Homeless ordinance faces Constitutional questions
2nd September 2014 · 0 Comments
By Fritz Esker
One month after a large-scale removal of groups of homeless people from a Claiborne Avenue encampment, legal experts have raised constitutional concerns about an ordinance regarding homeless people the New Orleans City Council will discuss on September 4.
Ordinance 30,273, according to a representative from District B, will not introduce new powers to the police or government, but codify existing powers. Discussions among city government officials are still taking place on what to add to the ordinance.
But some legal experts fear the ordinance’s language will be too vague and leave too much open to interpretation among individual police officers.
Bill Quigley, professor of law at Loyola University of New Orleans, said the government has no right to seize or destroy personal property unless it has complied with constitutionally required due process. The protections are in the 4th, 5th, and 14th Amendments of the U.S. Constitution.
“They (homeless people) have a right to protect their property,” Quigley said. “It’s important to them and it can’t just be thrown away.”
Quigley added that even abandoned cars have stickers placed on them stating that they will be towed in a certain number of days.
A recent sweep of homeless people from Claiborne Ave. did provide adequate advance notice, but Quigley said the ordinance should require it so officers will have clear instructions on how to handle these situations in the future.
“It needs to be written down so cops know what specifically to enforce,” Quigley said.
Quigley said oral commitments have been made by the city to provide 72 hours notice to any homeless person whose property could be confiscated during a sweep. Assurances were also made that a formal court summons would be required before a homeless person is fined or arrested and that service providers will be present to assist the homeless when the proposed ordinance is enforced. But he said it’s imperative that these safeguards are put in writing.
The representative from District B said many additions are still being discussed for the ordinance. One is whether or not to add language specifying appropriate notice for eviction and seizure of property per the concerns of Quigley and others.
The issue is an important one for the city because if one police officer violates the rights of homeless people in a search, it can result in a lawsuit against the city. In 2006, the city of Fresno, California had to pay $850,000 in attorney costs, as well as $1.4 million to plaintiffs after Fresno’s homeless filed a class-action suit after the city repeatedly used bulldozers to clear out homeless encampments.
As a result of the litigation, Fresno passed an ordinance that explicitly stated officers “shall not destroy any materials of apparent value which appear to be the personal property of any individual.” In that ordinance, personal property covers “clothing, shoes, jackets, tents, sleeping bags, bed rolls, blankets, backpacks, duffel bags, bicycles, tools, watches, jewelry, audio and video equipment, medications, toiletries eyeglasses, purses, handbags, personal papers, equipment, photographs, books, and baby strollers.”
Quigley said legal issues involving the homeless have come up multiple times a year for his entire legal career, which has spanned over 35 years.
The ordinance is part of the city’s effort to address the homeless problem in New Orleans, as well as combat health and public safety issues that arise when large numbers of people set up tent cities like the one that was on Claiborne.
But Biaggio DiGiovanni, executive director of Ozanam Inn, said the city will still face a homeless problem despite their best efforts. While he acknowledges that large-scale encampments should be taken down because of health issues, he said word amongst the homeless community spreads quickly. Once one such location is taken down, the people will migrate to a new one and the cycle continues.
Many homeless also refuse the assistance available through organizations like Ozanam Inn and UNITY of Greater New Orleans. DiGiovanni said he reminds people that beds and food are available at Ozanam Inn, but that most do not accept the offer. He said they often balk at the no smoking regulations in shelters, as well as the evening curfews.
“This is a problem that will probably never go away,” DiGiovanni said. “A lot of them, this has become their lifestyle… They like their freedom; they like their independence.”
A request to City Attorney Sharonda Williams for comment went unanswered as of press time.
This article originally published in the September 1, 2014 print edition of The Louisiana Weekly newspaper.