Original Article Appeals Court Slaps L.A. Over Arrests of Homeless By Henry Weinstein and Cara DiMassa, Times Staff Writers 12:32 PM PDT, April 14, 2006 Los Angeles' policy of arresting homeless people for sitting, lying or sleeping on public sidewalks as "an unavoidable consequence of being human and homeless without shelter" violates the constitutional prohibition against cruel and punishment, a federal appeals court ruled today. The U.S. 9th Circuit Court of Appeals, in a 2-1 decision, decided in favor of six homeless persons, represented by the American Civil Liberties Union of Southern California. The suit challenged the city's practice of arresting persons for violating a municipal ordinance, which states that "no person shall sit, lie or sleep in or upon any street, sidewalk or public way." The appeals court ruled that the manner in which the city has enforced the ordinance has criminalized "the status of homelessness by making it a crime to be homeless," and thereby violated the 8th Amendment to the U.S. Constitution. City officials had no immediate comment on the ruling, but it appeared that the decision could have significant ramifications for the city's policy on the burgeoning problem of homelessness. In her ruling, Judge Kim McLane Wardlaw said that Los Angeles' Skid Row has the highest concentration of homeless individuals in the United States. She said that about 11,000 to 12,000 homeless people live in Skid Row, a 50-block area, bounded by Third, Seventh, Main and Alameda Streets. "Because there is substantial and undisputed evidence that the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times, including on the night" the plaintiffs were arrested or cited, "Los Angeles has encroached upon" the plaintiffs' 8th Amendment protections "by criminalizing the unavoidable act of sitting, lying or sleeping at night while being involuntarily homeless," Wardlaw wrote. Her lengthy opinion states that the Los Angeles ordinance "is one of the most restrictive municipal laws regulating public spaces in the United States. The city can secure a conviction under the ordinance against anyone who merely sits, lies or sleeps in a public way at any time of day." She added: "Other cities' ordinances similarly directed at the homeless provide ways to avoid criminalizing the status of homelessness by making an element of the crime some conduct in combination with sitting, lying, or sleeping in a state of homelessness." Wardlaw cited numerous reports on the homeless situation in Los Angeles, including one written by city officials, which said "the gap between the homeless population needing a shelter bed and the inventory of shelter beds is severely large." Consequently, the judge noted, "for many in Skid Row without the resources or luck to obtain shelter, sidewalks are the only place to beK.The evidence supports the reasonable inference that shelter is unavailable for thousands of homeless individuals in Los Angeles on any given night." The judge said that evidence introduced in the case, entitled Edward Jones v. City of Los Angeles, showed the plaintiffs "are not on the streets of Skid Row by informed choice." Wardlaw said that "as a result of the expansive reach of the [Los Angeles ordinance], the extreme lack of available shelter in Los Angeles, and the large homeless population, thousands of people violate the Los Angeles ordinance every day and night, and many are arrested, losing what few possessions they may have." It is very unusual for a plaintiff to win a case based on the 8th Amendment to the Constitution, which bars cruel and unusual punishment. Courts, including the U.S. Supreme Court, frequently rebuff challenges based on the 8th Amendment. For example, in recent years the high court had rejected 8th Amendment appeals challenging long sentences for minor crimes stemming from three strikes laws. However, in this instance, Judge Wardlaw analogized to earlier rulings, which said the mere act of being a drug addict or an alcoholic is not a crime. In 1962, the Supreme Court, in Robinson v. California, reversed the conviction of a California man who had been convicted of violating a state law which made it a criminal offense to "be addicted to the use of narcotics." At the time, the high court, said, "it is unlikely that any state at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal diseaseKIn the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an affliction of cruel and unusual punishment." The Supreme Court said the California statute at issue clearly was in the same category, noting that the lawyer for the state acknowledged that narcotic addiction is an illness. In today's decision, Judge Wardlaw said at the very least the Robinson case "establishes that the state may not criminalize `being'; that is, the state may not punish a person for who he is, independent of anything he has done." More than 40 years later, Wardlaw said, that case stands for "the proposition that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being." Wardlaw scoffed at the position Los Angeles officials took in the case. "The CityKapparently believes that [the plaintiffs] can avoid sitting, lying and sleeping for days, weeks, or months at a time to comply with the City's ordinance, as if human beings could remain in perpetual motion. That being an impossibility, by criminalizing, sitting lying, and sleeping, the City is in fact criminalizing [the plaintiffs] status as homeless individuals," Wardlaw wrote. Mark Rosenbaum, legal director of the American Civil Liberties Union of Southern California, hailed the ruling "as the most significant judicial decision involving homelessness in the history of the country. The case stands for the proposition that in America homelessness is not a crime." "An individual can choose not to rob a bank, but where an individual is homeless and there are not available beds that individual is in constant violation of this ordinance with no way to establish his or her innocence," Rosenbaum said. "If a homeless person commits a theft, that, of course, can be prosecuted." But the way the Los Angeles ordinance was being enforced individuals were being criminalized solely because they did not have a place to live, Rosenbaum said. "I think what community leaders need to do now is deal with the problem, not by criminalizing homelessness, but by developing shelters, mental health programs and jobs," Rosenbaum said. "That's not only humane, it is economically and socially wise. Once they do that, so many other social problems in the community," will be alleviated, including the high population in the county jail and pressure on emergency health services and foster care, he added. http://www.azcentral.com/arizonarepublic/news/articles/0415homeless0415.html Appeals court bars arrest of homeless people in Los Angeles Randal C. Archibold New York Times Apr. 15, 2006 12:00 AM LOS ANGELES - A federal appeals court panel ruled on Friday that arresting homeless people for sleeping, sitting or lying on sidewalks and other public property when other shelter is not available was cruel and unusual punishment. The 2-1 ruling, by the U.S. 9th Circuit Court of Appeals in San Francisco, essentially invalidated a 37-year-old Los Angeles ordinance that the police have used to clear homeless people off the streets. Legal experts said the case, which they believed to be the first involving the rights of homeless people in public spaces to reach the federal appellate level, would be closely followed by other cities facing the same problems. The ordinance had gone largely unenforced until recent years, when the police began cracking down on illicit behavior in the Skid Row area of downtown, which has one of the largest concentrations of homeless people in the country. The ordinance states that "no person shall sit, lie or sleep in or upon any street, sidewalk or public way" under threat of a $1,000 fine and possible jail term of up to six months. The court, in striking down the convictions of six people charged under the ordinance, called it "one of the most restrictive municipal laws regulating public spaces in the United States" and cited the example of other cities, such as Portland, Ore.; Tucson; and Las Vegas, that have enacted similar ordinances but limited enforcement to certain times of day or designated places. The Eighth Amendment, which bars cruel and unusual punishment, prohibits Los Angeles "from punishing involuntary sitting, lying or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter," Judge Kim McLane Wardlaw wrote. The Los Angeles police, in response to the ruling, released a statement that said: "The condition of being homeless in and of itself is not a crime and should not be treated as such. But the criminal element that preys upon the homeless and mentally ill will be targeted, arrested and prosecuted to the fullest extent of the law." A spokeswoman for the city attorney's office, Contessa Mankiewicz, said, "We are disappointed, and we are reviewing our options.