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Homelessness: Litigation and Policy: Introduction


On any given night in the United States, 567,715 people are homeless. “Homeless” describes an individual who lives in an emergency shelter, transitional housing program, safe haven, or a place not meant for human habitation, such as a car, abandoned buildings, or on the street. That means on any given night, 567,715 people will spend the night in a homeless shelter, housing program, or on the street. Over the course of a year, around 1.5 million Americans will be homeless at some point. Homelessness affects both those living alone and those in families. 

Homelessness is a big problem in America that affects businesses, individuals, cities, states, and even national governments. Homelessness poses civil rights as well as policy issues that span many levels of government, and all across the nation. This guide is a resource for homeless law and policy. 

Scope and Purpose

This guide examines how homelessness intersects with the law. Over the past few decades, the primary conflict presented is laws concerning the criminalization of homelessness, in conduct or status. 

In November of 2013, Hawaiian state legislator Tom Brower endeavored on what he considered a “practical” solution to help resolve his state’s homeless problem overnight. Mr. Bower patrolled the Waikiki streets with a sledgehammer, smashing abandoned shopping carts in an effort to drive homeless away. Although Mr. Brower was labeled “mean-spirited” and “vigilante”, his actions provide context for the larger frustration that surrounds the problem of America’s chronic homelessness. His efforts, while extreme, are in the same vein as a potential solution that cities around America have taken to combat their growing homeless populations; use of the brunt force of the criminal justice system. In August of 2013, Columbia, South Carolina instituted a plan to force unsheltered homeless to “go to jail or leave Columbia.”Other cities like Philadelphia, Pennsylvania and Raleigh, North Carolina have instituted “Don’t Feed the Homeless” laws, essentially placing criminal restrictions on those wishing to give food to the community’s homeless population. Other forms of criminalization of homelessness include activities in public spaces. Examples of such criminalization strategies include the following:

·         Legislation that makes it illegal to sleep, sit, or store personal belongings in public spaces,

·         Ordinances that punish people for begging or panhandling in order to move people who are poor or homeless out of a city or downtown area

·         Local measures which ban or limit food distribution in public places in an attempt to curb the congregation of individuals who are homeless

·         Sweeps of areas in which people who are homeless are living in order to drive them out of those areas

·         Selective enforcement of neutral laws such as jaywalking, loitering, and open container laws against people who are homeless

·         Public health ordinances related to public activities and hygiene (e.g. public urination) regardless of whether public facilities are available.

The primary practice issues presented by this treatment of homelessness are in civil rights litigation and legislative policy analysis. Civil rights litigation examines the possible constitutional impact of the criminalization of homelessness. Legal challenges have been based on the 1st, 8th, and 14th amendments and litigation over the issue could have rich impacts in constitutional interpretation. 

Legislative policy questions are also presented. Research shows that these polcies, though widespread, are ineffective, costly, and dehumanizing. There is a vast amount of commentary and analysis seeking to provide critiques and alternatives to the criminalization of homelessness. 

Research Strategy

As a starting point, any practitioner should familiarize themselves with facts about homelessness nationally and locally in order to grasp the problems facing individuals in their area. 

For more information on civil rights litigation driven by the homelessness issue, its essential to start with secondary sources. Although cases exist that can serve as a basis for a litigation strategy, much of the question of the constitutionality of criminalizing homelessness is unsettled. Law Review articles and pieces of legal advocacy such as blogs can be vital in driving the theory behind any new litigation. Of course, a Review of the important cases is also essential. A background of civil rights claims would be essential to any practitioner in this area, but not specific to suits involving homeless individuals. 

For policy, the issues focus on the cost/effectiveness of homelessness policy and alternatives. Vast resources can be found in social science research that analyze the costs of homeless policies, both government driven and private studies. Alternatives have also been a major source of government study and social science literature that focuses on homeless advocacy. There are also State statutes and reports to analyze in these areas, especially with groundbreaking "Housing First" policies such as the one implemented by Utah. 

Student Guide Author

This guide was originally created by Andrew Crane in support of Professor Diamond's Advanced Legal Research class for Spring 2014. The contents of this guide should not be taken as legal advice or as the work product of MU Law librarians.