CITY AND HOMELESS: BETWEEN A ROCK AND A HARD PLACE...

Special to El Rrun-Rrun

As Brownsville faces a growing population of  homeless people, it is bumping into conflicting views between the Sate of Texas Legislature and a decision by the U.S. Supreme Court regarding their access to public spaces.

Locally, city administrators and elected officials say that have been keeping track of a group of homeless who have camped out in different parts of the city, including Edelstein Park, and more recently, under the US 77/83 (I-E69) overpass. They say that the City of Brownsville has undertaken a multi-departmental review of its policies to address this problem.

"This is a group that used to be at Edelstein Park and has moved around town," said one. "The Police Department has been monitoring them. This is their latest spot. We have  multi-departmental meeting (today) to discuss steps and options we can take next." 

You could say that the city administration and elected officials are between a rock and a hard place. 

On one hand, the U.S. Supreme Court declined to hear the appeal in City of Boise v. Martin, et al. (Docket No. 19-247, December 16, 2019) decided by the 9th Circuit Court of Appeals. By declining to hear the case, it let stand the lower court ruling that homeless people have a right to sleep on the sidewalks if no shelter is available.  

That ruling states that local governments cannot ban the homeless from sleeping outdoors on public property if they have nowhere else to go, according to the appeals court decision that the Supreme Court has now declined to review. https://www.hodgsonruss.com/newsroom-publications-11458.html

But this goes contrary to the laws passed in Texas last year. 

In a letter to Bennett Sandlin, Executive Director of the Texas Municipal League, Texas Gov. Greg Abbott and Attorney General Kenneth Paxton place him on notice that House Bill 1925 "bans the kind of homeless encampments that threatened to ruin the City of Austin, making it a Class C misdemeanor to reside with shelter in most public places." See TEX. PENAL CODE § 48.05. 

"Local peace officers can arrest a person who violates this public camping ban or issue a citation – but only after connecting that person with available services that will help to climb out of homelessness. See id. § 48.05(g)."

Their letter to Sandlin states that "If a local entity wants to set aside a public place where the homeless are allowed to camp, it must satisfy the Texas Department of Housing and Community Affairs that there is a plan in place for providing mental-health services, law enforcement, and other services for the site and its surrounding area. See TEX. PENAL CODE § 48.05(d)(2); TEX. GOV’T CODE § 2306.1123(b).

 

The case in the 9th Circuit arose when homeless people on the streets of Boise, Idaho were given tickets or fines ranging between $25 and $75 for camping on the sidewalk. They joined a lawsuit charging those fines as unconstitutional. As the case wound its way through the appellate courts, the City enacted a non-enforcement policy regarding its misdemeanor offenses against sleeping or camping on public property when no shelter is available.

The city believed that this action rendered the appeal moot. However, the 9th Circuit Court of Appeals nonetheless issued a decision where it considered "whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” 

And, it does, according to the Court’s decision. Such bans, enforced by fines, are unconstitutional, according to the decision.

But the legislature quoted by Abbott and Paxton give little wiggle room to cities like Brownsville. In their letter they say that "Merely designating a place to camp is not enough. Camping areas must provide access to the tools homeless individuals will need as they move towards stable housing."

Local officials are duty-bound to enforce this public camping ban. Specifically, a “local entity may not adopt or enforce a policy under which the entity prohibits or discourages the enforcement of any public camping ban...The only alternative is to implement a policy that encourages diversion or a provision of services in lieu of citation or arrest.”

Either way, local officials have an obligation to protect against the health and safety risks that public camping poses for all Texans, homeless or otherwise. A local entity could face serious repercussions if it impedes enforcement of the public camping ban, whether through “a formal, written rule [or] an informal, unwritten policy.”

"The Office of the Attorney General has been empowered to sue local entities for injunctive relief, plus reasonable expenses and if a local entity is found to have violated House Bill 1925, it will lose out on all state grant funds for the following fiscal year."

And they warn cities that "In the coming months, we will be monitoring local entities across Texas to ensure compliance with House Bill 1925. We trust that you will begin enforcing the public camping ban in good faith. Doing so will achieve our shared goal of delivering improved services for the homeless and safer communities for everyone."

So Brownsville officials – who have so far avoided dealing with the growing homeless population who sleep on sidewalks and in various secluded spots in parks and other public spaces – are faced with a dilemma: Do we heed the Supreme Court or risk getting sued by the State of Texas for allowing them to stay there?