AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability
of Law Enforcement Agencies & Personnel


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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.

     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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