On Friday, the County announced a new emergency ordinance prohibiting pedestrians from congregating on sidewalks in groups of more than three people or ever being less than 6′ apart from any other person.
Targeted quite plainly at young, mask-less patrons waiting in tightly-packed lines for long periods of time outside of Clarendon bars whose capacity has been limited by social-distancing requirements, the ordinance seems well-intentioned but flawed in concept.
The ordinance, as released by the County states the during a state of emergency, “pedestrians shall obey signs and other signals erected on highways, streets, sidewalks, and public spaces adjacent thereto used by pedestrians prohibiting pedestrians from congregating in groups of four or more than four persons in those places and requiring pedestrians to maintain a physical separation from others of not less than six feet at all times.” I will note, however, that the verbiage about “and public spaces adjacent thereto” does not seem to exist in the language passed by the Board during the virtual board meeting.
Problems with the Ordinance
The ordinance appears to criminalize common behaviors: A plain reading of the ordinance would appear to prevent a family of four from walking down one of these signed sidewalks together without maintaining 6′ of distance between all family members, including small children.
The ordinance results in some very strange juxtapositions. Four people sitting at an outdoor dining table eating dinner, mask-less is not just legal, the County has adopted other emergency legislation to fast-track the creation of more outdoor dining space to encourage it. Those same four people, the exact same distance apart, but now standing on the sidewalk outside of a dining area are now all subject to a $100 fine. If those four now all climb into a car together, parked on the street in front of that same restaurant, they are legal again.
The ordinance appears to limit some constitutionally-protected behavior like protests, rallies and marches. A common defense of rallies and marches during COVID has noted that protesters are generally wearing masks, thus limiting any potential spread as part of those protests. This ordinance doesn’t care if you’re wearing a mask or not, only if you are managing to stay 6′ apart.
The ordinance makes it very easy for someone else to cause you to violate it. It takes the cooperation of all parties involved to maintain a 6′ distance. If you’re standing at the bus stop waiting for your bus and someone comes and stands 4′ behind you, not only are they in violation of the ordinance, now you’re in violation as well.
While I suspect it is not the intent, (which seems focused on congregating which implies a certain amount of being stationary) the ordinance could easily be read to prohibit a pedestrian from ever being within 6′ of another person, even while in motion. Given that the majority of our streets have sidewalks that are less than 6′ wide, or at least less than 6′ of width isn’t taken up by benches, trees, outdoor seating and bike racks, this would seem to make it impossible to even pass another person while walking without violating the ordinance.
These sort of ordinances that criminalize common behavior or are difficult to accurately interpret are exactly the kinds of ordinances that tend to suffer from selective enforcement and can easily be weaponized to hassle the homeless, people of color or any other group a particular officer has a problem with. It’s jarring to see this from County leadership who seemed onboard just a month ago with the idea that getting gun-toting police out of the business of trying to solve issues of public health was a good idea.
Consistency is Needed
If standing outside on the sidewalk with others is too risky to be allowed, then sitting outside in a sidewalk café eating is too risky to be allowed. Our County leadership need to listen to expert advice, make a decision and then communicate and legislate a clear and consistent expectation.
We Need Our Public Processes Back
Normally in Arlington, these issues would be raised and addressed before the ordinance ever even got to a public hearing, let alone adopted. They would have been brought up by commissions, or by citizens who are not on commissions, but who were made aware of the proposed ordinance when it was released publicly for commission review. This pandemic looks to be with us for a long time — the County needs to adapt and reinstate our public processes so we can get back to thoughtful, informed decision-making. Adopting surprise emergency ordinances after reviewing them in closed session is the exact opposite.
Chris Slatt is the current Chair of the Arlington County Transportation Commission, founder of Sustainable Mobility for Arlington County and a former civic association president. He is a software developer, co-owner of Perfect Pointe Dance Studio, and a father of two.