A Dream Denied:
The Criminalization of Homelessness in U.S. Cities

Case Summaries

I. Challenges to Restrictions on Sleeping, Camping, Sitting, or Storing Property in Public Places

• A. Federal Cases

Acevedo v. City of Jacksonville Beach, No. 3:03-CV-507-J-21HTS (M.D. Fla. 2003).
Homeless individuals and a non-profit homeless services provider brought a § 1983 action against the City of Jacksonville Beach, Florida, and the city police alleging violations of their First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights (and similar claims under the Florida Constitution) when the police arrested them for violating an anti-camping ordinance and seized and destroyed their belongings.  The parties jointly dismissed the case, because none of the plaintiffs was able to continue with the suit.  The plaintiffs’ counsel report that they have not heard of police harassment since the suit was filed and are continuing to monitor the situation.  

Amster v. City of Tempe, 2001 U.S. App. LEXIS 9239 (9th Cir. 2001).
The Ninth Circuit rejected plaintiff’s facial challenge of a Tempe ordinance requiring a person wishing to sit or lie down on a city sidewalk for certain types of events first to obtain a permit.  Amster had organized several demonstrations on the city’s sidewalks without first obtaining permits, although the city had never actually enforced the ordinance during one of his demonstrations.  The court found that the ordinance regulated conduct, i.e., sitting or lying on a public sidewalk that was not expressive by itself.   Accordingly, the ordinance survived a facial challenge.

Ashcraft v. City of Covington, No. 02-124-JGW (E.D. Ky. Sept. 23,  2003).
Homeless individuals brought a § 1983 action against the City of Covington, Kentucky, and its mayor alleging violations of their Fourth, Fifth, and Fourteenth Amendment rights when city employees and police raided their camps and seized their property.  In reviewing cross-motions for summary judgment, the federal magistrate judge found that the plaintiffs were not trespassing, and therefore had a reasonable subjective privacy interest in their property.  The plaintiffs’ Fourth Amendment claim thus survived summary judgment.  The magistrate also found, however, that there was no substantive due process violation, and that the city’s defense of qualified immunity could stand for the other claims.  The case settled in 2004 – each of the 5 plaintiffs received $1000 and their lawyers received attorney’s fees.   

Berkeley Community Health Project v. City of Berkeley, 902 F. Supp. 1084 (N.D. Cal. 1995).
In February, 1994, plaintiffs challenged two recently enacted Berkeley ordinances prohibiting sitting or lying down on a sidewalk within six feet of the face of a building during certain hours and soliciting in certain locations or in a “coerc[ive], threaten[ing], hound[ing] or intimidat[ing]” manner.   Plaintiffs alleged violations of their rights under the First and Fourteenth Amendments to the U.S. Constitution and various provisions of the California Constitution.  The U.S. District Court for the Northern District of California issued a preliminary injunction forbidding enforcement of the anti-solicitation ordinance, finding that it was a content-based regulation of speech in violation of the Liberty of Speech Clause of the California Constitution.  The court also issued a preliminary injunction prohibiting enforcement of the restriction on sitting, finding that sitting can sometimes constitute expressive activity, and that the ordinance did not further a substantial government interest unrelated to expression, was not narrowly tailored, and did not leave open ample alternative channels of communication.   Defendants appealed the court’s decision on the anti-solicitation ordinance to the Ninth Circuit, but the case was settled before the appeal was heard.

Betancourt v. Giuliani, Case No. 04-0926 (2d Cir. 2005).
Augustine Betancourt brought suit against the Mayor, Police Commissioner, and the City of New York for his arrest under Section 16-122(b) of the New York Administrative Code. The arrest occurred late in the evening on February 27, 1997.  Plaintiff entered Collect Pond Park in lower Manhattan with some personal belongings, three cardboard boxes, and a loose piece of cardboard.  Betancourt made a tube out of the cardboard and slipped inside it on a park bench.  He was arrested for violating the statute which makes it “unlawful for any person[s] . . . to leave  . . . or permit to be left, any box, barrel, bale of merchandise or other movable property whether or not owned by such person[s], upon any . . . public place, or to erect or cause to be erected thereon any shed, building or other obstruction.”   After his arrest, he was strip-searched and placed in a holding cell.  He was not prosecuted.  Betancourt brought a number of claims against the city, including a claim that the statute was unconstitutionally vague and overbroad as applied to his arrest.  He also alleged that the strip search violated his Fourth Amendment rights because he was arrested for a minor offense and police did not have reasonable suspicion that he was concealing a weapon or other contraband.

Betancourt asserted the statute should be analyzed for vagueness using an “especially stringent” standard because the statute involved his fundamental right to travel and imposed criminal penalties without requiring a finding of criminal intent.   The court, reasoning that the statute did not penalize “merely occupying” public space but rather obstructing public space, held that the statute did not penalize the right to travel.   Accordingly, the court rejected both arguments and considered whether the statue was vague as applied to Betancourt, under a standard which it characterized as “fairly stringent.”   The court found that the statute passed muster under this standard and granted summary judgment in favor of defendants.  The court found Betancourt had sufficient notice that his conduct was prohibited, and there are sufficient guidelines in place to limit police discretion in its application.  The court granted Betancourt summary judgment on his illegal strip search claim but granted summary judgment in favor of defendants on all other claims.

Betancourt appealed, again arguing that the statute is unconstitutionally vague because it does not provide sufficient notice of the conduct it forbids and does not provide adequate guidelines to law enforcement.  Betancourt argued that no reasonable person would consider the statute’s terms “shed” and “building” to be in the same category as the “cardboard tube” Betancourt had slipped into.  Moreover, Betancourt argued that he was not “obstructing” anything, any more than a person sleeping on a bench in an overcoat would.  Regarding minimum guidelines to govern law enforcement, Betancourt contended that the “police confusion and judicial hairsplitting” in the court below evidenced that the statute does not provide adequate guidelines.  Betancourt also argued that the statute is unconstitutionally overbroad as applied, that Betancourt was arrested without probable cause, and that the statute violates Betancourt’s fundamental right to travel.  The parties are awaiting a decision from the appellate court.

Cash v. Hamilton Department of Adult Probation, 388 F.3d 539 (6th Cir. 2004) cert. denied, City of Cincinnati, Ohio v. Cash, 126 S. Ct. 396 (Oct. 3, 2005) (NO. 04-1569) and cert. denied, Hamilton County Department of Adult Probation v. Cash, 126 S. Ct. 545 (Oct. 31, 2005) (NO. 04-1631).
Homeless individuals brought a § 1983 action against the City of Cincinnati and Hamilton County alleging that the city violated their Fifth and Fourteenth Amendment rights when their personal property was taken and destroyed by a city clean-up crew instructed to clean out under bridges/viaducts where homeless individuals resided.  The District Court for the Southern District of Ohio granted summary judgment for defendant government officials.  The Sixth Circuit reversed the district court’s summary judgment and remanded the case.  The Sixth Circuit received two petitions for rehearing en banc, which it denied on the grounds that the issues raised in the petitions had been fully considered.  The case is back in district court.

The Center v. Lingle, No. 04-537 KSC (D. Haw. 2004).
The ACLU of Hawaii sued the governor and Hawaii’s Attorney General on behalf of The Center (a nonprofit organization providing services for lesbian, gay, bisexual, transsexual, intersex, and questioning Hawaiians), Waianae Community Outreach (a non-profit organization providing services to the homeless), and an individual plaintiff to seek an injunction barring the enforcement of a criminal trespass statute.  Plaintiffs alleged that the statute violated the First and Fourteenth Amendments as well as the Hawaii Constitution.  The statute, passed as Act 50, allows authorities to ban a person from any public property for up to one year, after issuing a written trespass warning statement.  The individual plaintiff was allegedly banned from Hawaii public libraries for a year for looking at gay-themed web sites on library computers.  Plaintiffs also contended that the statute has been used to ban homeless persons from public beaches and public parks and to threaten homeless persons to leave certain public property immediately. 

The plaintiffs alleged that this law lacks standards for determining what speech or conduct is prohibited and fails to provide any procedural safeguards.  Therefore, plaintiffs claimed that the statute violates the First and Fourteenth Amendments of the U.S. Constitution and a provision of the Hawaii Constitution.  Plaintiffs also argued that the statute is unconstitutionally vague and fails to establish the required minimal guidelines to govern law enforcement.  Plaintiffs also challenged the statute for impermissibly making a distinction based on content, by favoring speech related to union activities.  Finally, the Plaintiffs claimed the statute infringed on one’s right to move freely.  The plaintiffs’ complaint sought declaratory and permanent injunctive relief, as well as a declaration that the statute is unconstitutional as applied. 

The ALCU lawsuit, combined with strong opposition from other homeless service providers, sparked the legislature to consider a repeal of Act 50.  The legislature ultimately did not completely repeal the law, but came up to a compromise with legislators concerned about squatters.  The law as passed does not allow police or others to ban individuals from public property, but it does create a petty misdemeanor offense for criminal trespass if an individual remains in a public park or public recreational grounds after an officer tells him/her to leave, pursuant to a posted sign or notice governing the activity on the grounds.  The ACLU continues to worry about discriminatory enforcement.  The governor signed the new bill into law on July 8, 2005.  The ACLU is presently in settlement negotiations with the state. 

Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994).
A class of homeless plaintiffs alleged that Huntsville, AL had a custom, policy, and practice of arresting and harassing plaintiffs for performing essential activities in public places, seizing and destroying their personal property, and using zoning and building codes to close or condemn private shelters for homeless people.  In 1993, the U.S. District Court for the Northern District of Alabama issued a preliminary injunction prohibiting the City of Huntsville from removing homeless people from the city, and also from harassing, intimidating, detaining, or arresting them for walking, talking, sleeping or gathering in public places solely because of their status as homeless persons, and finally, from using zoning or building codes to close or condemn private shelters in the absence of a clearly demonstrable threat to health or safety.   On appeal, the Eleventh Circuit vacated the injunction, holding that the plaintiffs had not demonstrated that the actions they sought to prevent were part of an official city policy nor had they shown that there was a pervasive practice or custom of violating plaintiffs’ rights.  Thus they were unlikely to succeed on the merits.   On remand, the district court, finding that plaintiffs could not prevail under the burden of proof established by the court of appeals, granted summary judgment for the defendant, City of Huntsville.

City of Chicago v. Morales, 527 U.S. 41 (1999).
The city of Chicago challenged the Supreme Court of Illinois’ decision that a Gang Congregation Ordinance was unconstitutional for violation of the due process clause of the fourteenth amendment of the U.S. Constitution for impermissible vagueness -- lack of notice of proscribed conduct and failure to govern law enforcement.  The ordinance prohibited criminal street gang members from loitering in a public place.  The ordinance allowed a police officer to order persons to disperse if the officer observed any person loitering that the officer reasonably believed to be a gang member. 

The Supreme Court affirmed the judgment of the Illinois Supreme Court and ruled the ordinance violated the due process clause of the fourteenth amendment to the U.S. Constitution for vagueness.  Specifically, the court ruled that the ordinance violated the requirement that a legislature establish guidelines to govern law enforcement.  Additionally, the ordinance failed to give the ordinary citizen adequate notice of what constituted the prohibited conduct – loitering.  The ordinance defined “loitering” as “to remain in any one place with no apparent purpose.”   The vagueness the Court found was not uncertainty as to the normal meaning of “loitering” but to the ordinance’s definition of that term.  The court reasoned that the ordinary person would find it difficult to state an “apparent purpose” for why they were standing in a public place with a group of people.  “[F]reedom to loiter for innocent purposes,” the court reiterated, is part of the liberty protected by the due process clause of the fourteenth amendment.   The Court declined to decide whether the Chicago ordinance’s impact was a constitutionally protected liberty to support a facial challenge under the overbreadth doctrine.  NLCHP filed an amicus brief in support of plaintiffs-appellees.

Clark v. City of Cincinnati, No. 1-95-448 (S.D. Ohio Oct. 25, 1995).
Homeless persons and advocates challenged two City of Cincinnati ordinances prohibiting sitting or lying on sidewalks and certain types of solicitation on First and Fourteenth Amendment grounds.  In May 1998, U.S. District Court Magistrate Judge Jack Sherman, Jr., of the Southern District of Ohio, struck down, on First Amendment grounds, the ordinances meant to criminalize certain actions by homeless and low-income individuals.  One ordinance made it a crime for a person to sit or lie on sidewalks in downtown Cincinnati or on the Cincinnati skywalk between the hours of 7 a.m. and 9:30 p.m.  The other ordinance criminalized soliciting funds, whether by asking or through gesturing, within certain distances of some buildings, automatic teller machines and crosswalks, and in all areas after 8 p.m.

Accepting the Magistrate Judge’s determination that the ordinances “likely infringe[d] upon plaintiffs’ First Amendment right to freedom of speech to some degree,” the U.S. District Court for the Southern District of Ohio issued a preliminary injunction enjoining the city from enforcing the ordinances, with the exception of the specific provision of the sidewalk ordinance that prohibited lying down.

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
In 1982, the Community for Creative Non-Violence (CCNV) held a round-the-clock protest demonstration on national park property near the White House, and was granted a permit to erect a symbolic campsite but denied permission to sleep at the campsite. CCNV challenged the applicable Park Service Regulation as unconstitutionally vague on its face and discriminatorily enforced in violation of the protesters’ rights under the First Amendment.  The U.S. Supreme Court reversed the holding of the Court of Appeals for the D.C. Circuit, finding that the regulation advanced a substantial government interest unrelated to the suppression of expression and was narrowly tailored to advance that interest.  The court held that even if sleeping in connection with the demonstration is expressive conduct that is protected to some degree under the First Amendment, the challenged regulation was facially neutral and constituted a reasonable time, place, and manner restriction.

Clements v. City of Cleveland, No. 94-CV-2074 (N.D. Ohio 1994).
In 1994, four individual plaintiffs and the Northeast Ohio Coalition for the Homeless challenged the Cleveland Police’s practice of removing homeless people by coercion and force from downtown Cleveland to transport them to remote locations and abandon them.   Plaintiffs sought a preliminary injunction that would prohibit the practice on the grounds that it violates plaintiffs’ rights under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution and various provisions of the Ohio Constitution. 

In February 1997, the four individuals and the Coalition settled the lawsuit. Under the terms of the settlement, the city agreed to issue a directive to the police forbidding them from picking up and transporting homeless people against their will; to issue a public statement that violating homeless people’s rights to move around downtown Cleveland is not and will not be city policy; to pay $9,000 to the Coalition to be used for housing, education, and job training for the homeless plaintiffs; and to pay $7,000 to cover a portion of the plaintiff’s costs in bringing suit.

Davidson v. City of Tucson, 924 F. Supp. 989 (D. Ariz. 1996).
Plaintiffs sought an injunction against a Tucson resolution barring homeless encampments from city-owned property on Eighth Amendment and Equal Protection grounds.  The court held that the plaintiffs did not have standing to raise a cruel and unusual punishment claim because they had not been arrested or convicted under the ordinance.  The court also held that plaintiffs’ Equal Protection claims–that the ordinance discriminated against homeless people and that it violated their right to travel–were unlikely to succeed on the merits.  The Equal Protection claim failed because the court did not consider homeless people a suspect class, and the fundamental right to travel does not include the right to ignore trespass laws or remain on property without regard to ownership. 

Doucette v. City of Santa Monica, 955 F. Supp. 1192 (C.D. Cal. 1997).
In early 1995, a class of homeless plaintiffs filed a complaint alleging that the City of Santa Monica’s adoption and discriminatory enforcement of a series of ordinances to criminalize homelessness violated plaintiffs’ rights under the First and Eighth Amendments.  Plaintiffs also alleged violations of the Fourth Amendment’s prohibition on unreasonable searches and seizures and the Fifth Amendment’s prohibition of takings without just compensation.  The U.S. District Court for the Central District of California denied plaintiffs’ motion for summary judgment on their claim that the anti-solicitation law violated the First Amendment, and granted defendants’ motion for summary judgment on that claim.  The court held that the city’s ordinance prohibiting “abusive solicitation” was a valid place and manner restriction, finding that it was content-neutral, narrowly tailored to meet a significant government interest, left open ample alternative channels of communication, and did not allow law enforcement officers excessive discretion in enforcement.   The court concluded that some of the manner restrictions imposed by the ordinance only affected conduct, not speech, and that the remaining provisions that did implicate the First Amendment were valid under the above three factor analysis.  

In February 1997, the court granted summary judgment in favor of the defendants regarding the two remaining ordinances.  The court held that the plaintiffs lacked standing to challenge one of the ordinances because it was no longer being enforced.  Regarding the second ordinance, which included solicitation restrictions, the court indicated that: (i) there was no evidence that the ordinance discriminated against speakers based on the content of their speech; (ii) the ordinance was narrowly tailored so as to achieve the significant government interest of preventing “intimidating, threatening, or harassing“ conduct; (iii) sufficient “alternative channels” for communicating would still be available; and (iv) the ordinance did not place excessive discretion in the hands of law enforcement officials.   Therefore, the court granted summary judgment for the defendants regarding the second ordinance.

Fifth Avenue Presbyterian Church v. City of New York, 2004 WL 2471406 (S.D.N.Y. 2004) (appeal pending).
The Fifth Avenue Presbyterian Church sought a preliminary injunction preventing the City of New York from dispersing homeless persons whom the church invited to sleep on its outdoor property.  In January 2004, the district court granted a preliminary injunction against the defendants with respect to the church property, finding that the church’s use of its own property was a protected religious activity.  However, the court denied the injunction as to the public sidewalk bordering the church’s property.  The city appealed to the Second Circuit.

NLCHP filed an amicus brief on the Church’s behalf in the Second Circuit.  It argued that the church’s activity was protected by the First Amendment, and that the activities of the church were traditional forms of effective core outreach to homeless people.  NLCHP also argued that the city’s actions were plainly arbitrary and therefore violated the due process clause of the Fourteenth Amendment.  The city’s practice of forced removal of homeless people from the area around the church also infringed on the homeless individuals’ constitutionally protected freedom of movement.

In affirming the district court’s decision to grant a preliminary injunction, the Second Circuit agreed that the church’s provision of sleeping space to homeless people was the manifestation of a sincerely held religious belief deserving of protection under the Free Exercise Clause.

After the grant of the preliminary injunction, the Church moved, and the city cross-moved, for summary judgment.  The Church requested that (i) the district court reconsider its decision that denied an injunction as to the Church’s sidewalk and (ii) the preliminary injunction be made permanent as to the Church staircases, as well as the Church sidewalk area.  The Church claimed that the city’s actions violated their rights under the Free Exercise Clause of the First Amendment and that, therefore, the city’s actions must be subject to strict scrutiny.  The court rejected the city’s claim that its actions were necessary to address a public nuisance.  In October 2004, the district court granted the permanent injunction with respect to the Church staircases, based on the Church’s First Amendment claim.  The city appealed to the Second Circuit. 

NLCHP filed another amicus brief on the Church’s behalf in the Second Circuit.  In addition to agreeing with the lower court’s holding, NLCHP argued that the city’s raids violated the homeless persons’ fundamental right of association, right to free speech, and right to travel.  Further, NLCHP contended that selective enforcement of nuisance and health laws under which the police conducted the raids violated the plaintiffs’ equal protection rights.

The parties are awaiting a decision from the Second Circuit.

Henry v. City of Cincinnati, No. C-1-03-509 (S.D. Ohio July 23, 2003).
Homeless individuals brought a § 1983 action against the city alleging violations of First, Fourth, Eighth, and Fourteenth Amendment rights when the city (1) passed restrictive anti-panhandling ordinances and (2) threatened to arrest plaintiffs and seize their property after putting “no trespassing” signs up at an encampment serving as shelter for the plaintiffs.  The District Court granted plaintiffs’ motion for a temporary restraining order against arresting plaintiffs or taking their belongings from the encampment.  The case with respect to the sweeps settled soon after it was filed.  An agreement was reached whereby the police must give a homeless individual who is engaging in prohibited activity 72 hours notice before arresting that person.  The officer must transmit this notification to a designated social service agency to conduct any outreach needed to help the person find a place to go or services.  The 72 hour time period does not begin until the officer contacts the social service agency.  See Section II Challenges to Anti-begging, Anti-soliciting, and Anti-panhandling Laws, for status of the challenge to anti-panhandling law.

Henry v. City of New Orleans, No. 03-2493 (E.D. La. 2005).
In September 2003, New Orleans Legal Assistance, NLCHP, and a two New Orleans lawyers filed a § 1983 action on behalf of five homeless plaintiffs against the city and police department alleging violations of their First, Fourth, Ninth, and Fourteenth Amendment rights when the plaintiffs were arrested or given citations for sitting on the sidewalk outside their employer’s door waiting for their paychecks.  Approximately 2 months after the suit was filed, the police department made an announcement that it was changing its policy in dealing with homeless persons on the streets.  The police department’s new policy includes discontinuing mass round-ups and arrests for obstructing the sidewalk.  Under the new policy, police are to call for a homeless assistance unit when encountering homeless people on the street, instead of arresting people.  Federal and local funds have been dedicated to the new outreach program and to the construction of a new shelter.  The program also includes the creation of more shelter beds in an existing shelter, the expansion of shelter hours, subsidies by the city for shelter fees and homeless contact sheets for all officers.  

In April 2005, the claims of three of the plaintiffs settled, with the two individuals who were issued citations receiving $500 each and the individual who spent 12 hours in jail receiving $1000.  The claims of the remaining plaintiffs were withdrawn and dismissed after those plaintiffs could not be reached. 

Hershey v. City of Clearwater,  834 F.2d 937 (11th Cir. 1987).
A motorist challenged the constitutionality of Clearwater’s town ordinance prohibiting “lodg[ing] or sleep[ing] in, or about any” motor vehicle.   The U.S. Court of Appeals for the Eleventh Circuit held that the ordinance’s prohibition on sleeping in a motor vehicle was unconstitutionally vague and overbroad.  In upholding the prohibition on lodging, the court found that it was a reasonable restriction within the police power of the city and gave proper notice of the conduct prohibited, and thus survived a void for vagueness challenge.

Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000) cert. denied 149 L.Ed.2d 480 (2001).
James Joel, a homeless person, filed suit against the City of Orlando, arguing that the city  ordinance prohibiting “camping” on public property violated his rights under the Fifth, Eighth, and Fourteenth amendments to the U.S. Constitution.  City of Orlando police officers arrested Joel for violating Section 43.52 of the City’s Code for “camping” on public property.  “Camping” under the code was defined to include “sleeping out-of-doors.”  The District Court granted summary judgment in favor of the City, and Joel appealed to the Circuit Court.  The Circuit Court affirmed the District Court’s decision, holding that Joel had failed to prove that the ordinance was enacted for the purpose of discriminating against homeless people.

Considering the equal protection claim, the Court held that homeless persons are not a suspect class and that sleeping out-of-doors is not a fundamental right.  Therefore, the Court used the rational basis test and held that the City was pursuing a legitimate governmental purpose by promoting aesthetics, sanitation, public health, and safety.  Further, it rejected Joel’s argument that even if the City met the rational basis test standard, the code nonetheless violated equal protection because it was enacted to “encourage ‘discriminatory, oppressive and arbitrary enforcement’” against homeless people.   The Court found no such purpose behind the code.

The Court also rejected Joel’s argument that the code was impermissibly vague on its face, and as applied to him.  The court held that Joel’s conduct was clearly within the scope of the code, and that the code was specific enough for a reasonable person to understand.  Further, while the court agreed that police officers would have to use discretion in deciding what constitutes prohibited conduct, it found that guidelines promulgated by the City to assist police in enforcement were sufficient to decrease the likelihood of arbitrary and discriminatory enforcement.  Finally, the Court rejected Joel’s argument that the City code violates his right to be free of cruel and unusual punishment. The Court stated the City of Orlando has never reached its maximum capacity in its homeless shelters and no individual is turned away; therefore, Joel had an opportunity to comply with the ordinance.  The Court ruled that unlike Pottinger v. City of Miami and Johnson v. City of Dallas, where sleeping out-of-doors was involuntary for homeless people, here it was voluntary.   

Johnson v. City of Dallas, 61 F.3d 442 (5th Cir. 1995).
A class of homeless plaintiffs challenged Dallas’ ordinances prohibiting sleeping in public, solicitation by coercion, removal of waste from garbage receptacles, and providing for the closure of certain city property during specific hours.  Plaintiffs alleged that the city’s enforcement of these ordinances violated their rights under the Eighth, Fourth, and Fourteenth Amendments.  Plaintiffs also claimed the city’s conduct constituted wrongful (tortious) malicious abuse of process.  The U.S. District Court for the Northern District of Dallas granted plaintiffs’ motion for a preliminary injunction in part, holding that the sleeping in public prohibition violated the Eighth Amendment because it imposed punishment on plaintiffs for their status as homeless people.  Nevertheless in its ruling on the motion for a preliminary injunction, the court, in dicta, rejected plaintiffs’ other claims, including the Equal Protection claims, finding that the challenged ordinances did not impinge on plaintiffs’ right to travel, homeless people do not constitute a suspect or quasi-suspect class, and the laws were rationally related to a legitimate state interest.

On appeal, the Fifth Circuit reversed the district court’s order, vacated the preliminary injunction, and remanded the case with instructions to dismiss plaintiffs’ Eighth Amendment claims for lack of standing.  The court held that the Constitution’s prohibition on cruel and unusual punishment applies only after conviction for a criminal offense, and, on the record before it—compiled prior to the district court’s certification of the action as a class action—there was no apparent evidence that plaintiffs had actually been convicted of sleeping in public as opposed to merely being cited or fined.   The District Court did not dismiss the case as ordered by the Fifth Circuit.  Defendants then filed a motion for summary judgment, which was denied.

Defendants next filed a petition for a Writ of Mandamus asking the Fifth Circuit to order the district court to dismiss the Eighth Amendment claim.  Without seeking a response from plaintiffs, the Fifth Circuit issued the writ ordering the district court to dismiss the entire case.  The district court dismissed the case as ordered.  Plaintiffs filed a motion for reconsideration with the Fifth Circuit.  As the thirty-day deadline for filing a notice of appeal for the dismissal approached, the Fifth Circuit still had not ruled on the motion for reconsideration.  Therefore, plaintiffs filed a notice of appeal of dismissal to the Fifth Circuit.  The Fifth Circuit then entered a modified writ ordering the district court to dismiss the Eighth Amendment claim only. 
On April 24, 2001, the trial court granted Defendants’ motion to dismiss the remaining claims, in addition to the Eighth Amendment claim.   The court ruled there could be no violation of the Fourth Amendment where Plaintiffs failed to establish they were ever actually arrested for sleeping in public.   The court did not address plaintiffs’ arguments attacking the vagueness of the Ordinances.  Instead, the court described the issue before it “a simple one” and ruled that because plaintiffs failed to present any evidence of their arrest, probable cause is factually uncontested and the arrests presumptively constitutional.   Therefore, the court dismissed the case.

NLCHP filed two amicus briefs in support of plaintiffs; the U.S. Department of Justice also filed an amicus brief in support of plaintiffs.

Johnson v. Freeman, 351 F. Supp. 2d 929 (E. D. Mo. 2004). 
Several individuals who are homeless or who were mistakenly identified as being homeless by police filed a § 1983 action, seeking injunctive and declaratory relief and damages against the City of St. Louis and the St. Louis Board of Police Commissioners.  The plaintiffs alleged police “sweeps” against individual plaintiffs during the July Fourth holiday, in which arrests were apparently made without probable cause, for arguably fabricated charges, and firecrackers were used to intimidate plaintiffs.  Moreover, plaintiffs alleged that police gave them the “option” to perform community service and be released before adjudication of guilt or remain in jail.  Plaintiffs’ claims included violations of their Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights, for unlawful searches and seizures, unlawful restraints on travel, punishment without due process, and involuntary servitude.

In October 2004, the district court issued a preliminary injunction which requires the police to stop harassment of homeless people, downtown sweeps of homeless before events, and arrests of homeless individuals without probable cause.  When issuing the preliminary injunction, the court found the probability of a threat of irreparable harm because “so long as the practice of targeting homeless and homeless-appearing people to remove them from the Downtown area continues, plaintiffs are likely to suffer repeated violations of their constitutional rights . . [and such practice] is likely to deter individuals from seeking out the services required for daily living.”  The court also found that plaintiffs were likely to succeed on the merits and that the great harm to plaintiffs far outweighed any harm to defendants.  The court granted plaintiffs’ motion for preliminary injunctive relief “to protect the public interest and restore the public’s faith in the fair application of law to all citizens.”   Subsequently, the court denied the city’s motion to dismiss.
In July 2005, plaintiffs filed to add 13 plaintiffs (for a total of 26) and added as defendants the Downtown St. Louis Partnership and 15 individual police officers. 

In October 2005, the City settled the case, awarding plaintiffs $80,000 in damages.  The settlement includes a series of protections for homeless persons.  Among other things, the settlement agreement provides that all persons, including homeless persons, have the right to use public spaces so long as their activities are lawful; police shall not take any action to physically remove homeless persons from such spaces;  police shall not order any person to move to another location when the person has a legal right to be there; police shall not destroy personal property of homeless persons; and police shall inventory the property of a homeless person who is arrested.

Jones v. City of Los Angeles, No. CV 03- 1142 ER (C. D. Cal. 2004).
Six homeless individuals filed suit to prevent the Los Angeles Police Department from ticketing and arresting people who sit, sleep, or lie on public sidewalks.  The plaintiffs contended that a city code prohibiting sitting, lying, or sleeping on any street or sidewalk, as applied to homeless persons, violated the Eighth and Fourteenth Amendments.  The plaintiffs argued that homelessness is an involuntary condition, as long as homeless people outnumber the available shelter beds.  The court rejected plaintiffs’ arguments and granted summary judgment for the city.  The court rejected plaintiffs’ reliance on Pottinger v. City of Miami, because plaintiffs were not a certified class and because the court preferred the reasoning in Joyce v. City and County of San Francisco, which ruled that homelessness is not a cognizable status.  In granting summary judgment to the city, the court noted that the U.S. Supreme Court had never used the Eighth Amendment to protect “discrete acts of conduct even if such acts can be characterized as ‘symptomatic’ or ‘derivative’ of one’s status.”

The plaintiffs appealed and the case is now before the Ninth Circuit.  Plaintiffs have  argued on appeal that because the number of homeless people in the city exceeds the number of shelter beds, homeless persons are forced to "involuntarily break the law each night."  Therefore, enforcing the city code against plaintiffs essentially criminalizes the status of homelessness, in violation of the Eighth Amendment's cruel and unusual punishment clause.  Plaintiffs further argued that they may obtain equitable relief that also extends to non-parties if necessary for the provision of their own relief to which they are entitled.

The city argued on appeal that plaintiffs lacked standing to pursue a claim under the Eighth Amendment because plaintiffs were not actually convicted under the city ordinance at issue and cannot demonstrate "real and immediate threat of repeated injury."  The city noted that if a homeless person, who is unable to find available shelter, is charged under the city ordinance, he or she may raise the necessity defense to remove any threat of conviction.  In addition, the city rejected plaintiffs' claim that homelessness is a status and contended that protection under the Eighth Amendment does not extend to conduct stemming from one's status.

In response, plaintiffs reiterated the extreme shortage of available shelter beds.  Plaintiffs further demonstrated that two plaintiffs claimed they were convicted and they all legitimately feared future conviction and punishment under the city code.  Furthermore, plaintiffs dismissed the city's necessity defense argument because arresting and prosecuting people with meritorious defenses would violate the Due Process Clause as well as the Eighth Amendment.  Plaintiffs also illustrated practical realities that limit any effectiveness of the necessity defense.

The parties are awaiting a decision from the Ninth Circuit.

Joyce v. City and County of San Francisco, 87 F.3d 1320 (9th Cir. 1996).
In 1993, plaintiffs filed suit against the City of San Francisco challenging the “Matrix” program, San Francisco’s official policy of vigorously enforcing a set of ordinances against homeless people.  The U.S. District Court for the Northern District of California denied plaintiffs’ motion for a preliminary injunction on the ground that the proposed injunction lacked specificity, would lead to enforcement problems, and that plaintiffs were unlikely to succeed on the merits.  The court rejected plaintiffs’ claim that the Matrix program punished them for their status in violation of the Eighth Amendment, finding that homelessness is not a status, and that the Matrix program targeted particular behavior.  The court also rejected plaintiffs’ claims alleging violations of their right to equal protection, due process, and their right to travel, as well as plaintiffs’ vagueness and overbreadth challenges.   In 1995, the district court granted defendants’ motion for summary judgment.
On appeal, the U.S. Court of Appeals for the Ninth Circuit held, over plaintiffs’ objections, that the case was moot because, under its new mayoral administration, the city had eliminated the official Matrix policy, dismissed numerous citations and warrants issued to homeless people under Matrix, and was unlikely to resume the program. NLCHP filed an amicus brief on behalf of plaintiffs-appellants.

Kreimer v. State of New Jersey, No. 05-1416 (DRD) (D.N.J. 2005).
A homeless man filed a suit against the State of New Jersey, the Governor of New Jersey, the City of Summit, New Jersey Transit, nine police officers and others, claiming that he and other homeless people have been unlawfully thrown of out train stations since August 2004.  Several times the plaintiff had a train ticket, but was asked to leave the station or a train by various NJ Transit employees or face arrest for trespassing and/or loitering.  The plaintiff contends that those actions violated his federal constitutional rights, including his rights under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution, as well as his rights under the New Jersey constitution and various state statutes.  The City of Summit has filed 15 defenses against the lawsuit, including an invocation of the US Patriot Act.  The Justice Department opposed use of the Patriot Act, claiming that “to apply it to this case is…an overreaching application of the law.”  The case is pending.

Love v. City of Chicago, No. 96-C-0396, 1998 U.S. Dist. LEXIS 1386 (N.D. Ill. Feb. 5, 1998).
Alleging violations of their Fourth, Fifth, and Fourteenth Amendment rights, a group of homeless plaintiffs challenged Chicago’s policy and practice of seizing and destroying the personal property of homeless people in the course of cleaning particular areas of the city.  After the city made some of plaintiffs’ requested modifications to the challenged procedures, the U.S. District Court for the Northern District of Illinois denied plaintiffs’ motion for a preliminary injunction, finding that the city’s practice was reasonable and did not violate plaintiff’s rights.

On March 11, 1997, plaintiffs sought to certify a class of homeless persons whose possessions were destroyed due to the city’s off-street cleaning program.  The court held that plaintiffs had satisfied all requirements for certification, and granted plaintiffs’ class certification motion.

In December 1997, the city discarded the possessions of homeless individuals despite the fact that the possessions had been stored in “safe areas” as allowed by the Temporary Procedures.  This action prompted plaintiffs to bring a renewed motion for a preliminary injunction claiming that the procedures violated plaintiffs’ Fourth, Fifth and Fourteenth Amendment rights.  The amount of possessions was greater than usual owing to Thanksgiving charity donations, and were discarded along with others that had fallen off the safe areas and obstructed roadways. 

While finding that the city violated its own procedures, the court was unwilling to require sanitation workers to sort through possessions of homeless people for reasons of sanitation and impracticability, stating that homeless people have the burden of separating and moving those items they deem valuable.  Specifically, the court found that the program did not violate the Fourth Amendment, as it was reasonable, minimally intrusive and effective in preserving possessions of homeless people.  The court stated that property normally taken by the city under the program is considered abandoned. The court ruled, however, that losses of possessions that had been placed in safe areas and subsequently discarded must be compensated.  But as plaintiffs had not yet attempted to recover any compensation, any action was premature.  Finally, the court held that the city adequately provided notice to homeless people through its practice of posting signs in the area, having city employees give oral notice a day before cleaning, and a second oral notification minutes before cleaning.

Metropolitan Council Inc. v. Safir, 99 F. Supp. 2d 438 (S.D.N.Y. 2000).
Plaintiff, a tenants’ advocacy organization, filed suit to enjoin the city from preventing vigil participants who were protesting city rent increases from lying and sleeping on city sidewalks.  The city took the position that it had authority to forbid all sleeping on city sidewalks because of the interest in safeguarding sleeping persons from the dangers of public places and keeping the sidewalks clear of obstructions.  The court granted the preliminary injunction ruling that the First Amendment to the U.S. Constitution does not allow the city to prevent an orderly political protest from using public sleeping as a symbolic expression.  The Court held a statute that bans all public sleeping in any manner on public sidewalks is overbroad.  However, the Court did not maintain that the city could never regulate “disorderly public sleeping.”  On that issue, “the Court expresse[d] no opinion on and erect[ed] no bar to the City’s prosecution for disorderly conduct of persons who are vulnerable and/or risk creating obstructions when they sleep prone on a City sidewalk.”

Patton v. City of Baltimore, No. S-93-2389, (D. Md. Sept. 14, 1994).
Plaintiffs filed an action in federal court against the City of Baltimore, the Downtown Management Authority, and the Downtown Partnership to prevent the continued arrest and harassment of homeless individuals engaged in ordinary and essential daily activities in public, such as sleeping, sitting, and meeting with friends, as well as begging.  In its ruling on plaintiffs’ motion for a preliminary injunction, the court struck down the city’s anti-aggressive panhandling ordinance, holding that it violated the Fourteenth Amendment’s Equal Protection Clause because it unlawfully discriminated between solicitation for charity and other types of solicitation.  However, the court also found that the ordinance was narrowly tailored to meet a compelling state interest in protecting citizens and promoting tourism and thus did not violate the First Amendment.  The court dismissed plaintiffs’ claims alleging violations of their rights to privacy, freedom from cruel and unusual punishment, freedom of association, freedom from unreasonable search and seizure, and due process; and refrained from deciding whether there is a right to freedom of intrastate movement.

In September 1994, the parties reached a settlement agreement in which the city was to amend its panhandling ordinance to reflect that panhandling is protected speech and that persons are allowed to remain in public places unless they are violating other laws.  The city also agreed to repeal a park solicitation rule, inform all officers and employees of these changes, adopt policies with respect to homeless people and panhandlers, train officers, notify the public, and monitor compliance.

Picture the Homeless v. City of New York, No. 02 Civ. 9379 (S.D.N.Y. March 31, 2003).
The New York Civil Liberties Union brought a § 1983 action on behalf of Picture the Homeless, a grass-roots organization led by homeless and formerly homeless persons, against the city and its police department alleging violations of the Due Process Clause of the Fourteenth Amendment for police harassment of homeless persons.  The plaintiff alleged that the police were targeting homeless persons by arresting them for offenses for which non-homeless persons were not arrested.  The parties settled the suit shortly after it was filed in 2003.  The defendants issued directives to all officers on the Homeless Outreach Unit and the NYPD Transit Bureau forbidding them to enforce laws selectively against homeless people, and, in the case of the Homeless Outreach Unit, to confirm that their primary mission is to provide outreach services to the homeless. 

Project Share v. City of Philadelphia, No. 93-CV-6003 (E.D. Pa. 1993).
Plaintiffs sought a temporary restraining order and permanent injunction to prevent the City of Philadelphia from carrying out a proposed plan to seize, arrest, and remove homeless persons from concourses in the center city in the absence of alternative shelter.  Plaintiffs alleged that the city’s actions would violate their rights under the Fourth, Eighth, and Fourteenth amendments.   The motion was voluntarily dismissed after the city agreed to find shelter for the homeless people who were likely to be affected by the proposed plan.

Pottinger v. City of Miami, 76 F.3d 1154 (11th Cir. 1996).
A class of homeless plaintiffs challenged Miami’s policy of arresting homeless people for conduct such as sleeping, eating, and congregating in public, and of confiscating and destroying homeless people’s belongings.  At trial, the U.S. District Court for the Southern District of Florida found that some 6000 people in Miami were homeless, that there were fewer than 700 shelter spaces, and that plaintiffs were homeless involuntarily.  The court found that the criminalization of essential acts performed in public when there was no alternative violated the plaintiffs’ rights to travel and due process under the Fourteenth Amendment, and right to be free from cruel and unusual punishment under the Eighth Amendment.  In addition, the court found that the city’s actions violated plaintiffs’ rights under the Fourth Amendment.  The court ordered the city to establish “safe zones” where homeless people could pursue harmless daily activities without fear of arrest.

On appeal, the Eleventh Circuit remanded the case to the district court for the limited purpose of clarifying the injunction and considering whether it should be modified, since the “safe zones” were not operating as the district court envisioned.   On remand, the district court modified its injunction, enjoining the city from arresting homeless persons until the city established two safe zones.   In February 1996, the Eleventh Circuit referred the case for mediation.

The parties negotiated a settlement during the court-ordered mediation process. The city agreed to implement various forms of training for its law enforcement officers for the purpose of sensitizing them to the unique struggle and circumstances of homeless persons and to ensure that their legal rights shall be fully respected.  Additionally, the city instituted a law enforcement protocol to help protect the rights of homeless people who have encounters with police officers.  The city also agreed to set up a compensation fund of $600,000 to compensate aggrieved members of the community.

NLCHP filed an amicus brief on behalf of plaintiffs-appellees.

Richardson v. City of Atlanta, No. 97-CV-2468 (N.D. Ga. Aug. 28, 1997).
Nine Atlanta homeless people filed a federal lawsuit asking a judge to declare unconstitutional Atlanta’s “urban camping” ordinance, which makes it a crime to sleep or lie down on public grounds.   The city ordinance, which had been in effect more than six months, made it a crime to use any public place, including city parks and sidewalks, for living accommodations or for camping.  It also made it illegal “to sleep, to lie down” or store personal property in any park owned by the city.   Anyone found guilty of the crime could be imprisoned up to six months.  Among those arrested were Charles Richardson, who was lying on a bench waiting for a soup kitchen to open and Christopher Parks, a homeless, seven-year employee at a restaurant, who missed one week of work sitting in jail after he was arrested for “urban camping” outside the city’s Traffic Court building.

The lawsuit stated that the police violated the Fourteenth Amendment’s equal protection clause by targeting homeless people when enforcing the law, saying it constitutes punishment for individuals solely because they are homeless.  The lawsuit also contended that city police were violating the rights of homeless people by either leaving or disposing of their belongings after they are arrested.  The lawsuit settled and the plaintiffs received damages.  As part of the settlement, the city has revised the ordinance to significantly limit the scope.  Atlanta police officers must also now designate on arrest records the housing status of all detainees, in order to more effectively track patterns of discriminatory arrests of homeless people.  Finally, police officers will undergo training regarding the issues and challenges those that face those who are homeless.

Roulette v. City of Seattle, 78 F.3d 1425 (9th Cir. 1996).
Homeless residents of Seattle challenged the city’s ordinances that prohibited sitting or lying on downtown sidewalks during certain hours and aggressive begging.  Plaintiffs alleged violations of their rights of freedom of speech, due process, equal protection, and the right to travel.  The district court granted the city’s motion for summary judgment, rejecting plaintiffs’ vagueness, substantive due process, equal protection, right to travel, and First Amendment challenges to the sidewalk ordinance.  In addition, the court also dismissed plaintiffs’ challenge to the aggressive begging ordinance on vagueness and overbreadth grounds.  However, the court did limit the construction of the ordinance to prohibit only threats that would make a reasonable person fearful of harm, and struck down the section of the ordinance that listed criteria for determining whether or not there was an intent to intimidate.

On appeal, the Ninth Circuit affirmed the district court’s decision, upholding the sidewalk ordinance.  The Court of Appeals rejected plaintiffs’ facial substantive due process and First Amendment challenges, holding that sitting or lying on the sidewalk is not integral to, or commonly associated with, expression.   In dissent, Judge Pregerson asserted that Seattle’s time, place, and manner restrictions on expressive content are not narrowly tailored to serve a significant government interest and do not leave open ample alternative channels of expression, and thus constitute a violation of plaintiffs’ First Amendment rights.   The Ninth Circuit denied plaintiffs’ petition for rehearing en banc.

NLCHP filed an amicus brief on behalf of plaintiffs-appellants.

Sager v. City of Pittsburgh, No. 03-0635 (W.D. Pa. 2003).
A class of homeless plaintiffs brought a § 1983 action against the City of Pittsburgh alleging violations of their Fourth, Fifth, and Fourteenth Amendment rights when the city asked the Pennsylvania Department of Transportation to conduct repeated sweeps of homeless peoples’ property located on PennDOT land. 

The parties reached a settlement agreement that provided procedures for:  pre-collection notification, collection of personal items during clean-ups, and for the return of property collected.  The city agency responsible for the clean-up is now required to give 7 days written notice to homeless persons by posting the notice at each encampment or at each identifiable group of possessions, and by faxing the notice to homeless service providers.  All items that are not health/safety hazards or refuse are to be placed in large, transparent trash bags and properly tagged and itemized.  Notice will be posted as to recovery procedures.  The agreement outlines specific days and times that a secure storage area must be available to persons reclaiming their belongings.  

Spencer v. City of San Diego, No. 04 CV-2314 BEN (S.D. Cal. 2004).
A class of homeless plaintiffs brought a § 1983 action challenging the issuance of illegal lodging citations to homeless individuals sleeping on the street.  Plaintiffs allege that the citations violate their Eighth Amendment rights to be free from cruel and unusual punishment because there is no alternative sleeping area available.  The city filed a motion to dismiss, claiming none of the plaintiffs was convicted under the illegal lodging law.  The plaintiffs filed an amended complaint alleging that 7 of the 10 plaintiffs were convicted under the law.  The city filed another motion to dismiss, alleging the plaintiffs did not receive any punishment and could not raise their 8th Amendment claims.  The next hearing is set for December 2005.

Stone v. Agnos, 960 F.2d 893 (9th Cir. 1992).
A homeless man arrested for lodging in public alleged that his arrest violated his First Amendment rights and the destruction of his property following his arrest violated his Fourteenth Amendment right to due process.  The court held that because sleeping is not protected under the First Amendment, there was no violation.  The court also rejected the plaintiff’s due process claim on the ground that he did not show that the police had acted unreasonably.

Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055 (S.D.N.Y. 1995).
Plaintiffs challenged the Amtrak Police’s policy of arresting or ejecting persons who appeared to be homeless or appeared to be loitering in the public areas of Penn Station in the absence of evidence that such persons had committed or were committing crimes.  The District Court issued a preliminary injunction prohibiting Amtrak police from continuing to engage in the practice, finding that in light of Amtrak’s invitation to the public, the practice implicated the Due Process Clause.  The court held that Amtrak’s Rules of Conduct were void for vagueness, and that their enforcement impinged on plaintiffs’ right to freedom of movement and due process.

Whiting v. Town of Westerly, 942 F.2d 18 (1st Cir. 1991).
Two non-homeless out-of-state residents challenged the constitutionality of two Westerly, Rhode Island town ordinances banning sleeping outdoors on either public property or private property of another on overbreadth, vagueness, and equal protection grounds.  The U.S. Court of Appeals for the First Circuit affirmed the district court’s finding that—absent expressive activity possibly covered by the First Amendment—sleeping in public is not constitutionally protected, neither ordinance was vague or overbroad as applied to plaintiffs’ conduct, and enforcement procedures did not violate the equal protection rights of non-residents of Westerly.
Williams v. City of Atlanta, No. 95-8752 (11th Cir. 1996).

A formerly homeless man in Atlanta challenged the constitutionality of Atlanta’s ordinance that prohibited “remaining on any property which is primarily used as a parking lot” under the First, Fourth, Ninth, and Fourteenth Amendments and various provisions of the Georgia Constitution.  The U.S. District Court for the Northern District of Georgia granted Defendant City of Atlanta’s motion for summary judgment, holding that the plaintiff lacked standing to challenge the ordinance since he was no longer homeless and thus no longer among the group of people vulnerable to arrest under it. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.  However, while the appeal was pending, the city revised the challenged ordinance.  The plaintiff still opposed one section of the revised ordinance, but that section was subsequently struck down in the later case, Atchison v. City of Atlanta (see below), and Williams v. City of Atlanta was dismissed in August 1996.