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


A. Federal Cases

Currier v. Potter, 379 F.3d 716 (9th Cir. 2004), cert. denied, 125 S. Ct. 2935 (2005). 
Three homeless individuals in Seattle brought suit against the Postal Service for denying them certain types of mail service, such as no-fee postal boxes available to other classes of individuals, and general delivery service at all postal branches.  The plaintiffs alleged violations of postal service regulations, the Postal Reorganization Act, the Administrative Procedures Act, and the Constitution.  Defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim.  The lower court dismissed the complaint in its entirety.  It held that postal service regulations as well as the Administrative Procedure Act did not create a cause of action for the plaintiffs in this case. While the plaintiffs did establish the court’s jurisdiction under a provision of the Postal Reorganization Act prohibiting discrimination among users of the mail, the court dismissed that claim sua sponte on the basis that the postal service regulations passed muster under an ordinary rational basis review. 

The court also dismissed plaintiffs’ constitutional claims.  As to the First Amendment, the court agreed that the right to receive mail is fundamental, but refused to apply strict scrutiny because the Postal Service was not purporting to censor the content of any mail.  Under a reasonableness review, the court found the regulations content-neutral and that they reasonably advanced “Congressionally-mandated goals of delivering mail efficiently and economically.”  Turning to the equal protection claim, the court found that the Postal Service’s distinctions among persons who could and could not receive no-fee post office boxes were reasonable.  “The relevant postal regulations that govern the no-fee boxes make it clear that only residents who have a physical residence or a business location at a fixed delivery point are eligible for the [no-fee boxes].”   Moreover, providing general delivery service at all post office branches would increase costs and complicate investigations of illegally shipped material.

The plaintiffs appealed the court’s ruling.  NLCHP filed an amicus brief on Currier’s behalf, arguing that the postal service regulations provide a private right of action and that the Postal Service has waived its immunity with respect to claims under those regulations.  NLCHP contended that the district court erred in finding it did not have subject matter jurisdiction over some of Currier’s claims because the Postal Reorganization Act confers federal jurisdiction in actions involving the postal service, and the postal service regulations provide a substantive legal framework creating a cause of action.  The court also had jurisdiction under the Administrative Procedure Act, which does not foreclose judicial review of Postal Service regulations.  NLCHP also argued that the postal service regulations violate the First Amendment rights of homeless people by requiring them to pay for post office boxes and by limiting the locations and hours of operation of post offices that offer general delivery.  Finally, NLCHP argued the regulations violate the Equal Protection Clause by automatically denying homeless people no-fee post office boxes while simultaneously offering them to other customers who are ineligible for carrier delivery.

The Ninth Circuit affirmed the lower court decision.  Regarding jurisdiction, the Ninth Circuit upheld both the lower court’s dismissal of plaintiffs’ claim regarding the no-fee box regulation, and the lower court’s exercise of subject matter jurisdiction over plaintiffs’ statutory claim.  The court limited the relevant forum to the general delivery service and concluded that such forum is a nonpublic forum because the postal service’s “provision of general delivery service is meant merely to facilitate temporary mail delivery to a limited class of users.”  The court then ruled that the postal service acted reasonably in confining general delivery service to a single Seattle location.  Furthermore, the court rejected plaintiff’s First Amendment challenge to the no-fee postal box regulations, holding that such boxes are nonpublic fora and that the postal service is “not constitutionally obligated to provide no-fee boxes to homeless persons.”  Because these First Amendment claims fail, the court also rejected plaintiffs’ Equal Protection claims on rational-basis review.

Plaintiffs filed a petition for a writ of certiorari, arguing that the Ninth Circuit erred in determining that the forum at issue was the general delivery service.  Instead, because general delivery is the only means homeless people have to access the mail system, the plaintiffs argued the proper forum is the entire “mail system,” which they argued is a public forum.  Alternatively, even if the entire mail system is not the relevant forum, plaintiffs contended that general delivery and no-fee boxes are public fora because they are modes of public communication.   In response, defendants argued that the Ninth Circuit was correct in evaluating general delivery and no-fee boxes as the relevant forum and determining that they were nonpublic fora.   Plaintiffs’ petition for writ of certiorari was denied on June 20, 2005.

Fitzgerald v. City of Los Angeles, No. CV 03-1876 NM (C. D. Cal. 2003).
Plaintiffs brought suit to challenge a police practice of taking homeless people from Skid Row into custody and detaining them after performing warrantless searches without reasonable suspicion to believe such person’s parole or probation had been violated.  Plaintiffs alleged that the Los Angeles Police Department (LAPD) adopted a policy and practice of harassment, intimidation and threats against the residents of the Central City East area of Los Angeles, including homeless individuals in that area and residents of Skid Row’s Single Room Occupancy (SRO) housing units.  Plaintiffs claimed that the police were operating under the unsatisfactory pretext of looking for parole violators and absconders.

The court certified the plaintiff class for settlement purposes.  In addition, the court provided an injunction against such police practices, based on plaintiffs’ Fourth Amendment claims as well as “Plaintiffs’ rights under California Civil Code § 52.1 to be free from interference and attempts to interfere with Plaintiffs’ Fourth Amendment rights by threats, intimidation, or coercion.”

Hiibel v. Sixth Judicial District of Nevada, 542 U.S. 177 (2004).
Larry Hiibel was arrested and convicted under Nevada’s stop and identify statute for refusing to identify himself during an investigatory stop for a reported assault.  Hiibel appealed the conviction, claiming that his arrest and conviction for refusing to identify himself violated his Fourth and Fifth Amendment rights.  The appellate court and the Nevada Supreme Court affirmed his conviction.  The Supreme Court granted Hiibel’s petition for certiorari.

NLCHP, NCH, and other homelessness advocacy groups filed an amicus brief supporting Hiibel in the Supreme Court.  The advocacy groups contended that arresting people for failing to identify themselves violated their Fourth Amendment rights to be free from unreasonable searches and seizures, particularly in light of the difficulty homeless persons have maintaining and obtaining identification.  The advocacy groups noted that police were more likely to stop homeless people and ask for identification, and homeless people were more likely not to have identification.  The advocacy groups pointed to restrictive state documentation requirements as one reason many homeless persons did not have identification.

The Supreme Court ruled that Hiibel’s arrest for refusing to identify himself did not
violate either his Fourth or Fifth Amendment rights.  However, the Court’s holding merely applied to refusing to identify oneself in a situation where a police officer has reasonable suspicion to investigate, but did not reach the question whether a person could be arrested in the same circumstances for failure to produce an identification card.

Horton v. City of St. Augustine, 272 F.3d 1318 (11th Cir. 2001).
Plaintiff, a “one-man band” street performer, challenged an ordinance regulating street performances in a four-block area of St. Augustine on grounds of vagueness, overbreadth, and as an invalid time, place, and manner restriction.  The district court granted a preliminary injunction against the enforcement of the ordinance, finding that it failed to give proper notice as to what conduct it prohibited, and it promoted arbitrary and discriminatory enforcement.  On the city’s appeal, the Eleventh Circuit first held that the case was not mooted by the city’s amendment of the ordinance following entry of the preliminary injunction.  The court then ruled that the district court had applied the wrong standard for facial challenges based on vagueness, and that under the proper standard, the ordinance did not suffer for vagueness.  It precisely identified where in the city it applied and included a sufficiently precise definition of the word “perform.”  The court distinguished the loitering ordinance invalidated in City of Chicago v. Morales, 527 U.S. 41 (1999).  The ordinance also gave law enforcement adequate guidelines for what constitutes a street performance.  The Eleventh Circuit also held that the ordinance was not unconstitutionally overbroad on its face, as it specified a limited area in which distinct means of expression and conduct could not take place.  The ordinance left many types of speech untouched.  As to the time, place, and manner challenge, the court found that the restriction was valid.  It was viewpoint neutral and promoted justifiable enumerated municipal purposes.

Mason v. City of Tucson, (D. Ariz. June 12, 1998).
Plaintiff sought a preliminary injunction, damages, declaratory and injunctive relief against the City of Tucson and the Tucson City Police for engaging in a policy of "zoning" homeless people charged with misdemeanors in order to restrict them from the downtown areas.  Plaintiff argued that such restrictions violated his constitutional right to travel, constituted a deprivation of liberty without due process of law in violation of the 5th amendment and implicated the Equal Protection Clause of the 14th amendment.  The zone restrictions placed on the plaintiff included a two mile square area covering most of downtown Tucson.  This area includes all the local, state and federal courts, voter registration facilities, a soup kitchen, places of worship and many transportation and social service agencies. 

On July 13, 1998, the District Court granted a preliminary injunction stating that the plaintiff had demonstrated some probability of success on the merits in that the zone restrictions promulgated against the plaintiff were likely unconstitutionally broad as to geographical area. The District Court granted plaintiff's preliminary injunction to the extent that, as to the plaintiff, defendants were enjoined from enforcing the zone restrictions, from imposing or enforcing similarly overbroad zone restrictions, or from imposing or enforcing any zone restrictions unless such restriction is specifically authorized by a judge.

Subsequent to the court’s ruling on the preliminary injunction, the parties settled.

Osborn v. City of Atlanta, No. 1:90-CV-1553 (N.D. Ga. 1991).
Plaintiff was a homeless activist who voluntarily became unemployed and homeless.  Police repeatedly asked him to leave a public park, and arrested him on at least one occasion.  The plaintiff challenged the police conduct on equal protection and due process grounds.  The court granted the defendant’s motion for directed verdict as to the equal protection claim, and the jury found against the plaintiff on his due process claim.

B.            State Cases

Homes on Wheels v. City of Santa Barbara, 119 Cal.App.4th 1173 (Cal.App.2 Dist. 2004).
Plaintiffs, a homeless advocacy group and 3 homeless individuals, brought suit in March 2003 challenging the newly enacted Santa Barbara Vehicle Code Sections 22507 and 22507.5, which prohibited the parking of trailers, semis, RV’s, and buses on all city streets between the hours of 2:00 and 6:00 a.m.  This ordinance had the effect of requiring homeless persons living in vehicles to park in a designated area of the city or on private property.  The city posted 33 signs throughout the city stating: “No Parking Trailers, Semis, Buses, RV’s or Vehicles Over 3/4 Ton Capacity Over 2 Hours or from 2 am to 6 am SBMC 10.44.200 A & B Violator subject to fine and/ or tow-away...."  The city did not post signs at all the entrances into the city.  Plaintiffs filed a complaint for injunctive, declaratory, and mandamus relief seeking to enjoin enforcement of the ordinance.  Plaintiffs then moved for a preliminary injunction alleging, inter alia, that the ordinance exceeded the city’s authority under Vehicle Code Sections 22507 and 22507.5 and that the signs did not provide sufficient notice for the ordinance to be effective under Vehicle Code Section 22507. 

On March 27, 2003, the Santa Barbara Superior Court granted a TRO for the plaintiffs, halting all ticketing under the ordinance until April 11, 2003.  The trial court later denied the plaintiff’s motion for a preliminary injunction.  The appellate court affirmed the city’s power to enact the ordinance, but reversed and remanded for a factual determination as to whether the city’s signs provided adequate notice of the parking restriction. 
On remand, the trial court determined that the city did not provide adequate notice of the parking restriction and issued a preliminary injunction to enjoin the city from enforcing the law.  The city has appealed.

Currier v. Henderson, 109 F. Supp. 2d 1221, 1230 (W. D. Wash. 2002). 1231.

379 F.3d at 729. 731.

Judge Gould, in his concurring opinion, leaves open the possibility of a homeless person’s as-applied challenge, in which case he “would hold that, although the Post Office need not routinely make general delivery available at all branch post offices for all persons who are homeless, the Postal Service’s regulations, to comply with the First Amendment, must make due provision for general delivery to a homeless person at a branch office when that person has shown undue hardship in retrieving mail at the main post office.” 733.

Brief of Petitioner-Appellant at 17, Seattle Housing and Resource Effort (SHARE) v. Potter, 2005 WL 415085 (Feb. 15, 2005).

Id. at 21.

Brief for Respondent-Appellee, Seattle Housing and Resource Effort (SHARE) v. Potter, 2005 WL 415085 (May 20, 2005).