Mean Streets

As an increasing number of American cities employs a hard-line approach to combating homelessness, the phrase “public space” has taken on a different meaning with cities cracking down on panhandling and food sharing.

By Kathryn Alfisi

About 60 people show up at the first stop at 19th Street and Pennsylvania Avenue in northwest Washington and wait in line as volunteers hand out the standard meal: two meat-and-cheese sandwiches on white or wheat bread, a peanut butter and jelly sandwich, soup, iced tea, and a dessert. Most come back for seconds or thirds, and it is not long before the diminished food supply signals that it is time to move on to the next stop at 15th and K Streets where an even bigger crowd assembles among McPherson Square’s tangle of Metro buses, pigeons, and office workers.

The scene is hardly unusual—Martha’s Table has two vans that make a total of five such stops every day of the year, and it is but one of many organizations that offer such services in the District. However, it’s a scene that may be fading from view across the country because of ordinances that restrict food sharing in public places.

Homeless and civil liberties advocates see these food-sharing ordinances as one of the latest measures that “criminalize” homelessness in a misguided attempt to deal with the substantial homeless population in the downtown area. Other ordinances restrict or make it illegal to panhandle, loiter, sit or lie down outside, and obstruct sidewalks. There also are mandated sweeps of places where homeless people live and destruction of their property. “All these laws taken in and of themselves make sense. You don’t want someone sleeping or urinating on your doorstep, but when you put them all together, you reach sort of a critical mass. These people are Americans, too, and they should be treated no differently than we are,” says Richard Berlin, an associate at the Houston office of Howrey LLP who is working on a case involving a Dallas food-sharing ordinance.

Supporters of nuisance ordinances argue that people who live, work, or visit downtown are fed up with being harassed for money on the streets and seeing public parks turned into trash-filled encampments for the homeless. The ever-increasing homeless population not only affects individuals, but it also hurts businesses and hampers downtown improvement efforts.

A Growing Trend
Although criminalization may not be entirely new, advocates say it began to become a more noticeable trend in the early 1990s, most likely in reaction to the homelessness crisis that started the previous decade. The 1990s also saw the beginning of downtown revitalization efforts in U.S. cities. While these efforts were successful in attracting new businesses and young, middle- and upper-middle class residents, the homeless remained. “I think a lot of the purpose behind these laws is to move homeless people out of downtown areas where there are a lot of people and a lot of development going on. Some cities say it’s bad for tourism, some claim it’s bad for business, and some claim that these laws deal with public safety or health issues,” says Maria Foscarinis, executive director of the National Law Center on Homelessness and Poverty (NLCHP).

In 2006 NLCHP and the National Coalition for the Homeless (NCH) released a report, titled “A Dream Denied: The Criminalization of Homelessness in U.S. Cities,” that detailed criminalization trends based upon the results of a 2005 survey of laws and practices in 224 cities. The report featured a list of the country’s “meanest cities” for the homeless. A follow-up report is scheduled to be released by the end of 2008. The meanest cities list revealed the trend toward criminalization was widespread. The top 25 included large cities such as Atlanta and Houston as well as small cities such as Lawrence, Kansas, and Sarasota, Florida. It also included Boulder, Colorado, and San Francisco—cities traditionally thought of as liberal.

During the period between 2002 and 2005, the report noted a 14 percent increase in laws prohibiting sitting or lying in public spaces, a 3 percent increase in laws prohibiting loitering or vagrancy, a 12 percent increase in laws restricting panhandling, and an 18 percent increase in laws prohibiting aggressive panhandling.

Panhandling Crackdown
For many people who live and work downtown, not a day goes by without repeatedly being solicited for money by panhandlers. Panhandling has reached such a high level that many cities have turned to the law. In 2008 alone Fayetteville, North Carolina; Honolulu; Nashville, Tennessee; and St. Petersburg, Florida, were among the cities that passed or strengthened existing laws that restrict panhandling.

Some laws prohibit panhandling within a certain number of feet of an automated teller machine, bus stop, restaurant, or train station, among other places, while others restrict panhandling to daylight hours or require panhandlers to obtain a permit. Not only is panhandling an ever-present and sometimes dangerous nuisance, some would argue, but a number of those begging on the street are not even homeless.

Chet Grey, the director of homeless services for the Downtown DC Business Improvement District (BID), says he wouldn’t be surprised if at least half of the District’s panhandlers are not homeless (although they may be in assisted living). Those who are successful can make up to $150 to $200 a day, he says. Grey also believes giving money to a panhandler is far from an ideal way to help the homeless. “I think it’s dehumanizing to enable people to live on the streets like animals,” he says.

That sentiment is echoed in recent campaigns to discourage people from giving money to panhandlers and instead donate it at charity drop boxes throughout the downtown area, the proceeds of which go directly to charities that help the homeless. Two such programs have been implemented in Dallas and San Francisco. In December 2007 Downtown Dallas: The Association and the Metro Dallas Homeless Alliance instituted a program called Lend a Hand, and San Francisco enacted a similar plan this past spring that urges people to “Be a part of change. Don’t give change.”

Baltimore; Denver; Minneapolis; Portland, Oregon; and St. Louis also have donation box programs. It is a trend that advocates for the homeless such as Foscarinis find unhelpful and even insulting. “There is an argument that it is harmful to give to people on the street, and I think that’s a red herring at best,” she says. “I don’t think anyone who gives money to people on the street believes that this is going to solve the overarching problem or even this person’s problem … I just think it diverts attention to the real issues, and it’s offensive to people who are generally in need on the street and to those who would like to help, even if in a minimal way, or at least to acknowledge the person’s humanity. I think it’s dehumanizing and inappropriate for cities or for anyone to put out the message that it’s harmful to give to people on the street.”

Legal aid and civil liberties groups have challenged panhandling laws on grounds that they violate a person’s First Amendment right to freedom of speech, a claim met with mixed results in court.

Public Spaces
The courts also have disagreed on constitutional challenges to antisleeping and anticamping laws. Critics of these laws argue that without enough shelter space to house all the city’s homeless, people have little choice but to sleep outside, and that imposing a criminal penalty upon them is a civil rights violation.

There were two high-profile anticamping ordinance cases in the 1990s in Miami and Santa Ana, California.

The Santa Ana case (Tobe v. City of Santa Ana) reached the California Court of Appeals, which overturned the lower court’s decision and held that the city’s ordinance violated a homeless individual’s right to travel and right to be free from cruel and unusual punishment. In its decision, the judges suggested that a “defense of necessity” might be raised if a person found violating the ordinance had no other place to sleep. Although the California Supreme Court reversed the court of appeals’ decision in 1995, the case was seen as something of a victory in that it led to the creation of a new defense.

In 1992 a federal court in Pottinger v. Miami ruled that the city’s policy of arresting homeless people for life-sustaining activities such as sleeping, eating, or congregating in public places was a violation of an individual’s right to travel and his or her right to be free of cruel and unusual punishment. The decision resulted in, among other things, the creation of “safe zones” where homeless people could bathe, cook, eat, or sleep without the possibility of arrest; police education on homelessness; and a 1 percent tax on restaurant meals to finance homeless programs.

Advocates for the homeless say homeless people are targeted for violating “quality-of-life” ordinances such as noise or open container laws, littering, urinating, or congregating in public places. “There is a selective enforcement of a wide variety of laws where homeless people are specifically being targeted for enforcement, like loitering or jaywalking and littering laws. In a lot of cities we also see a low level of harassment where homeless people are asked to move along and out of public places,” says Tulin Ozdeger, NLCHP’s civil rights program director.

Restrictions on Sharing Food
While it is the homeless who are affected by antipanhandling or anticamping measures, service providers are the ones at the receiving end of more recent food restriction ordinances passed in Dallas and Orlando, Florida, both of which have recently been challenged in court.

The American Civil Liberties Union (ACLU) filed a lawsuit in 2006 in federal court against the city of Orlando on behalf of members of Food Not Bombs and the First Vagabonds Church. In it, the ACLU challenged the constitutionality of an ordinance that prohibits the sharing of food with more than 25 people in city parks without a permit and limits permitted groups to doing so only twice a year. (In late September, a judge ruled that the ordinance violated the plaintiff's First Amendment rights and enjoined the city from enforcing it. )

“What groups can do is apply for two permits per year, per park, which essentially forces groups to rotate from park to park within the Orlando park system. One of the difficult aspects of the ordinance is that you’ve got this situation where groups are sometimes going out and literally counting the number of people coming to their event, and they stop providing services the moment they get to 25,” says Eric J. Hager, an associate at Goodwin Procter LLP who worked on an amicus brief in the case submitted by NCH, the National Health Care for the Homeless Council, NLCHP, and the National Policy and Advocacy Council on Homelessness.

“The problem that arises is that when you’re forcing people to go from park to park, you’re assuming they have the organizational skills and resources to be able to do that, and the people whose interests that the law center represents don’t always have access to cell phones or e-mail,” he says.

The city of Orlando has designated a feeding location referred to as Sylvia Lane, but critics say it’s in an inconvenient location, and groups are required to get permission to use it in advance.

NLCHP and Howrey LLP filed a lawsuit against the city of Dallas in 2007 on behalf of two charities, Big Heart Ministries and the Rip Parker Memorial Homeless Ministry, which challenges an ordinance that prohibits distribution of free food except in city-approved locations and requires volunteers to undergo food-safety training and obtain a permit. The intention of the ordinance, city officials say, is to address littering and loitering concerns and prevent food-borne illnesses.

Critics believe the measure has little to do with food safety. “Let’s be honest, are you more concerned with the Sisters of the Poor feeding the homeless or having a homeless person eat out of a dumpster? What’s going to be the safer option?” Berlin says. The charities involved in the lawsuit claim that most of the locations designated by the city do not allow them to bring their own food, and that location restrictions prevent them from reaching homeless people outside of the shelters.

Howrey attorney Jason Norwood, who is working with Berlin on the case, says it all comes down to the question of “to what extent can government regulate private acts of food sharing.

“My clients will be the first to agree that there is a line that can be drawn where the government can say you can do this, but you can’t do that … But there’s a level where I don’t think the government should be able to do anything. If I encounter a homeless person in my neighborhood, and I’m resolved to help that person out, I should be able to go back to my house and get a bottle of water or some food and give it to that person. Under the current ordinance, you can’t do that,” Norwood says.

The Dallas case was filed as an interim measure while the city was in the process of completing a $22 million homeless assistance facility. An agreement was reached in which the case would remain in an informal stay if the city holds the enforcement of the interim ordinance before a new one is passed. The facility, called Bridge, opened its doors in May, but as of September, the case remained in an informal stay. Norwood says he is supportive of the facility and has high hopes for its success, but he worries that some homeless people—especially women and families—will stay away because they want to avoid the crowds or don’t feel safe.

Jeffrey A. Simes, a partner at the New York office of Goodwin Procter who worked with Hager on the Orlando amicus brief, also is concerned that food-sharing ordinances signal a change in the way cities are approaching the problem of homelessness. “I think we’re seeing that municipalities are getting a little more sophisticated in terms of placing burdens on the homeless population in a way that doesn’t appear to cause as much alarm as the prior attempts,” he says. “I think we’re seeing further refinement of efforts to marginalize and push out homeless populations from the city centers.”

A Las Vegas law that banned sharing food with “the indigent” in public parks was successfully challenged in 2006, but similar laws remain in effect in other cities such as Atlanta; Cincinnati; Santa Monica, California; and Wilmington, North Carolina.

Some see these laws as an attempt to make city parks a place everybody can enjoy as well as a means to address loitering and littering concerns. So much trash is left behind after group feedings in McPherson Square and Franklin Park in the District of Columbia, Grey says, that the Downtown BID employs someone just to clean those two parks every weekend. Representatives from Martha’s Table, however, say they have addressed litter complaints by having volunteers pick up trash before they leave the park.

Grey says there are probably more than 50 groups that come and distribute food in McPherson Square and Franklin Park, many of which are not even based in the District. “It just creates chaos, and it enables people to stay in the parks. There’s a thin line between finding solutions to homelessness and maintaining people in homelessness. To me, feeding people in the parks is dehumanizing—we feed pigeons in the park,” he says.

Grey says the Downtown BID has made several, but unsuccessful, attempts to work with faith-based and independent groups as well as formalized street feedings programs to coordinate and improve food distribution services. In October the organization submitted to the city a Street Food Service Project proposal for the creation of a coordinated street feeding program.

The proposal lists several focus areas: food quality and safety, public health and environmental factors, the preponderance of feeding programs, and the lack of support services and outreach being offered at food service sites.

Homeless in the District
There are no food-sharing ordinances in place in the District of Columbia, but the city does have an aggressive panhandling law that prohibits an individual from asking for money within 10 feet of an automated teller machine or 15 feet of a Metro property, from someone in an automobile, or in exchange for protecting or reserving a parking space, or for washing windows.

The city has not been entirely free from accusations of unfair treatment of the homeless. Ann Marie Staudenmaier, staff attorney at the Washington Legal Clinic for the Homeless (WLCH), says that in the mid-1990s she started monitoring incidents of members of the Metropolitan Police Department (MPD) illegally searching homeless people or asking them to move along. In 2005 Staudenmaier testified before the Council for the District of Columbia during a public oversight hearing on the MPD. She told councilmembers about a zero-tolerance policy established by the police in 1997 that led to homeless people being ticketed for public space violations such as sleeping, eating, or urinating in public and storing public property. The policy also led to the confiscation and destruction of personal property, people being ordered to move out of a particular area without justification, and arrests and issuance of tickets for actions that were not illegal.

As a response to these measures, WLCH created and distributed materials, known as “Street Rights” cards, that informed homeless people of their legal rights. The organization also started filing complaints with the D.C. Office of Police Complaints on behalf of homeless individuals and conducting a training course on homelessness for MPD recruits. “I would say that things seemed much worse when I started paying attention to this [in the mid-1990s] than it does now. I don’t want to say that none of these types of things happens in D.C. anymore, but we definitely see fewer complaints about specific police behavior than we did 10 years ago,” Staudenmaier says.

Perhaps the bigger problem facing the homeless in the District in recent years has been the gentrification of many parts of the city. Staudenmaier suspects the rise of real estate prices and now the floundering economy have led more families to fall into homelessness. “There are around 6,000 to 7,000 homeless people living in the District on any given day throughout the year, and that’s a lot of people for a city the size of D.C. We have one of the highest per capita rates of homelessness in the country,” she says.

The visible presence of homelessness has prompted complaints from some new middle- and upper-class downtown residents. Martha’s Table President Lindsey Buss says a condo dweller living near one of the van stops recently complained about having a view of homeless people being given food. “I think the unfortunate reality is that when some people move into a new neighborhood and realize that there are homeless people there, they want them to leave,” Buss says. “The people who just moved into their condo may have been there for just two months, but they want something gone that has been in their neighborhood for 25 years.”

Grey shares similar sentiments. “The real issue downtown is the new residents. I mean, some of these people seem to think they’ve moved to Disneyworld. About 85 percent of the homeless grew up in D.C., so they were here before you moved into your luxury condo.”

One of the Downtown BID’s attempts to address homelessness was the creation in 1998 of the Downtown Services Center, which was open during the day and offered various support services, meals, showers, and medical treatment. The Downtown Services Center was looked upon as a model program, and the NLCHP and NCH report mentioned it as a constructive alternative to criminalization. However, the center’s doors closed in early 2007 when it lost the lease on the building (which was then demolished) where it was located.

After relocation attempts failed, the Downtown BID decided to change tactics; it now employs four master-level social workers who do homeless outreach on the streets. “We’re finding that we can have much more success in helping people this way than the other way,” Grey says.

Alternatives
Downtown BID is supporting the District’s “Housing First” efforts to combat homelessness. The initiative favors putting the chronically homeless in housing as a first step before providing support services in hopes that having permanent housing will allow a person to address other problems. “Transitional housing requires people to jump through a series of hoops before they can get housing. How can you get clean and sober if you don’t have a place to live? Well, Housing First says stability comes along with the housing,” Grey says.

Proponents say this approach saves cities money because housing is less expensive than emergency room visits, shelters, and other services for the homeless. Housing First has steadily been gaining acceptance since it was first used in 1992 in New York. Programs based upon it have been adopted by cities such as Chicago, Philadelphia, San Francisco, and Seattle.

D.C. Mayor Adrian M. Fenty announced in April his administration’s plan to end chronic homelessness through the creation of the Permanent Supportive Housing Program, whose initial goal is to house 800 people and 80 families by September 30, 2009. Dallas recently revealed a Housing First-based plan to build 700 homes for the chronically homeless within the next five years.

Advocates for the homeless praised Miami for what they say are constructive alternatives to criminalization. Most of the city’s efforts came in the wake of the 1992 Pottinger v. Miami case. Out of those efforts the Miami-Dade County’s Community Partnership for the Homeless and Miami-Dade County Homeless Trust were created to serve as public and private sector partners to assist the homeless. Community Partnership for the Homeless is the public sector partner and is largely funded by the restaurant sales tax; it was held up as a model of success at the 2008 U.S. Conference of Mayors, and mayors from around the country toured one of its homeless assistance centers.

Advocates such as NLCHP’s Foscarinis believe programs like Miami’s are more effective than punitive measures, which she says take a shortsighted view of the problem. “Our goal is not that people should be sleeping on the street. In a sense, we have some common ground with the cities. We agree that people should not be living in public places; we just take issue with the way cities are responding. We think that rather than make it a crime to live in a public place, cities should be providing housing, outreach services, and other types of support services so that homeless people have an alternative to being out on the streets,” she says.

It’s unlikely that cities and homeless and civil rights advocates will find more common ground anytime soon. In the meantime, legal aid groups such as NLCHP are prepared to battle it out in the courts. Says Hager of Goodwin Procter: “As long as cities pass ordinances that have the purpose of discriminating against homeless people, then I think there will be legal advocates out there ready and willing to challenge them.”

Kathryn Alfisi is a D.C. Bar staff member.