Publication Date: Wednesday May 21, 1997

Palo Alto's not alone in dealing with sit-lie law

A similar law takes effect in Mountain View on May 29, but Berkeley, meanwhile, has repealed its ban

Palo Alto is not the first city to grapple with the complex issue of panhandling, and if a recent proliferation of similar ordinances in other cities is any indication, it probably won't be the last.

On May 29, Mountain View will begin enforcing an ordinance that addresses aggressive panhandling in public parking lots and median strips. San Jose also has a new ordinance that specifically addresses sitting or lying on downtown sidewalks by creating a "pedestrian facilitation zone" where such behavior is prohibited. That will take effect June 7.

Santa Cruz has had a sit-lie ordinance since April 1994 and in Santa Barbara a 13-block stretch of downtown will be protected from sitting or lying during daylight hours beginning tomorrow, May 22.

The timing of the new laws is not coincidental. Two legal challenges of similar ordinances, in Seattle and Berkeley, were watched closely by other cities. In October of last year, the Ninth Circuit Court of Appeals upheld the Seattle sit-lie ban as being constitutional; a decision that would make legal challenges in lower courts difficult to advance.

The Seattle case goes back to August 1993, when Seattle City Attorney Mark Sidran drafted a group of proposed ordinances aimed at cracking down on panhandlers in the downtown business district. Sidran said in a memo that downtown shoppers increasingly feared patronizing shops flanked by panhandlers who also posed a safety hazard by obstructing the free flow of foot traffic.

One of the proposed ordinances was a ban on sitting or lying down on sidewalks in all business districts during business hours; one of the first such ordinances on the West Coast. It was passed by the Seattle City Council and signed into law in October of 1993. It went into effect about a month later.

According to Sandy Cohen, a Seattle assistant city attorney, their office received a call a few days before the November 1993 effective date from the American Civil Liberties Union in Washington, D.C. informing them the law would be challenged in federal district court.

In March 1994 a federal district court judge said the law was indeed constitutional; a blow for homeless and free speech advocates. Seattle police began to enforce the law in July of that year.

In the meantime, a group of panhandlers, street performers, political activists and homeless advocates filed an appeal with the U.S. Court of Appeals for the Ninth Circuit in Roulette v. city of Seattle. In 1996 the law was again upheld as being constitutional.

Many cities paid close attention to the legal challenge. Berkeley was among those "waiting to see how that decision would turn out," said Alan Schlosser, managing attorney for the ACLU of Northern California who waged his own battle against Berkeley's sit-lie law.

In November 1994, Berkeley voters passed Measure O, a set of two ordinances, one banning aggressive panhandling, the other banning sitting or lying on sidewalks. But the voters passed the ordinances at the same time as approving funds for social services aiding the homeless.

The Berkeley ordinances went into effect March 1, 1995 but in February of that year the ACLU again protested. The ACLU filed suit in federal district court asking for both the aggressive panhandling and the sit-lie ordinance to be thrown out. In what Schlosser and others saw as an initial victory, a preliminary injunction by U.S. District Judge Claudia Wilkin was issued in May 1995.

Then came the Roulette decision from the higher court. Berkeley's city attorney quickly acted to ask Wilkin to reverse her decision and allow the ordinances to be enforced. On November 11, 1996, the injunction was dissolved.

But recent city council elections and the threat of further litigation turned the tables once again in Berkeley last month. The City Council voted to repeal the sit-lie ban in its entirety and to keep only those aspects of the aggressive panhandling law that applied to panhandling around automatic teller machines.

Ariel Calonne, Palo Alto's city attorney, has modeled the Palo Alto sit-lie ban after the Seattle ordinance with a few exceptions to stave off legal challenges.

"It was defensively written," said Paul Gilbert, a local ACLU activist. For example, the Seattle ban pertains to an entire commercial district. Palo Alto's law only relates to one stretch of a main street and includes designated "free speech" zones.

So far, sit-lie bans have withstood "facial" challenges; those that argue that as written, the bans are unconstitutional. But will they be fairly enforced? The ACLU will be watching.

Schlosser noted "we would consider an 'as applied'" suit, which would challenge a law based on how it is enforced. "There is a lot of local interest in Palo Alto," Schlosser said. "Palo Alto is a place that if there are problems, I'm confident we'll hear about them."

--Elisabeth Traugott