A homeless man in the Tenderloin could be subject to a maximum 30 days imprisonment
if a proposed sit-lie ordinance is passed by the San Francisco Board of Supervisors.
Photos by Luke Thomas
By Greg Kamin
March 2, 2010
San Francisco Supervisors David Chiu, Ross Mirkarimi, and Bevan Dufty held a hearing yesterday on a proposed sit-lie ordinance during a meeting of the Public Safety Committee. For me, the most powerful moment in over four hours of testimony was one that probably passed almost unnoticed for most people. Representatives from the police and the district attorney’s office had just finished over 100 minutes of testimony during which time they got all the time they wanted to tell the supervisors how they all thought this would be the greatest thing since sliced bread. SFPD Chief George GascÃ³n was a no-show, but Assistant Chief Kevin Cashman was ready with a slick PowerPoint presentation (more on that later), followed by a parade of captains in full regalia whose sole purpose seemed to be to show solidarity across the SFPD, as if this was ever in doubt.
Mister and Missus SFPD Chief George GascÃ³n.
Public Defender Jeff Adachi, the sole city official to speak in opposition to the proposal, presented a different perspective. Barely 10 minutes later, in the interests of moving things along, Supervisor Ross Mirkarimi said, “You should start wrapping up because we have a lot of people who want to speak.” It was perfectly innocuous. It was said without any intended disrespect. It was just to move things along to give other people a chance to speak. That’s all.
One might chalk it up to mere coincidence that out of nearly 2 1/2 hours of official testimony, not counting public comment, the only person told to “wrap it up” was the one person who gave less than 15 minutes of testimony in opposition. No one else was told to “wrap it up” before or after his testimony. And there was testimony after, including a rebuttal of Adachi’s testimony by Cashman, at the behest of Supervisor Bevan Dufty, which lasted nearly as long as Adachi’s whole time at the podium. No one told Cashman to “wrap it up.”
I want to make it clear that I’m not trying to single out Supervisor Mirkarimi. Of the three supes in the room, he actually asked the most extensive and pertinent questions. But that one exchange is a perfect illustration of the inherent institutional deference given to law enforcement throughout all layers of government. My guess is that Mirkarimi wasn’t even aware of his subconscious bias. It simply does not occur to anyone to tell a uniformed assistant chief to “please wrap it up.” And you’ll see that same internalized institutional bias whether in the Board of Supes, the Police Commission, or a court of law. And that’s exactly why it’s so frightening to give the police a massive blank check.
The Blank Check
After listening to the police PowerPoint presentation, it became clear that a blank check is exactly what they were asking for. The supposed rationale for this law is a host of alleged “associated criminal activity” committed by youths who congregate in the Haight and other parts of the city, such as “assault, battery, malicious mischief/vandalism, theft, robbery, threats, extortion, and public drunkenness.” But this begs the question, and Mirkarimi asked it, “Isn’t this already illegal, and aren’t existing laws adequate if they are actually used?” Apparently not.
For example, under the city’s “Aggressive Solicitation Ban,” 120-2 MPC, the problem is that the “violator must act in a manner defined as aggressive…” Now when this law was debated, the hysteria whipped up was over the supposedly threatening behavior of some homeless panhandlers. The whole point was that peaceful panhandlers who just sat there asking for a quarter wouldn’t be targeted. Now we’re hearing that the aggressive solicitation ban is not enough. This is the slippery slope in motion, right before our eyes.
Under 22 MPC, which prohibits obstructing the sidewalk, the “problem” is that the passageway has to be “substantially blocked by the person of the violator,” and either an officer has to observe the act or a third party has to complain. So let me get this straight… they want to arrest people who nobody complains about and who aren’t actually blocking anything? For a minute, I wasn’t sure which country I was living in. Is this Iran? Burma?
Simply put, this law allows cops wide discretion to arrest people for doing basically nothing at all, completely at will. What surprised me was how clearly this was stated in the chief’s own PowerPoint presentation. Ominous for its crystal clarity, one particularly Orwellian slide entitled “Customized for Our City” showed a crowd of happy people on the Golden Gate Bridge, with a series of captions about the law including, “Enables Preventative Intervention, Before Accident or Crime Occurs.” To emphasize the point, Cashman said that unlike other laws which focus on criminal acts, this would “prevent a criminal act from occurring in the first place.”
Basically “pre-crime,” like in the movie, Minority Report.
Not quite the Minority Report, just some profiling of minorities…
In the brief time that Public Defender Jeff Adachi had to present a rebuttal, he made it clear exactly what this law would entail:
-Makes it a crime to merely sit or lie on the sidewalk
-Makes it a crime to leave any object on the sidewalk, unless it’s within 2 feet of the person’s nearest foot
-Makes it a crime to have any animal unleashed, or if leashed, more than 2 feet from the person
To that end, he showed some very effective slides which challenged our prejudices and made it clear that prejudice would be the only thing separating you from county jail. Two kids with punk haircuts sitting and talking – violators of this law. So is a well-dressed shopper sitting on her suitcase waiting for someone. So is the owner of a dog tied to a meter (most likely while the owner is shopping at a local business). So are the owners of a set of strollers left outside a neighborhood store. So are some people at a sidewalk cafe with their dog leashed to the chair and lying some distance away on the sidewalk.
Obviously, anyone would say that none of the latter folks are ever going to get targeted. And that’s exactly what makes this law so arbitrary and discriminatory. It relies entirely on the officer’s judgment about what kind of a person will, or will not, commit a crime sometime in the future. And this judgment will be based on what? Skin color? Age? Gender? Type of clothes? Number of tattoos and body piercings? Or maybe just how the officer happens to feel about your “attitude” that day.
From there, a first offense is an infraction with no right to a jury trial or public defender (though the police claimed that they will give warnings first). A second offense is a misdemeanor and 10 days in jail, which means a criminal record and diminished hope of ever finding a job. A third offense is a misdemeanor punished by up to 30 days in jail.
The media circus
What prompted the need for such a draconian response? In one pointed exchange, Supervisor Mirkarimi asked Cashman how the need for this law at this time is reconciled with statistics which show crime and arrests are not increasing. Assistant Chief Cashman had no answer, saying he hasn’t looked at the statistics! Too busy preparing for the PowerPoint presentation, I presume. Nevertheless, he was certain that this was a result of “grassroots” outcry from Haight residents in support of this legislation.
Well, there certainly was an “outcry” of sorts in the pages of the Chronicle and the Examiner. As Robert Haaland said during public comment, “C.W, Nevius would make FOX news blush.”
The Haight Ashbury Improvement Association, a group of local conservatives, certainly did its best to drum up support, getting several local businessmen and homeowners to speak on behalf of the legislation. Political consultant Tom Hsieh Jr. spoke in favor, aided by a slide-show of children to underscore that this was all for them. Local Republican Party activist Chris Bowman was in the room, as was Arthur Evans sporting an ironic “Harvey Milk” pin. Ironic, because Harvey Milk fought to repeal an earlier incarnation of this law, which became a vehicle for the police to target gay men. He finally got his wish in 1980, a year after his assassination. Harvey would be turning over in his grave.
Overall, though, in spite of the frenzy that the media whipped up for weeks, public comment was balanced virtually 50-50. Other Haight residents expressed fear that this law could be used to wipe out the Haight’s vibrant culture of street musicians and other unique characters. I, myself, mentioned the law is so broad that it could be applied to protesters, union members on strike, or petitioners who couldn’t otherwise be arrested under the First Amendment. Several members of the Haight Ashbury Neighborhood Council expressed their individual opposition to the proposed law and that of the organization’s. Jim Segal knocked my socks off with his testimony. As a businessman and former moderate candidate for D5 Supervisor, I thought he would be in favor for sure. But instead he talked about how the real abuse that he witnessed in the neighborhood was coming mostly from the police. He provided multiple examples, from the two police cars that converged on some kids who were just buying ice cream and the cops yelling “Get the fuck off of Haight street!” to police shooting and killing someone’s dog in a children’s playground.
A way forward?
Perhaps the most productive comments were from those members of the public who offered alternatives which could alleviate the concerns of some Haight residents, while preserving that minor detail we call “civil rights.”
Erica Byrne mentioned the small benches that were recently installed in parts of the Tenderloin. The idea is that if people are congregating in ways that don’t allow others to pass, then give them a place to sit so that the rest of the sidewalk can be free.
Another resident called for studying the idea of making the whole space larger by blocking off car traffic in all or part of Haight Street, except for one lane in either direction for MUNI.
And of course there’s Mirkarimi’s idea of foot patrols, which he alluded to at several points.
To me, it makes no sense to plunge the city headfirst into a law of dubious constitutional legality, and near certain costly litigation which will rob the city of much-needed cash whether they win or lose, without trying non-punitive measures first. As we debate Sit-Lie here in San Francisco, a similar ordinance is being litigated in Palo Alto, and could well be overturned.
If the proponents of this law reject out of hand the idea that we should at least wait until the litigation is complete to give the city some constitutional guidance, one really has to question their motivation. Are they really concerned about “quality of life” in the Haight, or is this just, as Robert Halaand put it, “a slick marketing campaign that is designed to put something on the ballot” in order to create a wedge issue in November?
Progressives should call their bluff, and they should do it now. At a bare minimum, we need to wait for the constitutionality of the Palo Alto ordinance to be decided in the courts. In the meantime, we need to crystallize less punitive proposals that would address so-called quality of life issues and give those proposals a chance to work.
If the city’s conservatives balk at that and insist on a draconian, over-broad blank check for police as the only possible way to address their concerns, then we’ll know exactly what they’re trying to do, and that will put us in a stronger position when their high-powered consultants put that measure on the ballot.