Kiki Lopez, left, and Tony Martinez play some jazz as they busk inside the 16th Street Mission BART station on Wednesday, Aug. 21, 2019. (Kevin N. Hume/S.F. Examiner)

ACLU warns BART panhandling and busking ban is ‘unconstitutional’ — and could lead to lawsuits

Elected BART leaders are considering banning panhandling and busking — playing music for money — on its trains and in stations.

But the American Civil Liberties Union is hoping to slam the brakes on BART’s train to a panhandling-free future.

Banning the solicitation of money is akin to unconstitutionally banning free speech, the ACLU of Northern California warned the BART Board of Directors in a Wednesday email obtained by the San Francisco Examiner.

Similar bans enacted elsewhere have been legally challenged by the ACLU, the organization wrote, including one proposed by the city of Sacramento last year.

The ACLU is now fighting Sacramento’s policy, which the organization likened to the proposed ban at BART.

“Adopting an anti-panhandling ordinance obstructs clear free speech and would likely be unconstitutional,” Abre’ Conner, a staff attorney with ACLU of Northern California wrote to the BART board.

Though the ACLU did not explicitly threaten the BART board with a lawsuit, Conner continued, if the BART board passed such a ban it would “likely have issues” and “would be akin to many of the pitfalls that the recently enjoined Sacramento ordinance suffered.”

No such ban has been introduced or agendized, BART directors told the Examiner, but BART Board of Directors member Debora Allen told the San Francisco Chronicle she intended to do so in an article published last weekend.

Allen, who is up for reelection next year, did not immediately return a request for comment.

When announcing the proposal, she cited riders who feel they can’t avoid or escape panhandlers and performers as inspiration for the effort.

BART riders frequently encounter groups of turf dancers displaying acrobatics in hopes of tips and aspiring rappers sharing their musical talents, as well as impoverished people simply asking for help. Videos of such performances can often be found on social media, suggesting that for at least some riders they are a perk rather than a nuisance.

Despite no official ordinance existing yet, with no vote on such a ban yet scheduled, Allen’s measure is already meeting with opposition.

Board President Bevan Dufty revealed to the Examiner that he is against the proposal, calling it “polarizing.”

“I’m not supporting this,” he said by phone Wednesday. “I’m not interested in this right now, we have a lot of things we need to work on.”

BART has a “system in crisis” experiencing homelessness, and Dufty said he is focused on solving that issue systemically, including securing funding from cities and counties BART runs through for homeless outreach teams and police officers.

The San Francisco International Airport recently announced funding for a Homeless Outreach Team and a police officer, Dufty said, as an example of concrete fixes for BART’s homeless problem.

Some BART directors have already gone public with their opposition to a solicitation ban, including Lateefah Simon and Janice Li, both of whom represent San Francisco.

“I can’t see a world where I would support a straight-up ban,” Li told the Examiner. “I feel like it continues the trajectory of sanitizing the culture of San Francisco and the Bay. We’ve already displaced the arts, and now we’ll regulate it to death? No thanks.”

Board Vice President Rebecca Saltzman said she’s waiting to see what Allen proposes in writing.

“I want to know what she’s trying to accomplish,” Saltzman said, particularly since “we already have rules against aggressive panhandling on BART.”

Everyday BART riders are already giving their two cents to the directors. Candace Hisert wrote to directors that buskers “really disturb many of the riders with the loud music they use with their routines,” and suggested finding middle ground by creating designated “quiet cars” for those who desire it.

David Kriozere wrote to the board suggesting BART support public art by creating designated busking zones, or replicating San Francisco Muni’s own efforts to feature community art on buses.

“I offer the above in the spirit of peace and community, where we can all get along with each other,” Kriozere wrote.

Dufty, for his part, said he enjoys some of the musical shows he sees on BART.

Last Friday when traveling on BART for a meeting, Dufty saw an artist perform on board a train who called himself “Billion Dollar Rapper.”

“He went through and people gave him money, and he said ‘by the way, I have a Venmo account!’” Dufty said.

The director thought the approach was particularly novel.

“I’m more of a Square cash boy, but I’m going to try Venmo for him,” Dufty said.

joe@sfexaminer.com

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