After hours of standing, a day laborer sits on the sidewalk and continues to wait for work.

San Francisco voters will decide the future of the controversial “Civil Sidewalks” or sit-lie ordinance, which failed to pass the Board of Supervisors; Mayor Gavin Newsom is using his executive privilege to place the item on the November ballot.

Some people, including District 9 Supervisor David Campos, feel the ordinance, which would criminalize sitting or lying on public sidewalks anywhere in the city between 7 a.m. and 11 p.m., could be used to unfairly target day laborers.

“The fact is that at some point, as a day laborer, you will have to sit down during the day. It is humanly impossible to be standing all day as you’re waiting and looking for a job,” Campos said at the June 8 board meeting where the ordinance was voted down 8-3. “Are you telling me that you’re not going to enforce the law against day laborers?”

Sit-lie and S-Comm

The recent absorption of San Francisco into the Department of Justice’s “Secure Communities” program, a federal program that will cross-scheck the fingerprints of those arrested in SF against the ICE database, has raised concerns about police using the proposed law to target undocumented workers for deportation. Although the Mayor’s office and supporters of the ordinance have consistently claimed that the measure is not aimed at day laborers or undocumented workers, there is no language in the proposed law making this distinction.

A group of men standing on Cesar Chavez Street, who identified themselves as day laborers, who asked their names not be published, said they fear that the law could be used to sweep them off the street and out of the country just for trying to work.

“I maybe can stand without sitting for four or five hours if I have to, but how can I stand all day?” asked Carlos, one of the men on Cesar Chavez whose name was changed for fear of reprisal. “What if I want to sit down to eat?”

District 8 Supervisor Bevan Dufty said he couldn’t vote for a the ordinance on just a verbal promise that day laborers would not be targeted.

“I’m not willing to support something that on its face is going to have to be selectively enforced,” he said. “To stand and listen to officers go, ‘oh no, we’re not going to focus on individuals who are day laborers, that’s not what our focus is,’ that’s not the way the law works.”

Sidewalk Civility

Proponents of the measure, including District 2 Supervisor Michela Alioto-Pier, say that the ordinance is a vital police tool. They insist it is not directed at any disadvantaged group.

“The legislation is not intended to target homeless people or people with mental health issues. It’s intended to address concerns related to public safety and came about form the voices of residents and merchants throughout the city,” she said. “The police do not have a tool for dealing with people who are not breaking the law, but who act provocatively to passers-by or merchants.”

The proposed ordinance is heavily endorsed by Police Chief Goerge Gascón who argues that it is a necessary tool in neighborhoods like the Haight after receiving an increasing number of complaints about groups of “thugs” blocking sidewalks and bullying merchants, pedestrians and local residents.

However, Campos doesn’t buy the civility angle on sit-lie.

“By it’s very definition, it doesn’t actually address the issue of civility, because it allows for incivility so long as the person is standing,” he said, adding that he viewed a new law as unnecessary. “On the record, the assistant Chief of Police acknowledged that the police department already has the legal tools they need to be proactive around these issues. The Office of Criminal Justice did not provide any information to actually dispute that specific assertion.”

Pier still maintains that police currently lack the ability to “proactively engage” the individuals advocates of the ordinance are concerned with.

Wedge issue for November

At the first of two Public Safety Committee hearings where the Mayor’s Department of Justice and the SFPD were given the opportunity to explain the need for the new ordinance, District 6 Supervisor Chris Daly voiced his critical view of the law. He sees the ordinance as a politically motivated distraction from “draconian cuts” to homeless services.

“It would be great to see those who have gotten whipped up about supporting this come out and speak about basic services which have been cut,” Daly said. “You can move the problem around, chief, but you can’t solve the problem with this. You say it’s not a fix all? It’s not a fix anything.”

At that same meeting, Campos persistently questioned SFPD Deputy Chief Kevin Cashman about what criminal behaviors the new ordinance was attempting to address which could not be addressed under current law. He and others on the board were unsatisfied with the response they got.

“The case for this legislation simply has not been made. We had a hearing where very specific and clear questions were asked of the Mayor’s office of Criminal Justice and the department of police and no answers were provided,” Campos said. “If they cannot provide that justification to this body, then what is the justification that’s going to be provided to the public?”

District 5 Supervisor Ross Mirkarimi, whose district encompasses the Haight-Ashbury where the ordinance first started building steam, agreed that the law would not effectively address the concerns being voiced by advocates of it’s adoption.

“To say that if somebody is acting in a harassing manner, if somebody is being uncivil towards somebody else and they’re doing so simply standing up and they’re not sitting and they’re not lying, that all of a sudden you’re to tell me that the police do not have the tools in order to remedy the situation? That’s untrue.” He said. “When somebody spits on a baby, when somebody threatens somebody else with physical harm, when someone, like the mayor, sees someone smoking crack, that is not necessarily a new application that is covered by the sit-or-lie law. That is already a violation of law.”

New life for an old idea

This is not the first time that San Francisco business owners and residents have tried to deal with individuals “encamping” on their neighborhood’s sidewalks with a sit-lie ordinance. In 1968, the Board of Supervisors unanimously adopted Section 20 of the Municipal Police Code, which criminalized sitting or lying on the sidewalk. One of the law’s biggest proponents was the Haight-Ashbury Merchants and Improvement Association, which felt the presence of “hippies” on the sidewalk in the Upper Haight was hurting their businesses.

In 1979, the ACLU challenged MPC 20 by filing a suit against the Chief of Police and the Sheriff, alleging that the law was being used to target Gay men in Eureka Valley which would eventually become The Castro district. The case was resolved through a partial settlement, which resulted in the repeal of MPC 20 by the Boar of Supervisors. The defunct law was replaced the set of laws against sidewalk obstruction that are still on the books.

The proposed ordinance is modeled after a similar law in Seattle that was passed in 1994 and later upheld as constitutional by the U.S. Court of Appeals Seattle following legal challenges, Now cities like Berkeley, Palo Alto and Portland, Ore., are considering following suit.

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