Unhoused Justice | American Civil Liberties Union

Question 1

How have lawmakers tried to criminalize homelessness?

Accepted Answer

Cities and states across the country have enacted laws that prohibit behaviors that are associated with homelessness and, in many cases, are unavoidable for those who do not have housing. This includes bans on sleeping, sitting, camping, panhandling, loitering, storing belongings, and sharing food. Punishments range from fines to felony prison sentences. In addition, cities and states regularly displace unhoused people by issuing move-along orders, clearing encampments, and towing vehicles used as shelter. These operations often result in destruction of unhoused people’s property, including essential documents and survival gear, and do nothing to address the root causes of homelessness.

Question 2

Are there any constitutional or statutory protections for unhoused people?

Accepted Answer

Yes! The U.S. Constitution’s Fourth and Fourteenth Amendments protect unhoused people’s property from unreasonable seizure and destruction and require cities to provide adequate notice before clearing or displacing unhoused people and their belongings. The First and Fourteenth Amendments also protect unhoused people from laws, including anti-panhandling and loitering laws, that are overbroad, vague, or impermissibly restrict freedom of speech. Laws and practices that target unhoused people may also be vulnerable to challenge under the Fourteenth Amendment’s state-created danger doctrine, the equal protection clause, and the right to travel, among others. The Americans with Disabilities Act (ADA) can be used to challenge practices like encampment clearings that discriminate against unhoused people with disabilities.

State constitutions also provide robust protections for unhoused people that, in some cases, extend beyond U.S. Constitutional protections. For example, while the U.S. Supreme Court’s Grants Pass v. Johnson decision held that the U.S. Constitutions’ cruel and unusual punishments clause does not prohibit cities from punishing unhoused people for sleeping in public, state constitutional analogues may offer greater protection.

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