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

B. State Court Cases

Cervantes v. International Services, Inc., Case No. BC220226 (Cal. Super. Ct. 2002).
In November 1999 the ACLU filed a class action on behalf of a group of homeless individuals in downtown Los Angeles.  The class action sought relief from conduct carried out by private security guards.  Local merchants and businesses, pursuant to state law, had formed Business Improvement Districts (BIDs) and used the guards to supplement regular municipal police efforts.  The lawsuit alleged that the guards intimidated and harassed homeless individuals through illegal searches, seizures, detentions, and threats in an effort to coerce the individuals into leaving the BID.  The complaint, based entirely on state law, alleged violations of the California Constitution and Civil Code, as well as numerous intentional torts. 

The plaintiffs have since reached settlement agreements with some of the defendants.  At least one of the final settlements included protocols establishing behavioral guidelines for the security guards, as well as agreements by the private security agencies that they would train their employees to comply with the settlement.  The defendants agreed to compensate the Los Angeles Inner City Law Center for monitoring the conduct of the security guards for a period of two years.  The plaintiffs also obtained a preliminary injunction prohibiting the confiscation of personal property left on public sidewalks.  A motion for class certification is pending at this time.

City of Sarasota v. McGinnis, No. 2005 MO 16411 NC (Fla. Cir. Ct. 2005).
After two Sarasota ordinances aimed at prohibiting sleeping outside were overturned by state courts, the City of Sarasota passed a third ordinance that prohibits lodging out-of-doors.  Under this ordinance, it is illegal to use any public or private property for sleeping without the consent of the City Manager or property owner.  The ordinance says that one or more of the following must exist in order to make an arrest: numerous personal items are present; the person is engaged in cooking; the person has built or is maintaining a fire; the person has engaged in digging; or the person states that he or she has no other place to live.  The defendant moved to find the ordinance unconstitutional in violation of substantive due process for criminalizing innocent conduct and void for vagueness, since the ordinance does not give sufficient notice to prohibited conduct or sufficient guidelines for law enforcement.  In December 2005, the court denied the defendants’ motion to find the law unconstitutional.  The court determined that the law was constitutional as it was not void for vagueness and did not violate substantive due process.  Further, the court found the law did not violate equal protection rights.

City of Sarasota v. Nipper, No. 2005 MO 4369 NC (Fla. Cir. Ct. 2005).
Defendant homeless individuals were charged with violation of Section 34-41 of the Sarasota City Code, which prohibited lodging out-of-doors in a wide variety of situations.  They defended the charges on the ground that Section 34-41 was unconstitutional as applied because it offends substantive due process by penalizing otherwise innocent conduct and did not establish sufficient guidelines for enforcement.

In June 2005, the Sarasota County Court found that Section 34-41 was unconstitutional as written, because the ordinance punished innocent conduct and because it left too much discretion in the hands of the individual law enforcement officer.  The city has not appealed the decision and the time for appeal has expired.

City of Sarasota v. Tillman, No. 2003 CA 15645 NC (Fla. Cir. Ct. 2004).
Five homeless individuals were charged with violating Section 34-40 of the Sarasota City Code, which was an anti-sleeping ordinance that prohibited camping on public or private property between sunset and sunrise.  The public defender who represented the defendants challenged the constitutionality of the anti-camping ordinance in the context of the criminal case, arguing that the ordinance violated substantive due process and was void for vagueness and overbroad because it penalized innocent conduct.  The lowest level county trial court upheld the constitutionality of the city ordinance, finding it was constitutional because it served a valid public purpose, it was not vague in that a person of ordinary intelligence was on notice of the prohibited conduct, and there were sufficient guidelines to prevent selective enforcement of the ordinance.  The homeless defendants appealed. 

The Circuit Court for the Twelfth Judicial Circuit for the State of Florida reviewed the case in its appellate capacity and found the ordinance unconstitutional on the grounds that the ordinance was void for vagueness and violated substantive due process by effectively making criminal the non-criminal act of sleeping.  The city then petitioned the Second District Court of Appeal for certiorari review and the court denied the petition.  Instead of asking for rehearing, the city enacted a criminal lodging ordinance.  However, the lodging ordinance was subsequently struck down in City of Sarasota v. Nipper.  

City of Seattle v. McConahy, 937 P.2d 1133 (Wash. Ct. App. 1997).
Plaintiffs challenged the constitutionality of an ordinance prohibiting sitting on sidewalks in Seattle’s downtown area during business hours.   Plaintiffs claimed that the ordinance violated their substantive due process and free expression rights and infringed upon their right to travel.  They also alleged the ordinance was contrary to the Privileges and Immunities Clause of the Washington State Constitution and Washington’s ban on discriminating against persons with disabilities.  In rejecting plaintiffs’ arguments, the court held that the ordinance furthered the legitimate police power interest of promoting pedestrians’ safety and reducing crime and infringed only minimally upon the freedoms of movement and expression.  The court reasoned that sitting is mere conduct and has no inherent expressive value and that the Privileges and Immunities Clause was not implicated because homelessness was not a protected class.  Further, the right to travel was not implicated by the statute as the statute did not exact a penalty for moving within a state or prohibiting homeless people from living on streets.  In City of Seattle v. McConahy, 133 Wn. 2d 1018, 948 P.2d 388 (1997), the Supreme Court of Washington denied a petition for review of this Appellate Court decision.

In re Eichorn, 81 Cal. Rptr. 2d 535 (Cal. App. Dep’t. Super. Ct. 2000).
Police officers arrested James Eichorn for sleeping in a sleeping bag on the ground outside a county office building in the civic center.  Eichorn was convicted of violating a City of Santa Ana, California ordinance that banned sleeping in certain public areas.  Prior to Eichorn’s trial, the California Supreme Court found the ordinance to be facially neutral and therefore constitutional.  At trial, Eichorn had to argue the necessity defense and he attempted to prove that on the night of his arrest, there were no shelter beds available.  The court found Eichorn had not made a sufficient enough showing to allow a jury to consider the defense.  After objecting to the judge’s ruling, Eichorn’s lawyer decided to go forward without a jury on the constitutionality of the ordinance.  The trial judge convicted Eichorn of violating the city ordinance and Eichorn lost an appeal to the Appellate Department.  Eichorn then filed a writ of habeas corpus.  In the habeas decision, the Appeals Court found Eichorn was entitled to raise the necessity defense, granted the writ and remanded to the municipal court with instructions to set aside judgment of conviction.  Ultimately, the municipal court set aside Eichorn’s misdemeanor conviction for illegal camping and his sentence of 40 hours of community service.  The District Attorney also decided not to retry him.

Oregon v. Kurylowicz, No. 03-07-50223 (Or. Cir. Ct. 2004).
Defendants, homeless individuals, were charged with violating a Portland “obstructions as nuisances” ordinance.  In short, the ordinance made it unlawful and declared it a public nuisance to block any street or sidewalk or to place, permit to be placed, or permit to remain on the sidewalk or street any object that obstructs or interferes with the passage of pedestrians or vehicles.  On defendants’ demurrer, they asserted that the ordinance was unconstitutionally vague and overbroad, infringed upon constitutional guarantees of equal protection and due process, and violated Oregon’s constitutional prohibition against disproportionate sentences. 

The court sustained defendants’ demurrer and held that the ordinance was unconstitutionally vague and overbroad.  Because the ordinance made no exceptions to avoid infringing on the right to assemble peacefully, or to exclude conduct that “merely causes others to step around a person who happens to be standing on any part of a sidewalk in a manner that is not causing any harmful effect,” the ordinance was unconstitutionally overbroad.  Furthermore, the court held that the ordinance’s terms were indefinite, allowing officers leeway in determining, for example, whether a person or an object is “obstructing” a sidewalk, or whether “normal flow” of traffic is “interfer[ed]” with.  In addition, the ordinance lacked a mental state requirement and contained no guidelines for police officers, giving a violator no opportunity to abate his or her behavior and failing to provide fair notice of prohibited conduct.

People v. McManus, Case No. 02M09109 (Cal. Super. Ct. 2002).
Police arrested the defendant for violating an anti-camping ordinance by sleeping on public property.  The defendant, relying upon In re Eichorn, 69 Cal.App.4th 382 (2000), planned to raise the necessity defense, arguing that he could not gain admission to a shelter because he owned three dogs.  However, at trial, the judge refused to let the defendant argue that he slept in the park because he had no other place to go.  A jury convicted McManus of two misdemeanor counts of illegal camping.

State v. Folks, No. 96-19569 MM (Fla. Cir. Ct. Nov. 21, 1996).
A Florida county court invalidated a city ordinance prohibiting individuals from “sleep[ing], lodg[ing] or lying on any public or semipublic area.”   The ordinance requires that prior to an arrest or charge police must first warn the individual that his conduct violates the ordinance, notify him of at least one shelter the officer believes to be accessible to him, and give him a reasonable opportunity to go to the shelter.  In dismissing a charge based on the ordinance against Warren Folks, the County court determined that the challenged section of the ordinance violated both the Florida and U.S. Constitutions.

The court found the ordinance to be overbroad as well as unconstitutionally vague in that it did not specify exactly what must be done to satisfy its requirements.  The court opined that “if in fact the ordinance requires a person to remain in a shelter for an unspecified period of time or be arrested, this amounts to incarceration in the shelter without a violation of law having been committed.”   In addition, the court found that the ordinance violated defendant’s rights to be free from cruel and unusual punishment by punishing innocent conduct, and his right to due process in that it allowed for arbitrary enforcement. 
State of Connecticut v. Mooney, 218 Conn. 85, 588 A.2d 145 (1991).
A homeless man who was convicted of murder challenged the legality of a search that had been conducted of his duffel bag and a closed cardboard box in an area under a highway bridge that he had made his home.  The search, which was conducted without a warrant after the defendant had been arrested, had uncovered items that were used as evidence to link him to the crime.  At trial, the court denied defendant’s motion to have the items excluded from evidence at his trial on the ground that they had been obtained in the context of an unreasonable search of his belongings—in which he had a reasonable expectation of privacy—in violation of his Fourth Amendment right to be free from unreasonable searches and seizures.

The Connecticut Supreme Court overturned the defendant’s conviction, finding that he had a reasonable expectation of privacy in the interior of the duffel bag and the cardboard box, which “represented, in effect, the defendant’s last shred of privacy from the prying eyes of outsiders.”   The court found that he had an actual, subjective expectation of privacy, and that this expectation was reasonable under the circumstances of the case.

State v. Wicks, Nos. 2711742 & 2711743, (Ore. Cir. Ct. Multnomah County 2000).
Police officers arrested the Wicks, a homeless father and his son, for violating Portland City Code, Title 14, 14.08.250, which prohibits “camping” in any place where the public has access or under any bridgeway or viaduct.  The Wicks claimed the ordinance violated their right to be free of cruel and unusual punishment, the right to equal protection under the fourteenth amendment, and their right to travel.  The court agreed and found the ordinance as applied to homeless people violated Article I § 16 of the Oregon Constitution and the Eighth Amendment to the U.S. Constitution.  The court reasoned that one must not confuse “status” with an immutable characteristic such as age or gender as the State of Oregon did in its arguments.

The court held that, although certain decisions a homeless person makes may be voluntary, these decisions do not strip away the status of being homeless.  Citing the Supreme Court’s decision in Robinson v. California, 370 U.S. 660 (1962) holding that drug addiction is a status, the Wicks court held that homelessness is also a status.  Furthermore, the court determined it impossible to separate the status of homelessness and the necessary acts that go along with that status, such as sleeping and eating in public when those are “the only locations available to them.”  Because the ordinance punished necessary behavior due to a person’s status, the court reasoned it was cruel and unusual.  Moreover, the court found the ordinance in violation of both equal protection and the right to travel on the basis that the ordinance denied homeless people the fundamental right to travel.  The court rejected the state’s argument that it had a legitimate state interest in protecting the health and safety of its citizens, noting that there were less restrictive means available to address these interests, such as providing sufficient housing for homeless people and adequate services.  According to a newspaper report, the state attorney general’s office has dismissed its appeal, citing its inability to appeal from an order of acquittal.  

Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 892 P.2d 1145 (1995).
Homeless persons in Santa Ana, California filed suit in state court against the City of Santa Ana facially challenging the constitutionality of a city ordinance prohibiting (1) the use of “camp paraphernalia”—including cots, sleeping bags, or non-designated cooking facilities; (2) pitching, occupying, or using “camp facilities” including tents, huts, or temporary shelters; (3) storing personal property on any public land within the city; or (4) living temporarily in a “camp facility” or outdoors in public within Santa Ana.  The California Court of Appeals overturned the ruling of the lower court in which the lower court upheld the ordinances with the exception of the provision prohibiting living temporarily in a camp facility or outdoors.  The Court of Appeal held that the anti-camping ordinance violates Appellants’ right to travel, which “includes the ‘right to live or stay where one will,’” and, by punishing them for their status as homeless people, violates their right to be free from cruel and unusual punishment.   The court also held that the ordinance was unconstitutionally vague and overbroad.

In 1995, the California Supreme Court reversed the judgment of the Court of Appeals.  The court held that the challenged ordinance, which may have an incidental impact on travel, does not violate the right to travel as it has a purpose other than the restriction of travel and does not discriminate among classes of persons by penalizing the exercise of the right to travel for some.  In addition, the court found that the ordinance penalized particular conduct as opposed to status and thus did not violate plaintiffs’ rights under the Eighth Amendment, and was not unconstitutionally vague or overbroad.   However, the Court noted that the result might be different in an as-applied, as opposed to a facial, challenge.

NLCHP filed an amicus brief in support of plaintiffs-appellees, as did the U.S. Department of Justice.

Voeller v. The City of The Dalles, No. CC02155 (Or. Cir. Ct. 2003).
A homeless individual challenged an anti-camping ordinance under which he had been convicted and fined, alleging that it violated an Oregon State law, ORS 203.077, which requires municipalities and counties to develop a camping policy that recognizes the social problem of homelessness, and contains certain other explicit elements.  The case was dismissed at plaintiff’s request in 2003 when the City of The Dalles repealed the anti-camping ordinance, expunged plaintiff’s convictions, and refunded the fines he had paid.  The ordinance had been modeled on a similar Portland ordinance, which was found to be unconstitutional in State of Oregon v. Wicks.  

This case concerns the same statute as Roulette v. City of Seattle, supra.

Sanchez, Felix, “Vietnam Veteran’s convictions set aside after long legal odyssey,”  The Orange County Register, April 1, 1999, at B4.

Jacksonville, Fla., Ordinance Code § 614.138(h) (1994).

State v. Folks.  No. 96-19569 MM (Fla-Cir. Ct., Duval County, Nov. 21, 1996).

588 A.2d 145, 161 (Conn. 1991).

State v. Wicks, No. Z711742 & Z711743 (Or.  Sept. 27, 2000).

Wade Nkrumah, “Portland Anti-Camping Ordinance in Legal Limbo,” The Oregonian, Oct. 19, 2001, <>.

9 Cal. 4th at 1103, 892 P.2d at 1165.

Tobe v. City of Santa Ana,  22 Cal App. 4th 228, 27 Cal. Rptr. 2d 386 (1994).

9 Cal. 4th 1069, 892 P.2d 1145 (1995).