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Homeless Persons
Monthly
Law Journal Article: Police Interaction with
Homeless Persons – Part I – Sleeping and Possessions, 2008 (7) AELE Mo. L.J. 101.
Monthly Law Journal
Article: Police
Interaction with Homeless Persons – Part II – Panhandling and Use of Force,
2008 (9) AELE Mo. L.J. 101.
Monthly Law Journal Article: Police Interaction with Homeless Persons: An Update on Recent Developments, 2018 (9) AELE Mo. L. J. 101.
Four homeless individuals who live outside on public property sought to represent a class of approximately 2,000 other people similarly situated in challenging rules and guidelines adopted by the City of Seattle and the Washington State Department of transportation aimed at addressing illegal encampments on city and state property. They challenged the procedures that the city and state agency uses to remove unauthorized encampments, camping equipment, and personal property left on city-owned and state-owned property. They alleged that the defendants engaged in a practice of “sweeps” that destroyed property, and violated the unreasonable seizure and due process clauses of the federal and state constitutions. A federal appeals court ruled that the trial court did not abuse its discretion by denying class certification since the plaintiffs failed to offer sufficient evidence and articulate a practice that was common to the claims of the proposed class in their motion for class certification. They did not point to a specific city or state agency practice that applied uniformly to all proposed class members, and there was no evidence that every plaintiff experienced the same challenged practice or suffered the same injury due to the implementation of rules and guidelines. Willis v. City of Seattle, #18-35053, 943 F.3d 882 (9th Cir. 2019).
An Arkansas anti-loitering law that outlaws begging in public in a manner that harasses, causes alarm, or impedes traffic was challenged in federal court. A federal appeals court has upheld the issuance of a statewide preliminary injunction barring the state from enforcing the statute while the plaintiffs assert their contention that the law violates their First Amendment rights. The appeals court found that the plaintiffs were likely to prevail on their First Amendment claims as the state failed to show that the law was narrowly tailored to achieve a compelling state interest. Strict scrutiny applied because the anti-loitering law was a content-based restriction, and, even if the state’s interest in public and motor vehicle safety through the prevention of aggressive conduct and traffic hazards was “compelling,” the state did not show that the law was narrowly tailored to achieve such interest where there was no justification for its decision to single out charitable solicitation from other types of solicitation. The argument that the trial court abused its discretion by applying the preliminary injunction statewide rather than limiting its application to the specific plaintiffs was rejected. Rodgers v. Bryant, #17-3219, 942 F.3d 451 (8th Cir. 2019).
Current and recently homeless persons sued a city seeking relief for their prior citations under a Camping Ordinance and Disorderly Conduct Ordinance. A federal appeals court held that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them. The court also held that two of the plaintiffs may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right. These two plaintiffs demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to the city’s homeless shelters. Martin v. City of Boise, #15-35845, 2018 U.S. App. Lexis 25032 (9th Cir.).
Editor’s Note: For a discussion of other recent developments in this area, see Police Interaction with Homeless Persons: An Update on Recent Developments, 2018 (9) AELE Mo. L. J. 101.
A federal appeals court held that the outdoor food sharing of vegetarian and vegan food hosted by a non-profit organization, including to homeless persons, was expressive conduct protected by the First Amendment, and therefore, the trial court erred in granting summary judgment in favor of the City of Fort Lauderdale on a lawsuit challenging an ordinance enacted by the city that restricted this food sharing. In 2014, the city enacted an ordinance that restricted the plaintiff’s weekly food sharing at a city public park. In its complaint, the plaintiff argued that the ordinance, enacted in 2014, and a related park rule violated their First Amendment free speech and free association rights and were unconstitutionally vague. The trial court disagreed, concluding that the outdoor food sharing was not constitutionally-protected expressive conduct and that the ordinance and park rule were not vague. The court reversed after examining the nature of the food sharing activity, combined with the factual context and environment in which the activity was undertaken, holding that the plaintiff engaged in a form of protected expression, expressing its message against war and for the relief of hunger. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, #16-16808, 2018 U.S. App. Lexis 23562 (11th Cir.).
A homeless man was living on the streets of Los Angeles, and caring for 20 birds when animal control officers showed up at his tent to investigate complaints about the animals. Officers found 18 pigeons, a crow, and a seagull in boxes and cages in his home on a sidewalk, all in various states of health. The city decided to seize all of the animals, giving the man 10 days to request a hearing to regain custody. But before that deadline was up, a city veterinarian euthanized all the pigeons, claiming they could've been carrying pathogens without ever testing their blood. The man sued the city, and his case was dismissed by a trial court. But a federal appeals court revived some his claims, saying his constitutional rights might've been violated. It upheld a grant of summary judgment on the Fourteenth Amendment due process claim against the officers and dismissal of the state law claims, but vacated the trial court's grant of summary judgment on the Fourth Amendment claim challenging the seizure of the birds because there were genuine issues of material fact as to whether plaintiff’s healthy-looking birds posed any meaningful risk to the other birds or humans at the time they were seized. It further instructed the trial court to consider whether the officers were entitled to qualified immunity because any constitutional violation was not clearly established at the time it was committed. Recchia v. Los Angeles Dept. of Animal Services, #13-57002, 2018 U.S. App. Lexis 11364 (9th Cir.).
A homeless man who supports himself
by soliciting donations filed a federal lawsuit challenging a county ordinance
prohibiting solicitations on county roadways. A federal appeals court found
that the county had the burden of showing the constitutionality of the
ordinance, which the plaintiff showed limited his ability to collect donations
because he was forced to move to locations where it was more difficult for
drivers to give him money. It further ruled that the county failed to show that
the ordinance was content neutral and was a narrowly tailored time, place, and
manner restriction on free speech, or that it left open ample alternative
channels of communication. While the county showed that the ordinance
materially advanced its interest in roadway safety, it failed to show that it
had tried to improve safety by prosecuting those roadway solicitors who
actually obstructed traffic or had thought about barring solicitations only at
certain locations where it could not be done safely. Reynolds v. Middleton,
#13-2389, 2015 U.S. App. Lexis 2704 (4th Cir.).
The owner of private
property agreed to let 22 homeless persons and two persons providing services
to them camp on his lot, located in a light industrial area of the city. Police
then informed all concerned that the camping was in violation of a city
ordinance that required a permit for extended camping on public or private
property. Police removed camping gear from the site and issued two citations
for an ordinance violation. When the campers brought in more gear and continued
their activities, they were arrested. An agreed judgment was entered against
the plaintiffs' challenge to the ordinance as unconstitutional, in order to
facilitate an appeal. The federal appeals court found that the plaintiffs had
stated a triable claim for declaratory relief challenging the ordinance as
applied on the basis of equal protection. The plaintiffs forfeited, however,
their claims for arbitrary and discriminatory enforcement, violation of
substantive due process, and impermissible vagueness. Allen v. City of
Sacramento, #C071710, 2015 Cal. App. Lexis 116.
A trial court properly denied a preliminary
injunction to prevent enforcement of most provisions of an ordinance aimed at
aggressive panhandlers, other solicitors, and demonstrators seeking the
attention of motorists (other than a ban on nighttime solicitation). The
ordinance was challenged by homeless people who solicited donations from city
sidewalks and a person who displayed political signs near traffic during
election campaigns. The restrictions in the ordinance were not aimed at the
content of speech, and did not appear to violate the First Amendment. And as
homelessness and wealth were not suspect classifications for equal protection
purposes, the ordinance would only have to survive rational basis scrutiny.
Thayer v. City of Worcester, #13-2355, 2014 U.S. App. Lexis 11578 (1st Cir.).
A federal appeals court found that an ordinance
prohibiting the use of a vehicle as living quarters was void for vagueness in
violation of due process since it offered no guidance as to what conduct was
prohibited and failed to clearly divide criminal and innocent conduct. As
written, it could be broad enough to apply to any driver who transported
personal belongings or ate in his vehicle, but it apparently was only applied
to homeless persons, opening the door to arbitrary and discriminatory
enforcement. Summary judgment for the defendants was reversed and further
proceedings were ordered. Desertrain v. City of Los Angeles, #11-56957, 2014
U.S. App. Lexis 11543 (9th Cir.).
A Michigan state anti-begging statute under which
two homeless adults were arrested violated the First Amendment. The statute was
facially invalid since begging was a form of solicitation protected by the
First Amendment and the law prohibited a substantial amount of solicitation by
beggars but allowed other solicitation based on its content. One arrestee had
been holding signs saying "Cold and Hungry, God Bless" and "Need
Job, God Bless." The second arrestee, a veteran who needed money for bus
fare, asked another person on the street whether they could "spare a little
change." While there was a substantial state interest in preventing duress
and fraud, the law was not narrowly tailored to serve those interests. Speet v.
Schuette, #12-2213, 2013 U.S. App. Lexis 16796, 2013 Fed App. 0226P (6th Cir.).
A street newspaper devoted to educating people
about homelessness, which used homeless people as street vendors, challenged an
ordinance that two of its vendors were cited for violating that barred using
any part of the city street, alley, sidewalk, or public right of way to sell
any goods or materials. The city altered the ordinance so that it did not bar
the sale or distribution of publications or handbills. Under the revised
ordinance, those activities were prohibited, however, on any portion of the
street. The revised ordinance also barred handing such materials to an occupant
of a motor vehicle on the street or taking action reasonably intended to cause
a vehicle occupant to hand anything to the person selling or distributing the
materials. The federal appeals court upheld a determination that the ordinance,
as revised, did not violate the First Amendment and left open adequate
available alternative channels of communication. The Contributor v. City of
Brentwood, #12-6598, 2013 U.S. App. Lexis 16795, 2013 Fed App. 0225P (6th
Cir.).
Homeless persons sued a city, claiming that it
violated their rights under the Fourth and Fourteenth Amendments by routinely
seizing their unabandoned personal property temporarily left on public
sidewalks and immediately destroying it. A federal appeals court upheld a
preliminary injunction against these practices granted by the trial court. The
injunction required that unabandoned personal property seized could not be
destroyed without giving the owners a prior meaningful notice and opportunity
to be heard. The homeless persons' property was protected from unlawful seizure
by the Fourth Amendment and could not be destroyed without complying with due
process requirements. Lavan v. City of Los Angeles, #11-56253, 2012 U.S. App.
Lexis 18639 (9th Cir.).
A federal appeals court has upheld the
constitutionality of a municipal ordinance that limits the number of feedings
of large groups that any person or organization can sponsor in parks within a
two-mile radius of City Hall. The court rejected the argument of an
organization calling itself "Food Not Bombs" that it had a First
Amendment right to feed large groups of homeless people in any park as often as
it likes. The court found that the ordinance was a reasonable time, place, and
manner regulation, assuming, for purposes of argument, without deciding, that
such feedings were expressive activity. First Vagabonds Church of God v. City
of Orlando, #08-16788, 638 F.3d 756 (11th Cir. 2011).
A homeless man claimed that he was unlawfully detained
and arrested by two Massachusetts state troopers and a state police officer for
trespassing in a public park after it closed at night. Upholding summary
judgment for the defendants, a federal appeals court found that it was
reasonable for them to suspect, at 10:30 p.m., that the plaintiff was in a
restricted area and therefore trespassing, based on signs designating the
closing time of the park. Additionally, the area was known by the defendants to
be one in which crimes had been reported, and the plaintiff's attempts to avoid
contact with the officers, combined with his inability or unwillingness to
provide his Social Security number, gave the officers reasonable grounds to
investigate his past criminal history. This reasonable suspicion justified his
one-hour detention for a warrant check, and the Florida state warrant found was
sufficient to give them probable cause for his arrest. Foley v. Kiely,
#09-1250, 2010 U.S. App. Lexis 7752 (1st Cir.).
A woman sued a transit authority and railroad, seeking
damages for an attack she suffered on their property when she was attacked by a
group of homeless men living there. The basis of her complaint was the failure
of the defendants to remove the homeless encampment from the property, and the
alleged failure to consider safety problems that could arise from their
"homeless outreach" program. Rejecting liability, an intermediate New
York appellate court found that the defendants made a discretionary
governmental policy decision in enacting a "social outreach" program
rather than using force to oust the homeless group from the premises. As a
result, there could be no liability under state law for the allegedly resulting
attack. Doe v City of New York, 2008-09461, 2009 N.Y. App. Div. Lexis 8419 (2nd
Dept.).
A resident of a homeless shelter could
proceed with his lawsuit against the city and a corporation seeking damages for
injuries suffered when an assailant shot him. He alleged negligence in the
hiring and training of personnel employed at the shelter. The lawsuit was not
time barred, and a prior lawsuit regarding the same incident, although it had
been dismissed for failure to comply with discovery orders, was not dismissed
for want of prosecution, as his defaults in discovery were not in bad faith or
willful, and therefore did not bar the continued assertion of his claims. Stora
v. City of New York, 2009 N.Y. Misc. Lexis 1210 (Sup. N.Y. County).
A homeless arrestee claimed that he was picked up by an
officer for loitering, and then taken to a wooden area where the officer beat
and stabbed him. A federal appeals court ruled that a claim by the arrestee
that the county was liable for his injuries because it has an unwritten policy
that homeless people should be relocated to other counties should have survived
summary judgment because evidence was presented of five officers who allegedly
knew of the policy. Additionally, there was expert testimony that such a policy
made violations of the rights of homeless persons foreseeable. A claim against
the county for negligent hiring of the officer was rejected because the only
violent act in the officer's record was the shooting of a home invader. The
appeals court also rejected a claim against the county for inadequate training
or supervision. There was evidence that revealed that the county investigated
reports concerning the officer's handling of arrests, provided the officer with
counseling and retraining, and subjected him to discipline, which did not show
"deliberate indifference" to a known problem. Williams v. DeKalb
County, #07-14367, 2009 U.S. App. Lexis 9839 (Unpub. 11th Cir.).
An employee working for a private company
providing data entry services for a city department of homeless services was
allegedly assaulted by a person she was registering for services as a
prospective client of a homeless shelter. She sued the city, but an
intermediate New York appeals court ruled that the city was entitled to summary
judgment because it had not assumed any special duty to protect the employee,
nor had the plaintiff shown that she had reasonably relied on any direct
promise to provide her with such protection. While security officers who were
usually outside the intake office were not present on the day of the incident,
there was no evidence that they were ever in the intake office with the
employee. Alava v. City of New York, No. 3807, 103339/04, 2008 N.Y. App. Div.
Lexis 6546 (A.D. 1st Dept.).
In a lawsuit filed on behalf of a class of
homeless persons whose property had been taken and destroyed in a sweep of
public property by the city, its police, or its sanitation division, the trial
court certified a class. The plaintiffs claimed that these actions violated
their Fourth and Fourteenth Amendment rights. The court ruled that if the
homeless class established that their personal property was destroyed
immediately after seizure while property belonging to others was not destroyed
in this manner, this would show a violation of the right of equal protection of
law under the Fourteenth Amendment. Kincaid v. City of Fresno, No.
CV-F-06-1445, 2008 U.S. Dist. Lexis 38532 (E.D. Cal.).
A city ordinance prohibiting
"aggressive" panhandling alongside roads or on sidewalks was upheld
as constitutional by New York's highest court. The ordinance in question was
narrowly drawn to focus on specific conduct that the city legitimately could
attempt to control, and was content-neutral. People v. Barton, No. 176, 2006
N.Y. Lexis 3709. [N/R]
Three homeless women, evicted from homeless
shelter by police without legal process at the request of the shelter's
director were not "tenants" under Kentucky law, had no property
interest in the premises, and, therefore, the officers' actions did not violate
their due process rights. Thomas v. Cohen, No. 05-5072, 2006 U.S. App. Lexis
7938 (6th Cir.). [2006 LR Aug]
City ordinance that criminalizes homeless people
sitting, lying, or sleeping on streets and sidewalks at all times violates the
Eighth Amendment, federal appeals court rules by 2-1. Jones v. City of Los
Angeles, No. 04-55324, 444 F.3d 1118 (9th Cir. 2006) [2006 LR Jul]
Arrest of homeless man for erecting cardboard
structure in which he slept on park bench in New York City did not violate his
constitutional rights. Federal appeals court rules, 2-1, that the law under
which he was arrested was not unconstitutionally overbroad or vague, and that
there was probable cause for his arrest. Betancourt v. Bloomberg, No. 04-0926,
2006 U.S. App. Lexis 12259 (2d Cir.). [2006 LR Jul]
Because city policy possibly allowed the use of
dogs to catch and bite suspects without verbal warnings, summary judgment was
improper in excessive force lawsuit brought by homeless man bitten by dog while
lying on the floor in a shelter for public toilets. Officer controlling dog,
however, was entitled to qualified immunity. Szabla v. City of Brooklyn Park,
No. 04-2538, 2005 U.S. App. Lexis 26152 (8th Cir.). [2006 LR Jan]
Police officers' shooting and killing of
homeless mentally ill man sitting in a car was not excessive force when they acted
after he raised a gun and did not know, until later, that the weapon was a BB
gun. Under the circumstances, it was reasonable for them to believe that their
lives were at risk. Court also rules that the officers did not engage in
disability discrimination when they called on a SWAT team to extract the man
from his car after the shooting, causing a delay in medical treatment. The
officers could reasonably do this to ensure the safety of themselves and others
at the scene. Ali v. City of Louisville, No. Civ. A. 3:03CV-427, 395 F. Supp.
2d 527 (W.D. Ky. 2005). [N/R]
Homeless persons were
entitled to preliminary injunction against alleged police
"harassment" aimed at allegedly removing them from the downtown area
of St. Louis, Missouri. Activities enjoined include directing or allowing the
removal of homeless persons or homeless-appearing persons from public areas
"where such citizens have a lawful right to be" without probable
cause to believe that a crime has been or is being committed, or a need to
clear such public areas for reasons of "security or public safety."
Johnson v. Board of Police Commissioners, No. 4:04 CV 01266, 351 F. Supp. 2d
929 (E.D. Mo. 2004). [N/R]
Homeless person had no constitutional due process
claim against city and the operator of a homeless shelter for the disposal of
his bags of property. He abandoned his property interest in the bags and their
contents by failing to retrieve them for almost a month after the stated
storage period expired. The court also rejects the plaintiff's argument that he
had a constitutionally protected due process property interest in residing in
the shelter of his choice. Stone v. Pamoja House, No. 03-9174, 111 Fed. Appx.
624 (2nd Cir. 2004). [N/R]
Federal appeals court overturns summary judgment
for city and county in lawsuit by homeless persons claiming that they have an
unconstitutional policy or custom of seizing and destroying their property
without proper notice and hearing. Cash v. Hamilton County Dept. of Adult
Prob., No. 03-3916 2004 U.S. App. Lexis 23756 (6th Cir. 2004). [2004 LR Dec]
341:72 City's use of regulation barring
any "obstruction" on city streets to arrest homeless man for sleeping
in a cardboard box on public property is upheld by a N.Y. federal court.
Betancourt v. Giuliani, No. 97 Civ 6748 (JSM), 2000 U.S. Dist. LEXIS 18516
(S.D.N.Y.).
{N/R} A homeless person who sued city officials
after his property was thrown into a trash can could not recover for a
violation of California Constitution, Art. I Sec. 7. The plaintiff obtained a
judgment for damages in the trial court. Violations of the state's equal
protection and due process clauses are not self-executing and do not support an
award of damages. Bonner v. City of Santa Ana, 45 Cal.App.4th 1465 (1996).
277:5 Federal appeals court rules that qualified
immunity protects individual civil rights defendants from liability for costs
and attorneys' fees even in actions for injunctive and declaratory relief
D'Aguanno v. Gallagher, 50 F.3d 877 (11th Cir. 1995).