The City's Questionable Ordinance That Criminalizes Sleeping in Tents and Boxes

A home that could soon be considered illegal by the City of Houston.EXPAND
A home that could soon be considered illegal by the City of Houston.
Meagan Flynn

Last week, a man named Jeff Gallagher who had been homeless for 36 years told the Houston Press that, through dogged persistence, volunteers had finally persuaded him to accept housing and substance-abuse services. They had been trying to help him since around 2008, but he resisted. “I thought, I know what I'm doing. Leave me alone,” Gallagher said. “I thought I could do it by myself, but I can't — I need help.”

Gallagher is poised to become one of dozens of success stories that have played out on the streets of Houston over the past several years as the city and a network of more than 100 homeless service providers have ramped up efforts to house the homeless. Even Gallagher said that the difference in the city's efforts has been noticeable — he said he didn't even know the mayor's name, but “this dude right here, he's doing stuff for us — that's why all of this is happening."

The part that Gallagher didn't know: Mayor Sylvester Turner is now supporting a city ordinance that possibly could result in arrests of people like Gallagher — for sleeping in makeshift shelters.

Up for debate at City Council next week, the “anti-encampment ordinance” would criminalize the “unpermitted use of fabric, metal, cardboard, or other materials as a tent or other temporary structure for human habitation,” the use of any heating device, and the “accumulation of personal property that would not fit in a container three feet high, three feet wide, and three feet deep.” Put simply, it would criminalize being homeless on the streets without a permit, punishable with a fine of up to $500 — and possibly resulting in warrants being issued for homeless people's arrests for failure to pay those fines or appear in court.

The city says the ordinance is about safety, for the homeless people themselves and for the surrounding neighborhoods where they're most concentrated.

“The focus of this plan is not on arresting people but rather addressing safety concerns,” Janice Evans, Turner's spokeswoman, said in an email to the Press. “The mayor’s plan as originally proposed will prohibit people from putting up tents but will not make it illegal to sleep outdoors. This will prevent tent cities, where illicit activity is easy to hide, from flourishing.”

The ordinance is part of Mayor Turner's overarching homelessness housing plan announced in March — one he says is intended to balance the needs of the city's most vulnerable citizens with the needs of neighborhoods that have relentlessly complained about those citizens for the past several months.

To be sure, Turner's plan is commendable in various areas: The goal is to house 500 homeless people within six months; add 215 shelter beds once a new Star of Hope shelter on Reed Road is complete; and create supervised outdoor shelters that would have restroom facilities, for up to 75 stubborn folks who don't want to go to places like Star of Hope or the Salvation Army.

“The fact that Mayor Turner's plan includes adding more emergency shelter beds within the next few months is wonderful,” said Trisha Trigilio, staff attorney at ACLU of Texas. “But the question is, for someone who doesn't have access to a bed right now, how can the city charge them with a crime for sleeping outside and trying to protect themselves from the elements?”

The city's efforts to avoid legal trouble with its ordinance are evident, with at least some safeguards to stop officers from immediately arresting anyone they see sleeping in a box.

Before an officer can arrest a homeless person, first, he has to issue a written warning — a caution that includes pamphlets about how to seek help. If the officer comes back some time later to find the person still hasn't packed up camp, he's supposed to “attempt to ascertain” whether the person is in need of emergency medical or mental health treatment, or social services such as temporary shelter (i.e, all unsheltered homeless people). Finally, he can only arrest the homeless person for one of these three reasons: if the officer can't “obtain the assistance” the homeless person needs; if police with the Homeless Outreach Team “informally evaluate” the person and conclude the person doesn't actually need the help; or the person does need emergency medical help or temporary shelter, but won't accept help.

For people like Gallagher, finally accepting help and trusting the service providers can take as long as 12 years, volunteers have told us.

“There are obvious problems here,” Trigilio said. “If the [homeless shelters] are over capacity, does that mean officers can just start arresting? People who need services may not be responsive just being directed to a provider. What happens when you hand a schizophrenic person a piece of paper that lists mental health providers on it? Is that enough? At that point, how is it productive to arrest that person for a fine-only offense, then bring them to a court that is not conducting adequate ability to pay inquiries and jailing people for failure to pay?”

Legal problems with anti-encampment ordinances across the country have arisen when cities criminalize sleeping in tents or on sidewalks — but homeless shelters are already overburdened, making it too difficult for a homeless person to find somewhere else to sleep. A federal judge shot down Los Angeles's ordinance in 2007 for this reason, and, citing that case, the U.S. Department of Justice filed a statement of interest in another Boise, Idaho federal lawsuit, writing:


“It should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. . .Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”

In Houston, according to the Coalition for the Homeless's annual count of sheltered and unsheltered homeless people on one night in 2016, 164 beds of the 1,261 available were vacant.

There were 1,046 unsheltered homeless people that night in Harris County, the majority of whom are within Houston city limits.

Eva Thibaudeau of the Coalition for the Homeless said there are various reasons some homeless people may refuse to go to a shelter. Even though Thibaudeau said emergency shelters have removed barriers like breathalyzers at the door that have barred homeless people in the past, some homeless people still fear their substance-abuse problems bar them from seeking housing help. Others can't sleep in bunks with strangers because of mental health issues like severe anxiety. Others do not want to leave behind meaningful possessions they have been accumulating for years.

Under the city's ordinance, if those personal belongings take up more than three cubic feet, it would be illegal for them to keep anyway.


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