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Andrew Bergh
Andrew Bergh

August 7, 1997

In Seattle, sitting is still a crime

By ANDREW BERGH
Special to the Journal

If you've been wondering whether a law against sitting violates the right to travel, cogitate no more. Our state appeals court recently answered this question in City of Seattle v. McConahy. In that case, our state appeals court had to decide whether a sitting ordinance adopted by the City of Seattle was constitutionally valid.

The main player in this instance is a homeless youth named Sarah McConahy. While eating pizza with a group of friends, McConahy was sitting on a public sidewalk in the University District. Although minding their own business, the youths were approached by police officers who said they were violating a city ordinance by sitting on the sidewalk.

By way of background, the Seattle City Council not long ago enacted a measure which forbids sitting or lying on sidewalks during certain times of the day -- specifically, between 7 a.m. and 9 p.m. --in downtown Seattle and "neighborhood commercial zones."

The council passed the law in response to complaints about increasing petty crime, declining shoppers in core retail areas, and problems with pedestrian traffic. The ban isn't absolute, however, as sitting or lying on sidewalks is still allowed in certain situations -- for example, in a medical emergency, wheelchair or bus zone.

My guess is that McConahy already knew about the sitting ordinance, as she was wearing a button that said, "Sitting is not a crime." Whatever the case, the youth -- unlike the rest of her friends -- refused to stand and was cited on the spot by the police.

Once she got back on her feet, McConahy later went to the courthouse and fought her ticket. She was innocent, she claimed, because the sitting ordinance violated, among other things, her constitutional right to travel. Unmoved, a municipal court judge found her guilty. But before judgment (probably just a small fine) could be imposed, a superior court judge granted McConahy's request for a stay of proceedings so she could appeal to a higher court.

At first glance, McConahy's right-to-travel argument seems contradictory. After all, Seattle's sitting ordinance punishes those who don't move, not the opposite. But as a homeless person, McConahy presented a unique claim. Because she was homeless, the youth reasoned, she had to travel long distances around Seattle to access food, shelter and other social services.

During those journeys, she often needed to rest on the sidewalk when no bench or park was available. McConahy thus argued that by not allowing her to rest on the sidewalk, the ordinance unreasonably interfered with her right to travel.

If you think McConahy's claim is totally bogus, then you don't know your constitutional law. As noted by our state appeals court, the right to travel, including the right to travel within a state, is a "fundamental right subject to strict scrutiny" under the U.S. Constitution. Moreover, the court said, sweeping ordinances which prohibit eating, sleeping, sitting or lying down in public may violate the right to travel if they make it impossible for homeless persons to live within the city.

But in McConahy's case, the appeals court ultimately ruled that her right to travel wasn't implicated by Seattle's sitting ordinance. The law exacts no penalty for moving within the state, the court said, nor does it prevent homeless persons from living on the streets of Seattle. Instead, it only restricts sitting or lying down in specified parts of the city during certain times of the day. McConahy could still travel around Seattle, the court observed, to access services or rest on benches or in parks.

Although she lost her court battle, my hunch is that Sarah McConahy somehow will get by. For one thing, since the appeals court referred to her as a "formerly homeless" individual, McConahy apparently has both feet planted more firmly on the ground.

It's just too bad that wasn't the case when she was eating pizza with her friends.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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