0138

the Courts The Law and the Homeless - Restrictive Ordinances

public city people particular

Not in My Backyard (NIMBY)

To many people, the prospect of low-income, subsidized housing is synonymous with rising crime, falling property values, and overcrowded classrooms, and therefore cause for protest. Because of these fears, local governments often use zoning requirements to block the establishment of group-living homes and shelters for the homeless in all or part of their city. Zoning requirements are local laws regulating what kinds of buildings can be placed in different parts of a city. The use of zoning requirements to block particular developments is often called the "Not in My Backyard" (NIMBY) effect. The people in the neighborhoods are essentially saying that they do not want to have services for the homeless near them, even if they do not oppose them on principle.

In 1997 the city of Springfield, Missouri, passed a zoning ordinance that is typical of the NIMBY effect. The ordinance imposed new restrictions on the operation of emergency and transitional shelters and soup kitchens. No such facility was allowed to be located within 2,000 feet of another similar facility. Among other restrictions, the ordinance limited the capacity of emergency shelters to fifty beds, prohibited shelters from serving meals to nonshelter residents unless the shelter obtained city authorization, and required shelters to have at least one off-street parking space for every three beds. The overall effect was to keep services for the homeless small and scattered, with none of them able to provide for all of the needs of a homeless person at once.

Criminalizing the Homeless Life

Homeless people live in and move about public spaces, and many Americans believe society has a right to control or regulate what homeless people can do in those shared spaces. A city or town may introduce local ordinances or policies designed to restrict homeless people's activities, remove their belongings, or destroy their nontraditional living places. In many cities, municipal use of criminal sanctions to protect public spaces has come into conflict with efforts by civil rights and homeless advocates to prevent the criminalization of the homeless.

There have been other approaches. Several cities have proposed or created community courts specifically to handle "public nuisance" crimes. Other cities have implemented plans to privatize public property as a way of restricting the access of homeless people to certain areas.

Other localities pass ordinances that target homeless people in the hopes of driving them from the community. For example, Olympia, Washington, considered ordinances in 2000 that banned camping and car camping, established "no panhandling" and "no alcohol" zones, and strengthened trespassing laws in public parks. According to an annual report by the National Coalition for the Homeless (NCH):

Policies of criminalization defeat their own goals of removing homeless people from public visibility because they simply create further barriers for survival and undermine individual efforts to escape homelessness. Such policies keep more people on the streets and increase problems related to homelessness. When individuals are released from jail, they are still homeless, and they have even more barriers and obstacles to overcome than before.

—National Coalition for the Homeless, "Illegal to Be Homeless," 2004

Violating Human Rights

The NCH's 2004 Illegal to Be Homeless report also documented what NCH termed "the widespread trend of violations of the basic human rights of people experiencing homelessness in 179 communities in forty-eight states, Puerto Rico, and the District of Columbia." The report noted that nearly all of the communities surveyed lacked sufficient shelter space to accommodate the homeless and suggested that the effort and money spent on bringing the homeless into the courthouse might better be directed toward addressing the nation's lack of affordable housing. The report stated:

We have asserted and continue to assert that a pattern and practice of civil rights violations and unconstitutional behaviors by local government authorities, including the police and other city agencies, exists in many cities around the country. These practices exact enormous economic, social, political and individual costs and do nothing to prevent and end homelessness that plagues individuals nationwide.

Table 6.1 illustrates the anti-homeless laws that existed in some of the cities surveyed for the 2004 report. Prohibited or restricted behaviors fell under the categories of sanitation, begging, sleeping/camping, sitting/lying, loitering/loafing, and vagrancy.

Illegal to Be Homeless declared Little Rock, Atlanta, Cincinnati, Las Vegas, and Gainesville as the five "meanest cities" for the number of anti-homeless laws passed or pending, the enforcement and severity of their laws, and the "general political climate" with regard to the homeless, among other criteria. The "meanest states" were California and Florida. Two examples of the practices of these cities follow.

In Little Rock, homeless service providers were assured by police that they would not use information about locations of homeless camps to later harass homeless people. About a month later, the providers heard that the city would, in fact, use the information to do sweeps of the camps. The sweeps occurred throughout the summer, generally before major events. Advocates urged the police not to conduct huge sweeps, arguing that there were not enough shelter beds for all the homeless. While major sweeps were postponed in August 2004, the city planned to go forward with them. According to Illegal to Be Homeless, Mayor Jim Dailey of Little Rock hoped to "'deal with the sensitivity issues of those who truly have needs, but as far as I'm concerned we need to run off those individuals who are the chronic homeless that don't want services provided to the them' or who 'expect they're going to victimize the community with their panhandling or other crimes."'

In Atlanta, Mayor Shirley Franklin issued an executive order in September 2003 that prohibited feeding people in public, arguing that feeding hungry people was a health hazard. Many church groups and individuals stopped offering food to hungry homeless people in city parks. In addition, arrests for "quality of life" offenses increased 239% that year. A quasi-police force known as the "Downtown Ambassadors" awaken homeless people sleeping on the street at 6:45 A.M. Sometimes homeless people were arrested for sleeping in public places. Meanwhile, the city planned to close shelters for homeless women and children.

USE OF FORCE.

Just as force was used against striking coal miners at the turn of the twentieth century and against homeless and poor World War I veterans who marched on Washington during the Great Depression, violence and force have often been used to deal with the "homeless problem." In 1995 the New York City police used an armored personnel carrier and riot gear to retake two East Village tenements from a group of squatters who had resisted city efforts for nine months. Homeless people had occupied the city-owned buildings for as long as a decade and claimed that their continuous use of TABLE 6.1
Prohibited conduct in selected cities, 2002-03

Sanitation Begging Sleeping/camping Sitting/lying Loitering/loafing Vagrancy
City Bathing in public waters Urination/defecation in public Begging in public places city-wide Begging in particular public places "Aggressive" panhandling Sleeping in public city-wide Sleeping in particular public places Camping in public city-wide Camping in particular public places Sitting or lying in particular public places Loitering/loafing vagrancy city-wide Loitering/loafing in particular public places Obstruction of sidewalks/public places Closure of particular public places Other (see footnotes)
Albuquerque, NW X X X X X b,k,o
Atlanta, GA X X X X X X X X X a,b,f,g,l
Austin, TX X X X X X X X X b
Baltimore, MD X X X X X X X X a,c,n
Boston, MA X X X X X X i
Buffalo, NY X X X X X X X a,b,f,g,n,q
Charlotte, NC X X X X X X X X e,n
Chicago, IL X X X a,c,d,f
Cincinnati, OH X X X X X X X a,b,n
Cleveland, OH X X X X X
Columbus, OH X X X X X X X a,b,d
Dallas, TX X X X X X X X X X X b
Denver, CO X X X X X X X X X a,b,d,n
Detroit, MI X X X X X X a,b,e,g,n
El Paso, TX X X X X X X a,b,f,j
Fort Worth, TX X X X X b,d,h,n
Fresno, CA X X X X X X X X X b
Honolulu, HI X X X
Houston, TX X X X X X X X a,i
Indianapolis, IN X X X X X X X X a,b,d
Jacksonville, FL X X X X X X X X X X X a,b,d,g,k,p,q
Kansas City, MO X X X X X X a,b,d,n
Long Beach, CA X X X X X b
Los Angeles, CA X X X X X X X X X b,c,g,q
Memphis, TN X X X X
Miami, FL X X X X X X X X d,k
Milwaukee, WI X X X X X X X X a,b,c,e
Minneapolis, MN X X X X X X X X X a,b,e,j,k,n
Nashville, TN X X X X X X X a
New Orleans, LA X X X
New York, NY X X X X X X X X X
Oakland, CA X X X X X X X X X X a,d
Oklahoma City, OK X X X X X X X X b,g,n,o
Omaha, NE X X X d,g,q
Philadelphia, PA X X X X X X a,b,c,d
Phoenix, AZ X X X X X X X X X X X X X b
Pittsburgh, PA X X X X X X a,b
Portland, OR X X X X X X X X a,b,d,e,f,h,l,k,l,o
Sacramento, CA X X X X X X X X a,b,e
San Antonio, TX X X X X X a,b,i
San Diego, CA X X X X X X X X a,b,h
San Francisco, CA X X X X X X b,c,d,k,n
San Jose, CA X X X X b
Seattle, WA X X X X X X X d
St. Louis, MO X X X X a,b,c,f,m

TABLE 6.1
Prohibited conduct in selected cities, 2002-03 [CONTINUED]
Prohibited conduct in selected cities, 2002-03
[continued] SOURCE: Prohibited Conduct in Illegal to be Homeless: The Criminalization of Homelessness in the United States, The National Coalition for the Homeless, August 2003, http://www.nationalhomeless.org/civilrights/crim2003/report.pdf (accessed March 17, 2005)

Sanitation Begging Sleeping/camping Sitting/lying Loitering/loafing Vagrancy
City Bathing in public waters Urination/defecation in public Begging in public places city-wide Begging in particular public places "Aggressive" panhandling Sleeping in public city-wide Sleeping in particular public places Camping in public city-wide Camping in particular public places Sitting or lying in particular public places Loitering/loafing vagrancy city-wide Loitering/loafing in particular public places Obstruction of sidewalks/public places Closure of particular public places Other (see footnotes)
Toledo, OH X X X X X b,d,i
Tucson, AZ X X X X X X X X X X b,h,n
Tulsa, OK X X X X X X X a,b,k,n
Virginia Beach, VA X X X X X X X b,d,k
Washington, DC X X X b,g,h
aSpitting.
bMinor curfew.
cHaving/abandoning merchandise carts away from premises of owner.
dFailure to disperse.
eMaintaining junk/storage of property.
fMaking music on the street/street performers.
gWashing automobile windows.
hProhibition to enter vacant building.
iRummaging.
jCreating odor.
kVehicular residence.
lWalking on highway.
mBringing paupers/insane persons into city.
nPeddling.
oPublic nuisance.
pCharging for car wash.
qWashing cars.

the buildings without the formal objection of the city gave them rights to the building, under a legal principle known as "adverse possession."

The Rationale for Restrictive and Ordinances

Local officials often restrict homeless people's use of public space to protect public health and safety—either of the general public, the homeless themselves, or both. Dangers to the public have included tripping over people and objects on sidewalks, intimidation of passersby caused by aggressive begging, and the spreading of diseases. Many people believe the very presence of the homeless is unsightly and their removal improves the appearance of public spaces. Other laws are based on the need to prevent crime. New York's campaign is based on the "broken windows" theory of criminologists James Q. Wilson and George Kelling (Atlantic Monthly, March 1982). They argued that allowing indications of disorder, such as a broken window, or street people, to remain unaddressed shows a loss of public order and control, as well as apathy in a neighborhood, which breeds more serious criminal activity. Therefore, keeping a city neat and orderly should help to prevent crime.

All of these are legitimate concerns to some degree. The problem, critics say, is that rather than trying to eliminate or reduce homelessness by helping the homeless find housing and jobs, most local laws try to change the behavior of the homeless by punishing them. They target the homeless with legal action, ignoring the fact that many would gladly stop living in the streets and panhandling if they had any feasible alternatives. While these laws may be effective in the sense that the shanties are gone and homeless people are not allowed to bed down in subway tunnels or doorways, the fact remains that the homeless have not disappeared. They have simply been forced to move to a different part of town, have hidden themselves, or have been imprisoned. Furthermore, many of these laws have been challenged in court as violating the legal rights of the homeless people they target.

An Argument against Criminalization as Public Policy

In "Downward Spiral: Homelessness and Its Criminalization" (Yale Law & Policy Review, vol. 14, no. 1, 1996), Maria Foscarinis, founder of the National Law Center on Homelessness and Poverty, argued that criminalization of the homeless is poor public policy for several reasons:

  • It may be constitutionally unsound, especially in cities that are unable to offer adequate resources to their homeless residents.
  • It leads to legal challenges, which may take years to resolve, regardless of outcome.
  • Legal battles are costly and will deplete already scarce municipal resources that could be used on solutions to homelessness.
  • Criminalization responses do not reflect public sentiment, but rather the will of a vocal, politically influential minority.
  • Criminalization fosters divisiveness, pitting "us" (the housed) against "them" (the homeless).
  • Like emergency relief, criminalization addresses the visible symptom of homelessness—the presence of homeless people in public space—and neglects the true causes of homelessness.
  • Finally there is the fact that, in the long-term, criminalization does not and cannot work. Like all humans, homeless people must eat, sleep, and occupy space. If they are prohibited from occupying one area, they must go somewhere else.
  • As an alternative to criminalization, Foscarinis suggested the following:
  • Police advocacy programs, in which "sweeps" are replaced by outreach units—officers assigned to go out, with service providers, to homeless people to refer them to necessary services. Unless criminal activity is involved, the police remain in the background to provide security, and the presence of service providers prevents police from being too heavy-handed or harassing.
  • Standing committees composed of homeless people, advocates, a police captain, and a representative of the city government to respond to complaints about "camping" of homeless residents. The committee outreach team attempts to make alternative arrangements for the homeless. The police act only if criminal activity is involved, or if homeless people refuse alternative arrangements.
  • Day-labor centers—buildings where homeless people can meet with employers to get jobs.
  • One-stop access centers, which offer medical services, mental health services, social services, and job training at one location.

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