Where Next for Sit-Lie Jr?

By Sarah Owens and Michael Livingston

The big sit-lie lie: the law will apply equally to everyone

So far, the City's tried to make the case for Sit-Lie, Jr. by obfuscation, deflection and avoidance, emphasizing police compassion and overstating the availability of affordable housing and homeless services.

For the City, the issue is:  Are businesses not worthy of compassion ? Don't we all want the City to be clean and inviting?  That  strategy is providing some degree of cover for those who favor sit-lie, but "don't want to be looked at as evil", as some have put it.  For the most part, however, the strategy is not working.  See "City's Community Forum Plan Falters",  "City to Go Solo with Sit-Lie Jr", and "Sit-Lie Jr. Loses at 2d Forum." 

If the City's hope was that the community would see the ordinance as (to use Tom Hoffert's phrase) a "win" and something they could "get behind", it has failed.  It's also eroding the City's credibility, to the point that some are ready to believe that recent police "sweeps" of established camps near Wallace Marine Park were timed deliberately so as to drive the campers into downtown just as Sit-Lie, Jr. heads to City Council.  For details on the camp clean ups, see Bach, J. and Radnovich, C.  "Recent evictions, police activity could end decades of homeless camps in Wallace Marine Park."  (15 September, 2019, Statesman Journal.)  Also see Brynelson, T. "Police tactics toward homeless under fire as Salem considers new ordinance."  (22 September 2019, Salem Reporter.)  (Note that "sweeps" is a word Lt. Upkes considers inapt, because the intent is not to make arrests.) 

The fact that the community largely oppose sit-lie does not mean it won't be enacted.  As things stand now, it's not a question whether some form of it will pass, but when.  That's because a majority of Council support it -- Bennett, Hoy, Kaser, Lewis, and Nanke.  Hoy and Kaser opposed enactment in 2017.  

So, let's talk about when.  The ordinance bill originally was slated to go before Council on July 22.  It was delayed at Councilor Andersen's request and tentatively rescheduled for September 23, but it was later removed and not rescheduled.  Councilor Hoy said in August that there would probably be a work session, but Councilor Kaser doesn't see the need for one, and, as Councilor Andersen put it, "it's her Ward" (proving that not even the City Council believe it will be applied city-wide).  The ordinance bill is tentatively scheduled for the November 25 meeting -- the week of Thanksgiving.  

Sit-lie would ban bench tents like this one

Now let's talk about what form it might take.  The camping ban bothers people, but Salem has long had a ban on camping or "vagrancy."  The proposed ordinance bill basically replaces the old vagrancy ordinance.  See "DHSTF Misled on Need to Assess Codes" and "Vagrancy Law and Legal Definition" (unconstitutionally vague vagrancy statues have largely been replaced with camping and sidewalk ordinances, which purport to focus on "homeless" people's behavior).

Salem is almost certainly going to want to keep camping on public property illegal (proposed SRC 95.730).  The provisions allowing the City to remove personal property left unattended (proposed SRC 95.740) are a logical extension of proposed SRC 95.730, and so are equally likely to be enacted.  Making it a crime to leave property unattended (proposed SRC 95.740) is new (was not in the 2017 ordinance bill) and could discourage people from claiming items that have been removed.   

But what about the ordinance bill's most controversial bits?  Those that make it illegal (and therefore a crime, not a civil offense) to sit or lie on sidewalks between 7a and 9p (proposed SRC 95.720)?  They're what upset people the most.  Here are some of the reasons why:

1. Sit-lie targets people experiencing homelessness and trying to live in public spaces.
2. Sit-lie targets people who rest on sidewalks downtown during the day because it's safer.
3. Sit-lie ignores the fact that Salem has limited day-shelter for people experiencing homelessness, especially women.  See "City to Go Solo with Sit-Lie Jr." 
4. Sit-lie ignores the fact that many businesses take up sidewalk space for tables, chairs and unsightly signage, yet expect people experiencing homelessness to give up their space on the sidewalk, even when they are not being disruptive, and even when they have no reasonable alternative.  
5. Sit-lie drives people experiencing homelessness out of downtown and into less safe areas.
6. Sit-lie erodes, instead of builds, relationships between people experiencing homelessness and  the broader community.
7. Sit-lie treats people experiencing homelessness as "the problem."  
8. Sit-lie sets up the expectation that the police are the answer.
9. Sit-lie has nothing to do with compassion, balancing, or ensuring public safety. 
10. Sit-lie has the effect of expelling people experiencing homelessness from public places and infringes on their constitutionally protected liberty interest to be in public places of their choosing under times and conditions when those places are ordinarily available to members of the public.
11. Sit-lie criminalizes "acts of living" and further stigmatizes homelessness.
12. Sit-lie is a public policy failure.  See Golgowski, N. and Hobbes, M. "America's Homeless Crisis Inspiring New Acts of Cruelty."  (August 2, 2019, HuffPost.)  (Cookie wall.)  Same story can be found here. 

Not that any of the above bother the councilors who support the ordinance bill, because they believe "people have to be held accountable" and "people have a lot of unfounded fears" (Kaser), "the problematic pieces have been removed/altered" (Hoy), and it's okay to expel people from public places as a "preventative measure" (Kaser).  For a majority of Council, "separate but equal" appears to remain legitimate public policy.  

Photo courtesy Travel Salem

The City insists that sit-lie is about "behavior", which is a way of distinguishing it from unconstitutionally vague "status" crimes such as vagrancy, referred to above.  But no one really believes that merely sitting or lying on a sidewalk during business hours "threaten[s] the safety and welfare of all pedestrians" (Ordinance Bill Section 2(e)), or reasonably deters people from going about their business (Section 2(f) and (g)).  If these statements were true, downtown would be blighted area, and -- everyone agrees -- it's very far from it.  See "29 Things You Need to Know About Salem Before You Move There" and "Downtown Salem."   

Fear is learned, so can be un-learned

The fact is that sit-lie is not about "holding people accountable."  For what?  Sitting and lying on the sidewalk?  Scaring people?

When Councilor Kaser says that sit-lie is "preventative", she is effectively admitting it's not about behavior, but about preventing behavior.

When Chief Moore says about sit-lie, "We are fooling ourselves if we don't think people are afraid..., whether it's right or whether it’s wrong, because of some of the things they see", he's effectively admitting it's not about behavior. 

The truth is that sit-lie is about prejudice, plain and simple.  The view by some -- by no means all -- that the mere presence of "the homeless" is enough to frighten people away.  The view that  "homeless" people inevitably behave badly, and therefore need to be removed from the area.

Sit-lie is a classic expression of "antipathy based on faulty and inflexible generalization" (Gordon Allport, The Nature of Prejudice, 1954).  Get the homeless out of downtown, they're bad for business -- that's the Chamber Kool-Aid the City Council is drinking.

An easy way to test for an anti-homeless bias is to suggest to a proponent that it lacks any basis in fact.  The typical response will be "here's what happened to me" or to a friend or acquaintance, as if one or two or ten stories proves the general proposition that "homeless" people behave badly, and discrimination against them as a class is not only justified, but somehow necessary.

People who suffer from anti-homeless bias tend to feel they "shouldn't have to deal with" the problems they associate with homelessness.  Their sense of entitlement fills them with righteous indignation that prevents them from working effectively with other sectors of the community to identify and reduce harms.  And, it is these people and attitudes that now appear to hold sway on City Council.    

Bas relief on Council Chamber doors, depicting 1970s stereotypes

No city should enact ordinance provisions based on prejudice.  A law based on prejudice is by definition arbitrary, so it's no answer to say it will be enforced with compassion.  Friendly bike patrol officer Jim Crow is still Jim Crow.

Salem Police Department officials and others have argued that enacting the sit-lie provisions would be an act of compassion (as in, "I have compassion for the downtown business owners").  But only the most contorted thinking would allow one to conclude that a law based on prejudice against an oppressed class of people was ever, in any sense, an act of compassion. 

Law abiding CANDO residents -- all of them -- have a constitutionally protected liberty interest to be in public places of their choosing under times and conditions when those places are ordinarily available to members of the public.  It is fundamentally unfair and un-American to impose what amounts to a business-hours curfew on a class of people just because some people might fear them or what they might do.  Salem should be done with that.

So, where next for Sit-Lie, Jr.?  If there is any councilor left who has not drunk the Chamber Kool-Aid, s/he should propose the following compromise:  direct staff to remove the provisions that make it illegal to sit or lie on sidewalks and bring back an ordinance that includes the camping ban and the rest of it, but stops short of creating any new crimes targeting people experiencing homelessness.  Stops short, in other words, of acting on prejudice.

This wise councilor should also counsel that the City should get serious about its Good Neighbor Partnership work group, which could advise the City how to assist businesses that need to address disruptive behavior in humane, constructive ways, which would include knowing when to call law enforcement and mental health professionals.  Many downtown businesses are already doing this on their own, and this boundary-setting, relationship-building approach is what's going to work best over the long term.