Homelessness: Some Pa. Cities' Laws Against Sleeping Outside May be Unconstitutional

At least 50 Pennsylvania municipalities legislate against sleeping or camping in public places.

The municipalities are among an untold number of places nationwide where officials should be on notice, some say, in light of the federal government's recent statement of interest in a lawsuit filed against the local government in Boise. The Department of Justice's filing says anti-camping ordinances are unconstitutional because they amount to criminalizing status (in this case, homelessness) — if they are enforced where there is no "adequate" shelter available.

Advocates celebrated the DOJ's intervention in the case and expect a ruling later this month with wide-reaching consequences.

But there are major caveats, it seems.

Adequacy and impact

The DOJ filing brought national attention to this case, but the forthcoming ruling won't set precedent for courts outside Idaho. (Judges in other states tasked with similar decisions can look to it, though. In fact, the DOJ is urging U.S. District Magistrate Judge Ronald Bush to enlist the reasoning used to roll back a ban on sleeping in cars in Los Angeles).

And setting aside the fact that this filing echoes others from two decades ago, the DOJ does not address some of the most common reasons cited by homeless people for being outside instead of in a shelter.

The DOJ says cities can't punish people experiencing homelessness if there isn't adequate shelter available.

That's important: Despite an increase in available beds, more than 70 percent of U.S. shelters — and between 79 and 100 percent of Pennsylvania facilities — report being at or above capacity during point-in-time surveys taken each January, according to an analysis by Keystone Crossroads.

The DOJ document also says shelter options aren't "adequate" if a person cannot access them due to a physical limitation or has exceeded their maximum stay limits.

But it leaves open questions about other scenarios, including some of the most commonly cited by people for choosing to be outside instead of in a shelter. Many say they don't want shelter that's available to them because they feel unsafe, fear theft, or might have to participate in religious activities counter to their own beliefs. Addicts sometimes can't comply with sobriety requirements. Past experiences might make certain circumstances intolerable for some (such as a veteran with post-traumatic stress disorder faced with staying in a congregated shelter, for example). And others' criminal histories can prevent them from getting into shelters, according to Christy Zeigler, who heads Sunbury-based Haven Ministries.

What does this mean for people who decline to go to shelters ?

In its filing, DOJ declines to take a position on whether people should face penalties for opting to stay outside instead of at a facility where activities conflict with their religious beliefs. Plaintiffs in the Boise case say they should not face penalties; the defendant city's officials disagree.

DOJ spokesman Kevin Lewis declined comment on the other scenarios.

Lewis also declined to comment on the DOJ's plans to follow recommendations to help eliminate such laws by the National Law Center on Homelessness and Poverty: ensure that federal funding is not used to support unconstitutional laws penalizing people who sleep outside. .

Across the Commonwealth

The suggestion appeared in the Center's "No Safe Place" report published last summer. The report also highlights 187 U.S. cities that "criminalize homelessness" in various ways. Researchers noted that fewer cities outright banned sleeping outside in 2014 than three years prior. But they found more had laws against camping and loitering, which either explicitly included sleeping — or could, NLCHP lawyer Eric Tars says.

Sleeping is banned in public places in at least 37 Pennsylvania municipalities with codes of ordinances posted on their websites or on online databases including eCode360 or Keystate Publishers.

Some of these laws date back to the 1960s (Johnstown, for example and Franconia and Upper Providence townships) and 1970s (Scranton, Bradford — where Mayor Tom Riley says it's not enforced — and the boroughs of Doylestown and Palmerton).

Others took effect within the past few years. Jenkintown's ordinance originated most recently, during a 2012 Occupy demonstration outside former Democratic Congresswoman Allyson Schwartz's office.

Still more communities have prohibitions on the books against camping, sleeping in cars and loitering.

Tars and his colleagues want statutes that make sleeping outside illegal repealed. But they say the key to whether a community's truly treating homelessness as a criminal act is how the rules are enforced. Or whether they are. For example, Upper Providence has a decades-old ordinance banning vagrancy, which might include "lacking employment or a legal means of support." Police Chief Mark Toomey said he didn't know the rule existed, and would work with township officials to repeal it.

"(The ordinance) has to be revisited, amended and brought up to date," Toomey said. "As far as … my officers, when we deal with homeless peole, we are fully familiar with county mental health facilities, and shelter situations. They’re dealt with on an individual basis. We certainly don’t cite them under a 1964 ordinance."

The NLCHP's report focused on municipalities larger than Upper Providence, a 16,000 person township half an hour from Philadelphia. Of Pennsylvania's 2,500-plus communities, the report named only Philly, Allentown and Pittsburgh.

Solutions in some cities

A close reading of Philly and Pittsburgh's laws reveals that they seem written to address the issue without criminalizing it.

Pittsburgh prescribes an outreach coordinator for people facing panhandling citations, allowing them to avoid fines (that left unpaid, often turn into jail time for the destitute).

Philadelphia police must call outreach workers at Project HOME when they engage with someone who is homeless. But the organization's director of advocacy & public policy Jennine Miller says advocates have fought at times to keep that Philadelphia requirement in place. And other issues arise, like Mayor Michael Nutter's wrangling with groups serving meals to the homeless. Ultimately, they prevailed, arguing their right to religious expression.

A similar scenario came up in Harrisburg nearly two years ago. Initially, Dauphin County didn't want one ministry serving meals near its county complex in the capital city's downtown, but ultimately agreed to a contract enabling the service to continue.

As in Philadelphia, outdoor meals were maintained in the capital city's prominent Market Square. Of course, more issues remain, says Bethesda Mission Executive Director Chuck Wingate.

"Where can they go in the daytime?" Wingate says. "Strawberry Square doesn't want (people experiencing homelessneses) there, the Hilton doesn't want them using the bathroom. Downtown busineseses don't want people loitering."

Wingate says he and partners at the United Way and Downtown Daily Bread have a possible solution for that, too: a day shelter is opening in September.

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