Tent Cities, the Law and Finding a Solution to U.S. Homelessness

A new report from the National Law Center on Homelessness and Poverty takes a look at encampments, current state and federal legislation and the possible international remedies to inadequate and unaffordable housing.

By: James Swift
UncommonJournalism@gmail.com
@UNJournalism

For five years, representatives of the National Law Center on Homelessness and Poverty (NLCHP) and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School conducted media surveys, verifying the existence of at least 100 homeless encampments across the United States from 2008 until 2013. According to Eric Tars, director of the NLCHP’s Human Rights and Children’s Rights Programs, the tally is almost certainly a vast undercount of the total number of “tent cities” that have sprung up coast-to-coast in the wake of the Great Recession.

“We know of several others that didn’t make it into online-accessible news sources,” Tars said during a  NLCHP webinar titled “Tent Cities, Homelessness and Human Rights.”

“So we know that even this figure is an underestimate.”

Homeless encampments, Tars said, were located by researchers in 46 states and the District of Columbia. Of the 100-plus tent cities evaluated in the recent report “Welcome Home: The Rise of Tent Cities in the United States,” he said just eight had “regularized legal status.” A majority of the tent cities examined in the report, he added, have  subsequently been torn down, and their occupants long since evicted.

While Tars said many tent cities were excellently managed, he said many others were plagued by major security concerns. “The conditions in these camps ran the gamut, with many displaying exceptional forms of self-governance,” Tars said. “But some present dangerous situations for the people living there.”

Among other factors, the report cites a lack of affordable housing, inadequate shelter systems and municipal ordinances effectively “criminalizing homelessness” as reasons for the growth of tent cities over the last half decade.

“While tent cities should never be viewed as a substitute for permanent housing or longer-term investment in housing and service provision, they can serve important immediate needs,” the NLCHP report reads. “And eviction of their residents is not the solution.”

Four Cities, Four Different Approaches

For the report, case studies in Rhode Island, New Jersey, Florida and Louisiana were evaluated. Through legal interventions and homeless advocacy, Tars discussed how tent city occupants were able to settle into temporary shelter and gain greater access to community services and long-term housing options.

In 2009 and 2010, two large encampments -- Hope City and Camp Runamuck -- emerged in Providence, R.I. Both encampments grew to more than 80 occupants, with Camp Runamuck developing its own official charter. The City of Providence then successfully shuttered both camps and obtained injunctions against former residents from resettling elsewhere.

However, most of the former occupants of the two camps have since found housing, the report states. Riverwood Mental Health Services’ Housing First program provided “permanent supportive housing” to homeless individuals, along with wraparound services connecting individuals to employment opportunities and substance abuse treatments. And in 2012, Rhode Island became the first state in the union to pass a “Homeless Bill of Rights,” which explicitly forbids discrimination against homeless individuals.

In Lakewood, N.J., Minister Steve Brigham runs “Tent City,” an encampment founded in 2005 which houses nearly 100 people. The camp rests within Ocean County, which is one of the few in the state sans a shelter system of any kind. Under a state ejectment statute, Tars said the City of Lakewood officially ordered the eviction of the camp’s occupants in 2012.

“Thanks to great legal advocacy,” Tars said, “the eviction was stopped and now 30 of the approximately 100 residents have been settled into hotels with one-year vouchers under a settlement with the City.”

After Hurricane Katrina, three major tent cities emerged in New Orleans. At their respective peaks, the report stated, the encampment populations rested between 100 and 300 occupants.

“While initially moving towards evicting the campers, the City reversed course and then partnered with a local homeless services organization, UNITY of Greater New Orleans,” Tars said. “And together, with state and federal officials, they were able to draw on post-Katrina resources to close the camps by providing permanent supportive housing for almost every person there.”

In late 2006, an encampment called “Operation Coming Up” was established in downtown Saint Petersburg, Fla. After being disbanded, several smaller tent cities arose; a January 2007 videotape captured several police officers dismantling one of the camps, seizing and slashing several tents with box cutters.

“While many of the criminalization ordinances remain, the City has also explored an alternative approach with two forms of institutionalized encampments,” Tars said. One encampment, Pinellas Hope, is run by Catholic Charities USA, with a capacity of about 250 occupants. A second encampment, Pinellas Safe Harbor, was erected at a minimum-security jail annex, where it serves as both a jail diversion program and a shelter for the city’s homeless.

The “correctionalized shelter” at Safe Harbor, Tars said, has drawn criticism from many advocates, however.

“It’s being used by the police to compel homeless people to take this accommodation, or suffer wrath under some of the other criminalizing ordinances,” Tars said. “While providing some housing alternatives, the coercion involved in the overall approach remains a concern.”

What Legal Protections Exist for the Nation’s Homeless?

According to Tars, there are numerous federal and state laws that are applicable to homeless encampments. “Homeless individuals have often brought overlapping claims under the Fourth, Fifth, Eighth and Fourteenth Amendment, on theories that the government is unlawfully seized or destroyed their personal property or infringed on their right to due process,” he said. “While the courts have upheld these claims in the context of government-style sweeps, they have been less willing to apply the right, affirmatively, to stop demolitions by the state and local governments.”

In the past, he said that some religious encampment hosts have been able to maintain their operations by successfully arguing that adverse government action infringed upon their First Amendment rights. Tars also believes the Fair Housing Act may be a possible legal option to pursue, although such has yet to be tested in a court of law.

“While no litigation has presented this theory so far, the Fair Housing Act arguably allows the hosts of tent cities to sue governments that take action ‘making unavailable or denying’ a ‘dwelling’ to renters or buyers on the basis of some protected status of its intended occupants,” the NLCHP report reads. “Protected statuses most likely relevant to homeless individuals include race and disability, including mental illness, recovery from addiction and alcoholism.”

Some state laws provide “partial protection” for tent cities, Tars stated. “For homeless encampments on public lands, when the government has happily consented to the encampment, promissory estoppels are proven to be successful, at least in early stages of litigation,” he said.

He described how the Lakewood City and Camp Runamuck defendants successfully employed the doctrine of "unclean hands” when they were evicted by city officials.

“The state had unclean hands based on the duties the state owed to the homeless people under different state statutes,” Tars explained. “In neither case did the court fully vindicate or formally discredit that argument, so future litigation is possible on these grounds.”

Lastly, he said  the element of “necessity” may be a viable legal defense for campers.

“Homeless litigants can also say that their trespass or act of camping is justified because any harm they cause is outweighed by the harm that trespassing avoids,” Tars said. “That being, the imminent threat to their own life, and that they also had no legal alternatives to avoid this.”

A Human Rights Issue

In 2014, the United States will undergo reviews from four of the planet’s leading human rights organizations. With the U.S. under the microscope, Tars believes now is an opportune time for advocates and policymakers to reevaluate the nation’s homeless problems, with an emphasis on housing as a genuine human rights issue.

Federal courts, Tars said, have begun to adopt a “human rights approach to homelessness” by placing a greater emphasis upon numerous international treaties and standards, such as the International Covenant on Civil and Political Rights (ICCPR).

The report argues that, while not legally binding in the United States at the current, both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognize a basic human right to adequate housing. Other international human rights treaties, such as the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of the Child (CRC), also explicitly address housing as a basic right, and per the authors of the report, could possibly serve as the bedrock for future U.S. legislation.

“Under its international legal obligations, many policies in the United States that currently relate to both homelessness in general and to tent cities and encampments in particular violate international law,” the report reads. “Freedom of movement and the right to travel, freedom from arbitrary arrest and interference with one’s home, as well as property rights have been violated regularly, often by law enforcement or local government officials.”

The report, Tars said, also notes “considerably more progressive” approaches taken by other countries to address homelessness and housing access. “The Indian Supreme Court has upheld the right to shelter under the provisions of its Constitution,” he said, “The South Africa Constitutional Court has found homeless persons could not be evicted from shelter spaces, unless alternative shelter spaces could be made available.”

While having different legal and political contexts, Tars believes these international judgments should encourage and inspire homeless activists working within the U.S.

“In terms of what we need to do to bring human rights home, first we need to talk about housing as a human right,” Tars said. “Although it might seem like a long shot now, we are making a difference -- HUD, the Department of Justice and the Interagency Council have all adopted language from our reports, talking about how housing and homelessness as human rights issues.”

“That never would have happened,” he concluded, “if we hadn’t been consistently and persistently including that framing in the first place.”

Uncommon Journalism, 2014.