Appeals Court Bars
Arrests of Homeless
in Los Angeles
By RANDAL C.
ARCHIBOLD, NYTimes on the Web, April 15, 2006
LOS ANGELES, Apr. 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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