Berkeley sitting ban progresses toward November ballot

A group of young adults wakes up after spending the night on Telegraph Avenue recently. Photo: Frances Dinkelspiel

In a contentious meeting that lasted until the wee hours of the morning and exposed deep divisions in Berkeley, the City Council voted early Wednesday to proceed with a measure that would put a sit-lie ordinance on the November ballot.

In a 6 to 3 vote, with City councilmembers Kriss Worthington, Jesse Arreguín and Max Anderson dissenting, the council directed the city manager’s office to come back July 10 with wording for a ballot measure. The council will then have to vote again whether to actually place the measure on the November ballot, but its placement is expected.

City Council chambers and a downstairs hall were packed early in the evening with scores of people who wanted to speak for and against the measure, which would make it illegal to sit on a sidewalk in a commercial district between 7 am and 10 pm. Violators would be given two verbal warnings to get up, and if they didn’t comply, could get a $50 ticket. If voters adopt the measure in November, it would go into effect in July 2013.

The fact that Berkeley, a city long regarded as particularly welcoming to the disenfranchised, was cracking down on its homeless population, surprised many people and drew intense media attention to the measure. About 40% of Alameda County’s homeless population resides in Berkeley, far out of proportion to its size, and many of them are drawn to the city’s $3 million in services and outreach programs. In addition to those homeless because of drug and alcohol problems or mental illness, Berkeley also attracts dozens of homeless teenagers and young adults who live and sleep on the streets.

In recent weeks, perhaps as a result of a new beautification effort by downtown merchants, new homeless encampments have sprung up. While many street people used to congregate by the BART plaza at Shattuck and Center, some have moved next to the Main Library at Kittredge and Shattuck.

Numerous small merchants told the City Council that the presence of street people was hurting their businesses.

Michael Brown, who opened Green Earth Café and Bakery on Center Street a few months ago said his businesses is struggling, in part because customers and his staff do not feel safe when they get off BART or the bus and must navigate through a “scary” group of people.

“Please do not try to solve the problems of the homeless at the expense of small business,” said Brown.

But others said the sit-lie ordinance would not solve the problems of the homeless, just criminalize them and further drive a wedge between the haves and have-nots.

“The proposed sit lie ordinance will enlarge the already growing gap in privilege and opportunity between the higher and lower economic classes in our country and our community,” said Edward Maleshesky, an second year law student at Berkeley Law. “We should aspire to lift up members of our community that do not have a place to call home. Prohibiting a person from sitting or lying on the sidewalk will not solve the many underlying reasons why a person … is pushed onto the streets.”

City councilmembers finally got a chance to talk about the proposed measure right before midnight and their comments also showed just how differently the opposing sides regard the initiative, which Mayor Tom Bates just introduced two weeks ago.

“This ordinance, if we put it on the ballot, is an effort to contract civil and basic human rights and constitutional rights,” said City Councilmember Max Anderson. “It is so completely out of character with this city’s history and what most people in this city believe in. In harsh economic times people’s perceptions and their values shift somewhat because of the economic pressure. It is easy to scapegoat people in that kind of environment. It is easy to find a group of people, preferably vulnerable, without resources and without strong advocates in powerful places.”

Kriss Worthington criticized Mayor Bates for pushing through this measure without providing supporting documentation on its costs. He also questioned why alternative methods to improve commercial districts had not been considered, like allowing businesses to set up their wares outside, thus reducing the amount of space homeless people can occupy. The city could also consider limiting the number of items people place on the sidewalk, a much less draconian method of limiting the impact of the homeless.

Linda Maio said that figuring out her position on this matter was very hard but she eventually came to the conclusion that Berkeley’s efforts to help the homeless have fallen short.

“We put lots of money into services,” she said. “We’ve tried so many ways to get peoople into those services. In small ways we still fail. I don’t think you can deny there are some elements downtown and on Telegraph that do cause problems.”

Bates said that proposing a sit-lie ordinance was not an easy thing, but it did not mean that Berkeley does not care about the poor.

“I do not think anyone can characterize or should characterize the Berkeley City Council or the city of Berkeley for the fact we’re not providing services for homeless people. We do more per captita than any other city in the United States,” said Bates.

None of the other city council supporters of the measure made any comments about it.

Throughout the council’s discussion, people in the audience hissed and called out. It got so raucous at times that Bates threatened to have police take people talking out of turn away.

But the most unruly discussion actually came between councilmembers. Anderson got mad when Bates told him he could not comment further on the proposed measure.

“You ain’t the dictator around here,” said Anderson to Bates. “You start gaveling me into silence and next time I’ll bring my gavel and gavel you into silence. … Who in the hell do you think you are? You are not going to treat me like one of your little punks.”

Read the Civil Sidewalks Ballot Measure recommendation document.

Proposed sidewalk sitting ban prompts debate, protest [06.12.12]
Mayor seeks to put sit-lie ordinance on November ballot [06.01.12]
Police step up patrols on Telegraph to keep sidewalks clear [05.01.12]
Newly cleaned up downtown hopes to attract more retail [04.04.12]
Anti sit-lie campaigners take protesters to City Hall [04.27.11]

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  • George Dorn

    Another report on the history of Measure O, which included a sit-lie provision and measures against aggressive panhandling, but which was ultimately watered down to a ban on panhandling at ATMs:

    Upshot: the legal framework is there for this measure to pass constitutional muster, as long as the voters support it.

  • Bruce Love


    I disagree, however, with your characterization of the publication

    While you are on the subject of your “mistakes” — there’s another one.   I characterized  the part that is relevant to the thread — the part about past court decisions.

    Enough already.  

    People can read the report for themselves.   They don’t need you to ask me a series of obtuse, misleading questions based on false premises.

    For the convenience of others, here is the link again:

    Searching Out Solutions / Constructive Alternatives to the Criminalization of Homelessness by the United States Interagency Council on Homelessness, jointly published by that committee and the US Department of Justice.

  • The Sharkey


    Your refusal to cite which parts of the report you think are most relevant to the situation in Berkeley could be seen by “cynical” readers as your attempt to dodge the question, or perhaps even as an admission that the publication doesn’t actually say what you’re implying it does.

    I find it very interesting that, after complaining when I didn’t answer your questions the way you wanted me to yesterday, you’re back to dodging mine today.

  • Bruce Love

    Upshot: the legal framework is there for this measure to pass constitutional muster, as long as the voters support it.

    The article you cite, from 1997, refers to the case “Roulette v. City of Seattle” which was decided with a rather colorful opinion in the 9th circuit.   A “no sit” law was challenged by a claim that, on its face, the law violated the First and Fourteenth Amendments.   The court rejected this argument.

    That is far from being the beginning and end of constitutional challenges to the law either on its face or as applied.

    It would be fair to say that the questions are not fully settled but it is not true to say that “the legal framework is there …”

  • Charles_Siegel

     From the document Bruce links:

    “In addition to
    violating domestic law, criminalization measures may also violate international human rights law, specifically the
    Convention Against Torture and the International Covenant on Civil and Political Rights.”

    The talk about torture might be a bit of rhetorical excess.

    The talk about criminalization might also be rhetorical excess.  Felonies and misdemeanors are crimes.  When they talk about “decrimininalizing marijuana,” they usually mean that possession of small amounts would be a violation rather than a felony or misdemeanor.

    Wouldn’t the proposed law make sitting on the sidewalk a violation (like a parking ticket), rather than a crime?

  • Bruce Love

    Your refusal to cite which parts of the report you think are most
    relevant to the situation in Berkeley could be seen by “cynical” readers
    as your attempt to dodge the question,

    I hope that interested and thoughtful people will read the report for themselves, and that they will understand that I do not answer your every question because I don’t regard you as an honest or honerable discussion partner.  I in fact regard you as someone who vandalizes Berkeleyside comments regularly, not least in your comments to or about me. 

    I am not “dodging” your questions, I am rejecting them because of how you treat me and others and how you treat the dialog, and because you insist on doing so anonymously rather than being publicly accountable for your public speech.

  • Bruce Love

    The talk about criminalization might also be rhetorical excess.

    To “criminalize” a state of existence means to erect a system of laws which, in aggregate, make it unreasonably difficult to be in that state of existence without accumulating legal penalties.

    Criminalization of states of existence like homelessness are especially pernicious because of the ways that legal penalties accumulate, and the penalties compound.

    The usage of the word “decriminalize” with respect to marijuana law refers to a term of art that describes a hierarchy of punishments, as you have written.   In this context, that term of art is referenced by the phrase “criminalize homelessness” in this way:  a conjunction of minor “lifestyle infractions” imposed on those least able to avoid or pay for them adds up to a more serious crime and, in the interim, to vulnerability to police harassment.

  • George Dorn

    That’s idle speculation. They’re never fully settled. Even a US Supreme Court ruling could be overturned…someday.

    But recent experience suggests a narrow sit-lie ban would be upheld in Berkeley as it has been in Seattle, Palo Alto, and elsewhere. In Portland, the sit-lie law was struck down due to conflicts with Oregon state law, so it’s unclear how that would translate to California. A new law was enacted in Portland which hasn’t been challenged yet, so far as I know. Los Angeles had its law struck down–but it was far broader than what’s proposed here: it banned sitting, lying, or sleeping in a public way. (

  • George Dorn

    Bruce is referring to pp. 7-8 of the document. Footnote 8 has

    >See, e.g., Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992) (holding that sweeps and ensuing property destruction
    violated homeless individuals due process and Fourth Amendment rights); Johnson v. Board of Police Comm’rs, 351 F. Supp. 2d
    929 (E.D. Mo. 2004) (enjoining the intimidation, arrest, and relocation of homeless individuals who were lawfully in public areas as
    part of efforts to “clean up” downtown St. Louis); Kincaid v. Fresno, 2006 WL 3542732 (E.D. Cal. Dec. 8, 2006) (holding that seizing
    and immediately destroying property of homeless individuals arrested in parks violated their due process rights). But there are other cases more relevant and more illuminating about sit-lie: Seattle, Portland, Los Angeles, Palo Alto. Not all of these show sit-lie ordinances upheld, but the reasons why they were struck down in LA and Portland show that a Berkeley ordinances modeled after Seattle’s is quite viable.The document also cites (footnote 9) J.M. Charles. “America’s lost cause: The unconstitutionality of criminalizing our country’s homeless population.”. Looking at that article,  though, the cases cited are mostly ones where so-called “anti-homeless” ordinances have been upheld. “Opponents have repeatedly challenged the constitutionality of these
    measures in courts across the United States. However, despite occasional
    opinions favoring the minority, the prevailing mood on the part of the judiciary
    appears to be one of indifference to the homeless’ plight; judges choose not to
    find anti-homeless ordinances unconstitutional when such a finding would be
    well within their discretion.” (p. 316; see also footnote 7 on the same page).



  • George Dorn

    Sorry for the horrible formatting.

  • Charles_Siegel

     By the same reasoning, we should not have laws against public drinking.  I know homeless people who sometimes go to jail because their tickets for public drinking turn into warrants.  Does it follow that laws against public drinking “criminalize a state of existence”?

    It is not essential for homeless people to sit on the sidewalks of commercial districts, any more than it is essential for them to drink in public.   If anything, it is less essential, because they have other places to sit but they don’t have other places to drink.

  • The Sharkey

    I do not answer your every question because I don’t regard you as an honest or honerable discussion partner.

    Yet you demand that I answer your every question, in just the way you want, or you’ll whine about how I’m refusing to engage with you.

    And, again, LOL @ you complaining about other posters using pseudonyms when you use one yourself. The editors have made it plain that you are free to use your real name if you want to, yet you still do not.

  • The Sharkey

    Thanks, George!

    I wanted Bruce to cite the pages he thought were most relevant so we could discuss this. It’s too bad he refused.

    It would appear that the publication doesn’t actually support Bruce’s opinion that a sit-lie law would neccessarily be illegal, as long as it is modeled after the one in Seattle and enforced fairly and applied to everyone no matter what their appearance or socioeconomic status is.

  • Bruce Love


    By the same reasoning, we should not have laws against public

    No, there is no analogy there.    The one thing is not the other.

  • Guesto

    Same thing happened to me. I’m a short, teenaged white girl and I no longer like hanging out after school near the BHS campus because of sexual harassment. I get picked up from school because I don’t want to have to deal with the homeless at Kittredge and Shattuck. Why are vagrants allowed to take away my right to walk the streets in peace, but we’re not allowed to instate a very basic law that would prevent them from doing this? Most cities already have a sit-lie ordinance in place. It’s truly not that big of a deal. 

    I’m definitely for this measure. Bonus points if it can get the homeless into one of the many programs that we throw money at (instead of things like education), which actually help them.

  • Berkeley, another place I won’t go to.  

  • BHS graduate

    This law is not meant to target the old schizophrenic man who quietly panhandles on the street corner. This law is meant to target the street kids.

    If you don’t have a picture of who these folks are, watch at least 30 seconds of this short youtube documentary on the ones in the Haight:

    I know a lot about street kids because during high school the ones in Berkeley were my main source of weed, mushrooms, LSD, and alcohol. I would get to know a few individuals because they would be sitting there selling drugs in People’s Park every time I came. When I came to the street kids for mushrooms, acid, or alcohol it would usually take a little bit of time for someone named “Sasquatch” or “Coconut” to go get the drugs (or buy alcohol for me at a store) so I would wait and talk to the remaining circle of street kids.

    These people are almost always what can be safely described as voluntarily homeless. They predominantly come from out of town and are often using berkeley as a stop on a longer trek. Many of them are teenage runaways or started out that way. They usually have some sort of “drop out of society” ethos and see themselves as hippies of some kind. The better ones make their money by selling drugs and panhandling, the worse ones do so with the addition of burglary and robbery.

    I stopped going to the street kids for drugs when one of them robbed me in People’s Park by ushering me away from the group to sell me bud and then strangling me until I relinquished the 20 bucks worth of weed I had just bought from someone else. I never saw the street kids’ pot-selling as any sort of a problem for berkeley (though others might see it differently), but I was pretty disturbed when I saw 14-year-olds shamelessly offered harder drugs (pills, molly, even coke).

    Are these the people whose “rights” you are trying to protect? Are they the marginalized, helpless victims of society? These people can only be considered members of the community in the sense that they physically occupy space in berkeley. They do not contribute in any way, nor do they want to. They sell your kids drugs and consume resources. Fighting for their “rights” only enables them to live the lifestyle they do. These people come to berkeley, SF, and santa cruz because we are so lenient to them.