Roulette v. City of Seattle: a City Lives With Its Homeless

• Publication year: 1994

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 18, No. 2WINTER 1995

Roulette v. City of Seattle: A City Lives With Its Homeless

William M. Berg(fn*)

Table of Contents

I. Introduction........................................... 148

II. Background............................................ 153

A. The Politics of Poverty............................. 153

1. Are the Homeless "Deserving" or Undeserving Poor People? ................................... 153

2. How Much Help Do the Homeless Deserve? ..... 155

B. Vagrancy and Loitering Laws........................ 157

1. General Vagrancy Laws......................... 158

2. Loitering with Intent............................ 164

C. Laws Regulating Begging........................... 166

III. Statement of the Case: Roulette v. City of Seattle......... 170

A. The Ordinance..................................... 170

B. The Parties........................................ 171

C. Issues and Holdings................................ 173

1. Void-for-Vagueness ............................. 173

2. Substantive Due Process......................... 173

3. Right to Travel................................. 174

4. First Amendment Rights........................ 175

5. Equal Protection Rights......................... 176

IV. Analysis............................................... 177

A. The Obstruction Rationale.......................... 177

B. The Urban Blight Rationale......................... 182

C. Distinguishing Roulette from Pottinger, Tobe and "Matrix": Aspirational Ordinances, Reasonably Enforced........................................... 186

1. Distinguishing Pottinger, et al.: An Effort to Live with the Homeless.............................. 186

2. Aspirational Ordinances......................... 188

3. The Ordinance Benefits the Homeless............ 190

V. Implications ........................................... 192

VI. Conclusion ............................................ 194

I. Introduction

There are at least 228,000 homeless people living in temporary shelters or on America's streets according to the United States Census Bureau,(fn1) but a more accurate figure is probably closer to 500,000.(fn2) Many are mentally ill, drug dependent or have a history of criminality.(fn3) According to researchers Alice S. Baum and Donald W. Burnes, most homeless people live personal lives "entrapped by alcohol and drug addictions, mental illness, lack of education and skills, and self-esteem so low it [is] often manifested as self-hate."(fn4)

One public perception is that the homeless are responsible for an increase in crime and a decrease in the quality of urban life.(fn5) As he navigated the campaign trail, then New York City mayoral candidate Rudolph Giuliani heard these words from a frustrated citizen:I have lived only a few blocks from here for 23 years and I was asked for money three times by bums on the way here tonight. Sometimes they have guns. When is this going to stop? I am not interested in other people's neighbourhoods [sic], I'm interested in mine. What are you going to do for me and for my children?"(fn6)

Politicians have responded to the public outcry with promises to enact ordinances aimed at the homeless.(fn7) One homeless advocate calls the official responses "knee-jerk reactions to political pressure."(fn8) Nonetheless, in the 1992 mayoral races in Los Angeles(fn9) and New York,(fn10) the winner was the candidate with the toughest position on crime.(fn11)

Elected politicians have made good on their promises to enact ordinances aimed at the homeless. In a sixteen-city study conducted in 1993, the National Law Center on Homelessness and Poverty found that the number of local government ordinances aimed at controlling homeless people had "sharply increased" in the previous two years.(fn12) For example, seven Southern California municipalities have passed new ordinances since 1991 that prohibit the homeless from sleeping or camping on public property.(fn13) In San Francisco, a mayor who was falling behind in popular support instituted a comprehensive program to address public nuisance crimes-the Matrix Quality of Life program.(fn14) So strong was the perceived support for the program that the Board of Supervisors was sufficiently emboldened to briefly consider a proposal to have the police seize stolen shopping carts from the homeless.(fn15)

In Seattle, Washington, the challenger to Mayor Norman Rice, David Stern, focused his entire campaign on street crime.(fn16) He lost the election.(fn17) However, just one month prior to that election, the Seattle City Council adopted, and Mayor Rice signed into law, two ordinances for the express purpose of better controlling sidewalk disorder.(fn18)

One ordinance forbids a person to sit or lie down upon public sidewalks in certain designated business districts between 7:00 a.m. and 9:00 p.m.(fn19) Violation of the sidewalk ordinance is a civil infraction, punishable by a maximum fifty dollar fine.(fn20)

The other ordinance prohibits aggressive begging- begging with an intent to intimidate another person into giving money or goods.(fn21) Violation of the aggressive begging ordinance is punishable as a misdemeanor.(fn22)

The facial validity of both Seattle ordinances was unsuccessfully challenged in federal district court under 42 U.S.C. § 1983 on grounds of overbreadth, due process, and equal protection. In Roulette v. City of Seattle,(fn23) Judge Barbara J. Rothstein upheld both ordinances as valid exercises of governmental police power and as minor intrusions on individual liberty.(fn24)

This Note will focus on the sidewalk ordinance for two reasons. First, the ordinance is a unique method to control conduct in a public forum. While its holding is consistent in outcome with City of Seattle v. Webster,(fn25) a decision that upheld an intent-based pedestrian interference ordinance, Roulette may be contrasted with a number of decisions denying enforcement of loitering ordinances on grounds that they punished a person's status.(fn26)

The second reason to focus on the sidewalk ordinance is because the ordinance has a disproportionate impact on the homeless-a class of people who, by definition, make their homes in public places. While the author of the sidewalk ordinance notes that his proposal is not "an attack on the homeless,"(fn27) it certainly affects the homeless more than it does those who maintain private dwellings. As Sylvia A. Law points out in her article entitled Economic Justice,(fn28) "[private property] is valuable precisely because it protects the individual's ability to march to a different drummer, without having to account to the collective will."(fn29) Thus, the sidewalk ordinance could be viewed as an unfair burden on those who, out of necessity, must relax on the public byways.(fn30)

This Note analyzes the Roulette holding with respect to prior decisions on begging and vagrancy. In addition, this Note discusses the sidewalk ordinance with respect to the efforts of other communities to control the detrimental effects of a growing homeless population. This Note concludes that the Roulette holding strikes a constitutionally valid doctrinal and jurisprudential middle ground between abandoning the streets to the homeless and driving them from the community. It is argued that the sidewalk ordinance is normatively valid, in that it sets a reasonable standard of conduct that meets commonly accepted norms of civility, serving to benefit the homeless as well as the larger community.

Part II of this Note sets out the background for the Roulette holding through an examination of the case law and the underlying policy considerations regarding vagrancy and begging. Section A explores the politics of poverty. Section B briefly traces the evolution of case law on vagrancy and loitering. Section C presents the still unsettled state of the law regarding the right of homeless people to beg in public fora.

Part III examines the Roulette decision in some detail. Section A presents and explains the sidewalk ordinance at issue in the case. Section B sketches a picture of the actual people who are represented under the more generic terms of "plaintiff" and "defendant." Finally, Section C sets out the issues and holdings in the case.

Part IV analyzes the outcome of the Roulette holding, its reasoning, and policy rationale, in light of prior case law and current thinking on the problems of homelessness. Part IV focuses on the governmental interests that are said to justify the sidewalk ordinance: the prevention of sidewalk obstructions and the prevention of urban blight. In this Section, it is suggested that the Roulette court may have erred in accepting the City's argument that the sidewalk ordinance is justified on grounds of preventing sidewalk obstructions. The Note argues a better rationale is the prevention of urban blight. Indeed, it is argued that preventing urban blight is a substantial governmental interest that justifies infringing even protected First Amendment activity-an issue not reached in the holding.(fn31) Urban experts justify minor intrusions on personal liberty on the grounds that uncontrolled behavior leads to physical decay, creating a perception of unsafe streets. The perception of insecurity can destroy a neighborhood.

Moreover, the...