CHAPTER 6
THE LAW, THE COURTS, AND THE HOMELESS

The process of renewal and rebuilding that accompanies an influx of middle-class or affluent people into deteriorating areas is called gentrification. It typically displaces earlier—and usually poorer—residents, and often destroys ethnic communities (Tom Wetzel, "What Is Gentrification?" 2004, http://www.uncanny.net/~wetzel/gentry.htm). While gentrification has positive aspects—reduced crime, new investment in the community, and increased economic activity—these benefits are generally enjoyed by the newcomers while the existing residents are marginalized. When a neighborhood is gentrified, the visible homeless come to be seen as a blight on the quality of life of the new residents. The homeless can drive away tourists and frustrate the proprietors of area businesses. The widening gap between the haves and the have-nots in American society is evident in the plight of homeless people. As more and more privately owned, federally subsidized apartment buildings and former "skid rows" were gentrified during the economic boom of the 1990s, more of the poorest people were forced into homelessness.

Recent years have seen an increase in the enactment of laws and ordinances intended to regulate the activities of homeless people. Moreover, in some areas homeless children even found themselves placed outside the regular public school system and segregated in special schools for the homeless. Advocates for the homeless contend that such practices deny the homeless their most basic human, legal, and political rights.

Some local ordinances prevent the homeless from sleeping on the streets or in parks, although there may not be enough shelter beds to accommodate every homeless person every night. The homeless may be turned out of shelters to fend for themselves during the day, yet local ordinances prevent them from loitering in public places or resting in bus stations, libraries, or public buildings. Begging or picking up cans for recycling may help the homeless to support themselves, yet often there are restrictions against panhandling (begging) or limits on the number of cans they can redeem. To see the homeless bathe or use the toilet in public makes people uncomfortable; consequently, laws are passed to prohibit such activities.

Are the homeless targeted by these laws and consequently denied their civil rights? Do such ordinances criminalize homelessness by singling out the minority (the unhoused) but not the majority (the housed)? For example, drinking alcoholic beverages in public is illegal, but the police may selectively enforce the law against street people while ignoring other drinkers, such as tourists. Ordinances disallowing life-sustaining activities performed by homeless individuals may be said to exclude the homeless from equal protection under the law.

Most measures regulating the behavior of the homeless are enacted at the community level. Sometimes the most restrictive of these laws have been challenged in federal court on the grounds that they violate the rights of the homeless people they seek to regulate. For example, a federal court may be asked to determine whether begging or panhandling is considered protected conduct under the First Amendment (freedom of speech).

A LAW CONCERNING THE EDUCATION OF
HOMELESS CHILDREN

The 1987 McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.) is the federal law that entitles children who are homeless to a free, appropriate public education, for which federal funding is provided to the states under Subtitle VII-B, the Education for Homeless Children and Youth Program. At the time the legislation was passed, only an estimated 57% of homeless children were enrolled in school. By 2000 the percentage had increased to 88%.

However, in implementing the legislation, school districts found that barriers arose in such areas as residency, guardian requirements, incomplete or missing documentation (including immunization records and birth certificates), and transportation. Consequently, some school districts established separate schools for homeless children. As of 2002 there were an estimated forty separate schools for the homeless nationwide, according to the National Coalition for the Homeless.

The National Law Center on Homelessness and Poverty (Separate and Unequal: A Report on Education Barriers for Homeless Children and Youth, Washington, DC, January 2000) complains that such programs violate the McKinney-Vento Act and are "vastly inferior" to regular public schools in terms of resources and curricula. For example, some of the schools were located in shelters or churches that violated health and safety codes, and some were not staffed by certified teachers. Most schools were one-room classrooms with students of different ages and grades together under one teacher. Most do not offer a full range of educational programs, such as special education, gifted and talented programs, or bilingual education (National Coalition for the Homeless, "School Segregation and Homeless Children and Youth: Questions and Answers," http://www.nationalhomeless.org/unequal.html).

Walter Varner, President of the National Association for the Education of Homeless Children and Youth, testified before Congress on September 5, 2000, that in his opinion, "separate [education] is never equal." (The landmark Supreme Court decision in Brown v. Board of Education [347 U.S. 483 (1954)] found that "the 'separate but equal' doctrine … has no place in the field of public education.") Varner pointed out that thousands of schools across the country had successfully eliminated barriers to the education of homeless children. Furthermore, he stated that it is "unacceptable to accommodate the prejudices of housed children against their homeless peers.… As the Supreme Court has said, 'private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."'

Proponents of separate schools argue they provide badly needed supportive services such as showers, clothing, hygiene items, dental and medical care, psychological counseling, and birthday parties and gifts. The schools also shield children from the embarrassment and ridicule they might expect to encounter in regular public schools.

When Congress reauthorized the Homeless Children and Youth Program in January 2002 (through the enactment of the No Child Left Behind Act [PL 107-110]), it asserted that "Homelessness alone is not sufficient reason to separate students from the mainstream school environment." The new law required that homeless children be placed in mainstream schools, and it cut off federal aid to separate schools for the homeless. However, just before the bill was signed, six schools were exempted from the new law.

Transportation became an issue for school districts providing education to homeless students. Homes for the Homeless and the Institute for Children and Poverty found that 34% of 226 students in one New York homeless shelter faced commutes of longer than an hour because their parents had opted to keep their children in the same schools they had attended before they became homeless, a right guaranteed by the new law (Nicole Brode, "New York's School Choice Leaves More Homeless Children with Hour-Plus Commutes," Knight-Ridder/Tribune Business News, February 10, 2003). In 2005 the Thomas J. Pappas schools for the homeless in Phoenix and Tempe, Arizona, reported that twelve buses traveled more than 1,000 miles each morning to transport children to school.

RESTRICTIVE ORDINANCES

Not in My Backyard (NIMBY)

To many people, the prospect of low-income, subsidized housing is synonymous with rising crime, falling property values, and overcrowded classrooms, and therefore cause for protest. Because of these fears, local governments often use zoning requirements to block the establishment of group-living homes and shelters for the homeless in all or part of their city. Zoning requirements are local laws regulating what kinds of buildings can be placed in different parts of a city. The use of zoning requirements to block particular developments is often called the "Not in My Backyard" (NIMBY) effect. The people in the neighborhoods are essentially saying that they do not want to have services for the homeless near them, even if they do not oppose them on principle.

In 1997 the city of Springfield, Missouri, passed a zoning ordinance that is typical of the NIMBY effect. The ordinance imposed new restrictions on the operation of emergency and transitional shelters and soup kitchens. No such facility was allowed to be located within 2,000 feet of another similar facility. Among other restrictions, the ordinance limited the capacity of emergency shelters to fifty beds, prohibited shelters from serving meals to nonshelter residents unless the shelter obtained city authorization, and required shelters to have at least one off-street parking space for every three beds. The overall effect was to keep services for the homeless small and scattered, with none of them able to provide for all of the needs of a homeless person at once.

Criminalizing the Homeless Life

Homeless people live in and move about public spaces, and many Americans believe society has a right to control or regulate what homeless people can do in those shared spaces. A city or town may introduce local ordinances or policies designed to restrict homeless people's activities, remove their belongings, or destroy their nontraditional living places. In many cities, municipal use of criminal sanctions to protect public spaces has come into conflict with efforts by civil rights and homeless advocates to prevent the criminalization of the homeless.

There have been other approaches. Several cities have proposed or created community courts specifically to handle "public nuisance" crimes. Other cities have implemented plans to privatize public property as a way of restricting the access of homeless people to certain areas.

Other localities pass ordinances that target homeless people in the hopes of driving them from the community. For example, Olympia, Washington, considered ordinances in 2000 that banned camping and car camping, established "no panhandling" and "no alcohol" zones, and strengthened trespassing laws in public parks. According to an annual report by the National Coalition for the Homeless (NCH):

Policies of criminalization defeat their own goals of removing homeless people from public visibility because they simply create further barriers for survival and undermine individual efforts to escape homelessness. Such policies keep more people on the streets and increase problems related to homelessness. When individuals are released from jail, they are still homeless, and they have even more barriers and obstacles to overcome than before.

—National Coalition for the Homeless, "Illegal to Be Homeless," 2004

Violating Human Rights

The NCH's 2004 Illegal to Be Homeless report also documented what NCH termed "the widespread trend of violations of the basic human rights of people experiencing homelessness in 179 communities in forty-eight states, Puerto Rico, and the District of Columbia." The report noted that nearly all of the communities surveyed lacked sufficient shelter space to accommodate the homeless and suggested that the effort and money spent on bringing the homeless into the courthouse might better be directed toward addressing the nation's lack of affordable housing. The report stated:

We have asserted and continue to assert that a pattern and practice of civil rights violations and unconstitutional behaviors by local government authorities, including the police and other city agencies, exists in many cities around the country. These practices exact enormous economic, social, political and individual costs and do nothing to prevent and end homelessness that plagues individuals nationwide.

Table 6.1 illustrates the anti-homeless laws that existed in some of the cities surveyed for the 2004 report. Prohibited or restricted behaviors fell under the categories of sanitation, begging, sleeping/camping, sitting/lying, loitering/loafing, and vagrancy.

Illegal to Be Homeless declared Little Rock, Atlanta, Cincinnati, Las Vegas, and Gainesville as the five "meanest cities" for the number of anti-homeless laws passed or pending, the enforcement and severity of their laws, and the "general political climate" with regard to the homeless, among other criteria. The "meanest states" were California and Florida. Two examples of the practices of these cities follow.

In Little Rock, homeless service providers were assured by police that they would not use information about locations of homeless camps to later harass homeless people. About a month later, the providers heard that the city would, in fact, use the information to do sweeps of the camps. The sweeps occurred throughout the summer, generally before major events. Advocates urged the police not to conduct huge sweeps, arguing that there were not enough shelter beds for all the homeless. While major sweeps were postponed in August 2004, the city planned to go forward with them. According to Illegal to Be Homeless, Mayor Jim Dailey of Little Rock hoped to "'deal with the sensitivity issues of those who truly have needs, but as far as I'm concerned we need to run off those individuals who are the chronic homeless that don't want services provided to the them' or who 'expect they're going to victimize the community with their panhandling or other crimes."'

In Atlanta, Mayor Shirley Franklin issued an executive order in September 2003 that prohibited feeding people in public, arguing that feeding hungry people was a health hazard. Many church groups and individuals stopped offering food to hungry homeless people in city parks. In addition, arrests for "quality of life" offenses increased 239% that year. A quasi-police force known as the "Downtown Ambassadors" awaken homeless people sleeping on the street at 6:45 a.m. Sometimes homeless people were arrested for sleeping in public places. Meanwhile, the city planned to close shelters for homeless women and children.

USE OF FORCE.

Just as force was used against striking coal miners at the turn of the twentieth century and against homeless and poor World War I veterans who marched on Washington during the Great Depression, violence and force have often been used to deal with the "homeless problem." In 1995 the New York City police used an armored personnel carrier and riot gear to retake two East Village tenements from a group of squatters who had resisted city efforts for nine months. Homeless people had occupied the city-owned buildings for as long as a decade and claimed that their continuous use of

the buildings without the formal objection of the city gave them rights to the building, under a legal principle known as "adverse possession."

The Rationale for Restrictive and Ordinances

Local officials often restrict homeless people's use of public space to protect public health and safety—either of the general public, the homeless themselves, or both. Dangers to the public have included tripping over people and objects on sidewalks, intimidation of passersby caused by aggressive begging, and the spreading of diseases. Many people believe the very presence of the homeless is unsightly and their removal improves the appearance of public spaces. Other laws are based on the need to prevent crime. New York's campaign is based on the "broken windows" theory of criminologists James Q. Wilson and George Kelling (Atlantic Monthly, March 1982). They argued that allowing indications of disorder, such as a broken window, or street people, to remain unaddressed shows a loss of public order and control, as well as apathy in a neighborhood, which breeds more serious criminal activity. Therefore, keeping a city neat and orderly should help to prevent crime.

All of these are legitimate concerns to some degree. The problem, critics say, is that rather than trying to eliminate or reduce homelessness by helping the homeless find housing and jobs, most local laws try to change the behavior of the homeless by punishing them. They target the homeless with legal action, ignoring the fact that many would gladly stop living in the streets and panhandling if they had any feasible alternatives. While these laws may be effective in the sense that the shanties are gone and homeless people are not allowed to bed down in subway tunnels or doorways, the fact remains that the homeless have not disappeared. They have simply been forced to move to a different part of town, have hidden themselves, or have been imprisoned. Furthermore, many of these laws have been challenged in court as violating the legal rights of the homeless people they target.

An Argument against Criminalization as Public Policy

In "Downward Spiral: Homelessness and Its Criminalization" (Yale Law & Policy Review, vol. 14, no. 1, 1996), Maria Foscarinis, founder of the National Law Center on Homelessness and Poverty, argued that criminalization of the homeless is poor public policy for several reasons:

• It may be constitutionally unsound, especially in cities that are unable to offer adequate resources to their homeless residents.
• It leads to legal challenges, which may take years to resolve, regardless of outcome.
• Legal battles are costly and will deplete already scarce municipal resources that could be used on solutions to homelessness.
• Criminalization responses do not reflect public sentiment, but rather the will of a vocal, politically influential minority.
• Criminalization fosters divisiveness, pitting "us" (the housed) against "them" (the homeless).
• Like emergency relief, criminalization addresses the visible symptom of homelessness—the presence of homeless people in public space—and neglects the true causes of homelessness.
• Finally there is the fact that, in the long-term, criminalization does not and cannot work. Like all humans, homeless people must eat, sleep, and occupy space. If they are prohibited from occupying one area, they must go somewhere else.
• As an alternative to criminalization, Foscarinis suggested the following:
• Police advocacy programs, in which "sweeps" are replaced by outreach units—officers assigned to go out, with service providers, to homeless people to refer them to necessary services. Unless criminal activity is involved, the police remain in the background to provide security, and the presence of service providers prevents police from being too heavy-handed or harassing.
• Standing committees composed of homeless people, advocates, a police captain, and a representative of the city government to respond to complaints about "camping" of homeless residents. The committee outreach team attempts to make alternative arrangements for the homeless. The police act only if criminal activity is involved, or if homeless people refuse alternative arrangements.
• Day-labor centers—buildings where homeless people can meet with employers to get jobs.
• One-stop access centers, which offer medical services, mental health services, social services, and job training at one location.

ALTERNATIVE STRATEGIES

Alternatives to criminalizing homeless behavior can be implemented with help from community leadership and homeless advocates, who have intimate knowledge from close contact with homelessness. In Constructive Alternatives to Criminalization: Models to Replicate and Useful Tips to Consider (October 2002), the National Law Center on Homelessness and Poverty (NLCHP) detailed what some cities have done about homeless problems.

Miami

After ten years in litigation, a class action suit brought by homeless persons, Michael Pottinger, Peter Carter, Berry Young, et al. v. City of Miami (810 F. Supp. 1551 [1992]), resulted in a financial settlement and the "no bed/no arrest" policy that other cities have adopted as a model. (No bed/no arrest means that if a person is to be arrested for an action that is a result of being homeless, that person must first be referred to an appropriate, available, and accessible shelter bed. If the person declines that bed, then he or she may be arrested.) The city of Miami used some of the settlement money to build two large shelters. Funds were raised to provide programs for the homeless, and police officers were required to undergo training on interacting with the homeless.

In analyzing the actions taken by cities to deal with homelessness, the NLCHP noted the downside to the no bed/no arrest policy: Any type of bed space can be offered to a homeless person and if that space is refused, cities often permit an arrest "rather than focusing on other more constructive long-term solutions to homelessness such as outreach or building of affordable housing."

Philadelphia

When Philadelphia proposed a "Sidewalk Behavior Ordinance" in 1998, homeless people and the mental health community formed a coalition, staged sit-ins, lobbied, and testified at city council meetings to increase public awareness of homelessness. In the end nearly $6 million was appropriated for the necessary social services in the event the ordinance was passed by voters (it was). A no bed/no citation policy (for violation of the ordinance) was adopted, and additional shelter beds and other housing opportunities were provided, with the result that there was a noticeable decline in the homeless population. The 2004 Illegal to Be Homeless report noted that Philadelphia has succeeded in removing nearly 75% of chronically homeless people from the streets.

Washington, D.C.

In Washington, D.C., a tax levied on business property at the rate of $0.01 per square foot was used to build the DC Downtown Day Center. Support came from those most affected by the homeless situation and resulted in services and solutions rather than fines and jail time for those in need.

Minneapolis and Fort Lauderdale

The 2004 report Illegal to Be Homeless also commended Minneapolis, Minnesota, and Fort Lauderdale, Florida, for their efforts to decriminalize homelessness. In Minneapolis, the City Council created a Decriminalization Task Force to "review all laws, policies, and practices that have the effect of criminalizing homelessness." The task force has recommended implementing changes in city ordinances, training police officers to help homeless people find services, repealing the vagrancy law, and allowing time for public testimony from homeless people.

In Fort Lauderdale an outreach program has been launched that sends one formerly homeless person and one police officer out to public places each afternoon, where they assess the situations of homeless people and match them with appropriate services. Some are sent to shelters, some are enrolled in long-term programs, and others are given bus tickets to reunite with family. Police take individuals to shelters rather than to jail. The impact of criminalization on the homeless has been significantly decreased through this program.

CONSTITUTIONAL RIGHTS

The U.S. Constitution and its amendments, especially the Bill of Rights, guarantee certain freedoms and rights to all citizens of the United States, including the homeless. As more and more cities move to deal with homelessness by aggressively enforcing public place restrictions, the restrictions are increasingly being challenged in court as unconstitutional. Sometimes a city ordinance has been declared unconstitutional; at other times, the courts have found that there were special circumstances that allowed the ordinance to stand.

There are numerous ways in which ordinances affecting the homeless can violate their rights. Many court challenges claimed that the law in question was unconstitutionally broad or vague. Others claimed that a particular law denied the homeless equal protection under the law or violated their right to due process, as guaranteed by the Fifth and Fourteenth Amendments. There have also been cases based on a person's right to travel, and others that claimed restrictions on the homeless constituted "cruel and unusual punishment," which is prohibited by the Eighth Amendment. Many cities have ordinances against panhandling, but charitable organizations freely solicit in public places. As a result, according to those challenging the ordinances, the right to free expression under the First Amendment is available to organizations but denied to the homeless.

The appearance of poverty should not deny an individual's right to be free from unreasonable search and seizure, as guaranteed by the Fourth Amendment. Often homeless people's property has been confiscated or destroyed (camping gear, personal possessions) without warning because they were found on public property. Unfortunately the state of homelessness is such that even the most personal living activities have to be performed in public. Denying these activities necessary for survival may infringe on an individual's rights under the Eighth Amendment.

The Fourteenth Amendment right to equal protection under the law may be at issue when the homeless are cited for sleeping in the park, but others lying on the grass sunning themselves or taking a nap during a picnic, for instance, are not.

Testing the Laws in Court

Some court cases test the law through civil suits, and others challenge the law by appealing convictions in criminal cases. Many advocates for the homeless, or the homeless themselves, have challenged laws that they believed infringed on the rights of homeless people.

NO BED, NO ARREST.

The concept of "no bed, no arrest" first arose out of a 1988 class action suit filed by the Miami Chapter of the American Civil Liberties Union on behalf of about 6,000 homeless people living in the city of Miami. The city had a practice of "sweeping" the homeless from the areas where the Orange Bowl Parade and other related activities were held. The complaint alleged that the city had

a custom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life—including sleeping and eating—in the public places where they are forced to live. Plaintiffs further claim that the City has arrested thousands of homeless people for such life-sustaining conduct under various City of Miami ordinances and Florida Statutes. In addition, plaintiffs assert that the city routinely seizes and destroys their property and has failed to follow its own inventory procedures regarding the seized personal property of homeless arrestees and homeless persons in general.

In Michael Pottinger, Peter Carter, Berry Young, et al. v. City of Miami (810 F. Supp. 1551 [1992]), the U.S. District Court for the Southern District of Florida ruled that the city's practices were "cruel and unusual," in violation of the Eighth Amendment's ban against punishment based on status. (Only the homeless were being arrested.) Furthermore, the court found the police practices of taking or destroying the property of the homeless to be in violation of Fourth and Fifth Amendment rights of freedom from unreasonable seizure and confiscation of property.

The city appealed the district court's judgment. Ultimately, a settlement was reached in which the city of Miami agreed that a homeless person observed committing a "life-sustaining conduct" misdemeanor may be warned to stop, but if there is no available shelter, no warning is to be given. If there is an available shelter, the homeless person is to be told of its availability. If the homeless person accepts assistance, no arrest is to take place.

USING LIBRARIES.

Richard Kreimer, a homeless man in Morristown, New Jersey, often visited the Joint Free Library of Morristown. The library personnel objected to his presence, claiming his behavior was disruptive, and his body odor so offensive that it kept patrons from using some of the areas of the library. After the librarians documented the problems for a period of time, the Library Board of Trustees passed a Library Patron Policy that, among other things, allowed librarians to ask people to leave if their hygiene was unacceptable to community norms.

In 1990 Kreimer filed suit in the Federal District Court for New Jersey against the library, the Board of Directors, the Morristown Bureau of Police, and other library and municipal officials. The suit alleged that the policy rules were "overbroad" (that is, they failed to specify what actions would be objectionable), "vague," and a violation of Kreimer's First Amendment right of access to information and his Fourteenth Amendment rights of equal protection and due process, as well as his rights under the New Jersey Constitution.

The district court upheld Kreimer's complaint that the policy violated his First and Fourteenth Amendment rights. The library appealed the decision to the Court of Appeals, and the court reversed the decision, validating the library's policy, finding that a library, by its very nature, cannot support all First Amendment activities, such as speech-making and interactive debate. Therefore, a library is a "limited public forum," and the rules of the Morristown Library were appropriate to its limited functions of reading, studying, and using library materials. (Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242 [3rd Cir. 1992]).

LOITERING OR WANDERING.

In 2000 homeless street dwellers and shelter residents of the Skid Row area (the plaintiffs) sought a temporary restraining order (TRO) against the Los Angeles Police Department (the defendants), claiming their First and Fourth Amendment rights were being violated. The plaintiffs alleged they were being stopped without cause and their identification demanded on threat of arrest, that they were being ordered to "move along" although they were not in anyone's way, that their belongings were being confiscated, and that they were being ticketed for loitering. In Justin v. City of Los Angeles (No. CV-00-12352 LGB, 2000 U.S. Dist. Lexis 17881 [C.D. Cal. Dec. 5, 2000]), Judge Lourdes Baird denied a TRO that would have prevented the defendants from asking the plaintiffs to "move along." The TRO was granted with reference to the following actions when in the Skid Row area:

• Detention without reasonable suspicion
• Demand of identification upon threat of arrest
• Searches without probable cause
• Removal from sidewalks unless free passage of pedestrians was obstructed
• Confiscation of personal property that was not abandoned
• Citation of those who may "annoy or molest" if interference was reasonable and free passage of pedestrians was not impeded

LIVING IN AN ENCAMPMENT.

In 1996 advocates for the homeless sought an injunction against a Tucson, Arizona, resolution barring homeless encampments from city-owned property on Eighth Amendment and Equal Protection grounds. The court, in Davidson v. City of Tucson (924 F. Supp. 989), held the plaintiffs did not have standing to raise a cruel and unusual punishment claim, as they had not been convicted of a crime and no one had been arrested under the ordinance. The Equal Protection claim failed because the court did not consider homeless people a suspect class and the right to travel did not include the right to ignore trespass laws or remain on property without regard to ownership.

SITTING OR LYING ON THE SIDEWALK.

In 1995 homeless persons challenged Cincinnati, Ohio, ordinances prohibiting sitting or lying on sidewalks and solicitation on First and Fourteenth Amendment grounds. In 1998, in Clark v. Cincinnati (No. 1-95-448, S.D. Ohio, October 25, 1995), determining that the ordinances likely infringed on the plaintiffs' First Amendment right to freedom of speech, the U.S. District Court issued a preliminary injunction to stop the city from enforcing the ordinances, except for the specific provision of the side-walk ordinance that prohibited lying down.

LOITERING IN A TRAIN STATION.

In 1995 plaintiffs challenged Amtrak's policy of arresting or ejecting persons who appeared to be homeless or loitering in Penn Station in New York City, even though the individuals were not apparently committing crimes. The district court, in Streetwatch v. National R.R. Passenger Corp. (875 F. Supp. 1055), determined that Amtrak's rules of conduct were unacceptably vague and that their enforcement impinged on plaintiffs' rights to freedom of movement and due process.

PANHANDLING.

One of the notable court cases addressing panhandling involved Jennifer Loper, who moved from her parents' suburban New York home to beg on the streets of New York City. From time to time she and her friend William Kaye were ordered by police to move on, in accordance with the city ordinance stating: "A person is guilty of loitering when he: '(1) Loiters, remains or wanders about in a public place for the purpose of begging."' In 1992 Loper and Kaye sued the city, claiming that their free speech rights had been violated and that the ordinance was unconstitutional. A district court declared the ordinance unconstitutional on First Amendment grounds. On appeal, the police department argued that begging has no expressive element that is protected by the First Amendment. In Loper v. New York City Police Department (999 F.2d 699 [2d Cir. 1993]), the U.S. Court of Appeals, Second Circuit declared the city's ban on begging invalid, noting that the regulations applied to sidewalks, which have historically been acknowledged to be a public forum. The Court agreed that the ban deprived beggars of all means to express their message. Even if a panhandler does not speak, "the mere presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance."

ZONING THE HOMELESS OUT OF DOWNTOWN.

In 1998 Alan Mason, a homeless man, sought an injunction, damages, and relief against the city of Tucson and the city police for "zoning" homeless people. The suit alleged that homeless people were arrested without cause, were charged with misdemeanors, and were then released only if they agreed to stay away from the area where they had been arrested. Mason himself had been restricted from certain downtown areas, including state, local, and federal courts (including the court in which his case was tried); voter registration facilities; a soup kitchen; places of worship; and many social and transportation agencies.

The plaintiff argued that such restrictions violated his constitutional right to travel, deprived him of liberty without due process in violation of the Fifth Amendment, and implicated the Equal Protection clause of the Fourteenth Amendment. In July 1998 the district court, in Mason v. Tucson (D. Arizona, 1998), granted a temporary injunction against enforcing the law, saying the zone restrictions were overbroad. The case was subsequently settled out of court.

HOMELESS COURT

One solution to the increasing backlog of court cases involving petty offenses committed by the homeless is the Homeless Court Program, founded in 1996 by Steven R. Binder, Deputy Public Defender for San Diego County. The program is now a model for other jurisdictions. In a typical program, a courtroom is set up in a shelter or in a Health Care for the Homeless office, and defendants charged with criminal misdemeanor warrants are tried in the presence of a judge, a clerk, a public defender, and a prosecutor who are familiar with the problems of the homeless. The guiding principle is rehabilitation, not punishment. According to Justin Graf of the American Bar Association, in an online review of Binder's The Homeless Court Program: Taking the Court to the Streets (Washington, DC: American Bar Association Commission on Homelessness and Poverty, 2002):

The key players involved in the program realize that outstanding criminal warrants often preclude homeless people from accessing vital services such as employment, housing, public benefits, and treatment for mental health and/or substance abuse problems. As such, the court seeks to address the legal problems of the homeless participants as well as linking them with appropriate services and treatment programs.