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As Cities Get Tough on Homelessness, Legal Battles Follow

Homelessness is, at its core, significantly affected by two things:

  • Removing the mentally ill from institutional settings decades ago with no good options for them to receive safe housing.

  • Skyrocketing housing costs, in many cases exacerbated by cities placing limits on new housing growth. Rising interest rates won't help rental housing become more affordable.


As Cities Get Tough on Homelessness, Legal Battles Follow

Lawsuits across the U.S. call the policies cruel and counterproductive


Mental-health advocates in New York are challenging a plan to involuntarily send mentally ill homeless people to psychiatric hospitals.


By Laura Kusisto, WSJ

Jan. 17, 2023 9:00 am ET


Cities across the U.S. have been introducing tougher measures to address the growing problem of homelessness, prompting a number of court challenges that could set guideposts on how far municipalities can go.


Local governments have been experimenting with a range of homeless policies, such as involuntarily removing people from the streets when they appear to be mentally ill, confiscating belongings or evicting the homeless from public property. City officials say the measures are necessary to address situations that are threatening public safety and leaving homeless people themselves living in conditions that are unsafe and unsanitary.


Rates of street homelessness around the country have been on the rise for more than a decade, driven in part by the skyrocketing cost of housing in many places. The challenges have been concentrated in large, often liberal, cities where officials are facing public calls for a more forceful approach to the problem.


But moves to take a tougher stance have prompted objections from homeless advocates who say the policies are cruel, counterproductive and often in violation of constitutional protections including the Eighth Amendment’s prohibition on cruel and unusual punishments, the Fourth Amendment’s guarantee against unreasonable searches and seizures and First Amendment protections for speech in public places. Some lawsuits also have alleged violations of federal laws protecting the disabled.


“Where homelessness is highly visible, there’s going to be more pushback and more urgency, a sense that something needs to be done now. The easiest thing is to pass a criminalizing law,” said Eric Tars, legal director for the National Homelessness Law Center.


Courts in some instances already have limited the tools at cities’ disposal, municipal lawyers say. Most prominently, the Ninth U.S. Circuit Court of Appeals, whose jurisdiction covers a number of West Coast cities that have among the worst homelessness problems, in recent decisions has limited how aggressively cities can treat the problem if they don’t have adequate shelter to offer the homeless an alternative.


“It is a serious, serious, problem, probably the biggest crisis we’re facing right now, and I think these decisions are at the heart of what has gone wrong here,” said Theane Evangelis, a partner with Gibson Dunn & Crutcher LLP who has helped cities defend their homelessness policies. “They’ve caused paralysis at a time when we need action.”


In New York, Mayor Eric Adams late last year announced the city would begin training police officers to involuntarily take homeless individuals for psychiatric evaluation, even if they don’t pose a threat to others but are deemed unable to care for themselves.


“It is not acceptable for us to see someone who clearly needs help and walk past,” the mayor said when introducing the policy.


Mental-health advocates and plaintiffs with mental disabilities are challenging the policy. A Manhattan federal judge in December declined to immediately block the city from implementing its new enforcement guidance because it hadn’t yet gone beyond basic training for high-ranking officers. Further proceedings are set for early this year.


“We believe that a lot of harm has already been inflicted on the people affected by the policy,” said Marinda van Dalen, an attorney representing the plaintiffs. “They are people who feel they cannot safely go onto the streets, travel on the subway or be in public spaces without a police officer deciding their behavior is unusual and warrants being taken in for a psychiatric evaluation.”


Nicholas Paolucci, a spokesman for the New York City Law Department said, “When all the evidence is heard, we are confident that the court will agree that the city’s compassionate efforts to assist people suffering from homelessness and severe mental illness comply with federal and state law.”


Municipal officials in states including Arizona, New Mexico and Texas are facing similar legal challenges. In Dallas, homeless and formerly homeless individuals and others sued the city in December over a newly adopted ordinance that limits standing or walking on road medians. City leaders say the measure is needed to protect public safety. The plaintiffs argue the real intent is to attack panhandling, which is protected by the First Amendment in public spaces.


The Ninth Circuit could play a crucial role in shaping homelessness policy in West Coast cities and beyond. In 2018, the court ruled that two city ordinances in Boise, Idaho, that banned sleeping and camping on public property violated the Eighth Amendment by essentially criminalizing people for being homeless. As long as there are more homeless people in a jurisdiction than the number of available shelter beds, a government cannot prosecute people for sleeping on the streets, a three-judge panel said.


The court later declined to reconsider the case, over the objection of some conservative Ninth Circuit judges. In a subsequent case last year, the court reaffirmed the Boise decision and ruled against the small Oregon city of Grants Pass, saying in a 2-to-1 ruling that even civil penalties against the homeless can violate the Eighth Amendment. The court also said the city couldn’t prohibit the homeless from sleeping in public with rudimentary protections from the elements, such as blankets.


The Ninth Circuit is currently considering the city request’s for the court to rehear the case with a larger roster of judges participating. The dissenting judge in the panel ruling said the court was effectively requiring municipalities to allow the use of its public parks as homeless encampments.


In San Francisco, homeless advocates and current or formerly homeless individuals have sued the city over what they say is a practice of fining and arresting homeless residents in an effort to drive them out of public areas. They say the city is conducting sweeps of homeless encampments and disposing of tents and other belongings without adequate prior notice or an opportunity to recover them.


Jennifer Friedenbach, executive director of the Coalition on Homelessness in San Francisco, which is one of the plaintiffs in the lawsuit, said the policy doesn’t solve the problem of homelessness but simply moves people down the street. It also makes it harder for them to exit homelessness, she said, when medicine, paperwork or identification is caught up in the sweeps and as a result they miss out on an opportunity to secure housing or employment.


“The idea is to make it really uncomfortable for people with the idea that they would disappear. Unhoused people just don’t have disappearing powers,” she said.


A federal judge has temporarily blocked the city from engaging in the disputed practices while litigation proceeds, saying that given the shortfall of shelter beds in the area, officials can’t penalize people for being homeless, in accordance with the prior Ninth Circuit rulings.


“The court’s order puts San Francisco in an impossible situation, practically and legally,” said San Francisco City Attorney David Chiu. “It defies logic to require that San Francisco have shelter for all persons experiencing homelessness before San Francisco may enforce these laws against any one person.”


Write to Laura Kusisto at Laura.Kusisto@wsj.com

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