The U.S. Constitution and its amendments, especially the Bill of Rights, guarantee certain freedoms and rights to all citizens of the United States, including the homeless. As more and more cities move to deal with homelessness by aggressively enforcing public place restrictions, the restrictions are increasingly being challenged in court as unconstitutional. Sometimes a city ordinance has been declared unconstitutional; at other times, the courts have found that there were special circumstances that allowed the ordinance to stand.
There are numerous ways in which ordinances affecting the homeless can violate their rights. Many court challenges claimed that the law in question was unconstitutionally broad or vague. Others claimed that a particular law denied the homeless equal protection under the law or violated their right to due process, as guaranteed by the Fifth and Fourteenth Amendments. There have also been cases based on a person's right to travel, and others that claimed restrictions on the homeless constituted "cruel and unusual punishment," which is prohibited by the Eighth Amendment. Many cities have ordinances against panhandling, but charitable organizations freely solicit in public places. As a result, according to those challenging the ordinances, the right to free expression under the First Amendment is available to organizations but denied to the homeless.
The appearance of poverty should not deny an individual's right to be free from unreasonable search and seizure, as guaranteed by the Fourth Amendment. Often homeless people's property has been confiscated or destroyed (camping gear, personal possessions) without warning because they were found on public property. Unfortunately the state of homelessness is such that even the most personal living activities have to be performed in public. Denying these activities necessary for survival may infringe on an individual's rights under the Eighth Amendment.
The Fourteenth Amendment right to equal protection under the law may be at issue when the homeless are
cited for sleeping in the park, but others lying on the grass sunning themselves or taking a nap during a picnic, for instance, are not.
Testing the Laws in Court
Some court cases test the law through civil suits, and others challenge the law by appealing convictions in criminal cases. Many advocates for the homeless, or the homeless themselves, have challenged laws that they believed infringed on the rights of homeless people.
NO BED, NO ARREST.
The concept of "no bed, no arrest" first arose out of a 1988 class action suit filed by the Miami Chapter of the American Civil Liberties Union on behalf of about 6,000 homeless people living in the city of Miami. The city had a practice of "sweeping" the homeless from the areas where the Orange Bowl Parade and other related activities were held. The complaint alleged that the city had
a custom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life—including sleeping and eating—in the public places where they are forced to live. Plaintiffs further claim that the City has arrested thousands of homeless people for such life-sustaining conduct under various City of Miami ordinances and Florida Statutes. In addition, plaintiffs assert that the city routinely seizes and destroys their property and has failed to follow its own inventory procedures regarding the seized personal property of homeless arrestees and homeless persons in general.
In Michael Pottinger, Peter Carter, Berry Young, et al. v. City of Miami (810 F. Supp. 1551 ), the U.S. District Court for the Southern District of Florida ruled that the city's practices were "cruel and unusual," in violation of the Eighth Amendment's ban against punishment based on status. (Only the homeless were being arrested.) Furthermore, the court found the police practices of taking or destroying the property of the homeless to be in violation of Fourth and Fifth Amendment rights of freedom from unreasonable seizure and confiscation of property.
The city appealed the district court's judgment. Ultimately, a settlement was reached in which the city of Miami agreed that a homeless person observed committing a "life-sustaining conduct" misdemeanor may be warned to stop, but if there is no available shelter, no warning is to be given. If there is an available shelter, the homeless person is to be told of its availability. If the homeless person accepts assistance, no arrest is to take place.
Richard Kreimer, a homeless man in Morristown, New Jersey, often visited the Joint Free Library of Morristown. The library personnel objected to his presence, claiming his behavior was disruptive, and his body odor so offensive that it kept patrons from using some of the areas of the library. After the librarians documented the problems for a period of time, the Library Board of Trustees passed a Library Patron Policy that, among other things, allowed librarians to ask people to leave if their hygiene was unacceptable to community norms.
In 1990 Kreimer filed suit in the Federal District Court for New Jersey against the library, the Board of Directors, the Morristown Bureau of Police, and other library and municipal officials. The suit alleged that the policy rules were "overbroad" (that is, they failed to specify what actions would be objectionable), "vague," and a violation of Kreimer's First Amendment right of access to information and his Fourteenth Amendment rights of equal protection and due process, as well as his rights under the New Jersey Constitution.
The district court upheld Kreimer's complaint that the policy violated his First and Fourteenth Amendment rights. The library appealed the decision to the Court of Appeals, and the court reversed the decision, validating the library's policy, finding that a library, by its very nature, cannot support all First Amendment activities, such as speech-making and interactive debate. Therefore, a library is a "limited public forum," and the rules of the Morristown Library were appropriate to its limited functions of reading, studying, and using library materials. (Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242 [3rd Cir. 1992]).
LOITERING OR WANDERING.
In 2000 homeless street dwellers and shelter residents of the Skid Row area (the plaintiffs) sought a temporary restraining order (TRO) against the Los Angeles Police Department (the defendants), claiming their First and Fourth Amendment rights were being violated. The plaintiffs alleged they were being stopped without cause and their identification demanded on threat of arrest, that they were being ordered to "move along" although they were not in anyone's way, that their belongings were being confiscated, and that they were being ticketed for loitering. In Justin v. City of Los Angeles (No. CV-00-12352 LGB, 2000 U.S. Dist. Lexis 17881 [C.D. Cal. Dec. 5, 2000]), Judge Lourdes Baird denied a TRO that would have prevented the defendants from asking the plaintiffs to "move along." The TRO was granted with reference to the following actions when in the Skid Row area:
- Detention without reasonable suspicion
- Demand of identification upon threat of arrest
- Searches without probable cause
- Removal from sidewalks unless free passage of pedestrians was obstructed
- Confiscation of personal property that was not abandoned
- Citation of those who may "annoy or molest" if interference was reasonable and free passage of pedestrians was not impeded
LIVING IN AN ENCAMPMENT.
In 1996 advocates for the homeless sought an injunction against a Tucson, Arizona, resolution barring homeless encampments from city-owned property on Eighth Amendment and Equal Protection grounds. The court, in Davidson v. City of Tucson (924 F. Supp. 989), held the plaintiffs did not have standing to raise a cruel and unusual punishment claim, as they had not been convicted of a crime and no one had been arrested under the ordinance. The Equal Protection claim failed because the court did not consider homeless people a suspect class and the right to travel did not include the right to ignore trespass laws or remain on property without regard to ownership.
SITTING OR LYING ON THE SIDEWALK.
In 1995 homeless persons challenged Cincinnati, Ohio, ordinances prohibiting sitting or lying on sidewalks and solicitation on First and Fourteenth Amendment grounds. In 1998, in Clark v. Cincinnati (No. 1-95-448, S.D. Ohio, October 25, 1995), determining that the ordinances likely infringed on the plaintiffs' First Amendment right to freedom of speech, the U.S. District Court issued a preliminary injunction to stop the city from enforcing the ordinances, except for the specific provision of the side-walk ordinance that prohibited lying down.
LOITERING IN A TRAIN STATION.
In 1995 plaintiffs challenged Amtrak's policy of arresting or ejecting persons who appeared to be homeless or loitering in Penn Station in New York City, even though the individuals were not apparently committing crimes. The district court, in Streetwatch v. National R.R. Passenger Corp. (875 F. Supp. 1055), determined that Amtrak's rules of conduct were unacceptably vague and that their enforcement impinged on plaintiffs' rights to freedom of movement and due process.
One of the notable court cases addressing panhandling involved Jennifer Loper, who moved from her parents' suburban New York home to beg on the streets of New York City. From time to time she and her friend William Kaye were ordered by police to move on, in accordance with the city ordinance stating: "A person is guilty of loitering when he: '(1) Loiters, remains or wanders about in a public place for the purpose of begging."' In 1992 Loper and Kaye sued the city, claiming that their free speech rights had been violated and that the ordinance was unconstitutional. A district court declared the ordinance unconstitutional on First Amendment grounds. On appeal, the police department argued that begging has no expressive element that is protected by the First Amendment. In Loper v. New York City Police Department (999 F.2d 699 [2d Cir. 1993]), the U.S. Court of Appeals, Second Circuit declared the city's ban on begging invalid, noting that the regulations applied to sidewalks, which have historically been acknowledged to be a public forum. The Court agreed that the ban deprived beggars of all means to express their message. Even if a panhandler does not speak, "the mere presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance."
ZONING THE HOMELESS OUT OF DOWNTOWN.
In 1998 Alan Mason, a homeless man, sought an injunction, damages, and relief against the city of Tucson and the city police for "zoning" homeless people. The suit alleged that homeless people were arrested without cause, were charged with misdemeanors, and were then released only if they agreed to stay away from the area where they had been arrested. Mason himself had been restricted from certain downtown areas, including state, local, and federal courts (including the court in which his case was tried); voter registration facilities; a soup kitchen; places of worship; and many social and transportation agencies.
The plaintiff argued that such restrictions violated his constitutional right to travel, deprived him of liberty without due process in violation of the Fifth Amendment, and implicated the Equal Protection clause of the Fourteenth Amendment. In July 1998 the district court, in Mason v. Tucson (D. Arizona, 1998), granted a temporary injunction against enforcing the law, saying the zone restrictions were overbroad. The case was subsequently settled out of court.