by Matt Clarke
Across the United States, cities are adopting ordinances that effectively criminalize homelessness. The behavior banned includes: sitting, lying down, or placing property on a sidewalk; camping or sleeping in public (including in a vehicle); standing on a roadway median; blocking a sidewalk; loitering; panhandling; and sharing food in public.
The effect is to move the homeless from the streets into jails since most homeless people can ill afford to pay even minor fines. To get out of jail, the homeless are often coerced into signing “stay away” orders prohibiting them from being in the area where the infraction occurred. This form of constitutionally questionable banishment, also may have the unintended consequence of blocking the homeless from accessing social services, such as food stamps, employment assistance, homeless shelters, and free medical clinics when those services are in the same area.
An estimated 2 million U.S. residents experience homelessness each year. Around 500,000 are homeless on any given day. About 15 percent of them are chronically homeless, not having had a home in years.
According to a nationwide survey by the National Alliance to End Homelessness, there are about 42,000 homeless people under the age of 25 on a given day, and 12 percent of them are younger than 18. Over 10 percent of the adult homeless are military veterans, and 35 percent of homeless women list domestic abuse as a cause of their homelessness.
Half of the homeless have a physical or mental disability. Many homeless youth suffer significant trauma. They are often LGBTQ, have special needs or disabilities, or are pregnant. There also has been a recent increase in homelessness among Latinos, many of whom fear accessing social services or entering shelters because of the immigration crackdown.
According to a 2014 study by the National Law Center on Homelessness and Poverty (“NLCHP”), laws criminalizing homelessness multiplied during the decade preceding 2014. Over half of the surveyed cities prohibited camping, sitting, or lying down in certain areas; a third did so citywide. Dallas, Denver, and Honolulu, among other cities, were listed in a “Hall of Shame” section.
Honolulu adopted a spate of laws targeting the homeless in 2016. The laws and increased police enforcement of them were a reaction to complaints from businesses and the tourist industry, which, in the past, paid airfare to fly the homeless back to the mainland.
The 76 largest Colorado cities collectively passed 351 ordinances targeting the homeless, including bans on camping and public sharing of food. Dallas police issued 11,000 citations for “sleeping in public” between 2011 and 2015. They also cited people for loitering and panhandling. Like many cities that adopted harsh ordinances aimed at the homeless, Dallas lacks sufficient shelters to house its homeless.
There was public backlash to a “no-sit” ordinance passed by Portland, Oregon, in response to pressure from the CEO of Columbia Sportswear, which had recently moved its corporate headquarters downtown. Protests by activists forced the company to close its downtown store for a day.
A federal district judge issued a temporary restraining order against a Houston ordinance banning sleeping in a tent, box, or other makeshift shelter on public property. She explained that the homeless were “involuntarily in public, harmlessly attempting to shelter themselves—an act they cannot realistically forgo, and that is integral to their status as unsheltered homeless individuals.” In December 2017, she lifted the order.
“They have a law saying you can’t sit down,” said Ross, a homeless man in Austin who reported being “herded like cattle” due to the city’s anti-camping ordinance. “So, if you don’t have anywhere to live and all the homeless shelters are full, then where can you go? Do you walk in a circle 24 hours a day? You have to sleep and, if you slow down to sleep, you go to jail for it, which I’ve done, that’s pretty much where you get to sleep.”
The NLCHP report showed a 25 percent increase in laws prohibiting panhandling between 2011 and 2014. In 2014 alone, Denver police arrested 300 people for panhandling.
Cities such as Atlanta, Houston, and Tampa have criminalized the distribution of food to the homeless. These ordinances target organizations providing support to the homeless, rather than the homeless themselves. The reason for this, according to an Atlanta Department of Public Safety flier, is that “many people become dependent on these activities, leading them to stay on the streets instead of seeking the help and support they truly need.” The problem with that bit of condescension is that a lack of help and support is often what rendered people homeless in the first place. They can seek help and support, but will they find it in Atlanta? Likely the more cynical reason for the ordinance is to deny the homeless even the most basic support and thereby motivate them to move somewhere else—anywhere but Atlanta.
There has been pushback in the courts against criminalizing homelessness. Federal courts have struck down anti-pan-handling laws in Colorado, Florida, Illinois, and Massachusetts after finding they unconstitutionally regulated expressive conduct. A Florida federal court held Miami’s sit-sleep-lie ordinances violate the constitutional right to travel, and the Ninth Circuit held a similar Los Angeles ordinance unconstitutionally criminalized unavoidable conduct in violation of the Eighth Amendment. Various courts have declared anti-loitering laws and encroachment laws to be unconstitutionally vague. Some prosecutors, including those in Spokane, Santa Fe, and Los Angeles, have refused to enforce anti-homeless laws and embraced initiatives to divert those charged with violations into social services programs. However, those prosecutors are few and far between. Ultimately, it may take action from the state legislatures to reel in the cities trying to turn the harmless homeless into common criminals.
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