Gavin Howe
The constitutionality of no sitting, no laying laws has been questioned by civil rights organizations and legal advocacy groups for the homeless. These laws, also known as sit-lie ordinances, are intended to prevent homeless individuals from congregating in public spaces, such as sidewalks and streets, to maintain the quality of life for residents and businesses. However, critics argue that these laws criminalize homelessness and ordinary activities, leading to concerns about selective enforcement and the violation of constitutional rights. The Ninth Circuit Court of Appeals deemed the enforcement of such laws unconstitutional when individuals lack legal alternatives for rest, deeming it cruel and unusual punishment. The constitutionality of these laws remains a subject of debate, with some legal experts arguing that they could pass constitutional muster if limited in geographic scope.
| Characteristics | Values |
|---|---|
| Purpose | To prevent homeless individuals from congregating in cities and affecting the quality of life or the prosperity of businesses and tourism |
| Target | Impoverished, addicts, and the unemployed |
| Legal alternatives | Restricting the hours of the ban, providing alternative locations for rest and sit, and exempting people with medical emergencies, those engaged in expressive activity, or those waiting in line |
| Constitutional challenges | Violation of the Eighth Amendment's prohibition of cruel and unusual punishment, criminalization of homelessness, criminalization of ordinary activities, and selective enforcement |
| Constitutionality | The Department of Justice and the 9th Circuit Court of Appeals deemed the enforcement of "no-sit/lie" laws unconstitutional when people do not have legal alternatives to rest and sit |
| States with gender-neutral right to sit laws | California, Florida, Massachusetts, Montana, New Jersey, Oregon, and Wisconsin |
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What You'll Learn
The criminalisation of homelessness
The constitutionality of "no-sit, no-lie" laws has been called into question by legal experts and organisations, including the National Homelessness Law Center. They argue that these ordinances violate the Eighth Amendment's prohibition of "cruel and unusual punishment," as they effectively criminalise unavoidable human activities when individuals have no alternative options. The Department of Justice and the 9th Circuit Court of Appeals have also deemed the enforcement of such laws unconstitutional when legal alternatives for rest and sitting are not provided.
In defence of these ordinances, city officials assert that they are carefully crafted to comply with existing case law and constitutional requirements. For example, the city attorney in Everett, David Hall, cited the Boise v. Martin case, where the court suggested that the geographic scope of an ordinance is a factor in determining its constitutionality. By limiting the ordinance to a specific area, the city believes it has mitigated legal concerns.
However, critics highlight the negative impact of these laws on homeless individuals, pushing them into unsafe areas and exacerbating their daily struggles. Additionally, the enforcement of these ordinances has been inconsistent and prone to selective enforcement, with opponents arguing that the mere threat of citation or arrest constitutes "enforcement" and creates a chilling effect.
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The right to public space
However, these laws have also been criticised as a criminalisation of homelessness, with opponents arguing that they target the impoverished, addicts, and the unemployed. Critics also argue that these ordinances are unnecessary, as existing laws already ban aggressive begging, obstruction of sidewalks, loitering, and aggressive pursuit. Additionally, there are concerns that these laws violate the constitutional rights of homeless individuals, particularly the Eighth Amendment's prohibition of "cruel and unusual punishment". The Department of Justice and the 9th Circuit Court of Appeals have deemed the enforcement of "no-sit/lie" laws unconstitutional when people do not have legal alternatives to rest and sit, as it penalises unavoidable, necessary, and life-sustaining activities.
In response to these criticisms, proponents of the ordinances argue that they are not intended to criminalise homelessness but to direct people to services and resources, such as shelters, restrooms, and day shelters. They also argue that the impact of enforcement is minimal, as people are rarely cited or arrested for violations. However, opponents counter that the threat of citation or arrest still constitutes a form of "enforcement".
The constitutionality of "no-sit, no-lie" laws remains a subject of debate, with legal organisations and advocates for the homeless questioning their legality. Some cities, such as San Francisco, have seen a decline in infractions over time, while others, like Honolulu, have found that the ordinances have had little effect on homelessness. The impact of these laws varies, and they continue to be a controversial topic, with ongoing legal challenges and discussions surrounding their ethical implications.
While the right to public space is essential for all individuals, the presence of "no-sit, no-lie" ordinances complicates this issue, particularly for homeless individuals who rely on public spaces for resting and sleeping. The balance between maintaining public safety and prosperity and protecting the rights and well-being of vulnerable populations remains a complex and ongoing challenge for cities across the United States.
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The right to rest
However, critics argue that "no-sit, no-lie" laws criminalize homelessness and ordinary activities. They contend that these ordinances further stigmatize and marginalize an already vulnerable community. Critics also highlight the lack of legal alternatives for rest and shelter, making these laws tantamount to cruel and unusual punishment, thus violating the Eighth Amendment of the U.S. Constitution. The selective enforcement of these laws and their potential to be applied arbitrarily further exacerbates concerns about their constitutionality and fairness.
The constitutionality of "no-sit, no-lie" laws remains a subject of debate and legal challenges. In some instances, courts have struck down similar laws, such as a citywide ban on camping on public property in Everett, Washington, which was deemed unconstitutional under the Eighth Amendment. However, the legal standing of these ordinances varies depending on the specific circumstances and geographic scope.
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The Eighth Amendment
> "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
The Cruel and Unusual Punishments Clause is the most important and controversial part of the amendment. However, the meaning of cruel and unusual punishment is open to interpretation and has been the subject of much debate. For example, in recent years, some judges and scholars have argued that the meaning of the Constitution should change as societal values change. On the other hand, originalists, such as Justices Scalia and Thomas, argue that the standards of cruelty that prevailed in 1791, when the Eighth Amendment was adopted, should be the appropriate benchmark for determining whether a punishment is cruel and unusual. They also argue that the clause only prohibits barbaric methods of punishment, not disproportionate punishments, and that it does not prohibit the death penalty.
State courts have also played a significant role in interpreting the Eighth Amendment and protecting the rights of individuals. For example, the Washington Supreme Court has held that its state constitution's cruel punishment clause provides greater protection than the Eighth Amendment, and has found that Seattle's administrative rules designed to stop homeless people from using public property were unconstitutional. Other state supreme courts have declared that their prohibitions against cruel or unusual punishment bar excessive sentences for juveniles or young adults that would be allowed under the federal Constitution. These interpretations of state constitutions demonstrate the potential for expanding protections beyond those provided by the Eighth Amendment at the federal level.
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The geographic scope of the ordinance
The geographic scope of a "no sitting, no laying" ordinance is a key factor in determining its constitutionality. This is because a limited geographic scope ensures that the ordinance does not outlaw sitting or lying across an entire city, which could be deemed unconstitutional.
In the case of Boise v. Martin, the court stated that the geographic scope of an ordinance is a factor in determining its constitutionality. For example, in 2016, an Everett Municipal Court judge cited the Eighth Amendment when striking down a citywide ban on camping on public property in the city of Everett. The judge ruled that such a ban was unconstitutional as it criminalized homelessness and violated the Eighth Amendment's prohibition of "cruel and unusual punishment."
Subsequently, the city of Everett proposed a more limited "no-sit, no-lie" ordinance that would only apply to a 10-block area of downtown Everett. This ordinance was defended by the city on the basis that it did not outlaw sitting or lying across the entire city and was designed with existing case law in mind to pass constitutional muster.
Similarly, in Honolulu, a "sit-lie" ordinance was signed into law in 2014 by Mayor Kirk Caldwell, which initially applied to several pedestrian malls in the downtown and Chinatown neighborhoods. In 2017, Mayor Caldwell expanded the ordinance to an additional 13 areas of Honolulu County (Oahu) as part of a campaign to clear city sidewalks of homeless encampments.
The geographic scope of these ordinances is crucial to their constitutionality, as a limited scope ensures that they do not criminalize ordinary activities such as sitting or lying down in public spaces. However, critics argue that even with a limited scope, these ordinances still effectively criminalize homelessness and make it more difficult for homeless individuals to find places to rest.
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Frequently asked questions
Sit-lie laws prohibit sitting or lying on public streets and sidewalks, thereby encouraging individuals to move about rather than block access to businesses, roadways, or transportation facilities.
In 2014, Honolulu implemented a sit-lie ordinance that applied to several pedestrian malls in the downtown and Chinatown neighborhoods. In 2017, this ordinance was expanded to an additional 13 areas of Honolulu County. Another example is San Francisco, where a sit-lie ordinance was approved by voters in 2010.
Proponents of sit-lie laws argue that they are a tool to engage people and direct them to services such as restrooms, benches, and day shelters. They also believe that these laws can help control the visibility of the homeless population and improve the quality of life for residents and businesses.
The constitutionality of sit-lie laws is a matter of debate. Critics argue that these laws criminalize homelessness and ordinary activities, leading to selective enforcement. The Department of Justice and the 9th Circuit Court of Appeals have deemed similar laws unconstitutional, citing the Eighth Amendment's prohibition of "cruel and unusual punishment." However, some legal experts and city officials defend the laws, claiming that they are enforceable within specific geographic scopes and do not criminalize homelessness but aim to provide alternative solutions.
