the Courts The Law and the Homeless - Constitutional Rights

city amendment library district

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.


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 [1992]), 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]).


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


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.


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.


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."


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.

User Comments

Your email address will be altered so spam harvesting bots can't read it easily.
Hide my email completely instead?

Cancel or

Vote down Vote up

about 8 years ago

I sympathize with the "no bed,no crime" rule.

Beverly Hills recently started cracking down on homeless people as

never before with "no-camping" signs.

Disgusting. This is one town that will NEVER have homeless facilities

in town...but they're big hypocrites,

supporting OUTSIDE Santa

Monica...a "dumping ground".

Beverly Hills people who try to oust

the homeless ought to GET A LIFE themselves...what they're doing is

un-Constitutional...but,the homeless

here don't have lawyers--yet--to

defend themselves.

Vote down Vote up

over 9 years ago

I have been "without housing" for almost three years. This was a decision made out of frustration with landlords that unreasonably impose conditions upon tenants in contrast to the agreements that they make when they rent a space. The rent paid is legal tender and valid, their reversals of their terms, disregard of those terms, and changing their minds about the terms at will, is unjustifiable and objectionable to me. So, I decided to take naps where I could and bathe in restrooms. I basically function otherwise but economically the condition continues to deteriorate. Jobs are not forthcoming and neither are any financial resources. It's becoming more difficult to pull myself out of this situation. I am quite lucid though, do not engage in any bad behaviors or substance abuse, and actually am becoming more prolific with my writing and with my photo montage work. I'm proud of who I am but disappointed with my society. I can understand both sides of the issue being that I have been on both sides of the issue. Knowing the law and being rather articulate and persuasive helps me to fend off unreasonable actions by law enforcement. My writing has stymied efforts by some to antagonize me. That I am proud of. Knowing the constitutional case law and the Constitution is an incredible asset. Why can't we all just work together to help those in need to re-integrate back into society and stop all this conflict?

Vote down Vote up

almost 7 years ago

thank you for the information. I'll use it for my agumen't in court in april. is there any thing i can use for protesting and not being in form of my rights since they sent the ticket in the mail.

Vote down Vote up

over 5 years ago

How about the who stay one night in a homeless shelter. what rights do they lose. Ow about 14th amendment rights

Vote down Vote up

over 5 years ago

I am shocked yet greatly pleased and have renewed hope from the information i have read here. I had never been homeless until age 31. Here i am 9 years later and have been "houseless" with a few brief reprieves over those years. I have seen and been victim of varying levels of injustice due to rules & regulations imposed by todays so called justice system within many areas. I have done my best to maintain my apperance and behavior but some things necessary for survival are frowned upon by a large # of "housed" folks. Everyone should have to live for a period of time as the homeless do to learn not only how difficult it is but MANY of the people out here are more helpful, understanding, & giving than people with housing! So many things need done for the thousands of "houseless" people. Im trying to do my part- Will anyone out there help too? I know many do but ALL people need to lend a hand somehow- even with just a change of attitude. Any suggestions, guidence, knowledge, or whatever you can to help me help my community would be so greatly appreciated! Thanks for reading- ~THE FURY~ [email protected]

Vote down Vote up

almost 6 years ago

Various people all over the world get the loan from various creditors, just because it's fast and easy.

Vote down Vote up

over 6 years ago

public defenders office working with da office discriminating agaist homeless,have evidince,plus vop charge turned self in 2005 9:30 at night friday judge ror me sat morning at 12:05 he's not in office,sherriffs says judge isn't giving you a place to stay,this is a record,much more need help,bogus charge,may 19th court date,public defender tip hand to da,plus got me to sigh plea form,coercede,they're burying it,right wing southren justice waging war to get rid of homeless in indain river county fl

Vote down Vote up

almost 7 years ago

I am a very low income receiver individual who fears for his life because right @ this moment i live in a 3Qourter

resident in brooklyn, and i had to get an order of protection against this so called manager of this resident because he assoulted me not 1 time but twice and not until he

assoults me a third time will they intervien and give me a letter for relocation. Do you believe this crock of ....

So in other words i would proberly have to be in the hospital or in a coffin before they help a person out.


Popular Pages