Owners and tenants of commercial property in central business districts throughout the U.S. regularly come upon the homeless. Some of the observers will wonder "why doesn't the city do something about that?" In searching for an answer to that question, municipal authorities need to consider the allocation of scarce resources and assessments of social justice and fairness and how those concepts should be applied to the homeless and their use of streets, sidewalks and public parks. However, a significant aspect of the potential answer to that question rests in judicial decisions throughout the years, which provide constitutional protection to the homeless and impose significant restrictions on how cities can regulate their activities.
The court decisions that protect activities normally associated with homeless individuals are generally based upon protections provided by the First Amendment and Eighth Amendment to the U.S. Constitution. As most Americans know, the First Amendment provides that "Congress shall make no law respecting an establishment from religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances." The amendment has been interpreted to apply those protections not just to the acts of Congress, but generally to governmental acts. As such, broad prohibitions against either panhandling or vagrancy are generally subject to attack as being in violation of the First Amendment.
Nonetheless, more precise "time, place and manner" limitations that are content neutral can sometimes be enforceable. For example, a limited prohibition against panhandling within a certain portion of a city may be permissible, but it would need to be applied equally – not only to an individual panhandler, but also to the Salvation Army kettle drum solicitor and the young girl with Alex's Lemonade Stand.
An independent line of cases has blocked application of municipal ordinances which generally seek to prohibit sleeping or lying on public streets, sidewalks or parks, based upon the protection provided by the Eighth Amendment to the U.S. Constitution, which states "excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishment inflicted." The courts conclude that sitting, lying and sleeping are universal and unavoidable consequences of being human. If an individual does not have a place to conduct such activities, and if the state makes those acts illegal, the enforcement of that prohibition constitutes "cruel and unusual punishment." In cases where cities have been able to demonstrate that there are sufficient shelter resources to provide sleeping opportunities for all the homeless persons in a jurisdiction, then the broader anti-vagrancy statutes have been allowed to be enforced. But, if acceptable shelters are not available, then it becomes cruel and unusual punishment to cite or arrest an individual for sleeping in a public space.
Recently, the City of Philadelphia was involved in litigation that addressed issues involving the homeless, but from a different legal perspective. The city had established regulations to prohibit the public feeding of any individuals (including the homeless) along the Benjamin Franklin Parkway. Litigation was commenced by certain of the churches that provided the food to the homeless in a case captioned Chosen 300 Ministries, Inc., et al v. City of Philadelphia and Mayor Michael Nutter. In a decision dated August 9, 2012, Judge Yohn of the Eastern District of Pennsylvania issued a preliminary injunction against the city's continued enforcement of these regulations. Judge Yohn concluded that since the city was not providing a reasonable alternative location for the participating churches and ministries to feed the homeless, the city was violating the church's First Amendment right to free exercise of religion. Interestingly, the decision did not rest upon the rights of the homeless to utilize the parkway (presumably the judge had concluded that the limited geographic scope of the limitations passed constitutional scrutiny) but rather focused upon the rights of the individuals who were exercising their religion by "feeding the poor."
During the three-years plus since that decision was issued, city officials have been unsuccessfully seeking alternative locations for the feeding of the homeless, in order to be able to demonstrate to the judge that given the existence of alternatives, the city should be permitted to regulate such activities along the parkway.
The legal principles and cases briefly outlined above raise two unrelated policy challenges. First, is the question of whether the courts and civic authorities have insufficiently considered the interests of other stakeholders, including owners of commercial property. Streets, sidewalks and public parks are public goods to be shared among the members of the community. Is it appropriate that any one individual or groups of individuals should be permitted to monopolize these public goods? In the way of simple example, the bench that is slept on 12 hours a day by an individual is unavailable for a brief five minute visit by the office tenant from down the street. However, should significant need and deprivation be brought into this public policy calculus?
More specific to Philadelphia, the decision of Judge Yohn emphasized the need to provide public feeding locations that were very proximate to the existing feedings on the Benjamin Franklin Parkway. Over the last 20 years, as economic development and growth has advanced throughout Center City Philadelphia, there are increasingly fewer blocks that are appropriate to be utilized as large scale homeless feeding locations, given economic and land planning considerations. This circumstance of broadening areas of commercial development repeats itself in vibrant cities throughout the U.S. While this phenomenon can be derisively referenced in shorthand as NIMBY, a more subtle analysis involves an appropriate balancing of services to the homeless and poor against other valid policy interests of supporting capital investment and economic growth. Commercial real estate owners and investors can provide an important role in the public dialogue, which will continue around this issue.
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