‘Criminalizing Homelessness Violates the Constitution’ Report. “the Justice Collaborative has published a white paper, authored by constitutional law scholar Peter Edelman, explaining why the laws criminalizing homelessness around the country, violates the constitution.”

“the Justice Collaborative has published a white paper, authored by constitutional law scholar Peter Edelman, explaining why the laws criminalizing homelessness around the country, violates the constitution.”

SUMMARY: The Justice Collaborative Institute, “Criminalizing Homelessness Violates the Constitution,” May 2020

Local governments are not free to trample the rights of people just because they are experiencing poverty or living without housing. The Supreme Court has held that it is cruel and unusual punishment to criminalize homelessness based on long-standing legal principles that people cannot be punished for their status. Likewise, people without shelter retain fundamental constitutional protections. 

As federal courts have made clear at all levels across the country, treating homelessness like a crime is unconstitutional under many circumstances. In spite of this, American cities have effectively criminalized homelessness through proliferating laws that prohibit camping in public, sleeping in cars, and sitting in public spaces. 

Case law also prohibits targeting homelessness with criminal laws that appear neutral on their face but apply only to people without access to shelter. Crimes that inevitably follow from the condition of living without shelter are also unconstitutional. These principles can protect people from encampment evictions, the seizure and destruction of personal property, and prosecutions for camping, sleeping outside, and soliciting. 

(1) Laws prohibiting sitting, lying, or sleeping in public have been found unconstitutional and constitute cruel and unusual punishment when enforced against people who have no access to shelter. In Powell v. Texas (1968), the Supreme Court found the 8th Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being. 

• 9th Circuit has twice applied these principles to bar the enforcement of sit/lie ordinances: once in LA in 2006 and in Boise in 2018.
• In Boise, the DOJ filed a statement of interest arguing that punishing a universal and unavoidable consequence of being human violates the 8th Amendment

(2) Encampment evictions and seizing or destroying property were successfully challenged on 4th and 14th Amendment grounds. Litigation has led to settlements that require jurisdictions to provide adequate notice and shelter options before clearing an encampment, store and inventory any property taken, and seize only property that poses a legitimate public health risk. 

• Lavan v. City of Los Angeles (2012): unhoused people retain an interest in continued ownership of their personal possessions within the meaning of 4th and 14th amendments. Since Lavan, a number of district courts have applied its reasoning to find that unhoused people have a property interest in possessions such as tents, tarps, blankets, and medications, even when these are kept in public space. 

(3) Prohibitions on solicitation and panhandling have been successfully challenged. 83% of cities restrict or ban begging in public, but these laws have been found unconstitutional in many cases

(4) Supreme Court has long recognized that soliciting contributions is expressive activity protected by the 1st Amendment

• 7th Circuit reversed an earlier ruling and enjoined Springfield, Illinois’ law restricting vocal pleas for immediate donations of cash
• Homeless Helping Homeless, Inc. v. City of Tampa, a federal district court enjoined the city of Tampa from enforcing its ordinance banning the solicitation of donations or payment. 

(5) Prohibiting loitering and sleeping in vehicles: The Supreme Court has held that ordinances banning loitering or sleeping in cars are unconstitutionally vague when they do not give clear notice of the prohibited conduct or would allow for arbitrary or discriminatory enforcement.

• Desertrain v. City of Los Angeles challenged an LA ordinance that prohibited the use of vehicles as “living quarters” because it appeared to apply only to homeless people and not to all the other drivers who also eat food or transport belongings in their vehicles.