The Criminalization of Homelessness: An Overview of Litigation Theories and Strategies

Copyright 1995 by National Clearinghouse for Legal Services, Inc. All rights reserved. The Criminalization of Homelessness: An Overview of Litigation Theories and Strategies By Maria Foscarinis and Richard Herz. Maria Foscarinis is the executive director and Richard Herz is the civil rights monitor at the National Law Center on Homelessness & Poverty, 918 F St. NW, Suite 412, Washington, DC 20004; (202) 638-2535. I. Introduction In recent years, a growing number of cities have passed or enforced antihomeless laws or policies. /1/ Actions taken against homeless people include restrictions on begging and homeless persons use of public places, police "sweeps" designed to remove homeless people from specific areas, selective enforcement of generally applicable laws against homeless people, and restrictions on providers of services to homeless people. Many cities employ combinations of these actions. At the same time, city resources to help homeless people are woefully inadequate. This article surveys recent case law resulting from suits challenging these laws and policies. The article focuses on important rulings relating to restrictions on panhandling and to prohibitions on sitting; performing necessary, involuntary behaviors; or simply remaining in public places. It then discusses litigation and nonlitigation strategies to prevent or reverse the adoption of such policies. II. Case Law A. Panhandling Recent court rulings have relied on the First Amendment and the Equal Protection Clause of the Federal Constitution and on state constitutional provisions. 1. First Amendment A threshold question is whether the law at issue affects expression, which is protected, or conduct, which is not. In Young v. New York City Transit Authority, the Second Circuit rejected a First Amendment challenge to the New York City subway system s prohibition on begging. /2/ In so ruling, the court reasoned that the law was not directed at protected speech but rather at conduct, which is independent of any particularized message. /3/ In Loper v. New York City Police Department, a different panel of the Second Circuit struck down a law prohibiting loitering for the purpose of begging. /4/ The court concluded that begging is protected charitable solicitation and that the law was not narrowly tailored to serve a compelling state interest. /5/

Cities currently adopting antipanhandling ordinances typically limit the scope of those ordinances to aggressive panhandling or panhandling in certain places, almost certainly as a result of the above-cited cases. /6/ A number of courts have ruled on such laws. In Roulette v. City of Seattle, /7/ the court held that, although begging is protected speech, the challenged ordinance, which prohibited "begging with intent to intimidate," was not unconstitutionally vague or overbroad when given the limiting construction that it applied only to threats. /8/ In Patton v. Baltimore City, the district court noted that, although panhandling is charitable solicitation fully protected by the First Amendment, the city s law did not violate that amendment because it was narrowly tailored to serve compelling state interests in protecting citizens and promoting tourism. /9/ 2. Equal Protection Clause In Patton, the court also held that, because the law prohibited only aggressive panhandling and not all aggressive solicitation, it made a content-based distinction that implicated, though it did not violate, the First Amendment, a fundamental right. Because the city could not demonstrate a compelling state interest in making the content-based distinction, the court held that the law was unconstitutional under the Equal Protection Clause. /10/ In Blair v. Shanahan, the court held that a blanket ban on panhandling violated the Equal Protection Clause. /11/ It reasoned that the law s distinction between beggars and those who initiate conversations not involving requests for money was content-based discrimination that was not narrowly tailored to serve substantial state interests in prohibiting threats. /12/ 3. State Constitutions Some cities laws regulate all aggressive solicitation as opposed to just aggressive panhandling. In Berkeley Community Health Project v. City of Berkeley, /13/ and Church of the Soldiers of the Cross of Christ v. City of Riverside, /14/ the courts held that antisolicitation ordinances in Berkeley and Riverside, California, were unconstitutional under the California Constitution. /15/ B. Sitting A few cities have attempted to rid their downtowns of "undesirables" by prohibiting sitting or lying down on a sidewalk in a commercial area during certain times of the day. Two federal district courts have ruled on the constitutionality of such laws. In Roulette, the court upheld Seattle s sidewalk ordinance. /16/ The court held that the ordinance did not violate plaintiffs First Amendment rights because sitting or lying are not expressive conduct and because people can still exercise free speech rights without sitting or lying down in violation of the ordinance. /17/ In Berkeley Community Health Project, however, the court preliminarily enjoined that city s prohibition on sitting. Finding that sitting itself can be expressive conduct and that some plaintiffs ability to engage in speech depended on being able to sit, the court held that there was a substantial likelihood that plaintiffs would prevail at trial on their First Amendment claim.

C. Public Place Restrictions A number of rulings have addressed city policies that ban or restrict public conduct in which homeless people typically have no choice but to engage, such as sleeping in public. These cases have involved a number of legal theories. 1. Eighth Amendment District courts in Pottinger v. City of Miami /18/ and Johnson v. City of Dallas /19/ found that homeless people in Miami and Dallas had no choice but to be in public places. The courts relied on evidence that shelter beds were insufficient, by far, to meet homeless persons need and on expert testimony that people rarely voluntarily choose to be homeless. They noted that sleeping, eating, and bathing -- the activities at issue -- are harmless, life-sustaining behaviors that the plaintiffs had no choice but to perform in public; criminalizing such necessary, involuntary conduct imposed cruel and unusual punishment on homeless persons, in violation of the Eighth Amendment and consistent with the Supreme Court s decisions in Powell v. Texas /20/ and Robinson v. California. /21/ In contrast, the district courts in Patton /22/ and Joyce v. City of San Francisco /23/ rejected similar claims because they concluded that homelessness is not a status and, in any event, the policies at issue targeted behavior. These courts focused on the distinction between status and conduct, whereas the Johnson and Pottinger courts were persuaded by the involuntary nature of the prohibited behavior. /24/ 2. Right to Privacy Plaintiffs have also argued that their right to privacy protects the performance of essential activities in public. The courts in Patton /25/ and Pottinger /26/ both rejected these claims. 3. Equal Protection The courts in Joyce, /27/ Johnson, /28/ and Kreimer v. Bureau of Police for the Town of Morristown /29/ all rejected claims that homeless people constitute a suspect class. However, the courts have been divided on equal protection claims that involve fundamental rights. In Joyce the court rejected an equal protection claim because it held that there is no fundamental right to sleep. /30/ In Patton the court refused to dismiss plaintiffs equal protection claim. The court held that if plaintiffs could prove at trial that the city had a practice of directing only panhandlers to stop soliciting, and if the city could not show that this policy -- which would implicate the fundamental right to freedom of expression -- met a compelling interest, plaintiffs would prevail. /31/

Plaintiffs have also argued that the right to travel is the fundamental right at issue. This argument asserts that arresting homeless people for public sleeping or performing other necessary acts in public has the primary purpose and actual effect of penalizing and deterring homeless people from migrating to or remaining in a city since they cannot do either without facing arrest. The Pottinger court accepted this argument as an alternate basis for enjoining the city s policy. /32/ The court in Joyce, however, rejected this rationale /33/ and noted that the Supreme Court has applied strict scrutiny under a right-to-travel analysis only where the law in question facially discriminates between residents and nonresidents. /34/ 4. Due Process In Streetwatch v. amtrak, the district court enjoined amtrak from continuing its policy of arresting or ejecting any person who appeared homeless from Penn Station in the absence of evidence that such person had committed any crime. /35/ The court found that amtrak s rules of conduct vested too much discretion in amtrak police and therefore were void for vagueness in violation of due process protections. The court also held that because plaintiffs freedom of movement was implicated, defendants were required to meet a higher standard. The court concluded that defendants had acted arbitrarily and that homeless people had the right to be in Penn Station without being confronted by the police. III. Strategies The above review of the case law is intended to serve as a road map to the legal landscape, not to suggest that litigation is necessarily the most effective way to counter antihomeless policies. In fact, while in some cases litigation may be necessary or unavoidable, confrontation with cities may also serve to undermine relationships with city and business leaders that are necessary to proactive solutions to homelessness. In general, before litigating, advocates should try to convince public officials that the problem of destitute people residing in public places can be dealt with in less vindictive and more constructive ways. For example, in Nashville, a local judge helped persuade a downtown merchants association to withdraw a proposed aggressive begging law by explaining that various existing laws already covered essentially the same conduct and by noting that homelessness is a social issue that should be dealt with in ways other than antibegging legislation. The merchants association and local advocates then worked together on alternative approaches to dealing with downtown Nashville s homeless. Outreach workers began working with downtown merchants to teach them better to recognize behaviors that require social services as opposed to law-enforcement responses. Moreover, the Chamber of Commerce and the chief of police began working with advocates and homeless individuals to develop a plan to address the inordinate amount of street violence homeless people face in Nashville. Another example of a proactive approach is the "Miami meal tax." Dade County, prompted at least in part by the Pottinger decision, adopted a 1-percent tax on restaurant meals at restaurants grossing over $400,000 per year in order to fund facilities and services for homeless people. The tax went

into effect in October 1993. The meal-tax plan contemplates funding emergency shelters, transitional and permanent housing, job training, and substance-abuse treatment. Although the allocation of funding has been controversial, the tax provides an excellent example of how a local government can raise a significant amount of money for needed services in a relatively painless way. Where litigation must be brought, advocates should note that, by their very nature, these cases require a strong factual record. /36/ Victims testimony and arrest records are particularly useful in documenting incidents of harassment and of disparate treatment given to those people who appear homeless and those who do not. /37/ This type of investigation can be both difficult and lengthy. Moreover, victims may be unwilling to come forward or to participate in litigation, and it may be difficult to keep in contact with them as litigation proceeds. /38/ IV. Conclusion The recent increase in antihomeless laws and ordinances presents a major threat to homeless people and a difficult challenge for their advocates. While litigation has led to some notable victories against intransigent cities, it is lengthy, costly, difficult, and speculative. Advocates should attempt to work with cities to discourage punitive approaches and to promote constructive solutions before litigation becomes necessary. Footnotes /1/ For a detailed discussion of this trend, see National Law Center on Homelessness and Poverty, No Homeless People Allowed (Dec. 1994). /2/ Young v. New York City Transit Auth., 903 F.2d 146 (2d Cir. 1990). /3/ The court also relied on the special exigencies it found were created by begging in the confined quarters of the subway. /4/ Loper v. New York City Police Dep t, 999 F.2d 699 (2d Cir. 1993). /5/ The Loper court also distinguished that law, which prohibited begging anywhere in the city, from the prohibition on begging in the subway at issue in Young, 903 F.2d 146. Similar results have also been obtained against blanket bans on begging in district courts in Blair v. Shanahan, 775 F. Supp. 1315 (N.D. Cal. 1991), aff d, 38 F.3d 1514 (9th Cir. 1994) (Clearinghouse No. 47,181), and Heathcott v. Las Vegas Metro. Police Officers, CV-S-93-045-LDG (D. Nev. 1994) (Clearinghouse No. 50,829). /6/ Some cities do, however, continue to enforce existing blanket prohibitions on all panhandling. E.g., Milwaukee, Wisconsin, continues to enforce an ordinance prohibiting all solicitation of funds except for solicitation done by an employee of a recognized charity. City of Milwaukee Ordinances Sec. 106-1.1.

/7/ Roulette v. City of Seattle, 850 F. Supp. 1442 (W.D. Wash. 1994) (Clearinghouse No. 49,483). /8/ The court did strike down a section of the ordinance that listed circumstances to consider in determining whether there was an intent to intimidate. Since the court had limited construction of the ordinance to prohibit only "threats" and since the section described some speech that was clearly protected, the court found that the section rendered the law both vague and overbroad and struck it down. Id. at 1453 -- 54. /9/ Patton v. Baltimore City, Civil No. S 93-2389, slip op. at 55 -- 56, 62 -- 65 (D. Md. Aug. 19, 1994) (Clearinghouse No. 50,831). /10/ Id. at 65 -- 69. /11/ Blair, 775 F. Supp. 1315. /12/ Id. at 1325. The Patton court, however, specifically rejected the comparison between begging and conversations not involving requests for money. These cases are not necessarily incompatible, however. The law in Blair dealt with nonaggressive as well as aggressive begging, and the court found that, because the mere act of begging is not a reliable proxy for threats, the law was not narrowly tailored. The Blair court noted that "the legislature may take [the difference between intimidating begging and solicitations that do not include requests for money] into account in drafting a statute intended to reduce the perceived evil of street intimidation for money." Id. /13/ Berkeley Community Health Project v. City of Berkeley, No. C 95-0665 CW (N.D. Cal. 1995). /14/ Church of the Soldiers of the Cross of Christ v. City of Riverside, No. CV 94-8047 LGB (C.D. Cal. 1995). /15/ Employing an analysis similar to that in Blair, the courts in Berkeley Community Health Project and Church of the Soldiers of the Cross of Christ ruled that the laws at issue impermissibly regulated speech based on its content because they distinguished between those speakers who ask for money and those who do not. Although decided under the California Constitution, these cases, along with Blair, suggest possible arguments under the Federal Constitution. /16/ Roulette, 850 F. Supp. 1442. /17/ The court also rejected plaintiffs substantive due process, vagueness, and equal protection claims. It held that the ordinance was rationally related to the city s legitimate interests in ensuring pedestrian safety and protecting the economic vitality of commercial areas and, moreover, that the prohibition and the enumerated exceptions were sufficiently specific. It found no facial discrimination and no evidence that the city council was targeting homeless people. The court s ruling on the sidewalk ordinance is currently on appeal to the Ninth Circuit, No. 94-35354. /18/ Pottinger v. City of Miami, 810 F. Supp. 1551, 1561 -- 65 (S.D. Fla. 1992) (Clearinghouse No. 48,663).

/19/ Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994). /20/ Powell v. Texas, 393 U.S. 898 (1968) (Clearinghouse No. 906). /21/ Robinson v. California, 370 U.S. 660 (1962). /22/ Patton, slip op. at 52 -- 53. /23/ Joyce v. City of San Francisco, 846 F. Supp. 843 (N.D. Cal. 1994). /24/ The Johnson court noted that because involuntary conduct such as sleeping in public is inseparable from the being homeless, penalizing such conduct is tantamount to penalizing being homeless, or the "status" of homelessness. Johnson, 860 F. Supp. at 350. /25/ Patton, slip op. at 49. /26/ Pottinger, 810 F. Supp. at 1575. /27/ Joyce, 846 F. Supp. 843. /28/ Johnson, 860 F. Supp. at 355. /29/ Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242 (3d Cir. 1992). /30/ Joyce, 846 F. Supp. at 859. /31/ Patton, slip op. at 49 -- 50. /32/ Pottinger, 810 F. Supp. at 1578 -- 83. /33/ Joyce, 846 F. Supp. at 860. /34/ A similar challenge to Seattle s sidewalk ordinance was also rejected by the court in Roulette, which held that there was no legislative record indicating a desire to expel plaintiffs from downtown and that the ordinance did not make it impossible for the plaintiffs to perform necessary acts downtown. /35/ Streetwatch v. amtrak, 94 CIV 4254 (CBM) (S.D.N.Y. 1995). /36/ Moreover, the relevant equal protection and Eighth Amendment theories are fundamentally "as-applied" challenges and must be specifically pleaded as such. In Tobe v. City of Santa Ana, No. S038530 (Cal. Sup. Ct. Aug. 24, 1995) (Clearinghouse No. 49,238), the California Supreme Court rejected Eighth Amendment and right-to-travel challenges to Santa Ana s anticamping ordinance. The court somewhat strangely concluded that only a facial challenge had been raised and then held that the law was not invalid on its face.

/37/ An equal protection claim will almost certainly require a showing that the enforcement discriminatorily affects the exercise of a fundamental right. Such a claim also requires a showing of intent to discriminate against as well as a discriminatory impact on homeless people. Toward this end, any official documents, internal memoranda (particularly police department memoranda), or statements by city officials or employees that suggest an intent to harass or otherwise single out homeless people are extremely important. Minutes from city government meetings and the legislative history of relevant ordinances should be reviewed. In the absence of direct evidence of intent, plaintiffs will be faced with the difficult task of gathering evidence concerning the number and type of harassment incidents that is so compelling that intent can be inferred from the pattern and the context in which it arose. The same evidence that is relevant to intent obviously may be also relevant in showing that the discrimination was an official policy or custom of the city. /38/ For an overview of the considerations involved in bringing this type of lawsuit, see Benjamin S. Waxman, Fighting the Criminalization of Homelessness: Anatomy of an Institutional Anti- Homeless Lawsuit, 23 Stetson L. Rev. 467 (1994).