ACLU sues municipality over sidewalk-sitting prohibition

Rosemary Shinohara
Bill Roth

The ACLU in Anchorage is challenging the city's no-sitting-on-sidewalks law, contending in a lawsuit that it violates Alaska's constitution.

The suit asks a judge to strike down provisions in a city law that restrict sitting or lying on downtown sidewalks, and ban panhandling downtown and regulate it elsewhere in the city.

City attorney Dennis Wheeler said the lawsuit contains nothing new.

"These are allegations they made at the very beginning," Wheeler said. "... Our position is the same: We took the time to carefully research this and craft our ordinance after one that passed muster" in federal courts. That was a Seattle law, Wheeler said.

The lawsuit, filed Thursday in state Superior Court, is on behalf of a group of plaintiffs including a street musician, a Libertarian, two union groups, a 95-year-old peace activist and others.

The law violates the freedom of expression, due process, right-to-assemble and equal-protection-of-the-law provisions of the Alaska Constitution, the lawsuit says.

The court filing compares the right to protest by sitting on a sidewalk to the Boston Tea Party and Vietnam War protests.

"If we did not file litigation, the right to protest, the right to assemble, the right to ask for donations, the right to be a street performer would have been lost forever in Anchorage," ACLU executive director Jeffrey Mittman said at a press conference to announce the lawsuit.

The sidewalk law, an initiative of Mayor Dan Sullivan's, was approved by the Assembly in November 2011.

Under the law, people may not sit on downtown sidewalks between 6 a.m. and midnight weeknights, and between 6 a.m. and 2:30 a.m. on weekends. There are exceptions for parades, festivals or demonstrations that have permits, and for certain other reasons such as medical problems or waiting in line to buy something from a street vendor.

The panhandling section of the same ordinance says it's illegal to panhandle after sunset or before sunrise anywhere in town and panhandling is banned at all times downtown.

The Assembly voted 7-4 to repeal the section about sidewalks in September 2012 but Sullivan vetoed the repeal. The Assembly would have needed eight votes to overturn the mayor's veto.

Sullivan originally pushed for the law after John Martin, a homeless man and convicted sex offender, began protesting by sitting, standing or lying on the sidewalk in front of City Hall for weeks at a time.

In his veto message when he turned back the Assembly's attempt to repeal the sidewalk section, Sullivan said his goal was not "to impede the right of free speech."

He said then his goal "was to ensure pedestrians can safely move about our vibrant downtown and not have to navigate sidewalks occupied by large cardboard boxes, personal belongings, mounds of trash, and people sleeping."

Laws like Anchorage's have survived court challenges in other cities, Sullivan said during the initial debate in 2011. Seattle and Berkeley, Calif., are among the West Coast cities with sidewalk-sitting restrictions, Sullivan has said.

Asked about that, ACLU lawyer Joshua Decker said, "Alaska's different." Anchorage's population is smaller than Seattle's and Seattle's sidewalk-sitting rules cover a shorter period of time, he said.

City attorney Wheeler called that "a red herring." Wheeler said the Seattle law applies in all kinds of places all over Seattle, based on zoning.

"We made ours much more narrow. ... Ours is much more tailored to our particular needs downtown," Wheeler said.

If the panhandling restrictions are lifted as a result of the lawsuit, "I would expect the end result would be panhandlers would be more prevalent and more aggressive," Wheeler said.

He also said the city provides ways for people to do activities that involve sitting or lying on sidewalks downtown by getting permits.

The lawsuit plaintiffs are Teeka Ballas, publisher of F Magazine on Anchorage arts and culture, and a street musician and performance artist; the AFL-CIO; UNITE HERE Local 878, a union representing hospitality workers; activists Scott Kohlhass, a Libertarian, and Nickolas Moe; and Alaskans for Peace and Justice and members Ruth Sheridan and Susan Bright.

Some of them were on hand for the ACLU news conference in an office building on Fireweed Lane.

Ballas has played music and requested donations on Anchorage downtown sidewalks, and at one time sat on downtown sidewalks for six hours as part of a political performance piece protesting a war, according to the court documents.

"As a musician, as a performer, as a civil rights activist and a journalist, I am both offended and outraged by the ordinances," Ballas said.

The Anchorage Police Department shows no record of any citations under either the sidewalk-sitting or the panhandling provisions during the past year, said police spokeswoman Dani Myren.