Countering Criminalization: Constitutional Challenges Under the First Amendment – Freedom of Speech

This is the part two of our Countering Criminalization blog series, examining Constitutional Challenges and Constructive Alternatives to the criminalization of homelessness.

In some cities, homeless people are fined and even arrested for sitting or lying down in public spaces, despite having no other place to perform these basic activities.  However, the local laws and ordinances which criminalize these activities unconstitutionally violate the free speech protections of the First Amendment.

Freedom of speech, which includes non-verbal expression, allows us as Americans to be secure in the knowledge that we can express ourselves without fear of government sanction. But people who are homeless routinely encounter restraints when expressing their most basic needs to their fellow citizens. Berkeley, California instituted a local law restricting sitting or lying down on public sidewalks, which restricted the ability of homeless people to sit while soliciting. In Berkeley Community Health Project v. City of Berkeley, a federal court found that sitting while soliciting was likely expressive conduct, protected as free speech under the First Amendment. The court found that sitting while soliciting conveys a persuasive message of need, and people expressed discomfort at seeing sitting solicitors. Additionally, the court also found that the ordinance significantly burdens speech, and didn’t leave open sufficient alternatives for people who must sit. As a result, the city of Berkeley was barred from enforcing the law.

Where other cities continue to pass and enforce similar ordinances, homeless people’s freedom of speech continues to be unconstitutionally restricted. In a 2011 survey of homeless individuals and advocates, the Law Center found that about one in five homeless people has been cited or arrested for sitting on a public sidewalk, illustrating the widespread impact of this problem. Local governments should work to ensure that laws protect the essential freedoms of all citizens, rather than punishing the most vulnerable.

Stay tuned for our next post in the Countering Criminalization series, when we will continue looking at Constitutional Challenges to the criminalization of homelessness.

— Cheryl Cortemeglia, Volunteer Staff Attorney

 

Photo by Flickr user djs1021 (CC BY-ND 2.0)

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Countering Criminalization: Constitutional Challenges and Constructive Alternatives to Ineffective, Expensive, and Illegal Public Policies

Homelessness is an ongoing crisis in the U.S., affecting upwards of 3 million Americans every year, and plaguing communities from coast to coast. At the core of this crisis is a nationwide lack of affordable housing. Adequate affordable housing units are only available to about one third of the millions of extremely low-income renters that need them. Further, there is a severe lack of temporary shelter space to meet the emergency needs of those priced out of the housing market, with fewer
shelter beds than homeless people in the vast majority of U.S. cities. As a result, many people are left with no place to live but outdoors and in public spaces.

Homeless people who are forced to live outside on sidewalks, in parks, under bridges, or in other public spaces have no choice but to perform life-sustaining activities, such as eating, sleeping, and sitting down, in the public view. Despite this reality, many states and localities have passed and enforced laws treating these basic, necessary acts by homeless individuals as crimes.

In 2011, the Law Center assessed the scope of this criminalization, reviewing laws in 234 U.S. cities and surveying 154 service providers, advocates, and people experiencing homelessness in 26 states. We found that half of the cities prohibit sleeping or camping in particular public places, and one quarter have city-wide prohibitions on sleeping or camping. The effect of these bans is that more than half of the individuals surveyed reported arrests or citations for camping or sleeping in public. Further, one third of the cities prohibit even simply sitting down or lying down in certain public places, and about one in five individuals reported arrest or citation for sitting on a public sidewalk.

Laws that criminalize homelessness are often designed to mask visible homelessness, rather than address the root causes of the problem. These bad public policies are ineffective, exacerbating rather than reducing the problem. The misuse of the criminal justice system wastes precious public resources, crowds local jails, and clogs the court system – all at the expense of taxpayers.

This post begins our new blog series, Countering Criminalization. Over the next several weeks, we will discuss the criminalization of homelessness from two perspectives.

First, we will explore the legal problems associated with these ineffective criminalization laws in Constitutional Challenges. Courts have found that laws punishing camping, sleeping, sitting, or storing personal property in public places may run afoul of the First, Fourth, Eighth, and Fourteenth Amendments to the U.S. Constitution, making them unconstitutional violations of homeless persons’ civil rights.

Then, we’ll discuss positive solutions in Constructive Alternatives, examining solutions that have proven successful in communities across the nation.

Please join us over the next several weeks as we explore the criminalization of homelessness in depth.

— Cheryl Cortemeglia, Volunteer Staff Attorney

 

Photo by Flickr user irodman (CC BY-NC-SA 2.0)
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Believing the Unbelievable: Sharing a Model for Domestic Human Rights Implementation

Yesterday was a day I believed would come for human rights, but now that it’s happened, it’s still hard to believe.

I was asked by the Department of Justice Civil Rights Division to come to a meeting they were hosting together with the DOJ Office of Violence Against Women, to be on a panel with the U.S. Interagency Council on Homelessness (USICH), to talk about the model of domestic human rights implementation we’ve created with them, to an audience of four dozen DOJ, Education, Health & Human Services, and other government attorneys.

Eric Tars speaks at the Department of Justice on 04-10-2014

Eric Tars speaks at the Department of Justice on 04-10-2014

Each one of these steps has been a milestone, strategically planned, years in the making:

  1. First, we convinced staff at the USICH, a domestic agency, to not look at us like we were crazy when we talked about human rights as something that applies in the U.S., not just abroad, and in fact, to the policies they work on.
  2. Second, we got the USICH to not only have the human rights conversation with us, but to proactively include human rights language in both the Federal Plan to End Homelessness and their report on constructive alternatives to criminalization of homeless, as well as their newsletters, blogs, and now has a permanent page of their website dedicated to human rights. Human rights is now an accepted part of the conversation on homelessness with USICH, because they understand it helps them in achieving their mission to end and prevent homelessness in the U.S.
  3. Third, we worked with USICH to get their partner agencies to make concrete commitments to actually implement human rights policies, such as HUD including a question on their funding application to discourage criminalization of homelessness, recently recognized as a treaty violation by the U.N. Human Rights Committee.
  4. Finally, once we created this model of human rights implementation with USICH, we got the DOJ Civil Rights Division and Office of Violence Against Women to recognize it as a model, and to want to share it both within and outside their agency to help the government better achieve its goals of protecting women from gender-based violence.

Following our presentation, all the agency staff in the room enthusiastically brainstormed brilliant ways they could implement human rights in their branches, acknowledging a point we’ve been making all along: human rights standards are not something foreign to be feared, but by internalizing them as part of our domestic policy we can help these agencies do the work they want to do, even better.

As part of the US Human Rights Network and the Human Rights at Home Campaign, we’ve been advocating for this kind of change for years because we know we’re working not just on human rights for homeless people, but for all people, and that by creating this model, we can help lift the performance of all government agencies to one that includes accountability to human rights standards.

We’ve believed this day would come, even when the odds seemed long. Now were seeing the beginning of our success, but I truly believe the best is yet to come!

For the USICH perspective on the day, emphasizing the benefits to their agency of using human rights, click here.

-Eric Tars

Director of Human Rights & Children’s Rights Programs

Posted in Civil Rights, Criminalization, Domestic Violence, Human Rights | 1 Comment

Homeless Man Shot by Police; UN Remarks that Homeless Criminalization in U.S. is “Baffling”

A video released this past week shows Albuquerque Police Officers shooting James Boyd, a homeless man camping in the foothills of Albuquerque, New Mexico. According to BBC News, the video details police using a flash bang, a Taser, two rifles, a bean bag rifle, and a police dog in arresting Boyd. He died the following day.

The tragic story surfaces in wake of the U.N. Human Rights Committee condemning the criminalization of homelessness in the United States as “cruel, inhuman, and degrading treatment”. The Committee’s statement is part of its Concluding Observations, following a two-day review of U.S. Government compliance with the International Covenant on Civil and Political Rights.

Chairperson Sir Nigel Rodley closed the review saying, “I’m just simply baffled by the idea that people can be without shelter in a country, and then be treated as criminals for being without shelter.”

The exact circumstances of the shooting are still under question. Unquestionably, however, this tragedy would have been avoided if not for an Albuquerque law prohibiting camping in the area. This law, effectively criminalizing those who are without a home, not only creates a legal reason for the arrest of homeless persons, but also puts people like James Boyd in potentially life-threatening situations with law enforcement.

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Tent Cities, the Law and Finding a Solution to U.S. Homelessness

A new report from the National Law Center on Homelessness and Poverty takes a look at encampments, current state and federal legislation and the possible international remedies to inadequate and unaffordable housing.

by James Swift
Originally published by Uncommon Journalism. Cross-posted with permission.

For five years, representatives of the National Law Center on Homelessness and Poverty (NLCHP) and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School conducted media surveys, verifying the existence of at least 100 homeless encampments across the United States from 2008 until 2013. According to Eric Tars, director of the NLCHP’s Human Rights and Children’s Rights Programs, the tally is almost certainly a vast undercount of the total number of “tent cities” that have sprung up coast-to-coast in the wake of the Great Recession.

“We know of several others that didn’t make it into online-accessible news sources,” Tars said during a  NLCHP webinar titled “Tent Cities, Homelessness and Human Rights.”

“So we know that even this figure is an underestimate.”

Homeless encampments, Tars said, were located by researchers in 46 states and he District of Columbia. Of the 100-plus tent cities evaluated in the recent report “Welcome Home: The Rise of Tent Cities in the United States,” he said just eight had “regularized legal status.” A majority of the tent cities examined in the report, he added, have  subsequently been torn down, and their occupants long since evicted.

While Tars said many tent cities were excellently managed, he said many others were plagued by major security concerns. “The conditions in these camps ran the gamut, with many displaying exceptional forms of self-governance,” Tars said. “But some present dangerous situations for the people living there.”

Among other factors, the report cites a lack of affordable housing, inadequate shelter systems and municipal ordinances effectively “criminalizing homelessness” as reasons for the growth of tent cities over the last half decade.

“While tent cities should never be viewed as a substitute for permanent housing or longer-term investment in housing and service provision, they can serve important immediate needs,” the NLCHP report reads. “And eviction of their residents is not the solution.”

Four Cities, Four Different Approaches

For the report, case studies in Rhode Island, New Jersey, Florida and Louisiana were evaluated. Through legal interventions and homeless advocacy, Tars discussed how tent city occupants were able to settle into temporary shelter and gain greater access to community services and long-term housing options.

In 2009 and 2010, two large encampments — Hope City and Camp Runamuck — emerged in Providence, R.I. Both encampments grew to more than 80 occupants, with Camp Runamuck developing its own official charter. The City of Providence then successfully shuttered both camps and obtained injunctions against former residents from resettling elsewhere.

However, most of the former occupants of the two camps have since found housing, the report states. Riverwood Mental Health Services’ Housing First program provided “permanent supportive housing” to homeless individuals, along with wraparound services connecting individuals to employment opportunities and substance abuse treatments. And in 2012, Rhode Island became the first state in the union to pass a “Homeless Bill of Rights,” which explicitly forbids discrimination against homeless individuals.

In Lakewood, N.J., Minister Steve Brigham runs “Tent City,” an encampment founded in 2005 which houses nearly 100 people. The camp rests within Ocean County, which is one of the few in the state sans a shelter system of any kind. Under a state ejectment statute, Tars said the City of Lakewood officially ordered the eviction of the camp’s occupants in 2012.

“Thanks to great legal advocacy,” Tars said, “the eviction was stopped and now 30 of the approximately 100 residents have been settled into hotels with one-year vouchers under a settlement with the City.”

After Hurricane Katrina, three major tent cities emerged in New Orleans. At their respective peaks, the report stated, the encampment populations rested between 100 and 300 occupants.

“While initially moving towards evicting the campers, the City reversed course and then partnered with a local homeless services organization, UNITY of Greater New Orleans,” Tars said. “And together, with state and federal officials, they were able to draw on post-Katrina resources to close the camps by providing permanent supportive housing for almost every person there.”

In late 2006, an encampment called “Operation Coming Up” was established in downtown Saint Petersburg, Fla. After being disbanded, several smaller tent cities arose; a January 2007 videotape captured several police officers dismantling one of the camps, seizing and slashing several tents with box cutters.

“While many of the criminalization ordinances remain, the City has also explored an alternative approach with two forms of institutionalized encampments,” Tars said. One encampment, Pinellas Hope, is run by Catholic Charities USA, with a capacity of about 250 occupants. A second encampment, Pinellas Safe Harbor, was erected at a minimum-security jail annex, where it serves as both a jail diversion program and a shelter for the city’s homeless.

The “correctionalized shelter” at Safe Harbor, Tars said, has drawn criticism from many advocates, however.

“It’s being used by the police to compel homeless people to take this accommodation, or suffer wrath under some of the other criminalizing ordinances,” Tars said. “While providing some housing alternatives, the coercion involved in the overall approach remains a concern.”

What Legal Protections Exist for the Nation’s Homeless?

According to Tars, there are numerous federal and state laws that are applicable to homeless encampments. “Homeless individuals have often brought overlapping claims under the Fourth, Fifth, Eighth and Fourteenth Amendment, on theories that the government is unlawfully seized or destroyed their personal property or infringed on their right to due process,” he said. “While the courts have upheld these claims in the context of government-style sweeps, they have been less willing to apply the right, affirmatively, to stop demolitions by the state and local governments.”

In the past, he said that some religious encampment hosts have been able to maintain their operations by successfully arguing that adverse government action infringed upon their First Amendment rights. Tars also believes the Fair Housing Act may be a possible legal option to pursue, although such has yet to be tested in a court of law.

“While no litigation has presented this theory so far, the Fair Housing Act arguably allows the hosts of tent cities to sue governments that take action ‘making unavailable or denying’ a ‘dwelling’ to renters or buyers on the basis of some protected status of its intended occupants,” the NLCHP report reads. “Protected statuses most likely relevant to homeless individuals include race and disability, including mental illness, recovery from addiction and alcoholism.”

Some state laws provide “partial protection” for tent cities, Tars stated. “For homeless encampments on public lands, when the government has happily consented to the encampment, promissory estoppels are proven to be successful, at least in early stages of litigation,” he said.

He described how the Lakewood City and Camp Runamuck defendants successfully employed the doctrine of “unclean hands” when they were evicted by city officials.

“The state had unclean hands based on the duties the state owed to the homeless people under different state statutes,” Tars explained. “In neither case did the court fully vindicate or formally discredit that argument, so future litigation is possible on these grounds.”

Lastly, he said  the element of “necessity” may be a viable legal defense for campers.

“Homeless litigants can also say that their trespass or act of camping is justified because any harm they cause is outweighed by the harm that trespassing avoids,” Tars said. “That being, the imminent threat to their own life, and that they also had no legal alternatives to avoid this.”

A Human Rights Issue

In 2014, the United States will undergo reviews from four of the planet’s leading human rights organizations. With the U.S. under the microscope, Tars believes now is an opportune time for advocates and policymakers to reevaluate the nation’s homeless problems, with an emphasis on housing as a genuine human rights issue.

Federal courts, Tars said, have begun to adopt a “human rights approach to homelessness” by placing a greater emphasis upon numerous international treaties and standards, such as the International Covenant on Civil and Political Rights (ICCPR).

The report argues that, while not legally binding in the United States at the current, both the Universal Declaration of Human Rights and theInternational Covenant on Economic, Social and Cultural Rights (ICESCR) recognize a basic human right to adequate housing. Other international human rights treaties, such as the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and theConvention on the Rights of the Child (CRC), also explicitly address housing as a basic right, and per the authors of the report, could possibly serve as the bedrock for future U.S. legislation.

“Under its international legal obligations, many policies in the United States that currently relate to both homelessness in general and to tent cities and encampments in particular violate international law,” the report reads. “Freedom of movement and the right to travel, freedom from arbitrary arrest and interference with one’s home, as well as property rights have been violated regularly, often by law enforcement or local government officials.”

The report, Tars said, also notes “considerably more progressive” approaches taken by other countries to address homelessness and housing access. “The Indian Supreme Court has upheld the right to shelter under the provisions of its Constitution,” he said, “The South Africa Constitutional Court has found homeless persons could not be evicted from shelter spaces, unless alternative shelter spaces could be made available.”

While having different legal and political contexts, Tars believes these international judgments should encourage and inspire homeless activists working within the U.S.

“In terms of what we need to do to bring human rights home, first we need to talk about housing as a human right,” Tars said. “Although it might seem like a long shot now, we are making a difference — HUD, the Department of Justice and the Interagency Council have all adopted language from our reports, talking about how housing and homelessness as human rights issues.”

“That never would have happened,” he concluded, “if we hadn’t been consistently and persistently including that framing in the first place.”

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Congressional Briefing on Extending the Protecting Tenants at Foreclosure Act

If not made permanent, on December 31, 2014 the Protecting Tenants at Foreclosure Act (PTFA) will expire, leaving renters living in foreclosed properties vulnerable. Without the protection of the PTFA, renters could have no idea their landlord has defaulted on their mortgage and could come home from work one day to find the locks changed and their belongings on the street.

At a Congressional briefing held last week, speakers praising the PTFA’s effectiveness in protecting innocent renters included Tristia Bauman and Jeremy Rosen from the National Law Center on Homelessness and Poverty (NLCHP), Matt Hill from the Public Justice Center, and Sham Manglik from the National Low Income Housing Coalition. Representative Keith Ellison, who sponsored the bill, H.R. 3543, that would make the PTFA permanent and add a private right of action also spoke (Senator Richard Blumenthal who sponsored the Senate companion bill, S. 1761 was unable to attend).

Representative Ellison speaks about the importance of making the PTFA permanent. Also pictured are Jeremy Rosen, Matt Hill, and Tristia Bauman.

Representative Ellison speaks about the importance of making the PTFA permanent.

Since the beginning of the foreclosure crisis, millions of people, including renters, have lost their homes. Before 2009, when the PTFA was enacted, thousands of innocent renters often received threats of being criminally charged for trespassing if they didn’t move out within 24 hours, or could find themselves evicted despite never having received notice that their landlord was in default. The PTFA gives tenants the right to stay in their homes for the duration of their lease agreement despite the property’s foreclosure or, if a tenant has a short term lease or no lease, for a minimum of 90 days’ notice. Although the law has been successful in stemming the tide of wrongful evictions, several of the speakers noted that compliance remains a challenge, and the new bills before Congress would create a private right of action.

The PTFA protects renters’ security of tenure in their homes, an essential feature of the human right to housing as recognized under international law. After the enactment of the PTFA, 23 states enacted similar protections at the state level, but that leaves the majority of states without a state-level equivalent. If the PTFA is not made permanent, it is unclear what will happen to tenants living in foreclosed properties, but many may face eviction and homelessness despite paying their rent and complying with their leases.

For more information, see the Law Center’s detailed report, Eviction (Without) Notice: Renters and the Foreclosure Crisis, which reviews the impacts of foreclosure on renters, protections for tenants in foreclosure at the state level, and describes ongoing violations of the PTFA.

– Leah Tedesco, Program on Human Rights & the Global Economy Fellow

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Domestic Human Rights Breakthrough

I wanted to share a domestic human rights breakthrough from our work with the U.S. Interagency Council on Homelessness (USICH), a federal agency that includes members from a wide number of other federal agencies, including DOJ, HUD, HHS, ED, Labor, etc.

Starting on Dec. 10 (Human Rights Day), the USICH launched an ongoing blog series titled “I Believe in Human Rights” which invited key personnel from their member agencies, domestic and foreign NGOs, and formerly homeless persons, to share blogs on their belief in human rights. They also dedicated their December newsletter to the issue.

All of these resources are collected on their Human Rights page. (That’s right, a domestic federal agency has a page dedicated to human rights.)

Among the highlights are a blog by Maha Jweied, Senior Counsel at the DOJ’s Access to Justice Initiative, in which she calls for a right to counsel for homeless people, and addresses criminalization of homelessness as a potential violation of our human rights treaty obligations under the International Covenant on Civil and Political Rights and Convention Against Torture.

And a really creative article by the USICH addressing several human rights in addition to housing that may be violated for persons experiencing homelessness which demonstrates the seriousness and depth to which they are applying the human rights framework.

Also, great blogs by yours truly highlighting the progress and challenges in addressing homelessness as a human rights issue, which explicitly links into the broader Human Rights at Home Campaign, and by our Executive Director looking specifically at criminalization of homelessness as a human rights violation.

If you like what you see, please reinforce with them that this is a step in the right direction and give them some credit on their social media sites: Twitter (@USICHgov) and Facebook by using #RightsEndHomelessness.

All of this represents an unprecedented effort coming from within our federal government to change the baseline of our policy dialogue to one that includes human rights. It’s a major victory for us to have a broad number of agencies now agreeing in writing that human rights are the relevant standards we should be applying, but now it’s up to us to hold them accountable to those standards in our advocacy. Let’s make 2014 the year for Human Rights at Home.

-Eric Tars, Director of Human Rights and Children’s Rights Programs

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Update from Geneva: Days 4-5

See the video below for the final update from the Law Center’s Program on Human Rights and the Global Economy Fellow, Kirsten Blume, regarding days 4 and 5 of her advocacy trip to Geneva. Kirsten has been able to meet with various UN Special Rapporteurs, UN Human Rights Officers, and UN Human Rights Committee Members to discuss the issue of the criminalization of homelessness in the U.S. as it violates international law. We hope you’ve found these updates informative and we thank you for tuning in to the video blog series!

 

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Update from Geneva: Days 3-4

See the video below for an update from the Law Center’s Program on Human Rights and the Global Economy Fellow, Kirsten Blume, regarding days 3 and 4 of her advocacy trip to Geneva. Kirsten has been able to meet with various UN Special Rapporteurs and UN Human Rights Officers to discuss the issue of the criminalization of homelessness in the U.S. as it violates international law. Stay tuned for another video update tomorrow!

 

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Update from Geneva: Days 1-2

See the video below for an update from the Law Center’s Program on Human Rights and the Global Economy Fellow, Kirsten Blume, from her first two days in Geneva. Kirsten was able to make the trip to Geneva and attend scheduled meetings with UN Special Rapporteurs and various non-governmental organizations despite the postponement of the U.S. hearing before the Human Rights Committee in Geneva due to the U.S. Government shutdown. Stay tuned for more video updates about her advocacy efforts on behalf of the Law Center in Geneva this week!

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