The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. – Anatole France
The East Village Coffee Shop attracts more patrons than can be accommodated in chairs every Saturday morning, leaving many to sip their coffee while seated on the sidewalk. Don’t hold your breath waiting for these customers to be moved along or cited under Monterey’s new ordinance.
Ever since a unanimous Supreme Court declared the country’s vagrancy laws unconstitutional in 1972, cities across America have been busy creating new crimes aimed at keeping the homeless moving along to somewhere else.
Bans on camping, bans on sleeping in public or in cars and, yes, even bans on sitting down on the sidewalk.
From a practical perspective, these laws have been pretty ineffective. The homeless have no choice but to camp or sleep in public spaces. San Francisco passed a Sit-Lie ordinance in 2010 and hundreds, if not thousands, of citations have been issued, yet the number of people sitting and lying on San Francisco sidewalks has not noticeably diminished. Similarly, there is no evidence that the business climate has improved in commercial districts where Sit-Lie bans have been enforced.
From a legal perspective, these laws remain pretty shaky and tend to involve the jurisdictions that pass them in very expensive litigation. Portland’s Sit-Lie ordinance was thrown out by the courts in 2009; and just a couple of weeks ago, the 9th Circuit Court of Appeals ruled a Los Angeles ban on living in vehicles unconstitutional. The ordinance, wrote the court, “criminalizes innocent behavior.”
While most Sit-Lie laws are probably unconstitutional on their face, even if crafted carefully enough to pass constitutional muster, they are still susceptible to “as applied” challenges unless evenly enforced against everyone; which they obviously never are.
Rarely has a more inadvertently revealing statement been made in the Monterey City Council chambers than that of Monterey Police Chief, Phillip Penko, who stated before the Council voted last night that the focus of the ordinance is on people who threaten and intimidate others and violate the law, rather than on the homeless or any particular type of person.
There is obviously no need for a Sit-Lie ordinance to deal with people who are already violating other laws, including those that forbid threatening others and obstructing sidewalks, unless, of course, it’s just too hard to catch them at it. It seems the Chief is saying the Sit-Lie ordinance is needed to criminalize people he suspects, but can’t prove, are engaged in unlawful behavior. This sounds a lot like an admission that the law is not intended to be enforced evenly against anyone who sits or lies on the sidewalk, but only against those “undesirables” the police believe are secretly up to no good.
If Monterey thinks that’s OK, we wonder why they don’t make it even easier for the police to keep the streets free of unsightly poor people by simply passing a law criminalizing going out in public at all. That way the cops could simply arrest anyone who isn’t contributing to the upscale image the town is striving for.
Needless to say, the Chief’s statement is not going to do the city’s case any good, in the likely event that someone brings an “as applied” constitutional challenge against the ordinance. Maybe he should get busy proving he didn’t mean what he seemed to be saying by citing anyone and everyone who sits down on the sidewalk.
It is surprising that the Monterey City Council, with the honorable exception of Alan Haffa, seems prepared to spend hundreds of thousands of its taxpayers’ dollars, funds which would probably have done much more to alleviate downtown problems if spent on actual homeless services or economic development, for the privilege of explaining to the same court that just rejected the Los Angeles ordinance that sitting on the sidewalk is somehow a less innocent act than sleeping in a car.
Good luck with that…