Burien, WA is a suburb of Seattle. In August they passed an ordinance that essentially bans people from any conduct that is “dangerous, unsafe, illegal, or unreasonably disruptive” on all city property, both indoors and outdoors.
And they consider bare feet to be “unreasonably disruptive”.
Yes, yes they do. It’s ridiculous.
The news stories all made a big deal of the fact that the ordinance banned bad body odor on those city properties. For instance, here’s a Headline News story from September, Town causes stink with body odor ban. Or there’s this one, Burien city leaders ban body odor, obscenities. But then as you read the stories, you see that
The ordinance also says that people must wear enough clothing.
That of course made me suspicious. So I looked at the ordinance. Here’s what it says is banned:
Wearing insufficient clothing for the location’s use (e.g. no top, no bottom, no shoes).
Now, I’m not even sure just what it means to wear insufficient clothing “for the location’s use”, or what shoes have to do with that. As far as I can tell, shoes are never necessary for a location’s use.
But it’s worse than that. This restriction falls under the section for a definition of
Behavior that is “unreasonably disruptive to other users” is behavior that is not constitutionally protected and that unreasonably interferes with others’ use and enjoyment of publicly owned property. Behavior that is unreasonably disruptive to others, includes, but is not limited to, any of the following:
[and then the shoe restriction is one of the examples].
How does a lack of shoes unreasonably interfere with others’ use and enjoyment of property? We all go barefoot all over the place, into stores, on the streets, in parks, in museums and we never see riots break out. There might be an occasional busybody who gets all huffy, but they are the one being unreasonable, not us.
How can going barefoot even remotely be considered unreasonably disruptive??!!??
The HLN story even, without comment, shows some barefoot kids. Here is one screenshot.
And here is another.
Are they appropriate for “the location’s use”? Who knows.
What do you do with an ordinance that has definitions contrary to fact? What do you do with an ordinance that, for example, defines elephants, and says
Elephants are large, trunked mammals, and include
- African Elephants;
- Asian Elephants;
- Dogs; and
All you can do is go, “Huh?”
The way the ordinance works is also quite, well, weird and suspicious.
It is not directly illegal to do many of the things on their list, like having bad body odor, a loud vocal expression, or bare feet. No, what the ordinance says is that police can “trespass” you, that is, provide a written trespass notice to you, so that if you stay, or come back before it expires, you can be arrested for trespassing. And if it is for less than 7 days, you don’t even have a right to appeal it.
So, you can end up being arrested for something that is not illegal. You get a cop who doesn’t like your bare feet, and trespasses you. You continue to go barefoot, because you are well-aware they you didn’t disrupt anybody. And now they can arrest you. (By they way, the length of time for the trespass orders increases if you are a repeat offender. So if you recognize that the barefoot restriction is crap and just ignore it, they can trespass you for 90 days, and for a third offense, up to a full year!)
You can read the full ordinance here.
Why are they doing it like this?
Well, they made it clear in their city council meetings. They really don’t want to arrest people—they just want to modify their behavior (without having to go the full arrest route). They want to send them a message. They are trying to create a civil society.
And to them, I guess bare feet are not part of a civil society, or why else would bare feet have been included? (Actually, we have a very good idea, as you’ll see below.)
I first want to bring up another egregious part of the ordinance. In order to be trespassed, they say that the only standard of proof required is “preponderance of the evidence”. Legally, that means more than 50%. That’s not the usual legal standard for crimes of “beyond a reasonable doubt.” That means that you can get get convicted with the relevant evidence not meeting that higher standard. You get trespassed on the lower standard, return (because you think it’s crap), and then convicted of trespassing (because you ignored the trespass warning beyond a reasonable doubt).
The council meetings are online. Here is video for the meeting for July 21, when the ordinance was first introduced. These use the Microsoft Media Server protocol, and you generally cannot download it. The discussion regarding the ordinance starts at 1:24:45.
In this first hearing, we are given the supposed reason for the ordinance, one of which is to provide a legal footing, providing some sort of due process, for trespassing people. What they want to do is be able to act like any business in kicking people out, but due process stands in the way of that.
There’s been several court cases that have ruled that as the public commenter indicated, the public has a right to be on publicly owned property, and the courts have felt that, in order to take that right away from them, there should be some type of due process. So that’s the main reason for this ordinance before you.
They also say what it is trying to do.
This is intended to deal with criminal activity, unsafe or dangerous activities, and actions that are unreasonably disruptive to other users of the public property.
In this hearing it was pointed out that this early version had no definitions of the prohibited behaviors. That led to the later version discussed in August.
We also find out one other important fact about the ordinance.
We’ve been working with the library to make sure that they’re comfortable with this ordinance before we adopt it.’ The library does have its own set of rules of conduct and guidelines for issuing trespass warnings that they’ve adopted some time ago, but their trespass warning process doesn’t really deal with this due process issue that I mentioned to you.
It turns out that the Burien branch of the King County Library System is colocated in the same building as the City Council. The City Council is on the 3rd floor of the same building that houses the library. And so they are working with the library in order to be consistent. As the ordinance state, it applies to “property that public entities own in common with each other.”
And that’s where we find the origin of the shoe rule. It’s in the Library’s Rules of Conduct Policy. There we find the exact same clothing rule as in the ordinance, as “any activity that unreasonably interferes with others’ use and enjoyment of the library”. How being without shoes interferes with somebody else using or enjoying a library is totally beyond me. And how would it do so unreasonably?
By the way, the library (but not the ordinance) prohibits bare feet in another section, prohibiting behavior that
Is likely to cause personal injury to one’s self or others (e.g. walking in the library without footwear, skateboarding in the library)
You know, libraries are supposed to be purveyors of knowledge. So it is really annoying to see them sitting there, all fat and happy, going to the school of making-up-shit. Going without footwear (in a library, or anywhere) is not likely to cause personal injury, as any of us can tell them. All they have to do is a bit of research. It’s too bad they don’t have access to a place they could do such research. You know, like a library.
But they do!
Now I know some people like to blame me for library rules against bare feet (despite them being upheld before my lawsuit). But let’s track the King County Library System’s barefoot rule.
It was enacted in February of 2010. Before that, they seem to have managed to survive quite well without one. I don’t know if their rule was prompted by somebody appearing in their library barefoot (in which case they could use my lawsuit loss to try to justify their rule) or if they came up with it on their own, but it was probably inevitable regardless.
The section about personal injury was added even later, in April of 2013, as far as I can tell.
The Council meeting of August 18, in which they passed the ordinance, was even more illuminating. There were three council members (out of seven) who were very concerned about the body odor and clothing requirements, and tried to get them removed. But they were outvoted. And they even discussed the shoe rule.
Here is the video for that August 18 meeting. The portion dealing with the ordinance begins at 1:17:20.
Again, it is stressed that the ordinance is intended to deal with problem behaviors, and to get those not behaving properly to conform. And a lack of shoes is included in all that.
Councilmember Gerard Robison was concerned about the shoe rule:
And then I also had a concern about 9.125.015(4)(d), wearing insufficient clothing for the location’s use. You get arrested for going without shoes? That just seems way too broad. We’ve already got, if somebody’s engaged in lewd conduct, that would be covered under section 3e. I would take that insufficient part out of there. That just seems way too broad.
And the City Attorney, Craig Knutson, admits the library involvement:
That provision comes from the library system’s current rules, and it’s intended to deal with indoor facilities, rather than outdoor facilities like city parks. That’s why the phrase ‘for the location’s use’ is in there.
Yeah, but what makes bare feet inappropriate for the location’s use in a library, or for distinguishing between indoors or outdoors. They are just assuming, without any facts and with full prejudice, that bare feet are bad indoors (in a public facility, but never in a home).
In “explaining” it, they turn the floor over to Holly Koelling, the Director of Operations for the library (this is about 34½ minutes into the discussion).
OK. So, this section if lifted fairly verbatim from our rules of conduct under which we operate and we’re governed in the library proper. The language was put here on our request, in fact, because we need a shared understanding with the city when managing the commonly owned spaces, for those kinds of behaviors that aren’t criminal activity but do require some action, so that we are consistent both in the ingress and egress to city hall and to the library in how we try to create a civil society in which everyone’s human rights can be recognized and that we don’t have behaviors or activities that are so disruptive that they create an unsafe or non-respectful or disrupted environment for us to operate in.
So this is perhaps for the library the most important section of the ordinance for us to be able to participate in any partnership for the commonly held areas. I see that there are some pieces in here lifted directly out of our rules of conduct that may not apply as closely to an open area or park and we’d certainly have no problem discussing those pieces, but the pieces that do apply to the interior of this facility, which I think are at least have our representative, are very important to us in participating in this ordinance as co-owners of the common areas.
Nobody asked her just how bare feet disrupted the library environment! Why the heck not?
The Councilmember most critical of, and most eloquent regarding, these behavioral items was Lauren Berkowitz, who is a fairly new member, and a law student at the University of Washington School of Law. Also, in the end, she was the only one who voted against the ordinance. Yay!
You mentioned the term “civil” and I think that’s critical, because throughout just recent times, just the last few decades the notion of what “civil” means has changed radically. And if you look across cultures, the notion of what civil is is still radically different. And I think it’s a very dangerous thing to legislate on civility. So I completely stand by my motion to remove this section 4. I think it’s a hack[?] description to talk about civility, and I don’t think people should be trespassed for your definition or my definition of what’s civil.
Again, people don’t always have shoes. That doesn’t mean they shouldn’t be able to use the library or access their government system. People might think that they’re listening to music or listening to any sort of iPod or book-on-tape, and I might find that incredibly obnoxious and irritating but I would never think they should be removed from the access to the library or accessing their city government. These are . . . I understand the irritation of these things, but I think parts a and b can be represented under dangerous, unsafe, or illegal. Certainly, part a, “hostile or aggressive language or gestures”, if it doesn’t rise to a level of a threat, who’s to say what’s hostile or aggressive. And if it is a threat, it’s covered under dangerous, unsafe, and illegal.
Again, not wearing shoes, not having a shirt, I don’t think that should ban you from accessing our government or accessing the public library, and having too loud music in your headphones, or smelling bad, I just find to be the most ridiculous and outrageous part of this. So I again ask that we not be a city that stands for excluding people based on civility laws that we decide, and that are incredibly vague, and that we just remove section 4.
After the ordinance passed, the ACLU got involved. The City responded, trying to justify it. And it hit the news media. You can see some of that reaction on the b-townblog, a local Burien blog. This posting does a good job of describing the ordinance (again focusing on the body odor issue and the homeless) and providing links to what the city and the ACLU said.
And this posting details the official ACLU letter and the city’s response.
All the publicity generated a lot of email to the City Council. They note that they got 1,328 emails with the same content. (I’m guessing that the ACLU put out the word, and supplied a template.) They also got a few that were clearly independent.
Now, if any of you were to want to try to educate the City Council of Burien, there are actually two ways to contact them. There is a “City Council” email address. Emails sent there are printed and included in the meeting agendas for all the members to read. Here is that email address: firstname.lastname@example.org.
It is also possible to write to each individual councilmember:
- Mayor Lucy Krakowiak
- Deputy Mayor Bob Edgar
- Councilmember Steve Armstrong
- Councilmember Lauren Berkowitz
- Councilmember Gerald Robison
- Councilmember Nancy Tosta
- Councilmember Debi Wagner
Now, if I were to write these folks, I’d send emails both ways. I’d also try to educate them on the benefits of going barefoot, and how it is not dangerous, either indoors or out. I would want to know how bare feet could possibly be insufficient clothing for using City offices. And I would really want to know from them exactly how it is that bare feet could possibly be “unreasonably disruptive”. Anywhere.
And I’d try for a bit of eloquence. I wouldn’t want to send an email that looked like this (an actual email they received):
What next? Will you arrest me because I have bad breath?
I for one. ..and I hope others feel the same way…would avoid your city…
I’d also want to make sure that everything I wrote was factually correct (based on all the research I did and explained above). They may be basing their bare feet ordinance on ignorance and prejudice, but I’d want to make sure everything I wrote was exactly correct.
These people need to be educated.