Legal Places to Sleep are Growing Scarce

by Bridget Reilly

On September 6, 1997, I received a “Prohibited Camping” citation from a Eugene police officer. This citation was thrown out of court the following February—or to put it more accurately, it never even went in front of a judge. The city prosecutor dropped the case like a hot potato, because my pro-bono attorney had done some meticulous research that convinced him we were dead serious about challenging the camping ban. So that was a personal victory for me, but it also means that Eugene’s anti-camping ordinance remains stubbornly intact.

In the intervening time I have learned a good deal more about the law, and I want to share some of my observations with other homeless advocates who with to challenge anti-camping laws in the legal arena. The following information has been gleaned from the brief my lawyer wrote for my case, a document from Danielle Smith’s case in which she fought several camping citations, and the chapter on vagrancy laws in American Jurisprudence 2d.

A number of Constitutional arguments have been raised to challenge camping bans in different U.S. cities. What I have found from studying information on several cases is that there are three major issues most commonly raised:

1) The laws are too broad.

2) Punishment of homelessness as a status or class, in violation of the Eighth and Fourteenth Amendments.

3) Restriction on the freedom of travel, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The logic behind all of these arguments is borrowed from that of past court challenges of the post-Civil War vagrancy laws, in recognition of the fact that today’s anti-camping ordinances are but a modern-day version of those older laws. The vagrancy laws were eventually struck down because they were declared to be “unconstitutionally vague or overbroad.” This means that they targeted a particular status or class of people for engaging in innocent activities such as standing on the sidewalk, which are otherwise considered lawful.

The reasoning of such laws held that this class of people called “vagrants” were not gainfully employed because they chose to be idle, and were therefore prone to committing crimes. Please note that this exact same assumption is made about homeless campers of the present day, and is the root idea behind all of the current anti-camping laws.

The courts and lawmakers nowadays try to obscure this fact by substituting different terminology. Since the vagrancy laws were overturned because it was found that they discriminated against a certain class or status, it is no longer acceptable to use such terms as “vagrant” in the wording of a law. Instead the verb “to camp” is used, to emphasize the act of setting up camp in a public space (which is presumed to be “voluntary conduct”), as opposed to the use of nouns such as “vagrant” which telegraph statements about the presumed character of the person committing the act. In this way the laws attempt to distinguish between the “status” or “condition” of homelessness, and the “conduct” of camping engaged in by homeless people which is a natural consequence of said status or condition.

In other words it is not illegal to be a homeless person; it is only illegal to engage in many of the life-sustaining activities that homeless people must engage in.

The City of Portland v. Johnson case of 1982 was one of the early attempted challenges to a modern-day camping ban. In this case the argument was used that the anti-camping laws, like the vagrancy laws, are “unconstitutionally vague and overbroad.” But unfortunately the challenge failed.

This same argument was again raised in City of Eugene v. Smith, 1997, and again it failed. Judge Eveleen Henry’s reasoning went as follows: “. . . The ordinance prohibits certain conduct on public property, without respect to any identifiable group of persons or economic situation. . . . This court concludes . . . that the Eugene ordinance represents a rational exercise of power in furtherance of a legitimate city interest. . . .”

The Pottinger v. Miami case of 1992 was somewhat more successful in at least preserving the right of homeless people to sleep in public places. This was a case in which homelessness was determined to equate with status, and that an ordinance against sleeping in public was overbroad when applied against homeless people, because it punishes them for innocent life-sustaining activities which they have no choice but to perform in public. Invoked were the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Now, a distinction should be made here between sleeping bans and camping bans; the mere act of sleeping on the ground, after which a homeless person will presumably get up and go somewhere else, can more easily be argued to be a constitutionally protected right. Camping, however, is a somewhat stickier matter. It involves the presence of camping gear and other objects placed so as to “maintain a temporary place to live.” It can also include a vehicle or motorhome in which a person lives, and is parked on a public street for a prolonged period of time, and might have objects adjacent to it that one would normally find in a campsite. (That is my situation.)

It may have been for this reason that the Tobe v. City of Santa Ana case of 1995 was unsuccessful in challenging that city’s camping ban. In this case the concept of homelessness as a status was brought into question and answered in the negative. It was found that laws against camping and “storage of personal property in public areas” do not violate Eighth Amendment protections against punishment for status, are not unconstitutionally vague or overbroad, and do not restrict freedom of travel as protected by the Fourteenth Amendment. So this finding represented a step backward in the fight for homeless people’s rights, after the encouraging Miami decision.

From this we can see that the courts spend a good deal of time quibbling over whether homelessness is a “status” or a “condition,” whether the homeless should be officially recognized as a “protected class,” and whether the “conduct” of camping can be treated separately from the economic situation of the “offending” parties. And all this preoccupation with legal jargon serves to obscure the fundamental thinking behind the anti-poor and anti-homeless laws: the assumption that poverty, like “vagrancy,” is a voluntary condition that can be corrected through punishment or enforced servitude, and the even more basic notion that the rich have the right to control the lives of the poor.

It should be further illuminating to discover the actual hidden purpose behind the old vagrancy laws, which was to criminalize former slaves. And these laws in turn were descended from a more ancient set of feudal laws whose purpose was to chase down runaway serfs! Starting to see a pattern here? It doesn’t take a genius to figure out that these types of laws are designed by the rich entirely for their own benefit, and are invariable enforced against the poor. And therein lies the real explanation for all the anti-camping laws.

It is daunting to realize that it took an entire century to get the vagrancy laws overturned, and that we now face a similar uphill battle in challenging the anti-camping laws. It should also be sobering to realize that these modern-day laws are of the exact same nature as their Medieval antecedents, that today’s homeless are classed in the same category as yesteryear’s “vagrants,” who were nothing more than runaway slaves or serfs.

Copyright for the Homeless Grapevine NEOCH October-November 1998