Magazine article Parks & Recreation

Law Review: Cardboard Homeless Shelter in Park

Magazine article Parks & Recreation

Law Review: Cardboard Homeless Shelter in Park

Article excerpt

Laws could be proven unconstitutional if they don't provide sufficient clarity.

As described by the U.S. Supreme Court, the Due Process Clause of the Fourteenth Amendment requires that laws be crafted with sufficient clarity to give someone with ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for police enforcement. In the absence of "sufficient clarity," a federal court may strike down a law as unconstitutionally vague.

In the case of City of Chicago v. Morales (No. 97-1121, U.S. 6/10/1999) the U.S. Supreme Court struck down an ordinance which prohibited "criminal street gang members" from "loitering" with one another or with other persons in any public place. In the opinion of the Supreme Court, this ordinance was unconstitutional because it did not provide "sufficiently specific limits on the enforcement discretion of the police to meet constitutional standards for definiteness and clarity."

Specifically, the definition of "loitering" in the ordinance prohibited "remaining in any one place with no apparent purpose" in the presence of criminal gang members in a public place. Under such circumstances, the Court found "[f]riends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member." As a result, the Court held this particular ordinance was unconstitutionally vague because it failed to "give the ordinary citizen adequate notice of what is forbidden and what is permitted."

In contrast, in the case of Betancourt v. Bloomberg, No. 04-0926-cv (Fed. 2nd Cir. 5/18/2006), the majority opinion found the plain language in a challenged ordinance was sufficient to alert the public of what conduct was prohibited. Moreover, the language in the ordinance provided adequate guidance to effectively limit the discretion of police in effecting an arrest for such proscribed conduct by a homeless man sleeping in a public park.

Facts of the Case

In 1994, the city of New York undertook a "quality of life" initiative designed to reduce a wide range of street crimes including prostitution, panhandling and drug sales. Plaintiff Betancourt alleged that the city later expanded this initiative to reduce the number of homeless persons residing in public spaces. Specifically, the city's police department issued a guide for law enforcement officers listing laws that prohibited conduct targeted by the initiative, including City Administrative Code § 16-122, subsection (b) of which provided as follows:

[i]t shall be unlawful for any person, such person's agent or employee to leave, or to suffer or permit to be left, any box, barrel, bale of merchandise or other movable property whether or not owned by such person, upon any marginal or public street or any public place, or to erect or cause to be erected thereon any shed, building or other obstruction. N.Y., N.Y., Admin. Code ("NYC Admin. Code") § 16-122(b).

In the early morning hours of Feb. 28, 1997, in and around certain parks in lower Manhattan, police officers arrested 25 individuals, including Betancourt. Betancourt had come to the park at approximately 10:30 p.m. on Feb. 27 with some personal possessions, three folded cardboard boxes, and a loose piece of cardboard. Betancourt used the three boxes to construct a "tube" large enough to sleep in, placed the tube on a bench and went to sleep.

At approximately 1:00 a.m., city police roused Betancourt from his sleep on a park bench and arrested him. Betancourt was charged with violating § 16-122 and later released. The city prosecutor decided the charge lacked merit and declined to prosecute the case.

In September 1997, with the assistance of a public interest law firm, Betancourt brought a federal civil rights claim under 42 U.S.C. § 1983 alleging § 16-122(b) was unconstitutionally vague as applied to him. …

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