Is That True? Sit-Lie FAQs

By Sarah Owens and Michael Livingston

 

City staff at Sit-Lie Forum No. 2

Where did sit-lie start?  Mayor Bennett took office in January 2017, and Salem's first sit-lie ordinance (Ordinance Bill 22-17, "relating to promotion and preservation of safe sidewalks") went to City Council the following fall.  But, Council decided they wanted a task force instead.  This made the Mayor very unhappy.  However, he made the best of it, and tried to get the task force to endorse sit-lie.  Despite best efforts, he was unsuccessful.  So, after a year or so, he decided to give it another go by having the City Manager quietly shop around a revision (Ordinance Bill 10-19 "relating to conduct on sidewalks").  Through this process, sit-lie gained the support of two councilors who had opposed it in 2017 -- enough to get the bill passed.  A vote was scheduled for July 22, 2019, but, after word got out, the bill was hastily pulled from the agenda, and it has not been rescheduled.        

Since then, City officials have been making statements intended to reassure the public that sit-lie is perfectly lawful, necessary, and benign.  This post examines those statements as they relate to the ordinance provisions prohibiting sitting and lying on the sidewalks.  (See our previous blog posts for details on the history of Salem's sit-lie ordinance bills.  Just scroll to the bottom of the blog and select the CANDO Archive topic: "stigma.")

It will keep "sidewalks and other spaces clean."  (City info sheet)  This statement seems to refer to the ordinance provisions that provide for the removal of unattended property, which can be and is currently handled by code enforcement.  It doesn't explain why it's necessary to make sitting and lying on the sidewalk illegal in order to keep public spaces "clean."

People sitting, lying or placing their belongings on the sidewalk prohibit its use.  (Lt. Upkes and other City officials)  If this means they block the sidewalk, then so do allowed uses like cafe tables and signage.  The statement begs the question why allow some blockages of public space and not others.

It gives "police the lawful reason to make contact with people and provide them information on social services." (Deputy Chief Miller and others) For years, police have been contacting people and providing them information on social services without benefit of an ordinance.  No one believes police need an ordinance in order to contact people.

Police "can't do anything" about people blocking the sidewalk unless the person shows the intent of pedestrian interference. (Lt. Upkes and others) If someone truly is blocking the sidewalk or otherwise  behaving in a disruptive manner, police (and providers) can and do make contact, ask for cooperation, and offer services.  In the two years since the first sit-lie ordinance was defeated, the City has made no effort to collect data to show how often, if ever, sidewalks are unintentionally blocked by someone who refuses to cooperate when asked nicely to do so.    

The homeless have alternative locations to go during daylight hours, including the park and city benches, UGM, ARCHES Project, Salvation Army, and other social service agencies.  (Lt. Upkes) The restriction on sitting and lying is year-round, 7a to 9p -- not just "daylight hours."  The Salvation Army offers no day shelter.  UGM, ARCHES and HOAP have limited day shelter hours.  UGM is the only option for weekends and holidays.  There will be times of year and day when the restriction is in force, and yet there is no safe or reasonable alternative to the sidewalk.  

If someone refuses to move along, officers will "give them time."  If the person is still there when the officers return, they will call social service resources.  (Deputy Chief Miller and others)  The ordinance bill doesn't require officers to call social service resources to make sure there is somewhere safe for the person to go before issuing a citation or exclusion, and it does not affirmatively state that no one may be cited/excluded except when s/he has been offered a safe and reasonable alternative place to be. Because the statement has no basis in fact or law, it's just false.

It "won't result in many citations or arrests."  (Deputy Chief Miller and others)  Whether this is a promise or a prediction, it suggests either that police don't intend to enforce, or that they expect a lot of cooperation with enforcement, both of which call into question why the ordinance is even needed.  The statement has no basis in fact or law, so must be considered false.

"A violation is a civil offense."  (City Attorney Dan Atchison)  Most people assume (wrongly) that, if a violation doesn't immediately result in arrest, then it's civil in nature.  However, civil offenses involve violations of administrative matters, whereas criminal offenses arise from ordinances prohibiting certain conduct.  Accordingly, a violation of the ordinance provisions prohibiting sitting, lying or leaving property on a sidewalk unattended would be a low-level criminal offense.  For more on the civil-criminal distinction, see here.

"The problematic pieces [in the 2017 version] have been removed/altered."(Councilor Hoy) Ordinance Bill 10-19 is virtually identical to the 2017 version, which also made sitting and lying on sidewalks between 7a and 9p an infraction, punishable after a warning by a citation or exclusion order, both of which can have collateral effects (i.e., lead to arrest, fines, jail, etc.).  The "problematic pieces" that Hoy identified in the 2017 version have certainly not been removed/altered.

"It does not criminalize homelessness." (Deputy Chief Miller and others) In 2012, the United States Interagency Council on Homelessness (USICH), in partnership with Department of Justice and U.S. Department of Housing and Urban Development (HUD), published “Searching out Solutions: Constructive Alternatives to Criminalization”, which outlined “alternatives for communities who implement local measures that criminalize ‘acts of living.’"  In 2014, HUD issued guidance citing a recent report by the National Law Center on Homelessness and Poverty, “No Safe Place: The Criminalization of Homelessness in U.S. Cities”, finding that there had been a significant increase in city-wide bans on camping, loitering, and begging in public areas, which HUD characterized as “effectively criminalizing people’s need to survive” (emphasis in original) and “exacerbat[ing] existing problems.”  Anyone who believes making sitting and lying on sidewalks illegal does not constitute "criminalizing homelessness" is uninformed or outside the mainstream.

"It's much more about the behavior and not...status." (Councilor Hoy) This sounds good, but the ordinance isn't "about the behavior", unless one accepts the City's view that merely sitting or lying on a sidewalk "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 Hoy had read the ordinance, he would have realized it still targets people of a certain status, those who tend to rest in public areas like sidewalks because they are safer there, aka, "the homeless."
 

"Businesses deserve compassion, too."  (Chief Moore, Deputy Chief Miller and others) This argument is classic "bothsidesism" -- helpful if one wants to make it sound like one is taking the broader view of a controversy, but, in fact, just wants to change the subject.  In this example, rather than talk about what it would take to offer shelter to all the people who need it, the City seeks to change the subject to the woes of downtown business owners, while suggesting, but not actually saying, that "the homeless" are to blame for them.

Those excluded from downtown but need access to services can easily obtain "waivers."  City officials have been very glib about the ease with which excluded persons can obtain and access services with variances.  However, current SRC 95.750 (Variances from Exclusion), which is virtually unchanged in the proposed ordinance bill, describes a much more narrow process that many in need of services are likely to find hard, if not impossible, to navigate successfully.  See here.

It's safe from constitutional challenge.  (Implied in City info sheets)  An ordinance that has the intended 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 is not safe from a facial constitutional challenge.  But even an ordinance that is safe from a facial challenge still is subject to an "as applied" challenge, e.g., for interference with free speech rights to panhandle or make music.  Willamette Law 1Ls were very interested in sit-lie in 2017, and there is no reason to believe such interest has waned. 

Notably, the City has avoided claiming outright that sit-lie will stabilize or increase economic activity downtown, drive people to services, and have negligible fiscal impact.  However, these claims have been made implicitly and/or unofficially in meetings and forums by city staff and current and former councilors.  Those interested in giving full consideration to these claims might be interested in these research reports:  "Does Sit-Lie Work:  Will Measure S Increase Economic Activity and Increase Services to Homeless People" (Berkeley, CA) and "Understanding the Implications of a Punitive Approach to Homelessness:  A Local Case Study" (Chico, CA).

Ward 1 Councilor Cara Kaser, a self-styled "progressive", says of sit-lie that "People need to be held accountable."  The irony is, of course, that she means only those living in the streets, not City or elected officials like herself who feel it necessary in an election year to cave to the "Do something" pressure of a few downtown business owners.  That the "something" she is proposing to do is neither a proven nor promising practice for addressing the problem, which is homelessness, appears not to matter to her, or to any of the other supporters of sit-lie.  For that they should be held to account.       
  
If there are other statements about sit-lie that readers would like to have examined, please let us know in the comments section.