The Law that Targets "Strange" People on the Street
How Homeless People Became Pawns in City Council Member Tim Burgess's Fight for Power, Money, and Control of City Hall
Tim Burgess, the most conservative member of the Seattle City Council, is widely expected to run for mayor in 2013. He will need money and backing. Although he rode into office in 2007 on a fairly conservative record—he's a former police officer, he used to work for the anti-gay and anti-woman organization Concerned Women for America, his campaign received money from Republican Party financier Jeffrey Wright—Burgess wooed the city (and The Stranger) into supporting him. Some of his allies then were also the major players behind Greg Nickels's campaign for reelection in 2009 and then, when Nickels lost the primary, Joe Mallahan's. Now the Downtown Seattle Association and the Greater Seattle Chamber of Commerce and the owners of huge swaths of property are trying to find a new leader at City Hall. A person to get behind in the next mayoral election. A person with a demonstrated ability to muscle through legislation that satisfies business interests. Burgess seems intent to prove that he can be their man.
And business interests could use a marionette at City Hall more than ever. Downtown office vacancy rates hit nearly 20 percent in March. The Columbia Center—Seattle's flagship skyscraper—couldn't pay its $1.65 million mortgage payment in March and has an astonishing 40 percent vacancy rate. The Four Seasons hotel and condo hybrid is one-third empty. WaMu folded. The 25-story McGuire Apartments downtown, only nine years old, must be demolished due to construction errors. The Seattle City Council needs to find ways to attract business and tourism, and the homeless people who live on downtown streets—intrinsic fixtures in any city—arguably could deter visitors. If Burgess and the rest of the city council can win the support of business owners by passing a gesture law for them, Burgess and his colleagues can more easily tap that conservative wealth for their reelection campaigns.
The gesture law on the current agenda: an aggressive-solicitation bill, which Burgess introduced on February 25, that would create a new class of civilpenalty (aggressive begging is already a criminal offense). The new law would apply equally to beggars, Greenpeace canvassers, or Girl Scout cookie sellers who seem threatening. Without anyone complaining, an officer could ticket a person specifically for "engaging in intimidating conduct" while soliciting, which can include blocking someone's path while asking for money, repeatedly soliciting a person who has given a negative response, or soliciting people while they use or immediately after they use an ATM or pay parking station. Burgess wants to fine violators $50 each. If they don't pay or don't show up for court, they get a warrant and can go to jail.
Banning harassment, freaking people out at the ATM, and blocking people's path all seem reasonable enough. Fortunately, the city council passed a law in the 1990s that makes "beg[ging] with the intent to intimidate another person into giving money or goods" punishable by arrest—if a person complains. If aggressive solicitation is so pervasive and worsening so much that city officials say we need a new law—downtown business interests say the aggressive-begging law we have is not enough—finding evidence of the problem should be simple. "Aggressive solicitation is a serious public safety problem in Seattle," says Burgess's bill, which is expected to pass when the council votes on it Monday, April 19. "Many recent communications from citizens to the City Council indicate that citizens believe the problem of aggressive solicitation has increased substantially within the last year."
So I decided to go looking for this substantially increasing public-safety problem myself.
T o be clear: We can't pass laws to eliminate people on the street who are annoying or panhandlers with mental disorders who swear. Everyone hates those people, but the Constitution is clear that people have a right to be annoying and to swear and to ask for money.
If there is a problem, as Burgess says, his bill should mitigate that problem. But the penalty Burgess is pushing is backward for several reasons. The people who solicit aggressively are desperately poor, and asking them to cough up $50 would, by all reasonable speculation, require them to solicit more aggressively than ever. So the law could make the problem worse. Moreover, critics cite study after study showing that the solution to desperate beggars is hiring more beat cops, deploying more foot patrols, and offering services to get people into housing and treatment. Burgess (who supports all those other things) nonetheless insists that his bill (which funds none of those things) will act as a deterrent. He claims that what happened when Tacoma passed a similar law would happen in Seattle. "Tacoma, they passed their ordinance, and they have never used it once. The problem has resolved itself," he said.
So how bad is this problem, and could a new penalty improve things? Determined to find out, I walked from Pioneer Square to the north end of Belltown at dusk. This is the epicenter of panhandling, the heart of street disorder.
Taking the stairs out of the Pioneer Square transit station, I encountered my first solicitor on the mezzanine. He was a black man, playing a flute; his hat on the ground contained a sprinkle of coins. But his trilling seemed neither aggressive nor intimidating. So I forged on to First Avenue South and Yesler Way. Near the pergola—the cast-iron and glass gallery that covers benches where homeless people often sit—a bony old white man approached in a long puffy coat and stopped about 10 feet from me. He made quacking noises, barely enunciating the words "spare change." I felt dumbfounded by his quacks, but before I could speak, he strutted off.
Any time we restrict free speech, constitutional law requires evidence of a real problem. There must be a "compelling governmental interest," courts have found. Burgess cites an alarming rise in crime from 2008 to 2009—when one looks at all the major crimes lumped into a ball—and he claims that people are afraid. According to the bill, an increasing rate of street disorder has caused crime to go up 22 percent in the last year from Pioneer Square to South Lake Union. But Burgess, in his bill and past statements, has misrepresented the facts.
Crime isn't going up as a result of aggressive solicitation. Records from the Seattle Police Department (SPD) show that the combined rates of assault and robbery—the sort of person-on-person crime that would be associated with street disorder—actually dropped slightly downtown between 2008 and 2009. (Robberies from the stadium area to Denny Way went up by 27 incidents, and assaults dropped by 69 incidents.) The big increase in crime that Burgess uses as the basis for the new law is primarily the result of more theft like burglary and shoplifting (up 648 incidents). Moreover, most of the crime increase was in the South Lake Union neighborhood and First Hill (up 25 percent), followed by Belltown and the shopping district (up 24 percent). Those areas, it bears mentioning, are the places where thousands of units of residential and office development have been completed in the last three years and population density has increased the most. The city's Department of Planning and Development estimates that South Lake Union, for instance, will gain 800 new jobs and 400 new households a year through 2024 (an area that had an estimated population of only 1,200 people in the year 2000). It follows logically that crime would increase as the population grows. But Pioneer Square, the area with the most panhandlers and social services, saw the slightest increase in crime in the past year (up only 8 percent overall), and assaults and robberies in Pioneer Square dropped. While thefts are a problem, they don't suggest more solicitation or a widening violent streak downtown; rather, the bump in theft arguably reflects the financial desperation typical during an economic recession.
Another indication that things aren't getting worse: 2008 marked a 40-year low for serious crime in Seattle, and the crime rate in 2009, although up slightly, was still 11 percent below the decade's average, according to SPD data. In addition, Burgess misrepresented what happened with the similar law in Tacoma. The Seattle Times found that "police do occasionally issue citations" in Tacoma and have made one arrest, contradicting Burgess's claim that it had never been used. Given the chance to correct himself, Burgess said his "office knew" about the arrest (which hadn't been prosecuted) but didn't know about the citations. He says the law in Seattle would give officers another "tool" to deal with "hustlers and drug traffickers" who are deterring tourists and conventions and pose a threat to the city's economic recovery.
P erhaps the aggressive solicitors like the quacking man are letting me off easy because I don't appear vulnerable enough. Studies show that tourists, heterosexual couples on dates, and women are more likely to be panhandled. So I walk under the pergola at the corner of First and Yesler, attempting to look docile and approachable. I closely pass people on benches. One man with five plastic Target bags of clothes smokes intently; the other is sipping from a Chinese-food to-go container of soup. Neither registers my existence. So I head north, trying to look generous. At Columbia Street, a Native American man with a ponytail walks up. Success! He will sell me a $2.50 bus ticket for $1 of cash money.
"I don't have any money."
"Okay, man. Take it easy," he says, grinning, and walks away.
The Downtown Seattle Association (DSA)—which sounds community-minded but is essentially a business and property-owners association—conducted surveys that found, from 2007 to 2009, residents' extreme concerns about aggressive panhandling in the downtown core dropped from 57 percent to 32 percent. In a report, the DSA wrote, "Over the last three years, there has been a slight decrease in levels of extreme concerns for all issues" with "the largest improvements... in the areas of aggressive panhandlers."
The Seattle Human Rights Commission, a board appointed by the city council and mayor to make recommendations on policy, issued a scathing 15-page report on Burgess's bill, most of which was dedicated to debunking claim after claim in it. "Following a close inspection of these data and the factual statements that they are offered to support, we are concerned that the data are insufficient to support the substance of the proposed ordinance," wrote the commission.
The human-rights commission voted unanimously to oppose the bill.
The commission went on to examine 24 e-mails from constituents that Burgess attached to his measure to demonstrate that a new law was necessary. But the commission found that "such data would typically not be relied upon to support the factual claim that the problem of aggressive panhandling has increased over time." More biting: "Several letters indicate that the correspondence... was the result of a coordinated request, or general solicitation, for such correspondence." In other words, these are a handful of e-mails—mostly e-mails that the DSA or Burgess asked people to send—apparently collected to create the impression of a problem. And still the e-mails don't make the case. The Defender Association, a legal public-defense nonprofit, tallied complaints in the 24 constituent e-mails Burgess cited as evidence of the need for the new law. The organization found the law would address only five of the complaints, it could address two of the complaints, and it is unlikely to address the remaining majority of the complaints.
At a hearing on March 17, where bill opponents outnumbered supporters, the supporters largely argued that the bill would solve problems that, in fact, it wouldn't address at all. The incidents described were almost exclusively unpleasant panhandling or offenses covered by existing criminal laws, which already carry stiffer penalties than a fine. Mitch Evans, a regional manager of Starbucks, testified in favor of the ordinance because, he said, one of his employees "was assaulted going out to a car" and another one was "confronted at knifepoint," and often people are "asked to leave a store because they are bothering our customers."
Richard Nordstrom, chair of the Belltown Community Council, told the public-safety committee that an "intimidating environment is created when someone is physically close or verbally loud."
The aggressive-solicitation bill "is not something that will have addressed any of the complaints you heard about," Jennifer Shaw, deputy director of the ACLU of Washington, told Burgess and the other committee members about three-quarters of the way through the public-comment period.
The ACLU of Washington compiled 10 studies that found police foot patrols are a better way to address problems with panhandling. "Ambiguous panhandling laws are often difficult to enforce, confusing to follow, and ultimately ineffective," the ACLU wrote, citing a Department of Justice study on panhandling by the Office of Community Oriented Policing Services. The person-on-person crimes associated with street disorder are not spiking (they're going down), aggressive solicitation is not a growing problem (downtown residents and business owners say it's the number-one area of improvement), the complaints are not going up (those complaints that exist were prompted by a downtown business group and are overwhelmingly impertinent), and the bill wouldn't solve the problem (it doesn't stop people from being annoying and there are better laws on the books already).
All of this is to say—and the human-rights commission report essentially proves—that there is no "compelling governmental interest" in passing Burgess's law. Never mind common sense. If the council does pass the law, the claims used to justify it could serve as the basis for a lawsuit challenging it.
A man at First Avenue and Pike Street is aggressively drumming on buckets and solicits money with a change jar in front of him. He uses a Grey Goose bottle as a cowbell. A pedestrian in Dockers with his wife or girlfriend looks impressed, stops, and then tosses the man a buck. A detour to Second and Pike and then Third and Pike also elicits no aggressive solicitations, but many people are waiting for the bus, speaking louder into their cell phones than most people speak into cell phones, and speaking louder to each other than most people speak to each other. Being "verbally loud" could be intimidating to some people. I've been intimidated waiting for the bus on Third Avenue. The area around Third and Pike is famously dangerous.
Which is why Seattle needs more police, so SPD can deploy more foot patrols. Per capita, Seattle has some of the lowest numbers of sworn officers of any big city in the country. The city has ambitions to hire more and to station them in hot spots like Third and Pike.
One of the definitive studies on foot patrols, conducted by Michigan State University in 1983, found that "crime and calls for service were down in the 14 experimental areas over the three years of the program." Under the direction of Seattle mayor Mike McGinn, on April 1, the police department redeployed bike cops to foot patrols, which could help the problem.
Burgess has smartly tried to couch his aggressive-solicitation bill as a parcel of strategies to make downtown feel safer, including more foot patrols, more cops, and more services. But, again, his bill—the centerpiece of his legislative agenda—doesn't do those things.
Critics say this isn't just a bill without justification; it's actually pernicious. A police officer could cite a solicitor on the spot without a complaint, and people who don't pay the $50 fine or fail to show up in court would be automatically guilty of a misdemeanor. And city council member Sally Bagshaw says there is "virtually a 100 percent chance" that panhandlers won't show up to court to pay the fine. She's right. "Homeless and poor people are less likely to be able to appear in court," wrote the Seattle Human Rights Commission, which added that these suspects are, as a result, "more likely to find themselves facing a failure to respond charge, which is a criminal misdemeanor." And the Department of Justice has noted, "Officers realize that panhandlers are unlikely to either appear in court or pay a fine." (Such people typically do not have addresses where they can collect a court summons.) The suspects do not have a right to an attorney to contest their infraction.
But if they do get charged with a crime for failing to pay or missing the court date, they can be jailed or committed to treatment, which circumvents the standard civil- commitment process. In short, the bill lowers the burden of proof to a ticket (which does not require a complaint or guilt beyond a reasonable doubt) and sets up a poor, homeless, or vulnerable person for a criminal conviction. "For these reasons, the ordinance does not comply with human rights standards," the commission wrote.
Most city council members say they will vote for the bill, despite the recommendations. Burgess did not mention the commission's report in a committee meeting when three council members voted to forward the bill to the full council, nor did Burgess provide copies of the report to the public and press. Laura Lockard, spokeswoman for the city council, said the commission's recommendation "gets as much weight as public comment." (As it happens, more people spoke against the bill than in favor of it.) But shouldn't a city-appointed commission—composed of lawyers, doctors, and policy experts—get more weight than someone who walks in off the street? Roslyn Solomon, chair of the commission, was too polite to answer that question directly. "We want to weigh in so the council has the benefit of our perspective, but what they do with that information is their call." So far, the council has ignored it. Burgess technically says the commission "misunderstands" the ordinance. Do "we have to follow their counsel?" he asks rhetorically. "No," says Burgess. "We are the decision makers."
T he reason the bill exists at all is because it's the pet project of elite downtown business interests.
"As long as we have been around, we have been concerned about aggressive panhandling and have wanted someone to address this very critical issue," George Allen, vice president of government relations of the Greater Seattle Chamber of Commerce, told Burgess's Public Safety & Education Committee on March 17.
The DSA, meanwhile, cites "panhandling legislation" among its top five priorities. The DSA is positively obsessed with homeless people. Three years ago, the DSA's Metropolitan Improvement District ambassadors (visible as the folks in yellow vests who patrol downtown) began developing a spreadsheet intimately tracking the personal lives of panhandlers. A copy of the spreadsheet obtained by The Stranger (the version we obtained was updated as recently as last summer) details where homeless people stand, their behavior, their appearance, their age, their physical disabilities, which days of the week they show up, speculation about their mental-health problems, and so on. It "was developed to identify those who were frequent fixtures on the streets of downtown Seattle," says DSA spokesman Randy Hurlow. The people on the list have refused services promoted by the DSA and offered by the security guards, Hurlow adds. The descriptions are tragic:
"Jonas, Native American. Carries 'Smile' sign. If he gets a regular job he will lose his disabled benefits. Experiences seizures."
"Wht, grey hair, uses cane. Carries sign that says 'Help me.'"
"Dorothy. Blk. Black hair, sunken cheeks, unusual walk, possible back problems."
Of the 27 "frequent fixture" panhandlers, the security guards designated only four of them as aggressive.
Incredibly enough, Burgess insists that his legislation isn't done at the behest of business groups that have made panhandling laws a priority, that have lobbied for them for years, that have maintained this meticulous spreadsheet about the personal details of common panhandlers, and that have helped to fund Burgess's political career. (DSA's chief operating officer, David Dillman, contributed to Burgess's campaign in 2007.) Neither Burgess nor the heads of the DSA nor the chamber of commerce admit that the people in this carefully tended list are the intended targets of the law.
"They are paying an awful lot of attention to the specifics of who is panhandling for this to not be about that," says Tim Harris, executive director of the homeless newspaper Real Change. "This bill is absolutely about the list of panhandlers, and it is absolutely about panhandling."
"That's not my issue at all," says Burgess, asked about the DSA's close tracking of panhandlers.
But DSA spokesman Hurlow says that his group has been lobbying the city council for the past year and a half trying to get a bill passed.
If you ask Burgess about the bill, he says it gives police another tool for dealing with problem people. He says that there are a handful of organizations serving the homeless that back his bill—like Plymouth Housing Group, a church organization. However, more of those groups oppose the measure, including Real Change, Seattle/King County Coalition on Homelessness, and Catholic Community Services. "I am concerned the way the law is written is different than the way you characterized it," said Flo Beaumon, associate director of Catholic Community Services, at a hearing before the council. She said it's so broadly worded that it could "get rid of anybody you think is aggressive."
Indeed, some people would find the quacking man to be aggressive, or the drummer to be aggressive, or anyone strange to be aggressive. Sometimes people are just annoying. In trying to prove his case for the law, Burgess provided the city council with letters sent to Seattle's Convention and Visitors Bureau, one of which read, "A nice visit to your new public library off of Fifth turned into an excuse for strange people to ask me strange questions."
I got to Belltown. It is at this north end of downtown that the gulf between classes seems widest and most abysmal. Three young women sipping lattes were all walking in front of a pet store selling a ramp that, according to the photo on the box, helps a golden retriever walk into a minivan without having to jump. There was chic plastic furniture in store windows. An elderly Latino man in a dirty black coat was walking next to the women. Down the way, a very old homeless man was lying in a doorway, half covered in a gray wool blanket, reading a weathered paperback.
"Most of the testimony is from people who say, 'I was in an area and this is how I felt,'" says Council Member Sally Clark. She acknowledges that most of the testimony in favor of the bill is about things that aren't covered by the bill or are simply annoying behavior, but she is going to vote for it anyway.
That a majority of the city council, a group of overwhelmingly white people who get paid over $100,000 a year, is taking this legislation seriously—and plans to pass it—despite the avalanche of evidence and opposition, is a reminder of this psychic chasm between wealth and disadvantage. They take misguided anecdotal complaints seriously, then offer a bill that ratifies the wealthy interests of downtown, makes no sense, doesn't solve the problem it pretends to address, doesn't fund things that would solve the problem, and gives Burgess a legislative "accomplishment" he can run on later.
Is this a bellwether of where the council is going? Many of this same majority of the council—Clark, Burgess, Richard Conlin, Tom Rasmussen, and Jean Godden—are helping lead the fight to widen the 520 bridge without any dedicated lanes for transit. All five are also in favor of tunneling under the city to build a state highway and agreed to make city taxpayers liable for all cost overruns. Conlin and Rasmussen want to replace part of Seattle Center slated to be public lawns with a for-profit glass museum at the behest of a rich Republican family that owns the Space Needle.
This is the new city council. This bill—built on misrepresentation of facts, kowtowing to conservative money, and targeting the poorest people for political gain—is a glimpse into this conservative council's priorities.
The sad thing is that the city council and business interests lobbying city hall could be spending thousands of collective hours on filling vacant offices—and thereby filling some of the empty nearby condos, downtown restaurants, businesses, etc.—and, in turn, generating stacks more tax revenue for the city. Business-interest puppeteers should be pulling strings with city hall to determine what it would take to woo a couple large corporations with thousands of employees to Seattle (like Russell Investments' recent move from Tacoma). If the council could solve that puzzle, the cascade of added revenues would provide money for more foot patrols (not just officers taken off of bikes and put on foot), more cops on the beat, more case workers to target the mere four aggressive solicitors whom a massive downtown audit of homeless people has identified, and human-services groups that help mitigate poverty downtown. In other words, the council could use its time for solutions that would work. Instead, the council is capitulating to money, taking overblown concerns at face value, and sacrificing the poor and the homeless as pawns.