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Council committee agrees to final changes to Sit/Lie ordinance

Monday, February 21, 2011 by Josh Rosenblatt

For nearly a year, City Council and city staff have been working to come up with amendments to the No Sit/No Lie ordinance that will make it both more humane and more enforceable. Last week, the Council’s Public Health and Human Services Committee agreed to several linguistic and structural changes to the ordinance they believe will do just that.


The “Sitting or Lying Down on Public Sidewalks in the Downtown Business Area Prohibited” ordinance was first considered for amendments in April 2010, when House the Homeless President Richard Troxell warned the committee that certain provisions of the law might violate the federal Americans With Disabilities Act (ADA).


Much of the debate focused on language that deals with exemptions to the law. Those exemptions currently include (among others) cases where a person is sitting or lying down in a downtown pedestrian right-of-way because of a medical emergency; in order to participate in or view a parade, festival, or performance; and while operating or patronizing a commercial establishment on the sidewalk.


The most heated and technical part of the debate concerned the introductory phrase of subsection (E), which precedes the list of exemptions. It currently reads, “This section does not apply to a person who …” City legal staff, concerned about their ability to prosecute the law, asked that Council change the phrase to “It is an affirmative defense to prosecution that the person …”


Assistant City Attorney David Douglas told the committee that this change in wording would make prosecution of the law more feasible. “(A disability) is a difficult thing for the officer or the prosecutor to have any evidence of,” he said. “How do you disprove if someone is claiming to be disabled? With this change, if the person is issued a citation, they could come to court and say, ‘I sat down because I’m disabled.’”


But Council Member Laura Morrison worried that the amendment would “change the construct of the section completely” and make the legal process more onerous for those arrested under the law, many of whom are members of the city’s homeless population.


“It’s no longer an exemption to sit at a bus stop (one of the current exemptions to the law),” Morrison said. “It’s now: ‘You may be arrested for sitting at a bus stop and you need to go through the whole process.’ I’m pretty uncomfortable with this. And while it might be challenging for the prosecutor … it seems we’ve added a lot of complexity.”


Troxell agreed. He told the committee that it would be unfair to expect someone with a mental disability to remember if he or she had experienced a physical manifestation of a disability weeks prior. “We’re asking to put the burden of proof on somebody who’s mentally ill. The burden of proof has to be with the (city),” he said.


To Council Member Randi Shade, however, not having a provision in the law requiring people to prove their disabilities would render it toothless and irrelevant. “If they can’t show any proof of a disability and they’re just telling you they have that, it creates a problem,” she said.


“I think this ‘affirmative defense’ piece, at least for that one (disability) item, sounds pretty critical. If there’s no ability to prosecute a case, what’s the point of having this at all? What’s the point of having an ordinance?”


Bianca Vincent, the Law Department’s chief prosecutor, voiced her support for separating the subsections and preceding only the provision dealing with the manifestation of disabilities with the “affirmative defense” phrase. The other exemptions, she said, could still be preceded by “This section does not apply to …” Otherwise, she said, prosecutors would be unable to prosecute the law.


“(The current phrasing) is not merely just a challenge; it would make successful prosecution nearly impossible because we would not have anything to disprove a disability claim,” Vincent said. “The other way, all a person would have to do is say, ‘I have a physical manifestation,’ and we would have absolutely nothing to come back on that with. There’s no way for the prosecutor to prove beyond a reasonable doubt that they don’t have a disability. It wouldn’t take much for a defendant to prove a physical manifestation.”


In the end, the committee agreed to recommend the use of the “affirmative defense” phrase only in relation to the disability manifestation provision and leave the other six exemptions as they are. The committee also voted unanimously to use the ADA-approved definition of “disability,” to define the geographical boundaries of the law’s jurisdiction, and to change the name of the area within those boundaries from the “Downtown Business Area” to the “Downtown Austin Community Court Area.”


The amended ordinance will go before the before the full Council March 3.

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