Are You Unsafe, Or Just Uncomfortable?

by Quiver Watts

OAKLAND, CA — On October 24, BART’s Board of Directors declined to consider a proposal to formulate a new ordinance that would criminalize people for panhandling or busking on BART platforms or on trains after hearing public comment from a variety of patrons, including a rapper who performs on trains, an ACLU lawyer, a career musician and a human rights organizer for the Coalition on Homelessness.

If the board had decided in favor of a panhandling ban they would have tasked the general manager and staff of the Bay Area-wide transit agency with formulating an ordinance that would make it an infraction to panhandle or perform, which several board representatives expressed concern would violate their riders’ first amendment rights and criminalize poor people without offering any truly effective tools for addressing widespread poverty and wealth disparity.

The idea was floated in August by Debora Allen of BART District 1, representing Contra Costa communities, who says her constituents are avoiding BART because they feel unsafe. She was supported by Mark Foley, Liz Ames and John McPartland. The idea of banning panhandling was shot down by the majority of Board members, including Janice Li, Lateefah Simon, Bevan Dufty, Rebecca Saltzman and Robert Raburn, all of whom adamantly opposed an ordinance to criminalize poverty.

McPartland, the District 5 representative from Alameda County, drew criticism for remarks he made to Abre’ Conner, a Black woman who had identified herself as a lawyer for the ACLU during her public comment opposing the ban. In the session, McPartland told Conner that she was ‘articulate’ and suggested she go to law school.

“I think that that was a very clear example of how people’s explicit and implicit biases about certain individuals can be demonstrated in a very real and tangible manner,” Conner told Street Sheet later about the comment. “And those biases creep into how elected officials think about proposed ordinances, who they think these ordinances are going to impact. They should be checking their own biases and holding themselves accountable.”

According to Conner, passing a ban that prevents panhandling or performance on BART would violate the First Amendment because the ban would restrict activities based on the content of what a person is saying. She said that content restrictions on speech would be at “a heightened level of scrutiny, a higher level of court review. And it would be very hard for BART to prove that it meets that high level of review.”

Li of District 8, which includes parts of San Francisco, asked the other board members if they would consider banning her as a queer person from kissing someone she is dating on BART just because it made another rider feel uncomfortable, or led them to switch train cars. “Being uncomfortable or wanting ‘solitude on trains’ and not getting that solitude is not an appropriate threshold for making policy and it is incumbent on this board to know the difference between real safety issues and people who feel simply bothered,” she said. “So I am asking staff here, don’t bring back a policy on banning panhandling or solicitation.”

This raises the critical question of what safety really means. A person riding BART may feel uncomfortable when approached for instance by a hungry mother with her child, but is there anything about that interaction that threatens the rider’s safety? And while sending out more BART police officers may ensure a feeling of safety for some riders, it may endanger the well-being of others. For homeless people, police contact often leads to harassment, citations and the destruction of personal belongings. In some cases it can result in serious physical injury or even death: BART police have killed several people with mental illnesses, including Charles Hill in 2011 and Kayla Moore in 2013. Recently a BART police officer shot and killed a homeless person’s dog outside San Francisco’s U.N. Plaza station. 

“It is uncomfortable right now, not just on BART but in the Bay Area, because we’re all seeing homeless people, we’re all seeing panhandling,” said District 3 director Saltzman, whose district includes parts of Alameda and Contra Costa counties. See was surprised to get feedback from a rider who said that they expected to see homeless people in San Francisco, but that starting to see them in Walnut Creek was too much to handle. “Some of our riders are in communities, a lot of them, where we see homeless people every day. But the reality is we have homeless people in every city in the Bay Area, we have poverty in every city in the Bay Area, and what is making people uncomfortable is seeing them.” 

Also in attendance was Tone Oliver, the father of a 3-year old son as well as a performer who raps on BART trains. He says that the gratitude and positive feedback he has gotten from other BART riders has not only inspired him to continue focusing on his music but has also affected the music he makes, leading him to choose lyrics and beats that the broader community can relate to, bringing him closer to the people around him on the train. He even recently sat down for dinner with the family of a man who had been on the way to end his life when Oliver’s song inspired him to turn his life around.

Oliver is concerned that this ordinance would end up targeting poor and homeless people or those with mental illnesses. “This is mostly going to impact people who don’t have the ability to get out, because they are sleeping or dealing with mental issue,” Oliver said. “It will really affect homeless people who use BART as a safe space or shelter. They’re just gonna keep moving them around with no real solutions.”