The last few days have seen a lot of news coverage over Newsom’s proposed Citywide sit/lie law for San Francisco. The long-standing “gutter-punks don’t mess with the residents and residents don’t call the cops on the gutter-punks” understanding was obliterated after aggressive panhandling, stalking, and fights between “street kids” and the residents of Haight-Ashbury. In response, the cops beefed up their efforts to patrol the Haight, telling the street kids to move along or life would get a lot harder. And as a result, things are starting to get better.

However, residents have since mobilized to encourage City Hall to pass tougher laws that would keep the streets and residents safer. Newsom responded by doing a little investigating of his own. His Mayorship, accompanied by his infant handler, walked down the hill from his house for a stroll along the Haight where he reported in an interview with the Chron, “As God is my witness, there’s a guy on the sidewalk smoking crack.” Which brings us to the issue of the day: is the sit/lie law constitutional? The following is a brief list of adjudications on the subject:

Cases where a municipal sit/lie law has been upheld:

Roulette v. City of Seattle, 97 F. 3d 300 (1996)

City of Seattle v. McConahy, 937 P. 2d 1133 (1997)

Amster v. City of Tempe, 248 F. 3d 1198 (2001)

Victor Frost v. City of Palo Alto news item

Cases where a municipal sit/lie law has been struck down:

Jennings v. Superior Court, 104 Cal. App. 3d 50 (1980) (modified sit/lie ordinance to require reading of malicious intent)

Berkeley Community Health Project v. City of Berkeley, 902 F. Supp. 1084 (1995) (vacated on appeal)

Jones v. City of Los Angeles, 444 F. 3d 1118 (2006)

While such an ordinance could be challenged on first amendment freedom of expression grounds (“[S]itting … is not conduct that an observer would normally construe as expressive conduct.” Clark v. Cmty. for Creative Non-Violence), the sit/lie battle is likely to be fought over due process and equal protection challenges.

The Due Process clause requires that people must be given notice as to what a law is so that they can avoid breaking said law. It would hardly be fair to nail people for municipal violations without giving them notice as to what behavior is prohibited. In the controlling case in vagueness challenges, Papachristou v. Jacksonville, 405 US 156 (1972), the United States Supreme Court struck down a vagrancy ordinance because there were “no standards governing the exercise of the discretion granted by the ordinance,” thus permitting and encouraging an arbitrary and discriminatory enforcement of the law.

In the case of the sit/lie law, the law must be written such that a reasonable person of average intelligence could comprehend its meaning and know what conduct was prohibited. Arguably, the ordinance is specific: “In the City and County of San Francisco, during the hours between seven (7:00) a.m. and eleven (11:00) p.m., it is unlawful to sit or lie down upon a public sidewalk, or upon a blanket, chair, stool, or any other object placed upon a public sidewalk,” and includes a list of exceptions like those utilizing a wheelchair, emergency situations, and permitted commercial operations with sidewalk seating, to name a few. As for arbitrary and discriminatory enforcement we look to the 14th amendment.

The Equal Protection argument would either be 1) a facial challenge that the ordinance discriminates against certain groups, homeless people and gutter-punks, on its face or 2) an as applied challenge that the police applied the ordinance in a discriminatory manner to homeless people and gutter-punks but not tourists or residents. So long as a law does not target a suspect class (as in Parr v. Municipal Court, 479 P. 2d 353 (1971), sit/lie law targeted against hippies when enacted held invalid) nor burdens a fundamental right, it will be upheld as long as it bears a rational relationship to some legitimate government end. And remember, discriminatory impact is not enough for an equal protection as applied challenge; the legislature must have had discriminatory intent when enacting the law (Arlington Heights v. Metropolitan Housing Development Corp, 429 US 252 (1977)).

Under Newsom’s ordinance, he cites the City’s interest in keeping pedestrian walkways clear from impediments and the inability of consumers to access storefronts along impeded walkways as legitimate government interests motivating the legislation. Such impediment, so the language goes, will lead to cycle of decline as consumers go elsewhere to shop and dine. But, as one commentator pointed out, this is all pretext for getting rid of unwanted behavior by targeting the innocuous behavior of  the upright and the supine. And therein lies the rub. It’s not really possible to target the offensive behavior with the current law because obstruction of a sidewalk (a current city ordinance) requires a complaint by a citizen and that the officer prove specific intent of the offending individual.

Faced with the challenge of trying to enforce current law with difficult parameters and passing new legislation which will allow the cops to do the job the residents want, Newsom is going with the latter. Residents vote and pay taxes (well some of them do anyway) while gutter-punks get drunk and pay CRVs. Your move San Francisco.


Sit/Lie Laws: NPR’s Forum with Michael Krasny

Text of San Francisco’s Proposed Sit/Lie Law