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National Law Center on Homelessness and Poverty

Federal court bars enforcement if city’s ban on homeless encampments

Score one for the law’s opponents.

Mayor Sylvester Turner

A federal court on Tuesday temporarily blocked Houston from enforcing its fledgling ban on public encampments, dealing a blow to city efforts to manage escalating tensions between homeless people and the neighborhoods their camps abut.

The city’s three-month-old law – passed under intense pressure from residents and council members – bars the unauthorized use of temporary structures for “human habitation” and empowers police officers to arrest violators if they refuse medical treatment or social services.

Enforcing that prohibition may, U.S. District Judge Kenneth M. Hoyt wrote, violate the homeless plaintiffs’ Eighth Amendment protections against cruel and unusual punishment.

“The plaintiffs have demonstrated that they are subject to a credible threat of being arrested, booked, prosecuted and jailed for violating the City of Houston’s ban on sheltering in public,” Hoyt said. “The evidence is conclusive that they are involuntarily in public, harmlessly attempting to shelter themselves – an act they cannot realistically forgo, and that is integral to their status as unsheltered homeless individuals.”

[…]

The city ordinance “was not designed to punish homeless people. Rather, it was passed to stop the accumulation of property in these encampments,” Marc Eichenbaum, special assistant to the mayor for homeless initiatives, said in an affidavit filed last week.

Hoyt’s order, however, focuses on the law rather than the city’s approach to enforcing it.

“The fact that the governmental entity has not fully enforced the alleged unconstitutional conduct does not bar a suit for injunctive relief where the alleged unconstitutional conduct is imminent or is in process,” he wrote.

See here and here for the background, and here for a copy of the restraining order. It should be noted that in the complaint filed by the plaintiffs, they also asked for an injunction prohibiting “Enforcement of Houston City Code Section 28-46 (Aggressive panhandling) and Section 40-27(b) (Impeding the use of a roadway)”, but that request was not granted. The city had been lightly enforcing the enjoined provision, which suggests there had been concerns about it from the beginning. I get where the Mayor and Council are coming from, but they need to take this as a sign that they chose an unwise path. I do not want to wake up one day and read that the city is shelling out $500 an hour to some fancypants law firm to defend this thing in court. Find a way to fix this in a way that everyone can live with and move on.

Lawsuit filed against Houston panhandling ordinance

From the inbox:

The ACLU of Texas announced today that it had filed a lawsuit on behalf of three homeless Houstonian plaintiffs adversely affected by the City of Houston’s camping and panhandling ordinances. Taken together, these ordinances illegally deprive homeless Houstonians of shelter, infringe on their right to free speech and ultimately constitute a criminalization of homelessness itself.

“In recent years, Houston has admirably managed to reduce homelessness by half by pursuing sensible and compassionate solutions to this nationwide crisis,” said Trisha Trigilio, staff attorney for the ACLU of Texas. “But these latest ordinances abandon that humane approach. The City says they’re meant to get people into shelters with ‘tough love,’ but the truth is the shelters are full and Houston’s homeless have nowhere else to go.”

“Laws that criminalize homelessness are ineffective, waste limited public resources and violate basic human and constitutional rights,” said Maria Foscarinis, executive director of the National Law Center on Homelessness & Poverty. “The Law Center shares the ACLU’s concerns that Houston’s new ordinances governing outdoor camping and panhandling violate homeless persons’ constitutional rights.”

“The main thing these laws take from us is our dignity,” said Plaintiff Tammy Kohr. “We’re not bad people; we’re just trying to survive.” Plaintiff Eugene Stroman added, “This law shows little respect or sympathy for the impoverished people of Houston. Living in shelters just isn’t an option for us, but if you can’t find your own place to live, you’re treated like a criminal.”

The lawsuit requests an injunction prohibiting the tent ban, the panhandling ban and the seizure of homeless Houstonians’ private property.

See here for some background. The ordinance went into effect on Friday, which is no doubt why the lawsuit was filed on Monday morning. The Chron story adds some more details.

Mayor Sylvester Turner defended the ordinances in response to questions from the Chronicle at a Monday afternoon news conference, saying the rules aimed to balance constitutional rights and “the legitimate public health safety and welfare of all citizens in the public space.”

“Based on my reading of the lawsuit filed by the ACLU, they would have us do nothing,” the mayor added. “We have chosen to work with those living on the streets on a one by one basis to assess and address their individual needs and provide compassionate and meaningful solutions. Make no mistake, this is a public safety issue and we cannot bury our heads in the sand and pretend that it does not exist. The question is what is the best way or ways to transition people from living on the street.”

The mayor has said the panhandling ordinance doesn’t put an undue burden on free speech, as the ACLU lawsuit contends.

[HPD Captain William Staney, who oversees the mental health division] said Friday that Houston police would slowly ramp up enforcement. He said no one was arrested, cited or even formally warned on Friday. However, police eventually would take away people’s property if they keep more belongings than would fit in a 3-foot cube, as the ordinance requires.

The police department circulated a memo Friday emphasizing that arrest is a last resort and that officers must first offer access to medical help, addiction treatment and temporary shelter before taking action under the new rules.

While the ACLU lawsuit and some homeless people contend that shelters don’t have room, the mayor’s special assistant for homeless initiatives differed on Monday.

“We’ve worked with these shelters to make sure that even if a bed is not available that there’s still room for them to get them out from the elements inside where there’s additional services,” said the assistant, Marc Eichenbaum.

I agree that the city has done a lot of work to reduce homelessness in Houston, all to its credit, and I think there’s a lot of merit to the push to redirect charity towards support services and away from giving a dollar to people on the streets. Mayor Turner believes this ordinance is compliant with previous court rulings. Obviously, that remains to be seen, and the fact that advocates for the homeless think this ordinance will do more harm than good cannot be overlooked. I would really rather see this get mediated instead of litigated. Surely there are things the city can do to the ordinance to settle this. The Press has more.

The new panhandling ordinance

This happened last week; I didn’t have a chance to really look at it before now.

Mayor Sylvester Turner

Residents who impede the use of a Houston roadway, or block a sidewalk or building entrance could be charged with a misdemeanor under an ordinance passed Wednesday by City Council.

The ordinance aimed at curbing panhandling was paired with a ban on unauthorized encampments in public places – an effort to crack down on homeless camps that have drawn resident and council member ire in recent months. The encampment ban is set to take effect in 30 days.

Mayor Sylvester Turner said he thinks the new rules help to achieve a “delicate balance” between ensuring safety and helping the homeless.

“The whole notion is to strike a balance between addressing their needs and their concerns and putting them in a better position in their lives, and at the same time the neighborhood concerns in terms of people being in their doorway or blocking the sidewalk,” Turner said.

[…]

Tristia Bauman, a senior attorney for the National Law Center on Homelessness and Poverty, warned of potential constitutional violations, also saying she thought the laws would be ineffective.

“This law as written is constitutionally concerning, and I think it’s very vulnerable to legal challenge,” she said of the encampment rules. “To create a punishment for people who are attempting to survive on the street when they have no alternative is a violation of the Eighth Amendment prohibition on cruel and unusual punishment.”

Marc Eichenbaum, special assistant to the mayor for homeless initiatives, said the city has worked with groups like Star of Hope and the Salvation Army to ensure there are sufficient shelter beds for the city’s homeless.

“For individuals who want to go to a shelter, there is a place for them,” Eichenbaum said.

Bauman pointed to those with mental health issues or disabilities who may be unable to go to a shelter.

Turner’s plan to curb homelessness, announced last month, also includes proposals to house 500 chronically homeless people by early September and construct alternative, professionally staffed “low-level” shelters under highway overpasses or on private property.

These outdoor spaces are intended to help accommodate people who are unable or unwilling to go to an indoor shelter.

Here’s an earlier story about what Council had been considering; the proposed ordinance was tagged until last week. As someone who currently works downtown, I can attest that panhandlers are a nuisance, and can sometimes be scary. Houston has made a lot of progress in reducing the number of homeless residents, especially homeless veterans, and part of this program is intended to further that work. There are some details to be filled in, and there are concerns about the legality of this ordinance as well as its likely effectiveness. I’m not sure what to think at this point.

In the meantime, there’s also this.

Phillip Bryant carries tuna cans and water bottles in his car and often spontaneously delivers them to the poor he sees throughout the Houston streets.

However, Bryant, who describes himself as a devout Christian, contends the city’s charitable feeding ordinance prohibits this and also violates his religious rights.

He filed a lawsuit Wednesday night in Harris County court challenging the ordinance, which requires advocates to obtain permission from property owners – public or private – before feeding more than five people. Violation of the ordinance is considered a criminal misdemeanor and is punishable by up to $2,000, according to the lawsuit.

[…]

Although not mandatory, the city encourages those feeding the homeless to register as a food service organization and receive food safety training. The only required step is a person must seek permission from the property owner before feeding more than five people.

I’ll be honest, I’m a little unclear as to what the point of contention is here, but I guess we’ll see what the courts make of it.