http://www.nytimes.com/2006/04/15/us/15homeless.html?_r=1&oref=slogin
Appeals Court Bars Arrests of Homeless in Los Angeles
Published: April 15, 2006
LOS ANGELES, April 14 — A federal appeals court panel ruled on Friday that
arresting homeless people for sleeping, sitting or lying on sidewalks and
other public property when other shelter is not available was cruel and
unusual punishment.
The 2-to-1 ruling, by the United States Court of Appeals for the Ninth
Circuit, in San Francisco, essentially invalidated a 37-year-old ordinance
that the police have used to clear homeless people off the streets.
Legal experts said the case, which they believed to be the first involving
the rights of homeless people in public spaces to reach the federal
appellate level, would be closely followed by cities nationwide.
The Los Angeles ordinance had gone largely unenforced until recent years
when the police began cracking down on illicit behavior in the Skid Row
area of downtown, which has one of the largest concentrations of homeless
people in the country.
The ordinance states "no person shall sit, lie or sleep in or upon any
street, sidewalk or public way" under threat of a $1,000 fine and possible
jail term of up to six months.
The court, in striking down the convictions of six people charged under the
ordinance, called it "one of the most restrictive municipal laws regulating
public spaces in the United States" and cited the example of other cities,
like Portland, Ore.; Tucson; and Las Vegas, that have enacted similar
ordinances but limited enforcement to certain times of day or designated
places.
The Eighth Amendment, barring cruel and unusual punishment, prohibits Los
Angeles "from punishing involuntary sitting, lying, or sleeping on public
sidewalks that is an unavoidable consequence of being human and homeless
without shelter," Judge Kim McLane Wardlaw wrote.
The Los Angeles police responded by releasing a statement that said: "The
condition of being homeless in and of itself is not a crime and should not
be treated as such. But the criminal element that preys upon the homeless
and mentally ill will be targeted, arrested and prosecuted to the fullest
extent of the law."
It added, "The department will continue to work with the city's political
leadership and the courts to find solutions to help keep the homeless safe
and off the streets."
A spokeswoman for the city attorney's office, Contessa Mankiewicz, said,
"We are disappointed, and we are reviewing our options." She said that the
ordinance was not often prosecuted but that statistics were not immediately
available.
The police in Los Angeles, which has been wrestling with how to reduce a
homeless population that by some counts is the largest in the country, have
used the ordinance in an effort to clean up Skid Row, a 50-block area east
of downtown that has long been home to the down and out.
There, some 10,000 to 12,000 homeless people live near new condominiums and
apartment buildings that have arisen in an explosion of gentrification. The
ruling said there was shelter for 9,000 to 10,000 homeless people in that
area, leaving about 1,000 people or more without a roof over their heads.
"So long as there are a greater number of homeless individuals in Los
Angeles than the number of available beds, the city may not enforce" the
ordinance, the judges said.
The case was filed in February 2003 by the American Civil Liberties Union
of Southern California and the National Lawyers Guild on behalf of six
homeless people who had been ticketed in Skid Row and in some cases jailed
briefly or ordered to pay fines. The appeals court's ruling on Friday
overturns a district court ruling in favor of the city.
The court sent the case back to the district court to write an injunction
barring enforcement of the law.
In a dissent, Judge Pamela Ann Rymer said the ordinance "does not punish
people simply because they are homeless," and added, "It targets conduct —
sitting, lying or sleeping on city sidewalks — that can be committed by
those with homes as well as those without."
She added, "We do not — and should not — immunize from criminal liability
those who commit an act as a result of a condition that the government's
failure to provide a benefit has left them in."
Legal experts said it was unusual to win a case based on the Eighth
Amendment, and even more so because it was directed at regulating the
homeless.
Gary Blasi, a professor at the University of California at Los Angeles law
school who has studied legal issues involving the homeless, called the
ruling significant. "This is one of the very few cases, certainly for this
level of the judicial system, that says to government that you can't
criminalize the mere fact of being homeless," Mr. Blasi said. "The city can
regulate times and places, but you can't forbid people from occupying the
face of the earth."
Advocates for the homeless cheered the ruling. "The fact this court has
ruled on this law in this way has a message, and our hope is cities will
get the point that you can't respond to homelessness by trying to eliminate
homeless people," said Maria Foscarinis, executive director of the National
Law Center on Homelessness and Poverty, a legal advocacy group in
Washington.
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