The “No on S” campaign held a kick-off rally in downtown Berkeley in resistance to the sitting ban. Christopher Cook photo


by Ariel Messman-Rucker

[dropcap]L[/dropcap]arge cities all over the country have been passing sitting bans that criminalize poor and homeless people, and now Berkeley, thought of as one of the most progressive cities in California, is following this questionable trend.
Berkeley Mayor Tom Bates and his allies on the City Council have put a proposed sitting ban on the November 6 ballot for Berkeley residents. If passed, Measure S would make it illegal for anyone to sit on the sidewalks in Berkeley’s commercial districts from the hours of 7 a.m. to 10 p.m.
While Mayor Bates and many business and merchant groups are saying Measure S is a way to help struggling local businesses, a large number of homeless and youth service providers, homeless advocates and three members of the Berkeley City Council are calling it an unwarranted attack on the most vulnerable part of our population.
“We’re talking about yet another law that scapegoats homeless people and poor people for much larger, more complicated economic problems and the business recession,” said Christopher Cook, an independent journalist and communications director for the No on Measure S campaign.
The mayor and the majority of the Berkeley City Council voted to put Measure S on the November ballot at the end of their July 10 meeting. Max Anderson, Jesse Arreguin and Kriss Worthington are in outspoken opposition to the measure. Bates has been accused of staging a late-night maneuver on July 10 that halted public debate of the measure prior to a surprise vote by the council.
In many other cities across the country — including Santa Cruz, Santa Monica, San Francisco and Seattle — increasingly severe ordinances that criminalize the basic and essential actions of homeless people are being passed.
Laws have been passed to ban sitting, lying, camping, sleeping outdoors and in parks, illegal lodging, asking the public for assistance, trespassing, blocking doorways and, in the case of several cities, new laws make it illegal for charities to provide food to the homeless in public areas. All these measures create a legal means for businesses to drive homeless people out of public view.
The National Law Center on Homelessness & Poverty analyzed the increasing wave of laws that banish and criminalize homeless people and found that cities constantly compare notes on ordinances that succeed in driving homeless people away. Officials then copy the repressive features of those ordinances, with the result that a series of copycat laws have spread all over the country.
According to the text of the Berkeley ballot measure, the city will be required to apply the ordinance in a “constitutional manner,” but those opposed to Measure S question the truth of that statement.

Berkeley City Councilmember Anderson attended the kick-off rally against Measure S and called the sitting ban “snake oil.” Christopher Cook photo

The findings in the ballot measure’s text name homeless people and “sidewalk encampments” which threaten “the viability of Berkeley’s businesses that are already struggling” as the reason the new law is needed. This argument leads homeless service providers and advocates to believe that the ordinance will not be applied equally and instead will purposely target the poorest members of the Berkeley community.
“It’s rife with selective enforcement and the proponents of [Measure] S haven’t made any secret about it,” said Pattie Wall, executive director of the Homeless Action Center, and a volunteer and treasurer for the No on S/Stand Up for the Right to Sit Down campaign.
“The preamble to the legislation itself says it’s about homeless people and so cops are going to be put in the position of having to make a judgment call whether somebody who is tying their shoe in downtown on Shattuck is a homeless person or a person who it’s OK not to cite,” said Wall.
According to the Yes on S/Berkeley Civil Sidewalks website, homeless people sitting or camping on the sidewalks near businesses drive customers away and the only way to stop this is to outlaw sitting on sidewalks in “commercial space.” Whatever the merits of that argument, the campaign’s own statements make it clear that homeless adults and homeless youth are the real targets of this measure.
But Wall believes that public spaces should be open to everyone. She said, “I think that the commerce ends at the door to the business and that it’s a really dangerous thing to say to businesses, ‘I’m going to regulate who can be outside your store because it’s better for your business,’ when in fact all of us have a right to be on the sidewalk. It’s public space.”
Proponents of Measure S claim that the ordinance is needed to keep homeless people from driving customers away from Berkeley businesses and the ballot measure itself places the blame for Berkeley’s economic downturn squarely on the shoulders of homeless encampments.
According to the text for ballot Measure S, “As a result of the sidewalk encampments, residents and visitors tend to avoid some of our commercial areas, which threatens the viability of Berkeley’s businesses that are already struggling. This in turn threatens the City’s overall economic health. Reduced economic activity results in fewer resources available for homeless services.”
Those opposed to Measure S, including homeless advocates and Max Anderson and Jesse Arreguin of the Berkeley City Council, argue that there is no proven connection between the business decline and the presence of homeless people.
“There really is no nexus between homelessness and the effect on small businesses,” Arreguin said. “In fact, downtown and Telegraph, which are the most impacted by the homeless population, are some of the most successful commercial districts. They have the largest sales tax generation, whereas Solano and Fourth Street and North Shattuck, which don’t have a substantial homeless population, have had less sales tax revenue — their revenues are down. So it’s really a lot of spin.”
Christopher Cook echoed this in saying, “They claim that there are all of these business problems being created by people congregating on sidewalks when, in fact, there is zero evidence to that effect at all. Furthermore, we believe that it is just fundamentally wrong, both in terms of a humanitarian sense as well as policy, to be pushing poor people around on the streets, moving them around when they have nowhere else to go.”
Craig Becker, a proponent of Measure S and owner of Caffe Mediterraneum on Telegraph Avenue in Berkeley, wrote an op-ed in favor of Measure S for local news website Berkeleyside in which he placed the blame for declining business profits on what he called “nomadic youth” who he claimed are “service-resistant.”
In his article, “Measure S: We can do better with civil sidewalks,” Becker offered this sweeping assessment that prejudges all homeless youth: “Traveling is a lifestyle choice for this group and, when approached by homeless outreach personnel, they decline to participate in the services that are aimed at long-term lifestyle changes.”

“I have the right to exist in public space.” A simple declaration in support of human rights of the poor. Janny Castillo photo

But the Homeless Action Center’s Pattie Wall said this is a very flawed perspective. Over this past summer, the Homeless Action Center did outreach with youth living on the streets in downtown Berkeley and found that the majority of them had either recently attended Berkeley High School or had “graduated right out of foster care into homelessness on the streets in Berkeley,” Wall said.
“This isn’t some problem of bored kids from Eugene, Oregon, coming to Berkeley for the summer,” she said. “This is our problem, these are our kids and we have a responsibility to them — and our responsibility to them doesn’t include arresting them for not having any place to go.”
A major complaint of the Yes on S campaign is “unwanted behavior that can be perceived as menacing,” and the campaign claims that existing laws are not sufficient. Max Anderson disagrees.
“There are adequate and myriad measures on the books that would address any and all aspects of the kind of street behavior that they are complaining about,” Anderson said. “They do not need this ordinance to criminalize the poor.”
The ballot measure’s supporters also claim that not only will the ordinance improve business, but it will also help provide needed services to Berkeley’s homeless population and street youth.
“Measure S (Berkeley Civil Sidewalks) has two goals: taking the initiative to help people into services and preventing street encampments that keep shoppers away from our businesses,” according to the official ballot argument for Measure S.
But the language of Measure S does not create any new shelters, housing or services, and service providers say existing shelters and programs are filled to capacity and are already stretched too thin.
“Even if there were a referral to services, the services are full,” Wall said. “I don’t know what services they’re talking about. The shelters in Berkeley are full every night.”
According to HUD’s “Alameda Countywide Homeless Count and Survey,” as of 2009, Berkeley had only 135 year-round emergency shelter beds and only 70 winter shelter beds. Service providers say these numbers haven’t improved. This serious shortage of shelter beds means that the vast majority of homeless people will inevitably go without shelter. This report was given to the Berkeley City Council before they met to vote on Measure S.
Jesse Arreguin said the lack of services and housing are due in large part to severe federal, state and local funding cuts.
“The people that have been most negatively affected by this economy are the poor and working people because most of the cuts have had a disproportionate impact on services that they depend on to live,” he said.
Although the proposed sitting ban could be applied to anyone sitting down on a Berkeley sidewalk, it will disproportionately affect the poorest and most vulnerable residents because they are the ones who are homeless and living on the streets, Arreguin said.
“If we don’t have a place for young people to go, they’re going to be on the street,” Arreguin said. “If we don’t have a place for people to go in the daytime, they’re going to be on the street. And if we don’t have housing for people, they’re going to be on the street.”
This lack of support is especially true for poverty-stricken homeless youth, said Sally Hindman, executive director of Youth Spirit Artworks, a nonprofit job-training program that uses art to improve the lives of low-income and homeless youth, ages 16 to 25, and helps them earn money.
“Where are the services?” Hindman asked. “There’s no year-round shelter for youth, and there’s 18 units of permanent housing in Berkeley for youth — period. And we have no daytime program.
“Every waking minute we shouldn’t have to be working to fight Measure S. We should be fighting to create housing and services and programs that are needed for homeless people. With the incredibly tight budget situation we face, and the scarcity of resources, it’s extremely disturbing to me that we would spend an ounce of our energy doing anything that would take away from solving the problems that people on the streets are facing.”
Those opposed to the sitting ban agree that the solution to this problem is not to criminalize homelessness, but to provide more services. If Measure S is passed in November, homeless service providers say that not only will the ordinance fail to provide assistance to those in need, but it will also end up hindering homeless peoples’ ability to gain access to much-needed social services.
Once in effect, police will be able to give warnings to anyone violating the law by sitting on the sidewalk in commercial districts between 7 a.m. and 10 p.m. A single warning will last 30 days and any additional violations during that time will result in the person being charged with an infraction and either a $75 fine or community service. After that, any subsequent violations could result in another infraction or even a misdemeanor charge.
After such legal charges are brought, they become a huge impediment to getting life-saving assistance, Wall said.
“Once you get a warrant, you’re not eligible for food stamps or general assistance or social security,” she said. “So having people get a bunch of tickets for sitting on the sidewalk — which is not a crime, because there’s nothing criminal about sitting down — actually thwarts all of the work that all the homeless service providers do. When people have warrants, they can get denied housing and benefits and it just complicates everything.”
And because homeless people will be affected by this ordinance the most, and are unlikely to be able to pay a fine or stay off the streets, it is likely they will end up with warrants and cycling in and out of jail, said Carol Denney, an independent journalist and homeless advocate.
“Anyone needing services will have a harder time getting services,” Denney said. “Anyone with a difficult life already will see their life difficulties double.”
Supporters of Measure S, including Mayor Bates, business owners and merchant groups, blame the homeless for their business woes, but Max Anderson believes the problem of declining profits has more to do with the lack of an anchor store, and big shopping centers outside of Berkeley luring costumers away.
“We have Emeryville, El Cerrito Plaza and Costco and other entities like that that are virtually eating the lunch of downtown Berkeley and other commercial corridors in this city,” Anderson said. “This, of course, is not remedied by criminalizing poor people, citing them, eventually putting them on track to be incarcerated in that hellhole called Santa Rita Jail, for merely being poor and sitting down.”
The Yes on S campaign claims that sitting bans like Measure S have a proven track record of successfully improving business in cities where they have been implemented. “60 cities including Santa Cruz, Santa Monica and San Francisco have passed similar ordinances,” according to the Yes on S website. “All cities have seen improved merchant areas.”
Arreguin said, “We know that the anti-sit law in San Francisco has been unsuccessful. It has not made a significant impact in getting people off the street or in helping small businesses. And I just feel that this is going to be another costly failure for the City of Berkeley.”
According to a recent report conducted by the City Hall Fellows, one year after a similar measure banning sitting and lying on sidewalks was passed in San Francisco, that sit/lie ordinance had not made any significant changes and was proving to be almost completely ineffective in preventing homeless people from staying on the streets.
The report even found that police were ticketing the same small group of homeless people over and over again, and were targeting “an older homeless population, many of whom suffer from both mental and physical health conditions.”
Those in opposition to Measure S say they find it frustrating that they have to waste valuable time and resources fighting against this ordinance instead of working collaboratively with the entire Berkeley community to solve the real issues facing the poor and homeless.
“They have a majority on the City Council at this point that really doesn’t care what happens to people on the street, to people who are vulnerable, to people who are poor,” Denney said. “They don’t care, and they are honestly trying to talk voters in this town into thinking that what they are doing is beneficial to people on the street — and that turns my stomach.”
Click here to see related article “Berkeley Mayor and Business Execs Shun Scrutiny of Their Support for Measure S,” and read how Mayor Bates admits he championed Measure S at the request of the business community.