Proposition L - Sit/Lie

Voter Guide
November 1, 2010
This measure appeared on the November 2010 San Francisco ballot.

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Proponents of Proposition L are concerned about people engaging in negative behavior on the street. Opponents are concerned that Proposition L will criminalize innocent behavior. Photos by flickr user Franco Folini (left) and Colleen McHugh (right).

What it does

Proposition L is an ordinance that prohibits sitting or lying on public sidewalks, or on objects placed on a public sidewalk, between 7 a.m. and 11 p.m. The ordinance makes exceptions for:

  • Medical emergencies
  • Using a wheelchair or other assisted walking device
  • Commercial use with permit (such as a sidewalk café)
  • Participating in a permitted rally or demonstration
  • Sitting on a fixed chair or bench on the public sidewalk if the furniture is supplied by a public agency or by the abutting private property owner
  • Waiting for goods or services
  • Being a child seated in a stroller
  • Sitting in a Pavement to Parks project

Those who violate this ordinance would first receive a warning, after which the violator would be fined between $50 and $100. Subsequent violations (dependent on when they occurred in relationship to the first violation) would be considered misdemeanors and carry greater fines or jail time, or both.

Several existing ordinances regulate behavior on public sidewalks and other public places in the City. These include prohibitions on aggressive panhandling,1 obstruction of sidewalks2 and loitering in certain areas or during certain hours.3 State law makes it a misdemeanor to "willfully and maliciously obstruct the free movement of any person on any street, sidewalk or public place."4

State law defines obstructing the sidewalk as an act that happens in relationship to another person: Someone must be obstructed intentionally in order for the obstruction to be considered a crime. One way a person is considered to be willfully and maliciously obstructing the sidewalk is if he continues to obstruct the sidewalk after he has been warned that he is violating the law.

If passed, Prop. L would prohibit someone from sitting and lying on public sidewalks, even if that person were not persisting in aggressively panhandling, willfully and maliciously obstructing the sidewalk, or loitering.

Proponents and opponents of Prop. L disagree as to whether a citizen complaint is required to enforce existing sidewalk obstruction laws. Proponents of this measure argue that current laws are ineffective in deterring negative behavior on the street, in part because they require the victim to identify himself and victims are often unwilling to do so. They argue that under current law, the only way for law enforcement to know that someone feels victimized is for that victim to notify the police. They cite General Order 6.11, which states, "When arrests are made "¦ officers shall make reasonable efforts to identify, but at least, must describe person(s) who were obstructed by the party to be arrested or cited."

Opponents argue that under the law, a citizen complaint is not required for police to act to enforce the existing laws that prohibit sidewalk obstruction. A memorandum datedMay 10, 2010, from the Lawyers' Committee for Civil Rights of the San Francisco Bay Area stated, "Nothing in the relevant case law, the San Francisco Charter, or the General Orders of the San Francisco Police Department indicates that law enforcement must wait to enforce (existing) code sections until they have received a citizen complaint of illegal conduct."5

Why it is on the ballot

This initiative was introduced legislatively by the mayor in response to resident and merchant concerns about the behaviors of some individuals who occupy the sidewalk on Haight Street and engage in behaviors that some users of the public sidewalk find intimidating and objectionable. The Board of Supervisors did not pass the legislation. The mayor then submitted this measure to voters.

Pros

  • Sidewalks are a public space that should be free to be used by everyone. People sitting or lying on the sidewalk can behave in intimidating and objectionable ways, even if they are not aggressively panhandling, willfully or maliciously obstructing the sidewalk, or loitering as defined by the law. People inside their homes and businesses can be intimidated by groups of people sitting and lying on the sidewalk, even if their paths are not being obstructed. Prop. L eliminates the legal loophole.
  • The current practice by law enforcement and the courts "” requiring a citizen's complaint and the complainant's cooperation with prosecution "” subjects citizen complainants to the risk of retaliation by the people being complained against, including the risk of physical attack. If Prop. L passes, the need to identify a victim is eliminated because the act of sitting or lying on a sidewalk "” even without willfully and maliciously obstructing another person "” is sufficient for the police to act.
  • Prop. L will give the Police Department a tool to address problems before they escalate into more serious confrontations or crimes. Currently, the police do not have the power to tell people to "move along" for sitting or lying on the sidewalk. San Francisco Police Department General Order 5.03 states: "Officers do not have the authority to order persons to "˜move on' absent probable cause to believe an offense has occurred, or absent articulable facts requiring movement for public safety."
  • The ordinance requires the maintenance and evaluation of new and existing social service outreach plans to address the underlying issues of chronic offenders.
  • Fears that Prop. L will criminalize the types of behavior that most San Franciscans would support, such as people sitting on the sidewalk while waiting for the bus or conducting a garage sale without a permit, are unwarranted. The police likely will enforce this law by responding to calls for service. It is unlikely that calls for service will be made for situations such as garage sales and lemonade stands.

Cons

  • Our laws already prohibit many of the behaviors supporters of this measure oppose "” including the willful and malicious obstruction of sidewalks, aggressive panhandling, and loitering in certain areas at certain times. Nothing in this measure would strengthen laws that prohibit these types of offensive behavior.
  • Arguments that existing ordinances are ineffective because they require third party complaints are not grounded in the law.While this may be a matter of policy for the Police Department, the Police Commission itself has the power to change this policy.6
  • While proponents of this measure assert that the police will not enforce this law against people engaging in behavior that most of us would want to encourage in order to enhance life on the streets "” lemonade stands, garage sales and so on "” the law itself makes these acts crimes and criminalizes what is essentially an innocent activity, rather than focusing on the intimidating and negative behaviors to which proponents actually object.
  • This law will be ineffective because the people engaging in intimidating behavior will just stand up when police are present and then sit back down again after they leave.
  • Selective enforcement of the law at best leads to confusion, and at worst exacerbates the impacts of societal prejudices. Further, it raises questions of constitutionality.

SPUR's analysis

Public sidewalks that feel comfortable and safe for everyone help contribute to the healthy life of a city. Proponents argue that this measure creates a badly needed tool to help law enforcement keep the sidewalks clear of individuals who intimidate others even when they are not violating the current laws, and that current laws are ineffective because they require the police to identify a victim in order to enforce the laws. Opponents assert that most of the behaviors targeted by this measure are already illegal under existing law, that a citizen complaint is not required for law enforcement to act. They also suggest that this law is so broad that it will lead to selective enforcement, which raises questions of constitutionality and is certainly bad public policy.

SPUR was unable to reach the 60 percent threshold needed to take a position for or against this measure.

SPUR has "No position" on Proposition L.

Endnotes

  1. San Francisco Municipal Police Code Section 120-2 and California Penal Code Section 647c
  2. San Francisco Municipal Police Code Section 22 and California Penal Code Section 647c
  3. San Francisco Municipal Police Code Section 121 and Section 124.2
  4. California Penal Code Section 647c
  5. Memorandum to the Public Safety Committee of the Board of Supervisors, May 10, 2010
  6. San Francisco Police Department General Order 1.01, Section A