Metropolitan News-Enterprise


Monday, April 17, 2006


Page 1


City Cannot Arrest Homeless for Sleeping on Sidewalks—Court


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Los Angeles ordinance that imposes fines and jail sentences for sleeping, sitting, or lying on the sidewalk cannot constitutionally be enforced against homeless people who lack shelter within the city, the Ninth U.S. Circuit Court of Appeals ruled Friday.

“By our decision, we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets of Los Angeles at any time and at any place within the City,” Judge Kim M. Wardlaw wrote for the court.

“All we hold is that, so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds, the City may not enforce section [Los Angeles Municipal Court] 41.18(d) at all times and places throughout the City against homeless individuals for involuntarily sitting, lying, and sleeping in public,” the judge said.

Violations ‘Unavoidable’

Rejecting Senior U.S. District Judge Edward Rafeedie’s conclusion that the law criminalizes conduct rather than homelessness, Wardlaw said the Eighth Amendment ban on cruel and unusual punishment bars the city from criminalizing conduct that that is “unavoidable” in light of “substantial and undisputed evidence that the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times.”

The court ruled in an ACLU suit brought on behalf of six plaintiffs, all of whom have been arrested for violating the ordinance and two of whom have been convicted. The plaintiffs live in the Skid Row area east of downtown, and explained in declarations that they stay in SRO hotels or in motels when they can afford to, and in shelters when they can, but that those options are not always available.

The plaintiffs included two married couples. One plaintiff said that he and his wife slept on the streets when they had no money for a room, because he must care for his disabled wife and homeless shelters separate men and women.

Another couple said they were cited for sleeping on the sidewalk after they missed a bus that would have taken them to a shelter. The plaintiffs are seeking an injunction prohibiting the city from enforcing the ordinance during nighttime hours, or at anytime against the disabled.

Citing government reports and newspaper accounts, Wardlaw said the Skid Row district between Third Street and Seventh Street and between Alameda Street and Main Street “has the highest concentration of homeless

individuals in the United States” as a result of longstanding residential patterns, city policies with regard to delivery of social services, and the apparent practice of hospitals and suburban municipalities to “dump” additional homeless people in the area.

Since the availability of affordable housing exceeds the area population—a gap that is growing—at least 1,000 Skid Row residents every night will have no choice other than to sleep in the streets, Wardlaw said.

The city’s actions in arresting and jailing those people, the judge declared, “restrict Appellants’ personal liberty, deprive them of property, and cause them to suffer shame and stigma,” all in violation of their rights under the Constitution.

Rymer Dissent

Senior U.S. District Edward C. Reed Jr. of the District of Nevada, sitting by designation, concurred. Judge Pamela Ann Rymer dissented.

Rymer argued that the Eighth Amendment only applies to punishment pursuant to a conviction, the police cannot be enjoined from arresting violators of the ordinance.

A claim that a particular individual lacks an alternative to violating the ordinance, she argued further, can only be established by evidence concerning the circumstances of that individual at a particular time, as opposed to a generalized showing that not everyone in the area can be sheltered on a given night.

The case is Jones v. City of Los Angeles, 04-55324.


Copyright 2006, Metropolitan News Company