WV city leaders consider implications of ruling on homeless camping bans

Many of Wheeling, W.Va.'s unhoused population have been staying in an encampment on a state-owned parking lot across the street from the Catholic Charities Neighborhood Center. The city exempted the site from its ban on public camping, but with the state planning to close and clean the camp, people are being forced to move. (Daniel Finsley | Finsley Creative for West Virginia Watch)

Days after the United States Supreme Court upheld an Oregon city’s public camping ban targeting homeless people, a Morgantown councilwoman called for the city to consider expanding its own camping ban.

Councilwoman Louise “Weez” Michael’s comments came during the regular July 2 meeting of city council.

Morgantown has an ordinance banning camping or temporary lodging within a park without the written consent of the city manager. Michael said she wants the city to consider expanding the ban to include residential properties, city streets, alleyways and sidewalks.

“This I believe has become an immediate and serious safety and health issue that we can no longer wish the issue to go away. … We need to send a message that this city will no longer tolerate nefarious behaviors,” Micheal said.

Michael did not respond to an emailed request for further comment.

The Morgantown councilwoman is so far the only known representative of a West Virginia city to call for an expanded camping ban after the Supreme Court recently upheld similar laws in Grants Pass, Oregon. A representative for Mountain State Justice, a legal advocacy organization, said they do not know of any other West Virginia city that is considering a public camping ban.

“Which isn’t to say they aren’t — it’s just not on our radar yet,” advocacy and access programs director Lindsey Jacobs wrote in an email to West Virginia Watch. “Locally, [it] seems to just be Morgantown so far.”

At least one other West Virginia city — Charleston — is reviewing the Supreme Court ruling, according to Matt Sutton, chief of staff for Mayor Amy Shuler Goodwin.

In the June 28 decision, the Supreme Court ruled that ordinances by the city of Grants Pass, Oregon, prohibiting unhoused people from sleeping within the city limits do not violate the Constitution’s ban on cruel and unusual punishment.

“Basically the Supreme Court said that the Eighth Amendment cruel and unusual punishment clause do not apply to whether conduct is regulated, but how conduct is regulated… so you can’t disembowel or burn them at the stake, how they used to do in Old English law, but as far as regulating conduct, states have the full discretion to do that,” said London Henderson, an intern for the ACLU of West Virginia. Henderson is a student of American University Washington College of Law who is working on a dissertation focusing on the Grants Pass ruling.

The ordinance in Grants Pass does not make it illegal to be homeless, but makes it legal to camp on public lands, Henderson said.

“[The Supreme Court] said that [the ordinances are] constitutional because it’s a volitional act and the argument that homeless people don’t have control over that, especially if there’s no space in shelters was void or invalid, because they’re engaging in a volitional act,” she said.

Aubrey Sparks, legal director for American Civil Liberties of West Virginia, said many West Virginia cities seek to make life more difficult for people who are homeless by passing camping bans, panhandling bans and others.

“It is not a one off here. We see them just across the state,” Sparks said. “And it oftentimes feels like cities are just in a race to see who could make the cruelest rule just to make a point.”

Across the country in recent years, states and cities have enacted laws prohibiting camping or sleeping in public as the number of people experiencing homelessness has increased. So far this year, at least three states — Oklahoma, Kentucky and Florida — have passed camping bans.

According to a recent report from the state Department of Human Services, last year 1,416 individuals in West Virginia were experiencing homelessness, an increase of 3 percent over the previous yet, according to point-in-time estimates. Experts say point-in-time estimates often underestimate the number of people experiencing homelessness.

In the last year in West Virginia, Wheeling and Parkersburg have enacted public camping bans that target homeless people. Morgantown recently repealed a 2005 panhandling ordinance after a resident represented by Mountain State Justice sued the city for enforcing the law. The suit argued that panhandling and soliciting of charitable donations constitute speech protected by the First Amendment to the Constitution.

But just because the Supreme Court decision limits one potential claim against camping bans, it does not mean that homeless people are without protections, Sparks said.

“This doesn’t say that they’re second-class citizens, that they’re allowed to be discriminated against, that their other constitutional rights are limited,” Sparks said. “And so we think that for some of these bans that are being proposed, and maybe even some of these bans that are already in place, that there’s other constitutional challenges that could be made to say that they’re violative of people’s rights, even after Grants Pass.”

Michael’s comments drew condemnation from several advocacy organizations serving Morgantown, including Mountain State Justice, Milan Puskar Health Right, Morgantown Pride and the ACLU of West Virginia.

In an open letter to council members Friday , the organizations wrote that public camping bans don’t address the root causes of homelessness, including poverty, violence and disability and that “fines, arrests, prosecutions, and criminal records” are incompatible with getting affordable housing.

“The only solution to homelessness is housing,” they wrote. “If Council’s goal is to combat homelessness, it must come to terms with the truth that the path is neither straight nor easy, but that saving lives is worth the effort. If Council’s goal is to further stigmatize, punish, and traumatize the most vulnerable people in our  community — those with the least power to change their material conditions — then Councilor Michael’s proposition will do just that. Notably, both paths are trod at the taxpayers’ expense.”

Sutton told West Virginia Watch the administration is reviewing the Grants Pass decision. Charleston currently has a policy of notifying homeless people and advocates in writing days before a homeless encampment is dismantled. The policy stems from a settlement the city reached with homeless advocates after the city dismantled a tent city along the Elk River in below-freezing temperatures in 2016 .

“We already have those rules, we don’t think this impacts at all, but at the same time we’re going to read it and see how other folks interpret it and try to figure out whether it does or not,” Sutton said. “But on first blush, it seems like what we’re already doing will continue to work. We already have a policy in place that this wouldn’t impact one way or the other. But that does leave the option open for what the state could do, or what could be done in the city in the future.”

Huntington Mayor Steve Williams, a Democrat who is running for governor, said in an emailed statement that after the Grants Pass decision, the city would “continue to do what we have been doing all along.”

“We always strive to strike a balance between the demands of the citizens for a safe, vibrant city and the needs of the unsheltered population for the provision of dignified living conditions,” Williams said. “We believe in compassionate accountability. We are doing what we can to compassionately assist those who are marginalized while holding them accountable to follow the expectations set forth within community.​”

A Huntington city spokesman did not respond to a question about whether the city currently enforced a camping ban.

In Morgantown, Michael asked that issue be discussed during a future Committee of the Whole meeting. As of Tuesday the agenda for the next Committee of the Whole, slated for July 30, had not been posted.

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