CINCINNATI — Jailing people for living in homeless camps when no shelter is available could constitute “cruel and unusual punishment,” U.S. District Court Judge Timothy Black declared in an order that paves the way for homeless people to continue a two-year legal fight against the city of Cincinnati.
Both sides have agreed to put the lawsuit on hold while they work toward a settlement.
The legal battle started in the summer of 2018, when people experiencing homelessness erected a tent city below an overpass at Third and Plum streets in downtown Cincinnati.
The city of Cincinnati ordered people living below the overpass to leave. The tents moved to a wide sidewalk along Third Street and then other parts of Downtown until an injunction effectively banned homeless encampments in Hamilton County.
Several people who lived in the Third Street camps, along with the Greater Cincinnati Homeless Coalition, filed a lawsuit in federal court, arguing that the response violated the constitutional rights of people experiencing homelessness.
“The measure of a just society is how it treats its most vulnerable members. One can have a good debate on how to do that properly, but let us agree that it must be our goal,” Black wrote. “Here, the City has determined to deal with the homeless (the unhoused) by outlawing homeless encampments. This federal lawsuit inevitably followed.”
In an 82-page order filed Aug. 13, Black decided the plaintiffs could move forward with seven of their 11 claims in the civil lawsuit, including:
· An Eighth Amendment claim of cruel and unusual punishment. “Plaintiffs have provided enough facts to go forward on their claim that housing is not available for some specific unhoused people, nor for all, and, therefore, jailing people for being unhoused is cruel and unusual punishment,” Black wrote.
· A First Amendment right to free speech. “Living outside in a homeless encampment could be considered an expression of free speech,” the judge wrote. “Here, Plaintiffs have provided enough facts to go forward on their claim that the Cincinnati homeless encampments were an expression of free speech to call attention to the crisis of affordable housing shortage in Cincinnati and that the Permanent Injunction unlawfully restricts that expression.”
· A constitutional right to travel. “The Fourteenth Amendment promises citizens the virtually unfettered ability to lawfully and freely travel,” Black wrote. “Citing and arresting unhoused persons for sleeping in public spaces could violate the right to travel by denying unhoused people the necessity of a safe place to sleep, rest and recuperate.”
· A due process claim. “The Fourteenth Amendment protects citizens from state actions that increase their risk of harm,” the judge wrote. “If the City is requiring the homeless to vacate well-lit and high-traffic public land, or go to jail, when housing is not available for some specific unhoused people, nor for all, and taking and destroying their tents, tarps, blankets, clothing and other property, then the City may be creating an unlawful state-created danger for the homeless.
“Plaintiffs have not proven anything yet,” Black wrote. “Nor are they required to at this stage of the lawsuit.”
Some of Black’s determinations mirror the findings of a Ninth Circuit Court of Appeals ruling in September 2018. That court ruled in favor of plaintiffs, who argued that the city of Boise, Idaho, violated their constitutional right prohibiting cruel and unusual punishment when the city issued citations against them for sleeping outside.
“The Ninth Circuit ruled that you can’t criminalize people for living outside for basically not having housing if there’s no shelter meaningfully available,” said Joseph Mead, a professor at Cleveland State University and a lawyer who has represented people experiencing homelessness.
Black’s order doesn’t mean that the local case is over.
“The case still needs to be fully litigated,” Mead said. “The judge was required to accept the plaintiff’s allegations as true. The city has a chance to rebut them with evidence. But it’s going to be a difficult road ahead for the city.”
A spokesman for the city of Cincinnati said the city does not comment on pending litigation.
The Greater Cincinnati Homeless Coalition has told the city that the plaintiffs are willing to negotiate to reach a settlement, but those talks haven’t started yet, said Josh Spring, the coalition’s executive director.
Now the coalition is meeting with people who are homeless and living outdoors to make sure any proposed settlement terms meet their needs, he said.
“We have a lot of work to do to ensure that we head down the right track and we come up with effective changes,” Spring said. “We want to do the best job we can and make the most positive change we can.”
The goal, Spring said, is to ensure that the city views homelessness as a systemic problem and views housing as the proper response to the problem rather than arresting people who are homeless.
The coronavirus pandemic has made the problem more urgent than ever, he said.
“The numbers of folks living outdoors has increased drastically,” Spring said. “And while we don’t have exact numbers, every outreach group says the numbers are higher.”
For example, Our Daily Bread Soup Kitchen & Social Center, the area’s largest soup kitchen, has seen need for meals surge, Spring said.
Our Daily Bread began serving meals to go when the pandemic started, Spring said, and served 164 meals when that policy began on March 24.
“Yesterday they served 731,” Spring said Tuesday. “That number should not be construed that it equates exactly with the number of people living outside. Folks who have housing but can’t make ends meet also utilize Our Daily Bread. But it clearly shows the numbers are much higher now.”
Spring said people who are homeless and living outside are still getting citations from police, too.
Mead said he hopes settlement talks will lead to lasting solutions for Cincinnati.
“Anything’s on the table,” he said. “I’m hoping that the city and the plaintiffs can come up with perhaps a creative solution to address this problem so that everybody is better off.”
Sadly, some of the people who lived in the camps in 2018 will never see the outcome, Spring said.
“Some of the folks that we were organizing with then on Third Street are no longer alive,” he said. “They have died, young, as a result of homelessness while this has been occurring. So people who have fought for this have died in the process.”
Lucy May writes about the people, places and issues that define our region – to celebrate what makes the Tri-State great and shine a spotlight on issues we need to address. Poverty is an important focus for Lucy and for WCPO. To reach Lucy, email email@example.com. Follow her on Twitter @LucyMayCincy.