The following is the testimony of Richard R. Troxell, president of House the Homeless, Inc., before the Health and Human Services Committee of the Austin, Texas, City Council on Thursday, March 3, 2011. The Committee was considering making changes to the language in Austin’s “No Sit/No Lie” ordinance to bring it into compliance with the Americans with Disabilities Act.
Greetings to the Mayor, City Council and the Citizens of Austin,
I’m Richard Troxell, President of House the Homeless. This is our simple truth about the No Sit/ No Lie Ordinance that allows homeless people to be fined up to $500.00 for sitting of lying down.
On January 1, 2009, at our 9th annual Thermal Underwear Party, House the Homeless conducted a health survey of 501 people experiencing homelessness. The results showed us that 48% or about half all people experiencing homelessness in the Austin Area are so disabled that they cannot work. Their disabilities range from strokes, congestive heart failure, schizophrenia to diabetes, etc. We learned that there were no exceptions to these fines for people with disabilities under the No Sit/No Lie Ordinance. We recognized that this is in violation of the Americans with Disabilities Act. House the Homeless approached Mayor Pro Tem, Mike Martinez, who championed our cause, along with Council Member Laura Morrison, to bring our local ordinance in line with the federal ADA.
A resolution was unanimously passed by Council to send the issue to the Health & Human Services Committee. At that time, Mayor Lee Leffingwell instructed the HHS Committee to explore the idea of providing enough benches for people to sit upon so as to possibly make the entire issue moot. The Committee was chaired by Council Member Randi Shade who was joined by Mike Martinez and Laura Morrison. Three “stake holder” meetings were held involving businesses, downtown neighbors and homeless advocates.
At the first meeting, House the Homeless presented a list of twenty “exceptions” to be considered. For example, if a person had an award letter of disability from the Social Security Administration, the Veterans Administration, the Disability Determination Services a Mobility Impaired Bus Pass or a note of disability with a doctors backing, then they would be recognized to be disabled and exempt from receiving fines under the ordinance. To the shock of House the Homeless, under the guidance of city staff, we were told that the concept was unacceptable and they would not consider any of the exceptions.
At the end of the meeting, House the Homeless reminded the group of the Mayor’s Directive about benches and as a result, we were all then instructed to return with ideas and locations for benches. HTH returned to the next Stake Holders meeting with photos of benches with center dividers so people could not lie down and sleep on the benches and a list of places where benches were needed where they would not interfere with pedestrian or business foot traffic. Again, this city staff led group would not even consider the list. Instead it was suggested that the benches in the “Great Streets Project” would suffice for the benches. Period. Later, upon research, HTH learned that this was a total sham and the “Great Streets Project” only included a handful of streets with no new benches in their budget.
When the Health and Human Services Committee next met, HTH disclosed these events, but they fell on deaf ears. It was then decided by someone on the committee or the city legal department to insert the word “physical” making the ordinance read that anyone with a “physical disability” would be exempt under the ordinance. HTH argued that conversely, this would mean that anyone with a mental health disability would be subject to fines. HTH decried this as unacceptable. I asked for a meeting with Police Chief, Art Acevedo, and Council Member Laura Morrison to discuss their concerns. The Chief said that he simply did not want disabled homeless people sitting and lying down all over the city.
In response to the HTH objection, Randi Shade changed the language to read that anyone with a “physical manifestation” would be exempt. We understood that they wanted there to be an “event”…like I’m disabled and I’m feeling dizzy so that is why I need to sit down. We get that. But when you say you are looking for a “physical manifestation” it suggests to the police officer that if he can’t observe a missing body part, then he should issue a ticket.
And here is the other problem…the bottom line. The committee is now recommending to council that a person facing a fine must “create an affirmative defense” to show that they had been 1) disabled (sounds like our list of exceptions) and 2) that they had been dizzy, faint, feeling nauseous, suffering pain, a migraine headache or experiencing weakness.
House the Homeless has asked the Health and Human Services group both in committee and by e-mail, how for example, Council Member Laura Morrison’s husband, Phillip, and others like him who are diabetic, are supposed to be able to prove that on X date, that they had needed to sit down because they felt woozy because of low blood sugar? No one has been able to answer our question. Realize that about 40% of the homeless folks have severe mental health concerns. How is a mentally ill, disabled homeless person supposed to provide an affirmative defense that no one can tell me how to prove. How does one prove that they were feeling nauseous, faint, dizzy, suffering pain or experiencing weakness?
Council Member Randi Shade says that this is a good process to get people with mental health concerns to Community Court to get the help they need. Ethical questions aside, like ticketing people to get them into health care, you’ve already heard today about the truncated level of mental health services in this area with more major reductions to come. But what Council Member Shade may not realize is that their funds are already drastically reduced and if you suffer PTSD for example from seeing your spouse raped or your daughter burned to death in a fire, that you could not get treatment.
I’m at the Homeless Resource Center every day. Even with MHMR/Integral Care located in the same building, there are dozens and dozens of people with serious mental illnesses, many hearing voices, talking to themselves, and having hallucinations, who are not being served now. They are already traumatized. Does it really make any sense to force them into a court system, unrepresented to “affirmatively defend” against an ordinance that none of its would-be creators can tell us how they could possibly defend themselves?
Instead, how about this, strike the one word “physical” and the one clause “affirmative defense.” Let the police officer approach the individual and inquire why they are sitting down. If they say they are disabled, or “I have diabetes, I’m feeling woozy, I just need a minute or two,” the officer then assesses the situation, asks if he/she needs emergency care and if not, says “OK, I’ll be back through here in about 30 minutes. If you’re still here and having a problem, I’ll assess you for an emergency medical call. If you don’t need the emergency medical care you’ll be asked to move on, immediately. If you don’t move, you’ll be ticketed and this conversation will have served as your warning. Fair enough?”
If a ticket is issued, the case goes before a judge and with the affirmative defense clause struck, he can make a proper determination but without the individual being asked to fall on their own sword.
This does not need to go back to committee. We can give the officers the plastic HTH cards with the acceptable list of disabilities so parameters are clear to everyone. Additionally, we can begin budgeting now for enough benches to make Austin the world class city that it aspires to be.
These steps will bring us into compliance with the ADA law and yet the city gets to restrict wholesale sitting or lying down. Win-Win. Just strike the one word: “physical,” and the clause, “Affirmative Defense,” because the way it looks to HTH, the City of Austin with all of its power, lawyers, and resources cannot figure out how to prosecute these people. It’s asking people with mental illnesses, who are abjectly homeless, to prosecute themselves.
Finally, the Texas Civil Rights Project and it’s director, Jim Harrington, have expressed their written intent and desire to sue the City of Austin under the ADA should you pursue this course of action. Don’t give Austin a Black Eye.
Richard R. Troxell, President
House the Homeless, Inc.
Photo courtesy of House the Homeless, Inc.
The following is a letter from James C. Harrington, Director of the Texas Civil Rights Project, to the Mayor of Austin, Texas, and the members of the City Council, supporting House the Homeless president, Richard R. Troxell’s, testimony that the “No Sit/No Lie” ordinance violates the Americans with Disabilities Act.
TEXAS CIVIL RIGHTS PROJECT
1405 Montopolis Drive
Austin, Texas 78741-3438
(512) 474-5073 (phone)
(512) 474-0726 (fax)
James C. Harrington, Director
February 27, 2011
Mayor Lee Leffingwell and Members of the City Council
Re: “No Sit/No Lie” ordinance
Dear Mayor and Members of the Council:
This follows up on the letter I sent you on February 1 and outlines what I believe are two deficiencies in the currently proposed ordinance such that they would be violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
First is the apparent omission of mental disabilities or less than full coverage, as Richard Troxell has pointed out. The ADA and Section 504 cover both.
Second is affirmative defense in criminal cases. Both the ADA and Section 504 require that the City accommodate people who have a disability, whether mental or physical, when that disability is known or apparent. Not to do so is a violation of federal law.
Subjecting someone to criminal prosecution because of their disability, whether or not there is an affirmative defense, is not an accommodation. In fact, it would be a discriminatory act. This is all the more so since a person charged with a Class C misdemeanor is not entitled to an attorney.
I believe that the current form of the ordinance would violate the ADA and Section 504. As I mentioned before, we would be happy to litigate this issue; but I hope we wouldn’t have to.
James C. Harrington
The following is a letter from Richard R. Troxell, president of House the Homeless, to the members of the Austin City Council Health and Human Services Committee, informing them that the “No Sit/No Lie” ordinance violates the Americans with Disabilities Act.
First, I would like to thank the Health and Human Services Committee and Chief Art Acevedo for all of your hard work on the No Sit/No Lie Ordinance. One of our collective goals has been to bring the Austin No Sit/No lie Ordinance in compliance with the Americans with Disabilities Act (law).
Newly proposed city ordinance language requires that anyone who sits or lies down as the result of a physical manifestation of a disability, not limited to visual observation, is in violation of the ordinance and the offender must create an affirmative defense to prosecution.
Two comments. First, we believe the word “physical” should simply be omitted as it is confusing and suggests…that it refers to a physical condition as opposed to a mental condition. The Americans with Disabilities Act is not the Americans with Physical Disabilities Act… it is simply the Americans with Disabilities Act.
The second issue concerns the requirement that the accused present an affirmative defense. I repeat the unanswered question posed by City Council Member Laura Morrison at the last H&HS Committee meeting. When her husband, Phillip, sits down in response to his diabetes stating he feels woozy, and when his response is found to be unacceptable to a police officer because he did not see a physical manifestation, and a ticket is issued, how will he affirmatively prove to a judge that he was feeling woozy? That’s a simple question. It needs to be asked and answered. Or for the person experiencing schizophrenia, having visions and hearing voices, how will he/she create an affirmative defense four days or (more likely) four weeks after the event? Even if he could recall the event, what evidence will he produce (not to show that he is mentally disabled but rather) to show he felt woozy at that earlier time. So just answer this one question along with who is going to provide (and pay for) legal counsel for these folk sand we’ll call it a day.
By the way it would seem that we, the down-trodden, the disabled, the mentally ill are expected to affirmatively defend ourselves just because you can’t figure out how to prosecute us? The burden of proof, as with every other alleged violation in the ordinance, should remain with the state.
The “affirmative defense” language needs to be struck. There is no need to attack the mentally ill homeless and clearly, that is what this approach amounts to.
Richard R. Troxell
House the Homeless
On Thursday, January 27, the Austin City Council is preparing to change the No Sit/No Lie Ordinance. This ordinance allows for fines up to $500 for people who (even momentarily) sit or lie down in public places.
On January 1, 2011, House the Homeless, Inc., a grassroots organization fighting for the civil rights of all persons, conducted a health survey. The survey showed that 48% of people experiencing homelessness in Austin suffer disabling conditions that are so severe they are unable to work. Nonetheless, the No Sit/No Lie ordinance makes no exceptions for this group of people and continues to fine and jail them for the act of momentarily sitting and resting.
The City of Austin, at the encouragement of House the Homeless, recognizing that it is presently in violation of the Americans with Disabilities Act (ADA), has set out to bring the ordinance in compliance with the federal law. To gain compliance, the City Council Health and Human Services Committee was preparing to present the full Council language that would exclude anyone with a disability from fines under the ordinance. Great! However, at the last minute, the committee has mistakenly inserted the work “physical” into the statement. Now, the language would basically read, “Anyone with a physical disability would be excluded from fines under the ordinance.” The effect of this one-word change is both dramatic and devastating.
It would mean that anyone with a mental health disability would be subject to fines and forced to enter the criminal justice system to defend themselves. Imagine the least capable among us, people with mental health disabilities, being steered into our court system and clogging it up just because they had a momentary respite. It is well documented in the journals of American Medical Association that people suffering with mental health disorders are routinely treated with very powerful drugs that often cause them to become woozy and dizzy. They often have sunlight and heat sensitivity that depletes them of their energy and causes them to need to temporarily sit and rest.
The promoters of this one-word change attempt to justify their targeting people with mental disabilities by saying that they would be protected under the language “physical disabilities” because they would be having a “physical” reaction to taking medication that causes them to need to temporarily sit down. Really? This sounds more like slippery lawyer talk and a thinly-disguised rationale created to persecute and prosecute people with mental health problems.
Hey — it’s not the Americans with “Physical” Disabilities Act. It’s the Americans with Disabilities Act, period. The basis of which is not physical problems or mental problems but rather medical problems.
In essence, the Austin City Council is also contending that it is absolutely, 100% impossible for a uniformed City of Austin police officer to identify someone who has a mental health concern. Really? Is it really so hard to read the label on a medication vial that says Haldol, Thorazine, Risperadol, or Zyprexa, and also see that someone needs to sit momentarily? Or to look at an individual presenting a letter from a local mental health facility and make a good judgment as to the legitimacy of the situation?
Furthermore, adding insult to injury, as proposed, the police officer will have no latitude whatsoever but to ticket this mentally ill person and send him or her on to the courts. What are the odds of that person showing up? And if that person stands before a judge (unrepresented or at taxpayer expense) showing that judge the same medical vial or document from MHMR, what then? The way the law will be written, the judge will also have no latitude and be forced to fine the individual hundreds of dollars that he or she will have no chance of paying.
What then? A warrant for their arrest for failure to pay the fine? Once arrested, will we then clog our jail system with people experiencing mental illness needing special medication treatment?
What then? Well, House the Homeless and others will have no choice but sue the city for repeated, flagrant violation of the Americans with Disabilities Act — all at taxpayer expense!
What’s the alternative? Well, we could simply use the original agreed-upon language that excludes all people with medical disabilities from fines and allow police officers to use their good sense and street smarts to determine who can sit and rest momentarily. And Austin can move to become the “world class” city that it purports to be simply by providing enough benches citywide so that anyone, such as moms toting kids and packages, can just sit for a moment and rest briefly before they move on.
Change.org is a website where you go to sign petitions, or to start a petition, and to learn from the informative articles why it would be a good idea to support each cause that has a petition attached. The site covers a dozen general areas including animals, criminal justice, education, environment, gay rights, health, human rights, human trafficking, immigrant rights, poverty in America, sustainable food, and women’s rights.
Under the heading of Poverty in America, there’s a recent piece by Josie Raymond, a Change.org editor, whose beat is usually the South Bronx. She has titled it: “Sitting Is Now Illegal in San Francisco. Next up: Breathing.” A bit sarcastic? Maybe not. No doubt there are citizens who, if they could figure out a way to do it, would deny the privilege of breathing to people experiencing homelessness.
Is this San Francisco, California, law aimed at people experiencing homelessness? Well, duh. Who else sits on sidewalks, except the occasional child having a tantrum? Presumably it’s okay to sit on a chair, on a sidewalk. Otherwise, a lot of upscale cafés would be out of business.
Speaking of business, Raymond notes that the “Yes on L” group raised $280,000 for its campaigning efforts. Wow, that’s a lot of dough. How many tents or socks or hot meals could that money have bought? How many folding chairs could it have bought? There’s an idea — supply a portable chair for each person experiencing homelessness so they could be in compliance.
On a purely practical basis, the money would have been better spent taking homeless people to the bus station and buying them tickets to the destinations of their choice. At least a fair percentage might have someplace to go that would actually welcome them, a friend or relative willing to help out, if only they could get there.
And many others would wind up elsewhere, unable to afford the price of a return ticket, and become some other city’s problem. As long as we’re being sarcastic: As the bus pulled away, the farewell committee could wave and shout, “Just don’t leave your heart in San Francisco!”
Who would have imagined that sitting could be outlawed? And, of all places, in San Francisco, where, within living memory, they used to wear flowers in their hair? Yet here, in all its ugly reality, is news of how the city by the bay has voted for Proposition L, informally known as the sit-lie ordinance. No sitting on any sidewalk between 7 o’clock in the morning and 11 o’clock at night.
Raymond gets into the interesting details, such as the fact that sitting and lying on sidewalks is okay during the nighttime hours. She writes,
So everyone’s admitting they’re ok with homelessness to the point of people sleeping on the sidewalks, as long as the homeless wake up and move along by rush hour?
Apparently so. Imagine the gratitude in the hearts of the dispossessed, who are allowed the generous boon of being permitted to sit on a sidewalk between 11 PM and 7 AM. What a magnanimous gesture!
Despite the fact that the Mayor and the Chief of Police supported this ordinance, San Francisco isn’t all bad, of course. It has some great programs going, like Project Homeless Connect, and the people experiencing homelessness have a strong local advocate in Craig Newmark.
Rev. Billy Wirtz has been out there demonstrating against Proposition L, and the organization Sidewalks are for People has not given up. It is planning a citywide action on December 18, and encourages all interested parties to sign up at its Facebook page. This is peaceful protest. Folks are urged to get out there and play hopscotch, paint watercolors, share tea with their neighbors, have a game of chess, or do any other creative activity that claims the sidewalks as the rightful place for human beings.
This group thinks public spaces are safer when people use the sidewalks and other areas in ways that express the diverse and vibrant culture of the city. Here’s what they proclaim:
We believe in freedom of expression, the right to peaceably assemble, and the pursuit of happiness on our sidewalks!…We think it’s a terrible idea to criminalize the act of sitting in public space and we’re quite sure it’s a violation of our constitutional rights. We intend to challenge Prop L in the courts.
Source: “Sitting Is Now Illegal in San Francisco. Next up: Breathing,” Change.org, 11/03/10
Source: “Sidewalks are for People Day: SAT 12/18,” Sidewalks Are For People, 11/24/10
Image by Franco Folini, used under its Creative Commons license.