“Helps People. Saves Jobs.” This is the campaign slogan in favor of Measure S, the “Civil Sidewalks” ordinance on Berkeley’s ballot next Tuesday. Proponents argue that by banning sitting in commercial areas during business hours, Measure S will increase economic activity and help homeless people access social services. Like anyone who lives in Berkeley, we have grappled with issues related to homeless people on the sidewalks. A law that would help people get the services they need and help the economy sounded good to us.

Then we were asked by the Committee opposed to Measure S to research these empirical claims regarding economic growth and homeless services. We agreed to undertake the project on the condition that we would follow the evidence where it led us.

To do otherwise would represent a failure on our part as responsible citizens and voters. We were determined to inform ourselves through facts, not intuition, about this important issue facing our city.

After surveying police departments, homeless service providers, chambers of commerce, and municipal housing and economic development departments in 19 cities with similar laws, we found no data about their effects on economic activity or social services.

We responded to this dearth of data by trying to uncover our own. To determine how Measure S might “save jobs,” we looked at sales tax receipts in California cities that enacted sitting bans. To account for larger economic forces, we compared those cities to the counties in which they are situated. We found no evidence of a positive effect from the ordinances (in four of five instances, the surrounding counties outperformed the cities one year after the ordinance went into effect).

We then evaluated the claim that Measure S “helps people” by connecting them to homeless services. Unfortunately, the ordinance itself is entirely silent on the issue of services. Proponents claim that Ambassadors employed by the city’s Business

Improvement Districts will provide outreach and education to homeless people, but this hope appears to be unfounded. Providing such outreach has been a goal of the program since its inception, but the program’s failure to make progress toward this end resulted in the city cutting its 2012 fiscal budget in half. Furthermore, Berkeley’s affordable housing units are at full capacity and the city’s shelters have fewer beds than homeless people. If the goal of Measure S is to provide more social services, Berkeley will need to fund them, which the proposed ordinance does not do.

While we found little evidence that the measure would benefit our city, our research revealed several harms that could arise from Measure S. Under Measure S, repeat offenders can be charged with misdemeanors and even taken into custody. These charges make it difficult for homeless people to obtain housing, receive public benefits, and find employment. The criminal consequences of Measure S may therefore serve as a barrier, rather than a pathway, to a life off the streets. This carries fiscal consequences for our community, as chronic homelessness creates costs for police, hospitals, and courts. Perhaps more importantly, it prolongs the suffering of some of our community’s most vulnerable members.

Additionally, Measure S is likely to spark expensive legal challenges. In 1996, the Ninth Circuit Court of Appeals upheld a similar Seattle ordinance on its face, but found that its enforcement could violate a person’s constitutional right to the freedom of speech. According to the ACLU, this may happen in Berkeley if, for example, enforcement of the ordinance keeps a person from panhandling or playing music. This would not be the first time that an anti-sit ordinance in Berkeley faced legal challenge. Litigation over a similar ordinance – Measure O in 1994 – resulted in a settlement that required Berkeley to repeal the law and pay $110,000 in attorneys’ fees to the ACLU.

An absence of evidence doesn’t mean for certain that Measure S will fail to meet its goals. But such lack of evidence combined with the likelihood of harm should give Berkeley voters pause. According to Measure S proponent Roland Peterson, executive director of the Telegraph Property and Business Management Corporation, “it doesn’t need analysis.” Having looked closely at the facts, we disagree.

Full report available here.

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Visit Voter’s Edge Berkeley, Berkeleyside’s non-partisan voting guide to the ten measures on the Berkeley ballot. Visit Berkeleyside’s Election 2012 section to see all our coverage in the run-up to November 6.

Emily Soli, Joseph Cooter, and Ericka Meanor are co-authors of “Does Sit-Lie Work?”, a research report published by UC Berkeley’s School of Law.

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