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Pedestrian Access Act: An ill-advised and unjust law




"It ain't over till it's over." — Yogi Berra, Hall of Fame catcher and wise philosopher

The recently passed Colorado Springs "sit-lie" ordinance (deceptively renamed the "Pedestrian Access Act") makes it a crime for one person to sit or lie on a sidewalk (even for a moment, even without any intent to obstruct the sidewalk) in two "economic zones" (downtown and on the west side) during certain times. Despite its name, the ordinance has little to do with pedestrian access and everything to do with attempting to create two "poor-free zones," where the city hopes people with money to spend can be induced to spend it. It's a thinly disguised vagrancy law (such laws being, of course, clearly unconstitutional) by another name.

Consider how the law could be enforced: A group of people standing on the sidewalk in front of a downtown restaurant, in the narrow area between the "commercially licensed dining area" and the decorative trees, blocks pedestrian movement and access to the restaurant. They have not broken this law because they are standing.

In contrast, one person momentarily kneels on the sidewalk without blocking pedestrian access or movement. That person will be warned once and criminally charged for a second "transgression."

I attended four City Council-sponsored meetings regarding the ordinance and spoke privately with several people about it. I heard no direct testimony about "pedestrian access," but did hear citizens speak with understandable concern about incidents involving "harassment" (already a criminal offense under a city ordinance), the breaking of windows (covered by a "criminal mischief" ordinance), and even public defecation (also prohibited by an ordinance).

I had a long conversation with a prominent citizen about the ordinance. He was understandably emotional in describing an incident downtown in which an aggressive panhandler threatened to "cut" him. This is, in fact, felony menacing, an extremely serious offense under a state statute. The incident, however, had absolutely nothing to do with pedestrian access nor would this ordinance have prevented the incident from occurring.

There is pretty clearly a sort of "emotional overlay" involving all of these incidents, a feeling that "something needs to be done," even if the "something" (the now passed ordinance) has absolutely nothing to do with the very real problems being described and even when there are already existing laws allowing criminal prosecution for all of these incidents (should the culprits be caught).

Judge Pregerson, who wrote the well-reasoned 9th Circuit dissent in the Seattle "sit-lie" case, perceptively pointed out that prohibiting sitting makes pedestrians more apprehensive of panhandlers (non-aggressive panhandling being a constitutionally protected activity). He states, "Many people beg while seated because sitting is a non-threatening posture that signals passivity. Sitting can make the pedestrian feel safe, because that posture suggests that the solicitor is not aggressive and intends no harm."

Thus, the city attorney, the mayor, and the six Council members who voted for this law (Councilors Collins, Gaebler and Pico courageously voted against it) have paradoxically given us an unnecessary ordinance, targeting the poor, which may actually make it less likely that shoppers will want to come downtown or to the west side.

I don't pretend to know with certainty how this ordinance will play out politically or in the courts. I do feel there are compelling legal and policy arguments to strike it down. There are certainly wiser ways to economically revitalize the downtown and west side areas, as described in the "Cox report," prepared by the city government's resident expert on these issues.

However, I do know that Yogi Berra, who grew up poor in St. Louis, knew a thing or two about not giving up.

So do the opponents of this ill-advised and unjust law.

Tom Barnes is a lawyer who has been a resident of Colorado Springs since 1977. He has served as a deputy district attorney, as a member of the City Human Relations Commission, on the Citizens' Police Advisory Commission, and has been in private practice since 1981. He has a 1-0 record in the U.S. Supreme Court but, unlike Yogi, could never hit a curve ball.

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