Southern Legal Counsel works to abolish unlawful and harmful practices that punish poverty. Homelessness is a form of extreme poverty experienced by tens of thousands of individuals and families in Florida. Many communities across the state punish homeless people for conduct essential to survival—such as sleeping, sitting, asking for help, storing personal property, and being present in public places. Since 2005, with the initial support of a two-year fellowship funded by the Equal Justice Works program, SLC has worked relentlessly to strike down unjust laws that punish people for being homeless and to promote the right to affordable housing, services, and opportunities that allow people to live with dignity.
“Jailbirds in the Sunshine State: Defending Crimes of Homelessness” is a manual written in 2016 by SLC attorney Kirsten Anderson and available free of charge on SLC’s website. It examines common laws used to arrest and jail homeless people for conduct essential to their survival and provides a detailed analysis of constitutional and other legal defenses specific to representing homeless clients charged with such crimes. The target audience for this training manual is public defenders and pro bono criminal defense lawyers in the state of Florida, although the manual contains information that may be useful to civil lawyers in bringing lawsuits to protect the rights of homeless clients. This manual is not intended as a substitute for legal advice. Southern Legal Counsel is available to provide technical assistance and training in developing strategies, defenses, and constitutional challenges similar to the ones described in this manual. The criminalization of homelessness thrives on the expedient disposition of cases, ensuring the facts and legal grounds of such charges are never challenged in court. Our organization is ready to stand with you to convince communities that our clients need homes, not handcuffs. And if we cannot convince them, we will fight together to defend our clients’ rights in court. Thank you to the Herb Block Foundation for a grant to develop this manual.
Sharing Food is Not a Crime
Ft. Lauderdale Food Not Bombs, et al. v. City of Ft. Lauderdale, 901 F.3d 1235 (11th Cir. 2018); 2021 WL 3870708 (11th Cir. 2021). The City of Ft. Lauderdale made international news when it enacted an ordinance prohibiting outdoor food sharing as a social service and arrested multiple people for sharing food in public places with persons who are homeless and hungry. We were retained by Ft. Lauderdale Food Not Bombs and individual members of the political group to file a federal suit challenging violations of their First Amendment rights. Food Not Bombs shares food as symbolic expression of its political message that society should direct its resources to fulfilling the human right to food instead of war. The lower court entered summary judgment for the City, deciding that the plaintiffs are not engaged in symbolic expressive conduct that is protected by the First Amendment. We appealed to the Eleventh Circuit, which ruled in a first impression case that sharing food outdoors is protected expression under the First Amendment. That landmark opinion cited food sharing examples of the Boston Tea Party, Jesus Christ, Pilgrims and Native Americans. The Eleventh Circuit remanded to the Southern District for a determination on the merits of whether the ordinance at issue was unconstitutional under the principles the Eleventh Circuit set forth in its opinion. The lower court again ruled for the City finding that the ordinance and park rule did not violate the First Amendment. For the second time, the 11th Circuit reversed the lower court and held that the Park Rule as applied to the Plaintiffs’ expressive food sharing activities violates the First Amendment. “Generally, subjecting protected expression to an official’s ‘unbridled Discretion’ presents ‘too great’ a ‘danger of censorship and of abridgment of our precious First Amendment freedoms.’” Co-counsel is Florida Legal Services and pro bono attorneys Mara Shlackman and Robert W. Ross, Jr.
“Like the Flag, the Significance of Sharing Meals
with Others Dates Back Millennia.”
-11th Circuit Judge Adalberto Jordan,
Ft. Lauderdale Food Not Bombs, et al. v. City of Ft. Lauderdale
Jimenez, et al v. City of Daytona Beach (M.D. Fla., J. Presnell, 2016). Founders of Spreading the Word Without Saying A Word Ministry were arrested by the Daytona Beach Police Department for trespassing and using Manatee Park without a permit while attempting to minister to people experiencing homelessness through sharing food as an expression of their religious faith. After the City dropped the charges, it denied the couple a permit to continue their outdoor food sharing ministry in public parks. Our suit alleged that the park rules prohibiting food sharing infringed on their First Amendment right to express their religious message, and their Fourteenth Amendment due process rights for failing to provide an opportunity to challenge the trespass warnings that banned them from returning to a public park. In a settlement agreement, the City agreed to change its policies and procedures to permit our clients to share food outdoors in City parks, to rescind the trespass notices that were improperly issued in the City parks, to issue directives to its police officers that no City trespass warnings can be issued in City parks, and to pay damages. Co-counsel was Legal Advocacy Center of Central Florida.
Right to Be in Public Places
Homeless individuals, like all citizens, have a constitutionally protected liberty interest to be in public places of their choosing. Yet governments across Florida increasingly use trespass warnings to banish persons experiencing homelessness from public places. These bans have a significant impact as they make a person’s physical presence in public a crime, and often restrict people’s access to public areas where other members of the public have a right to lawfully be. When the government takes this right away by issuing a trespass warning banning them from returning to City parks or other public property, it deprives them of a protected liberty interest. The government violates the Fourteenth Amendment Due Process Clause when it issues such trespass warnings without first providing notice and an opportunity for a hearing.
McArdle v. City of Ocala, 2021 WL 481015 (M.D. Fla, J. Moody, 2021). Southern Legal Counsel represented Patrick McArdle, Courtney Ramsey, and Anthony Cummings, three individuals experiencing homelessness who had been repeatedly arrested under the city’s open lodging ordinance that made it a crime for homeless persons to sleep outside. The City also issued trespass warnings, banning them from returning to public parks permanently without providing an opportunity for a hearing. The court ruled that the City violated the Eighth Amendment by arresting persons experiencing homelessness for sleeping outside when no shelter is available. The court enjoined the city from “arresting, citing, or otherwise enforcing the open lodging ordinance against someone identifying as homeless” before inquiring about the availability of shelter space. Relying on SLC’s previous court victory, Catron v. City of St. Petersburg (see below), the court also held that the city’s issuance of trespass warnings for public parks violated procedural due process. The court ordered the city to rescind the trespass warnings against the plaintiffs, and prohibited the City from issuing future trespass warnings for public property without due process of law. SLC co-counseled with the ACLU of Florida and pro bono attorney Andy Pozzuto.
Catron, et al. v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011). To reduce the visibility of homelessness, many cities use trespass laws to ban homeless individuals from public places such as city parks. Anthony Catron was issued a trespass warning permanently banning him from all city parks. He risked arrest if he entered any city park. The City enforced trespass on public sidewalks surrounding public parks and bus shelters on public sidewalks and parks. This often resulted in arrests of homeless people for mere physical presence in a public place open to other members of the public. SLC obtained a landmark court ruling from a federal appeals court that held that people have a constitutionally protected right to be in public places of their choosing. The court further ruled that if a government is going to take away that right, such as by issuing a trespass warning, then it must provide an opportunity for a hearing. The court held that in addition to violating due process, the trespass ordinance interfered with the state constitutional right to intra-state travel. This case has been widely cited by courts across the country to strike down similar trespass policies, including ones used against protestors such as during the Occupy movement. Co-counsel were the National Homelessness Law Center and Florida Institutional Legal Services.
Right to Ask for Help
Vigue v. Shoar, 2020 WL 6020484 (M.D. Fla., J. Corrigan, 2020) (granting summary judgment for plaintiff, declaring unconstitutional two state statutes, and ordering entry of permanent injunction against Sheriff of St. Johns County); Vigue v. Shoar, 2019 WL 1993551 (preliminary injunction against Sheriff and Florida Highway Patrol). Peter Vigue, an individual experiencing homelessness and a resident of St. Johns County, filed suit against the Florida Highway Patrol and the St. Johns County Sheriff after he was arrested repeatedly for holding a sign asking for help on the side of a road. He argued that the state statutes were unconstitutional under the First Amendment, Due Process and Equal Protection. We reached a settlement with FHP which agreed to: not enforce either statute in their current versions; issue an official interpretation of the statutes that will make them not violate the First Amendment; train all of its officers; communicate with all other law enforcement in Florida about the new enforcement policy; and recommend a legislative fix. Granting summary judgment against the Sheriff, the court concluded that the statutes violated the First and Fourteenth Amendments, and it issued an injunction to enjoin the Sheriff from enforcing them. The injunction is on appeal to the Eleventh Circuit.
Chase et al. v. City of Gainesville & Sheriff Stephen Oelrich, 2006 WL 3826983 (N.D. Fla., J. Mickle 2006) (permanent injunction); 2006 WL 2620260 (N.D. Fla., J. Mickle 2006) (preliminary injunction). Filed on behalf of Judith Chase, Joe Nelson, and Ollen Rogers, three residents of the City of Gainesville who were experiencing homelessness, this suit challenged under the First and Fourteenth Amendments two state statutes and a local ordinance which were being used to prohibit the plaintiffs and other homeless individuals from holding signs asking for help on public sidewalks and streets. The court granted a preliminary injunction against the defendants and made a preliminary finding that the challenged statutes are facially unconstitutional. A settlement was reached in which the court entered a permanent injunction prohibiting enforcement of the statutes and ordinance. The Sheriff and the City also paid damages to the three plaintiffs.
Booher v. Marion Cnty. & Sheriff Ed Dean (M.D. Fla., J. Hodges 2007). Filed on behalf of David Booher, a homeless individual, this suit challenged a county ordinance that was being used by local law enforcement to prohibit homeless individuals from requesting charitable donations for personal use without first obtaining a permit. The permit cost $100, with no fee waiver, and required an individual to wear a “beggar’s badge.” Booher requested and was denied a permit because he had previously been arrested for holding a sign on the side of the roadway asking for help. The suit challenged the ordinance under the First and Fourteenth Amendments and sought injunctive and declaratory relief and damages. Booher spent over 200 days in jail for six different incidents of holding a sign that says, "Homeless Vet God Bless." The court issued an order preliminarily enjoining enforcement of the Marion County ordinance during the pendency of the litigation, and finding that the plaintiff had established a substantial likelihood of success on his claims that the ordinance is facially unconstitutional. The County repealed the ordinance, and a settlement was reached with the County paying damages to the plaintiff. Co-counsel was Legal Advocacy Center of Central Florida.
Sleeping is a Human Need
McArdle v. City of Ocala, 2021 WL 481015 (M.D. Fla, J. Moody, 2021). Southern Legal Counsel represented Patrick McArdle, Courtney Ramsey, and Anthony Cummings, three individuals experiencing homelessness who had been repeatedly arrested under the city’s open lodging ordinance that made it a crime for homeless persons to sleep outside. The City also issued trespass warnings, banning them from returning to public parks permanently without providing an opportunity for a hearing. The court ruled that the City violated the Eighth Amendment by arresting persons experiencing homelessness for sleeping outside when no shelter is available. The court enjoined the city from “arresting, citing, or otherwise enforcing the open lodging ordinance against someone identifying as homeless” before inquiring about the availability of shelter space. Relying on SLC’s previous court victory, Catron v. City of St. Petersburg (see below), the court also held that the city’s issuance of trespass warnings for public parks violated procedural due process. The court ordered the City to rescind the trespass warnings against the plaintiffs, and prohibited the city from issuing future trespass warnings for public property without due process of law. SLC co-counseled with the ACLU of Florida and pro bono attorney Andy Pozzuto.
Property sweeps continue to feature in local government responses to address the visibility of homelessness on city streets and in encampments across Florida. These property sweeps of homeless camps are cruel and ineffective at addressing root causes of homelessness, causing significant harm. Often the manner in which property sweeps are conducted violate constitutional rights to be free from unreasonable searches and seizures and rights to due process. While no amount of money can compensate persons experiencing homelessness for the loss and destruction of irreplaceable belongings during property sweeps, we have obtained monetary awards for clients and other relief to stop cities from depriving homeless residents of their dignity and the destruction of irreplaceable property.