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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.).

      The city of Los Angeles, California on May 10, 2018, reached a $1.9 million settlement with the plaintiff family in a federal lawsuit brought over the police shooting and killing of a homeless man. The shooting took place in 2015 and was viewed online by many in a YouTube video. A jury in the federal lawsuit, just before the settlement, found that two officers were liable for the death of the 43-year-old decedent, Charley “Africa” Keunang. The jury found that the shooting officer used excessive force and that his supervising sergeant was also liable for failing to intervene. A third officer present was found not liable. The decedent was shot as he “scuffled” with the officers as they responded to a report of an attempted robbery outside of a rescue mission. The county district attorney’s office declined to charge the three officers, and in a 2016 report stated that they were justified in using lethal force because the homeless man had nearly gotten hold of an officer’s holstered gun as they fought. The decedent reportedly had a history of violent, erratic behavior, and had served time in prison for bank robbery. Tehayou v. City of Los Angeles, #CV16-06073, (May 10, 2018, U.S. Dist Court, C.D. Calif.).

     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).

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