Advocacy Manual

Constitutional Problems with Criminalization Measures
As court challenges from around the country have shown, criminalization measures may violate homeless persons' constitutional rights. Homeless persons and advocates have filed lawsuits challenging, among other laws, anti-camping and anti-panhandling laws, as well as sweeps of homeless encampments and restrictions on food sharing in public.
Constitutional Problems with Anti-Panhandling Laws
Anti-panhandling laws vary from city to city, with some laws prohibiting begging or solicitation fairly broadly and others placing restrictions on begging or solicitation in only certain parts of the city or at certain times of day. In a case from New York City, the Second Circuit enjoined the New York City Police Department from enforcing a New York State statute that in effect banned begging city-wide, as the court found such a ban violated the First Amendment right to free speech (Loper v. New York City Police Department, 999 F.2d 699 (2nd Cir. 1993)). In its decision, the Second Circuit found that begging constitutes expressive conduct for purposes of First Amendment analysis. The court noted that begging usually conveys a need for food, shelter, clothing, and other needs and is, therefore, similar to messages conveyed by organized charities. Prohibiting individuals who beg peacefully from communicating with their fellow citizens did not serve a compelling governmental interest. Further, even if the state had a compelling interest, a city-wide ban on begging was not narrowly tailored, not content-neutral, and did not leave alternative channels of communication by which beggars could convey their messages of indigency. Other courts have found some anti-panhandling or anti-begging laws unconstitutional on First Amendment grounds as well. While broader anti-panhandling laws have been found unconstitutional, others more narrowly tailored have withstood judicial scrutiny. The Seventh Circuit upheld an anti-panhandling law from Indianapolis that prohibited "aggressive" panhandling, verbal solicitations at night, and panhandling at bus stops, in public transportation, at a vehicle stopped in traffic, in a sidewalk café, or within 20 feet of an ATM (Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000)). The anti-panhandling law did not regulate or prohibit passively panhandling with a sign. The Seventh Circuit agreed that beggars communicate important political messages through an appeal for money and, therefore, such speech is protected by the First Amendment. The court indicated that one could make an argument that the ordinance was content-based, since it prohibited solicitations for immediate cash donations, but not solicitations for other things, such as signatures, time, or labor. However, the plaintiffs in the case did not argue that the regulations were content-based. Therefore, the court found that the regulations should be upheld if they are narrowly tailored to meet a significant governmental interest and leave open alternative channels of communication. The court found that the city has a legitimate interest in promoting "safety and convenience" of its residents on public streets and that the city had narrowly tailored the regulations to address those interests by applying the regulations to "only those times and places where citizens naturally would feel most insecure in their surroundings." Further, the court found that alternative channels of communication were available as panhandlers could convey their messages vocally during the day on all public streets, except for the small amount of territory covered in the restrictions, and passively at night.
Constitutional Problems with Anti-Camping/Sleeping Laws
Homeless plaintiffs and advocates have also successfully challenged laws or practices that punish homeless people for sleeping or conducting other life-sustaining activities in public. In a recent case from the Ninth Circuit, homeless plaintiffs successfully challenged the enforcement of a Los Angeles ordinance that makes it a crime to sit, sleep, or lie down in public spaces throughout the entire city (Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006)(vacated by Jones v. City of Los Angeles, 505 F.3d 1006 (9th Cir. 2007))). The plaintiffs were sleeping or resting on the sidewalk at the time they were arrested or cited for violating § 41.18 of the L.A. Municipal Code. The plaintiffs were able to show that with over 80,000 homeless people in L.A. County, there are almost 50,000 more homeless people than available shelter beds. As a result, thousands of homeless people in L.A. have no choice but to sit, sleep, and lie down in public due to lack of shelter space. The Ninth Circuit concluded that unlimited enforcement of § 41.18 against homeless persons in L.A. violated the Eighth Amendment. The Ninth Circuit found that involuntariness was a key factor when determining whether laws punishing acts that are integral to one's status violate the Eighth Amendment. Since Los Angeles does not have sufficient shelter space, homeless persons must engage in basic human acts such as sitting, lying down, and sleeping in public. Thus, punishment for such behavior violates the Eighth Amendment right to be free from cruel and unusual punishment. The case was ultimately settled before an appeal by the City for a rehearing en banc proceeded, and the Ninth Circuit ultimately vacated the decision per the settlement agreement (Id.). A class of homeless plaintiffs in Miami won a similar victory using the Eighth Amendment argument in the 1990's in Pottinger v. City of Miami (810 F. Supp. 1551 (S.D. Fla. 1992), remanded for limited purpose, 40 F.3d 1155 (11th Cir. 1994)). In that case, homeless plaintiffs challenged Miami's policy of arresting homeless people for conduct such as sleeping, eating, and congregating in public. As in Los Angeles, the number of homeless people in Miami outnumbered the available shelter spaces. At the time of the trial, there were only 700 shelter beds for the 6,000 homeless persons in Miami. The District Court for the Southern District of Florida found that Miami's policy of arresting homeless people for conducting necessary life-sustaining activities in public was cruel and unusual punishment in violation of the Eighth Amendment, as homeless Miami residents had no choice but to conduct those activities in public due to lack of shelter space. The court also found that the practice of arresting homeless people for performing life-sustaining acts in public violated the plaintiffs' right to due process and right to travel. In another case from the Eleventh Circuit, however, a homeless man was not successful in using the Eighth Amendment argument to challenge his arrest under Orlando's anti-camping law (Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000) cert. denied 149 L.Ed.2d 480 (2001)). As in the Jones in the Ninth Circuit, the Eleventh Circuit found that the success of the plaintiff's Eighth Amendment claim rested in whether the plaintiff had an opportunity to access shelter. In this case, the court found that at least one shelter in Orlando never reached its maximum capacity and people were never turned away; therefore, the plaintiff could have sought shelter there to comply with the anti-camping law. The plaintiff's equal protection and void-for-vagueness claims also failed in this case.
Constitutional Problems with Destruction of Property
Another issue addressed in other cases is destruction of homeless persons' personal property. In Pottinger, the court found the practice of seizing and destroying homeless persons' property or forcing homeless persons to abandon property at arrest sites violated the Fourth Amendment, as such practices amounted to unreasonable searches and seizures. Further, the court found that the seizure of plaintiffs' personal property violated the Fifth Amendment, which prohibits taking of private property for public use without just compensation. In other court cases, homeless plaintiffs have successfully used Fourth Amendment arguments to stop sweeps of encampments that result in the destruction of homeless persons' property.
Constitutional Problems with Food Sharing Restrictions
As cities have recently turned to ordinances to stop groups from sharing food with homeless people in public places, service providers have challenged those restrictions in court. Groups and individuals who regularly share food with homeless people in public parks in Las Vegas filed a lawsuit to challenge Las Vegas' law that prohibits sharing food with "indigent" persons in public parks (NLCHP Amicus Curae Brief). The plaintiffs challenged the Las Vegas ordinance on the grounds that it violates the right to free speech, the right to freely exercise religion, the right to freely assemble, equal protection rights, and due process rights. The plaintiffs also argued that the ordinance is constitutionally vague and overbroad. The court granted a preliminary injunction to enjoin the city from enforcing the ordinance, finding that the ordinance is unconstitutionally vague and violated the Equal Protection Clause of the Fourteenth Amendment. While the court granted the preliminary injunction, it suggested a more narrowly tailored ordinance could pass constitutional muster. Groups that share food with homeless individuals in public in both Orlando and Dallas have also sued those cities challenging their food sharing restrictions. The court later entered a permanent injunction against this ordinance (Sacco v. City of Las Vegas, 2007 WL 2429151 (D.Nev. 2007)).
Human Rights Violations
Criminalization measures not only can violate homeless persons' constitutional rights, but they also violate human rights norms as laid out in international law. The United States has signed international human rights agreements, many of which prohibit actions that target homeless people living in public spaces. Treaty law is constitutionally equivalent to statutory law and is binding on the judges in every state. Once a country has signed an international treaty, it is obligated not to pass laws that would "defeat the object and purpose of the treaty." However, reservations made by the Senate in the ratification process prevent the treaties from being used directly as a cause of action in U.S. courts (i.e., "self-executing"). Nonetheless, international human rights treaties can be used persuasively to support legal arguments based on domestic law. For example, if domestic law is ambiguous on a certain topic, as in the case of the interpretation of the words "cruel and unusual", courts are required to read U.S. law consistent with our treaty obligations. With many traditional civil rights remedies under attack, progressive lawyers are frequently turning to international law for guidance and to bolster their arguments.
The Right to Intrastate Travel
The U.S. Supreme Court has not ruled explicitly to protect the right to intrastate travel. However, the right to movement has been established in international human rights documents, and has been considered customary international law by both scholars and domestic courts. Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a treaty signed and ratified by the U.S. (though not self-executing), contains provisions that protect the right to movement. The Human Rights Committee (HRC), which oversees the ICCPR, has definitively stated that the right to movement and the freedom to choose your own residence are important rights that should only be breached by the least intrusive means necessary to keep public order. Many laws that target homeless people living in public spaces interfere with their right to freedom of movement, by either keeping them out of certain areas in a city or forcing them to move to other spaces involuntarily.
The Right to be Free from Discrimination
In addition, the majority of international human rights agreements have non-discrimination clauses. Article 26 of the ICCPR protects "equal protection of the law" and prohibits discrimination based on a variety of statuses. The United States participated in the 1996 Second United Nations Conference on Human Settlements and is signatory to the Habitat Agenda, which states that no one should be "penalized for their status." Laws that criminalize panhandling or performing life-sustaining activities in public, such as sleeping and sitting, target homeless people based on their economic and housing status. Moreover, international law protects against both intentional discrimination and policies with discriminatory effects. Given that racial minorities and disabled individuals are disproportionately represented in the homeless population, criminalization measures inherently have a disparate impact on these groups. Following advocacy by U.S. NGO's, the HRC recently noted its concern about racial disparities in homelessness, and recommended the U.S. take affirmative measures to address these disparities. Arguing disparate impact may be difficult in U.S. courts which have a strong line of cases requiring a demonstration of discriminatory intent. However such arguments can provide useful support for positive policy alternatives to and against the passage of criminalization measures.
The Right to be Free from Forced Evictions
Forced evictions have long been contrary to international human rights agreements and destruction or "sweeps" of homeless encampments could be considered a violation of the Convention Against Torture, another treaty ratified by the U.S. In a case before the Committee Against Torture, the Committee found the forced eviction and destruction of a Romani settlement in Serbia and Montenegro violated Article 16 of the Convention, which prohibits acts of cruel, inhuman, or degrading treatment or punishment (Hijrizi v. Yugoslavia, Communication No. 161/2000: Yugoslavia, UN Doc. CAT/C/29/D/161/2000 (2 December 2002)). While the destruction and eviction was carried out by private actors, the Committee found that failure of police to take action to stop the destruction of the settlement violated the Convention. In U.S. cities, public officials are frequently the actors conducting "sweeps" of homeless encampments. These city actions are a form of forced evictions, contrary to international human rights principles. Advocates can consider using this case persuasively to inform the interpretation of "cruel and unusual" standards in cases with Eighth Amendment claims.
The Right to Sanitation
Access to proper sanitation is a key part of ensuring the basic human dignity of each person. While cities can pass ordinances against public urination and defecation in the interest of public health, these ordinances should not be enforced against homeless persons if there are not adequate facilities where homeless persons can perform these basic bodily activities in private. In November 2010, the UN Committee on Economic, Social and Cultural Rights issued a Statement on the Right to Sanitiation which states, among other things, "States must ensure that everyone, without discrimination, has physical and affordable access to sanitation, in all spheres of life, which is safe, hygenic, secure, socially and culturally acceptable, provides privacy and ensures dignity."

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Constitutional Problems with Criminalization Measures

Constitutional Problems with Anti-Panhandling Laws

Constitutional Problems with Anti-Camping/Sleeping Laws

Constitutional Problems with Destruction of Property

Constitutional Problems with Food Sharing Restrictions

Human Rights Violations

The Right to Intrastate Travel

The Right to be Free from Discrimination

The Right to be Free from Forced Evictions

The Right to Sanitation

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