Homelessness at the cathedral.

• Author: Roark, Marc L.
• Position: II. The Visible Yet Legally Invisible Homeless A. Homeless in Public Space 2. Hygiene Ordinances and Rules as Means of Excluding Homeless Persons through Conclusion, with footnotes, p. 94-130

2. Hygiene Ordinances and Rules as Means of Excluding Homeless Persons

A second category of public area restraints against homeless persons involves so-called hygiene ordinances. Like the anti-camping ordinances in public places, the hygiene-based provisions pitted homeless persons' constitutional rights to access a particular place against the state's choice to enforce limitations on those rights, primarily in a First Amendment and equal protection context. Unlike the anti-camping ordinances, the hygiene cases presented the question of when a subjective interpretation of seemingly neutral rules are enforceable and when they are not. Arguably, the cases present two types of subjective valuations - one that is enforceable in the clothing of objective rule-making, and one that is not.

In Kreimer v. Bureau of Police for the Town of Morrison, the Third Circuit considered the enforcement of code of conduct rules enforced by the local public library against a homeless patron. (225) Specifically, a homeless man was expelled from the library under the auspices of the following provisions in the library's code of conduct:

1. Patrons shall be engaged in normal activities associated with the use of a public library while in the building. Patrons not engaged in reading, studying, or using library materials may be asked to leave the building. Loitering will not be tolerated.

...

9. Patron dress and personal hygiene shall conform to the standard of the community for public places. This shall include the repair or cleanliness of garments. (226)

After being expelled, the New Jersey office of the American Civil Liberties Union sent a letter to the Morristown Library, indicating several provisions were violations of the Due Process Clause of the Fourteenth Amendment because they were vague. (227) The ACLU pointed to provisions relating to annoying behavior as being "constitutionally infirm." (228) It also alleged that provisions prohibiting loitering were too imprecise. (229) The ACLU also suggested that the rule allowing the exclusions of patrons based on "personal dress and hygiene [that did not] conform to the 'community standards'" was "equally offensive." (230) Lastly, the ACLU pointed out that these provisions were vague in their enforcement because they allowed library officials to use their own discretion for interpretation of whether the rules had been violated. (231)

In response to the ACLU's letter, the library's board amended the rules, specifically Rule Nine, to provide: "[p]atrons shall not be permitted to enter the building without a shirt or other covering of their upper bodies or without shoes or other footwear. Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building." (232) The ACLU communicated a continued displeasure with the hygiene rules because the discretion afforded library staff "will result in discriminatory treatment of the homeless by virtue of their status." Subsequently, Richard Kreimer was expelled from the premises for failure to comply with the hygiene requirements. (234)

Kreimer brought suit against the library, alleging the rules were "vague and overbroad, both on their face and as applied by library employees, in violation of the plaintiffs [sic] rights under the First Amendment and plaintiffs right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution," as well as a violation of equal protection." The equal protection claim asserted that plaintiff could not meet the library's "subjective (and vague) standards ... because of [his] homeless status or because of an involuntary physical condition." (236) In response, the library filed a counter claim that sought an injunction against Kreimer from entering the library or harassing patrons. (237) The district court found in favor of Kreimer's motion for summary judgment against the library. The district court ruled that Rules One and Nine were null on their face, and enjoined the library from enforcing the rules. (239) The Third Circuit on review reversed, finding no violation of due process in the rules. (240)

After finding that the First Amendment encompasses a right to access information at a public library, the Third Circuit turned to consider the facial and applied validity of the rules in question. (241) The court decided the library was a limited public forum and then considered whether the rules in question were facially problematic or applied in an unconstitutional way. (242)

As a facial matter, the court said Rule Nine's hygiene limitation was sufficiently narrow to promote the significant government interest of ensuring that "all patrons of the [Library] [can] use its facilities to the maximum extent possible during its regularly scheduled hours." (243) On whether this rule created a disparate treatment of homeless individuals, the court said:

While the district court was probably correct that the rule may disproportionately affect the homeless who have limited access to bathing facilities, this fact is irrelevant to a facial challenge and further would not justify permitting a would-be patron, with hygiene so offensive that it constitutes a nuisance, to force other patrons to leave the Library, or to inhibit Library employees from performing their duties. Moreover, we do not face the more difficult scenario in which one individual possesses First Amendment rights and others do not. Here, if the First Amendment protects the right to reasonable access to a public library, as we hold it does, this is a right shared equally by all residents of Morristown and Morris Township.... Kreimer's right has no lesser or greater, significance than that of other residents. Accordingly, his right to reasonable access to the Library cannot be expanded to such an extent that it denies others the same guarantee. (244) Similarly, the court dismissed the proposition that the rule failed to meet constitutional muster due to vagueness concerns:

Although we agree that the "nuisance" standard contained in this rule is broad, in our view it is necessarily so, for it would be impossible to list all the various factual predicates of a nuisance. As Professor Tribe has noted, "in any particular area, the legislature confronts a dilemma: to draft with narrow particularity is to risk nullification by easy invasion of the legislative purpose; to draft with great generality is to risk ensnarement of the innocent in a net designed for others." ... In this case, however, the rule's broad sweep is not synonymous with vagueness. The determination of whether a given patron's hygiene constitutes a "nuisance" involves an objective reasonableness test, not an annoyance test. (245) Considering the equal protection claim, the court declined to find that the rules imposed any legally significant burden on homeless persons. The court said: "Further, in any event, as the homeless do not constitute a suspect class, the rules need only survive the lowest standard of review for equal protection purposes. Our previous discussion forecloses any serious contention that they do not pass muster under this standard." (246)

Importantly, Kreimer's application of the library's hygiene standard passed constitutional muster because it drew upon a supposed objective standard--when a patron's presence constituted a "nuisance" under New Jersey law. (247) That nuisance standard allowed the library to attach its objective determinations of nuisance to any particular patron's subjective discomfort due to the presence of a homeless person. (248)

Nearly ten years later, a similar case involving a homeless patron being expelled from a public library came before the District of Columbia District Court. In Armstrong v. District of Columbia Public Library, the plaintiff was expelled from the Martin Luther King Public Library for failure to pass the appearance standards promulgated by the library. (249) The plaintiff tried to enter the library "wearing a shirt, shoes, pants, several sweaters, and two winter jackets to stave off the cold weather." (250) When the plaintiff attempted to enter the library, he was turned away by a security guard who told plaintiff that he needed to "clean up" before entering the building. (251)

Unlike in Kreimer, the court in Armstrong found that the regulation went beyond the application of an objective nuisance test, defined as "unduly [interfering] with the exercise of the common right." (252) Specifically, the lack of a legal standard or a specific definition of "objectionable appearance," called for the exercise of a subjective interpretation of the objectionable characteristics." (253) The court noted that the lack of specific objective standards for defining exclusion criteria caused the regulation to fail for vagueness. (254) In short, the rules in Kreimer represented objective determination of "offensive behavior" because library employees merely enforced other patrons' subjective expectations, while Armstrong represented the public library employee's subjective judgment alone. (255) Thus, like in so many other instances of legal interactions involving homeless persons, even so-called "objective determinations" are based on someone's subjective judgment.

3. Seizure of Homeless Property

In addition to the question of whether homeless persons can occupy a public place, another question has come under scrutiny in various courts: whether homeless persons' possessions may exist in a public space. Cities have seized homeless persons' possessions left in public under various theories, such as cleaning the streets from environmental harms, (256) guarding against criminal activity, (257) or acting as a guardian for abandoned items in order to return personal property to the right owner. (258)

Early cases considering the seizure of homeless property tended to navigate between the city's responsibility as finder of personal property and its obligations...