Court Decisions Finding Anti-Camping Laws Unconstitutional
Pottinger v. City of Miami
Pottinger v. City of Miami Settlement Agreement
The district court ruled that the city's practice of arresting homeless individuals for harmless life sustaining activities that they are forced to perform in public is unconstitutional because the arrests constituted cruel and unusual punishment in violation of the Eighth Amendment, restricted innocent conduct in violation of the Due Process Clause of the Fourteenth Amendment, andburdened the fundamental right to travel in violation of the Equal ProtectionClause. The court also determined that the city's practice of seizing and destroying the property of homeless people without following its written procedures for found or seized property violated the class's Fourth Amendment rights.
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.
City of Sarasota v. Tillman 2003 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.
City of Sarasota v. Nipper 2005 No. 2005 MO 4369 NC (Fla. Cir. Ct. 2005).
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.
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 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.
Articles about constitutionality of anti-camping laws
Ordinaces and bylaws legalizing urban camping/tent cities
Washington Municipal Research and Services Center of Washington
Legal Acts Protecting Tent Cities
Legal Action Taken Against Tent Cities
City of Bothell v. St. Brendan Parish
* City of Bothell v. St. Brendan Parish – Findings of Fact & Conclusions of Law on City’s Motion for Preliminary Injunction
* City of Bothell v. St. Brendan Parish – First Amended Complaint for Declaratory and Injunctive Relief
* City of Bothell v. St. Brendan Parish – City’s Motion for Preliminary Injunction
* City of Bothell v. St. Brendan Parish – Preliminary Injunction
* City of Bothell v. St. Brendan Parish – SHARE/WHEEL Response to Motion for Injunction
* City of Bothell v. St. Brendan Parish - Memorandum of St. Brendan Parish Opposing Preliminary Injunction