Houston asks judge to toss ACLU lawsuit over homeless ordinances

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The city of Houston has asked a federal judge to dismiss a lawsuit claiming new ordinances unconstitutionally infringe on the rights of the homeless, calling some of the ACLU-sponsored lawsuit‘s claims “nonsensical,” “disingenuous” and “void of factual allegations.”

Tammy Kohr and other homeless Houstonians argued in the lawsuit filed May 12 that the new laws – one that prohibits camping in public and one that restricts panhandling – illegally burden free speech and violate the U.S. Constitution’s protection against cruel punishment.

READ MORE: ACLU sues city over panhandling, camping ordinances

The city responded June 23 with a motion asking the judge to dismiss the lawsuit and a separate filing arguing that, if the lawsuit is allowed to continue, Kohr and the other plaintiffs should not be allowed to represent all homeless Houstonians by getting certified as a class, which the ACLU sought.

The city first argued that the plaintiffs did not have standing, or a legal right to sue, because they had not been arrested or prosecuted under the ordinances when they filed the suit. 

Houston’s attorneys also wrote that the panhandling ordinance – which bars individuals from impeding roadways, sidewalks or entryways – does not infringe on rights to free speech:

“This prohibition does not invoke a First Amendment claim; it is simply designed to keep people from blocking the use of a roadway so that traffic can move in the streets and people can enjoy the use of the city’s sidewalks. … The city has the right to regulate the use of city streets and other facilities to assure the safety and convenience of people in their use.”

The city’s lawyers cite a 1965 Supreme Court decision that sided with the leader of a civil rights demonstration who was convicted of obstructing a public passageway. In their opinion in Cox v. Louisiana, the justices made clear that although Baton Rouge had unlawfully applied that law, states do have “the right to impose nondiscriminatory restrictions on travel on city streets.”

The city’s lawyers reserved their most severe language for the ACLU’s allegation that the panhandling statute was too vague to be fairly enforced.

“This is nonsensical,” the city argued, saying the ordinance clearly defined solicitation. The motion also says the original lawsuit was “disingenuous” to claim the ordinance was too vague when it said panhandlers must stop when someone makes a “request” to do so.

READ MORE: As major cities crack down on panhandling, people of faith wrestle with their consciences

“Plaintiffs have failed to allege any facts which would show that the plain language of the statute is impermissibly vague and provides law enforcement officers complete discretion,” the city concluded. “To the contrary, the applicable terms are defined, with examples, and the relevant conduct at issue is specifically described in detail to provide not only law enforcement, but every citizen of ordinary intelligence a reasonable opportunity to know what conduct is prohibited.”

The city’s filing also reveals that Kohr, the first listed plaintiff, accepted a spot in permanent supportive housing offered by the Houston Police Department‘s Homeless Outreach Team and received keys to her housing unit as of June 22, the day before the city filed its responses.

The ACLU lawyer leading the homeless Houstonians’ lawsuit, Trisha Trigilio, said the city’s response did not address the key issues.

“Among all the legal arguments that Houston makes to try to get rid of this lawsuit,” Trigilio told the Chronicle on Thursday, “they have not defended their new anti-panhandling law as consistent with free-speech rights, and they have not defended their camping ban as consistent with constitutional rights against cruel punishment under the Eighth Amendment. They haven’t really addressed the core questions in this case, they’re just trying to get the lawsuit dismissed on technicalities.”

A city spokeswoman said the city would not comment on Trigilio’s response.

The ACLU team now has two or three weeks to file a response before the judge, U.S. District Court Judge Kenneth M. Hoyt, decides whether the lawsuit can go forward.

City Council in April passed the two ordinances, which the mayor proposed in response to increased complaints about aggressive panhandling and homeless camps.

The complaints came even as the region enjoyed a nearly 60 percent decline in homelessness since 2012, when an integrated approach started to focus on immediately housing the homeless rather than imposing other requirements first.

Mayor Sylvester Turner has said the new rules strike a “delicate balance” between helping the homeless and ensuring public safety.

The panhandling ordinance – which went into effect April 12 – bars individuals from impeding roadways, sidewalks or entryways.

The encampment ordinance, which took effect May 12, bans tents and other habitation structures on public property, and requires that personal belongings kept on public property fit inside a three-foot cube.

Turner said last month that the rules were meant to carefully balance constitutional rights with “the legitimate public health, safety and welfare of all citizens in the public space.”

“Based on my reading of the lawsuit filed by the ACLU, they would have us do nothing,” he said. “This is a public safety issue and we cannot bury our heads in the sand and pretend that it does not exist. The question is what is the best way or ways to transition people from living on the street … to a better place.”

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