The return of the ugly laws

OPINION In the late 19th and early 20th centuries, municipalities across the country passed what have become known as “ugly laws,” often modeling their ordinances word for word on San Francisco’s. According to The Ugly Laws: Disability in Public, Susan Schweik’s comprehensive study of these laws, they were intended to target those who “exposed disease, maiming, deformity, or mutilation for the purpose of begging.” In city after city a pattern emerged of “enactment, reenactment, crackdown, malaise.” As Schweik writes, “what most aligned” the cities “were not the law’s successes, but its failures, the impossibility of removing the unsightly in the form of persons.”

Fast-forward 150 years and “sit lie,” replaces “ugly,” as the name for a category of laws whose intention is to remove the unsightly from our public spaces. Different in form, but nearly identical in intent and justification, these laws are now sweeping through the country, disfiguring the municipal codes of one city after another. San Francisco is not patient zero of this epidemic. But it now threatens to pass that contagion on directly to Berkeley.

Berkeley’s Measure S would prohibit sitting on any commercial sidewalk or on any object placed on the sidewalk without express permission of the city between 7 am and 10 pm. (Since 1998 Berkeley has had an ordinance prohibiting lying on the sidewalk.)

As with the “ugly laws,” the fact that sit lie-laws have been ineffective, has proven no impediment to their spread. Months before the Berkeley City Council voted to place Measure S on the ballot, an independent analysis of San Francisco’s sit-lie ordinance conducted one year after its implementation concluded that it had “on the whole, been unsuccessful at meeting its multi-faceted intentions to improve merchant corridors, serve as a useful tool for SFPD, connect services to those who violate the law, and positively contribute to public safety for the residents and tourists of San Francisco.” Undeterred by the failures of sit-lie in San Francisco, proponents of Measure S, most prominently business improvement districts representing commercial landlords, promise it will rid the city of what they describe as unsightly “encampments” of nomadic street youth.

The fact that Measure S is targeted at homeless youth is an open secret. Ugly laws are a thing of the past. It is not constitutionally permissible to pass laws that target people for who they are as opposed to what they do. The Supreme Court has declared laws against loitering and vagrancy unconstitutionally void for vagueness. The workaround these constitutional obstacles is to pass laws against specific behaviors associated with people whom we don’t want in our public space. Like laws prohibiting sitting on the sidewalk.

Over a hundred years ago, Anatole France famously praised “the majestic equality of the law that forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.” He would no doubt smile at a law that forbids everybody from sitting on the sidewalk. Measure S is supported by people who hide behind its “majestic equality,” but count on a “majestic inequality,” in its enforcement. They believe, without reservation, that it will always be enforced against others.

I don’t like using disease metaphors in politics. Susan Schweik describes the spread of ugly laws as a “contagion,” and it’s hard to resist a similar metaphor for the spread of sit-lie laws. But what is really at stake here is an ugly tendency in national politics, spread not by an anonymous bug, but by people in positions of power and influence, to shift the blame for our sour economy from those who run the system to those who are run over by it: labor unions, public employees, teachers, immigrants, and now, in Berkeley and too many other cities, people who are homeless. If Berkeley passes Measure S, sit-lie laws could be greenlighted across the nation, for who could object that such laws are unfair and mean spirited if oh-so-radical Berkeley passed one. On the other hand, if we defeat measure S Berkeley has a chance to model how a community can come together to find real solutions to real problems in hard economic times.

Osha Neumann is an attorney with the East Bay Community Law Center, and Chair of Berkeley Standing Up for the Right to Sit Down/No on Measure S. For more on the measure, visit www.noonsberkeley.com.