In a quiet May 18th decision, a federal appellate court ruled that a controversial Giuliani-era policy that made it a crime for homeless people to sleep in city parks was constitutional.
By a 2–1 margin, the United States Court of Appeals for the Second Circuit upheld the city’s policy of arresting homeless people for sleeping in cardboard boxes in city parks. The suit revolved around the question of whether the city’s use of an obscure ordinance originally intended to prevent illegal dumping provided a clear standard for police to follow.
“We are pleased that the court recognized that the city must balance its need to keep public order with the needs of homeless individuals,” said Alan Beckoff of the New York City Law Department.
The case was brought by Augustine Betancourt, who was arrested in Collect Pond Park in Lower Manhattan on February 28, 1997. Betancourt, an Army veteran, had been sleeping in a tube assembled from three cardboard boxes. He was held for 24 hours before prosecutors dropped the charges against him. When he met a lawyer at a soup kitchen’s legal clinic, Betancourt decided to challenge the law under which he was arrested. His suit contended that the regulation—which mainly prohibits abandoning or stripping cars in public streets—was improperly applied to punish the homeless as part of former Mayor Rudolph Giuliani’s “quality of life” initiative, launched in 1994 to combat a wide range of street crimes including prostitution, panhandling and drug sales.
“Any reasonable person reading the law in its context cannot help but think it was misapplied to the homeless,” said Douglas Lasdon, executive director of Urban Justice Center and one of Betancourt’s lawyers.
The dispute pivoted on whether Section 16-122(b) of the New York City Administrative Code, which makes it unlawful “to erect or cause to be erected…any shed, building or other obstruction” in public places, was unconstitutionally vague.
Judge John S. Martin Jr. of the United States District Court for the Southern District of New York heard the original claim and found that the statute was not vague. Second Circuit Judges Amalya L. Kearse and Ralph K. Winter upheld his ruling. Citing the dictionary definitions of “erect” and “obstruction,” they affirmed that a citizen could reasonably ascertain that sleeping in a cardboard box was against the law.
In dissent, Judge Guido Calabrese described the code as an “impenetrable law that could be read to allow police officers to apply the ordinance almost however they want against virtually whomever they choose.”
“Betancourt’s cardboard tube placed on a park bench,” he added, “was no more of an obstruction than his prone body alone.”
Lasdon suggested that the issue may now be moot because city seems to have stopped aggressively targeting the homeless. “I have no evidence that the Bloomberg administration is using this provision today,” he said. “Giuliani was doing whatever he wanted with homeless people, regardless of the law. I think Bloomberg has been more sensitive to the rights of the homeless.”
But other advocates were not convinced. “Our sense is that there have not been dramatic differences [between the Giuliani and Bloomberg administrations] with regard to the street homeless,” said Patrick Markee, a senior policy analyst for the Coalition for the Homeless, though he conceded that the Bloomberg Administration’s public tone was “less aggressive.”
The New York City Police Department refused to provide City Limits with statistics on how many people had been arrested using the anti-dumping ordinance.
Before mounting the appeal, Betancourt reached a $15,000 settlement with the city over an unreasonable strip search claim stemming from the same arrest.
Betancourt, who now lives in supportive housing, has not yet decided whether he will seek to appeal the case to the United States Supreme Court, Lasdon said.