or lying the street by the police might move, they simply relocate nearby. Because those who violate the Sit/Lie ordinance have nowhere else to go, the issue clearly has less to do with sitting in the street as much as experiencing homelessness. (Cassella 2012). The general opinion on the effectiveness of the ordinance is best illustrated by a statement made by San Francisco Police Dept. Sgt. Michael Andraychak in an article recently published by SFGate.com, “[t]he Department and City realized many years ago that we cannot arrest our way out of the homeless crisis” (Andersen 2018).
Possible Reform
Clearly, the Sit/Lie Ordinance is a band-aid to the core issue generating street congestion in San Francisco – that of homelessness. The Sit/Lie Ordinance is a punitive approach to address the issue in an attempt to clear busy streets for commercial use. However, without proper social services and health care to aid persons in need, this will only continue. If Sit/Lie should continue, it seems necessary that citations will be handed out in proportion to the number of tangible services available to those in violation of this Ordinance. If there are real accessible programs available for those in need, then it seems fair to hand out citations to those who do not comply or use these programs should they be reasonably able to access them. As has been found by City Hall Fellows in their 2012 study, evaluations of this Ordinance are minimal at best, even though it is specifically stated that quarterly meetings about the Ordinance should be held and all those being cited for sitting or lying on the street should be tracked in order to ensure they are receiving the help they need. It is important to strengthen programs that can abate homelessness rather than filtering these folks through the system repeatedly to no avail. As this happens, it is equally important to have a stronger system of keeping up with individuals and evaluating how these programs are serving them.
References
Andersen, Ted. 2018. “What Happened to SF’s Controversial ‘Sit-Lie’ Ordinance?”
October 18. https://www.sfchronicle.com/bayarea/article/SF-judge-throws-out-
charges-against-homeless-13319201.php
Berkeley Community Health Project v. City of Berkeley. 1996. (United States Court of
Appeals for the Ninth Circuit).
Campbell, Severin, ed. 2016. Homelessness and the Cost of Quality of Life Laws
Homelessness and the Cost of Quality of Life Laws. San Francisco, CA: Budget and Legislative Analyst’s Office. rep.
Campos, David, Chris Daly, Bevan Dufty, Eric Mar, David Chiu, Sophie Maxwell, Ross
Mirkarimi, Assemblymember Tom Ammiano, San Francisco Democratic Party, San Francisco Green Party, and the San Francisco Labor Council. “Arguments Against Proposition L.” January 6,2010. http://www.smartvoter.org/2010/11/02/ca/sf/prop/L/ (December 1, 2018)
Cassella, Jessica, Leah Fraimow‐Wong, Peter Gallotta, and Jamie Querubin. 2012.
“Implementation, Enforcement and Impact: San Francisco’s Sit/Lie Ordinance One Year Later.” https://sfbos.org/sites/default/files/FileCenter/Documents/42452-CHF_SitLieReport_FINALwAppendices_7.2.12.pdf (November 1, 2018).
Egelko, Bob. 2018. “SF Judge Throws Out Charges Against Homeless People Camping
on Sidewalk.” October 18.https://www.sfchronicle.com/bayarea/article/SF-judge-throws-out-charges-against-homeless-13319201.php
Herring, Chris, and Dilara Yarbrough. 2015. “Punishing the Poorest: How the
Criminalization of Homelessness Perpetuates Poverty in San Francisco.” SSRN Electronic Journal.
Martin v. City of Boise. 2018. (United States Court of Appeals for the Ninth
Circuit).
Selbin, Jeffrey, Stephanie Campos, Marina Fisher, and Nathaniel Miller. 2016.
“Californias New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State (2016 Update).” SSRN Electronic Journal.
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