By Olivia C. Jerjian, ACLR Featured Blogger

In November 2014, Arnold Abbott was arrested and charged in Fort Lauderdale, Florida, for handing out food to the homeless in a park through his charitable organization. Fort Lauderdale is one of many cities with restrictive food sharing laws, requiring charities feeding the homeless to obey strict food service restrictions and to provide toilet facilities. Abbott, who faced 60 days in jail or a fine of $500,1 sued the city of Fort Lauderdale, arguing that the ordinance was unconstitutional. A few weeks later, Judge Thomas Lynch of the Broward Circuit Court granted a stay of enforcement, temporarily lifting the ordinance and allowing Abbott to continue feeding homeless individuals.2

Judge Lynch should find the law unconstitutional. However, despite such a ruling, the city of Fort Lauderdale is likely to find a roundabout way to restrict food sharing, highlighting the limits of the courts. Fort Lauderdale should abandon the criminalization approach it has adopted for more effective and humane methods to end homelessness.

Homelessness is one of the biggest crises the United States currently faces. The U.S. Department of Housing and Urban Development (“HUD”) reported that 610,042 people were homeless on a given night in January 2013.3 Many homeless people are forced to live in public places due to a lack of affordable housing and shelters.4 Yet, in spite of the hundreds of thousands of people without a home, many local legislatures have overwhelmingly responded to the homelessness crisis by criminalizing behaviors that are necessary to the survival of the homeless, such as sitting down, sleeping, or sharing food in public areas. Therefore, in addition to the challenges of finding housing, food, and employment and the danger of living outdoors, homeless individuals now face potential criminal charges and harassment by law enforcement officers due to regulations criminalizing behaviors necessary to their survival. Although courts have continuously found such ordinances to violate homeless individuals’ Eighth Amendment rights, cities have found roundabout ways to apply those same laws through ineffective settlement agreements and consent decrees. Instead of following the criminalization approach, cities should adopt a more effective and humane set of laws to reduce homelessness.

The criminalization of homelessness in the United States has drastically increased in recent years, as many legislatures have enacted laws prohibiting basic human actions necessary for survival. One common criminalization measure is to prohibit “camping” in public. In 2014, thirty-four percent of cities had a city-wide ban on camping, representing a sixty percent increase since 2011.5 City-wide laws restricting begging in public areas are also drastically increasing. For example, it is illegal in Springfield, Illinois, to make “any vocal appeal in which a person requests an immediate donation of money or other gratuity.6 The restriction of ordinary acts such as sitting on a sidewalk or lying down is another form of criminalizing homelessness. In Virginia Beach, Virginia, it is a crime for a person to “sit, recline or lie down on any street, sidewalk, alley, curb or entrance to any store or other place of business.”7 Some cities, such as Raleigh, North Carolina, and Daytona Beach, Florida, have even banned sharing food with homeless individuals, claiming that providing the latter with a supply of food encourages them to remain homeless.8 Individuals and organizations, often faith-based, who share food with the homeless are also exposed to fines and jail time.9 Despite their prevalence, many courts have found such laws to be unconstitutional.

Courts have often found that laws prohibiting basic behaviors necessary for the survival of homeless individuals violate those individuals’ right against cruel and unusual punishment, but the cities have ultimately found roundabout ways to apply those same ordinances. Pottinger v. City of Miami10 and Jones v. City of Los Angeles11  both exemplify this trend. Parties who have successfully challenged the constitutionality of such laws have often based their arguments in the Eighth Amendment on the grounds that homelessness is a status rather than an act and that homeless people do not have a choice but to violate the laws.12 In Pottinger, a group of homeless individuals brought suit against the City of Miami to enjoin law enforcement from upholding ordinances against eating, sleeping, and performing other life-sustaining activities in public.13 The plaintiffs argued that their status as homeless was “involuntary and beyond their immediate ability to alter and that the conduct for which they [were] arrested [was] inseparable from their involuntary homeless status.”14 Therefore, according to the plaintiffs, the application of the ordinances constituted cruel and unusual punishment under the Eighth Amendment.15 The U.S. District Court for the Southern District of Florida agreed with the plaintiffs’ argument based on the two following findings: (1) homeless individuals “rarely, if ever, choose to be homeless,”16 and homelessness often resulted from a financial crisis or a mental or physical illness,17 and (2) there were more homeless people in the City of Miami than there was available shelter based on testimony and the documentary evidence regarding the homeless.18 Therefore, homeless individuals did not have a choice but to violate the ordinances by eating and sleeping in public places due to the lack of shelter space. Although Pottinger was a step in the right direction as it recognized the unconstitutional nature of the ordinances that criminalize behaviors crucial to the survival of homeless individuals, the holding’s scope was too narrow to make a lasting practical impact on the lives of the homeless in Miami. The judge did not mandate officers to provide the homeless with shelter or housing, not wanting to encroach on the government’s powers.19 The City appealed, and a consent decree replaced the lower court’s decision in 1998.20 The decree stated that law enforcement officers in Miami needed to offer homeless people placement in a shelter before arresting them for harmless conduct. However, the compromise was unsuccessful. There was still insufficient housing, and officers continued to target homeless individuals for arrest. The City of Miami Commissioners voted to undo the provisions of the subsequent consent decree in April 2013,21 and Miami is likely to remain on the path of criminalization.

More than a decade later, the court in Jones v. City of Los Angeles22 found that a Los Angeles ordinance violated the Eighth Amendment. In Jones, the ACLU, representing six homeless individuals, won its challenge of a Los Angeles ordinance prohibiting sleeping, sitting, or lying down in public.23 Similar to the judge in Pottinger, the Ninth Circuit found that there were not enough shelter beds to accommodate the tens of thousands of homeless individuals. Consequently, criminalizing the “unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless”24 violated the Eighth Amendment as cruel and unusual punishment. The scope of the holding in Jones was equally narrow, as the court stated that the city could address the homelessness problem in any way as long as it ceased the enforcement of that particular ordinance.25 The Ninth Circuit’s judgment was vacated after the parties settled,26 agreeing that the ordinance could not take effect between 9:00 p.m. and 6:30 a.m. and that officers must give a verbal warning and a chance for the individual to move locations before enforcing the law. The positive effects of the settlement did not last for very long. Los Angeles introduced its “Safer City Initiative” in 2006, shortly after Jones, and increased the number of officers in Skid Row, the central gathering place for the homeless.27 A homeless person is forty-eight to sixty-five times more likely to be arrested for minor violations, such as jaywalking, in Skid Row than anywhere else in Los Angeles.28

Ordinances criminalizing homeless individuals’ ordinary behaviors should be replaced by more effective solutions to the homelessness crisis. The judiciary alone cannot protect the homeless from ordinances that violate the Eighth Amendment if legislatures and law enforcement keep finding roundabout ways of upholding anti-homeless laws, as Pottinger and Jones have demonstrated. Criminalization has been an unsuccessful method for dealing with homelessness. Not only does it represent an unrewarding financial burden for taxpayers, but it also cycles homeless individuals through the criminal justice system without offering them a way out. Cities such as Fort Lauderdale need to stop focusing on criminalization and adopt different solutions to the homelessness problem, such as providing additional shelters and low-income housing and improving the training of law enforcement officers as well as transition planning for homeless people leaving jails and hospitals.29 In the meanwhile, all the Arnold Abbotts in the United States can do is sue the city for unconstitutional ordinances and hope that new ones will not be enacted soon after.