Nowhere to Rest: The Criminalization of the Homeless for Sleeping in their Cars
By: Meg Deitz
Cramped quarters and piled belongings are the interior decorations for this “dwelling.” The shelter is a battered, black Toyota Camry but for the gentleman sleeping soundly in the reclined driver’s seat, this is his only home. Unfortunately, depending on which city this man parked in, his simple act of taking rest could end with a warning, citation, fine, imprisonment, or even impoundment of the one asset he has left, his car. However, a municipality’s punishment of the homeless for taking vehicular shelter could subject them to lawsuits for unconstitutional ordinances and heavy payments of damages.
Across the United States, over one hundred and eighty-seven cities have passed ordinances criminalizing unavoidable daily actions by the homeless such as sleeping in public. Thirty-nine percent of those cities specifically prohibited individuals from living or sleeping in their vehicle within city boundaries creating a one hundred and forty-three percent increase in the punishment of this action since 2006. For many homeless individuals, sleeping in a vehicle is the only option available other than sleeping on the sidewalk. Yet, city officials and businesses reject compassion in favor of pushing agendas of health and safety that end up leaving many homeless unsheltered and cost the city more money.
The federal government considers someone homeless if they lack a “regular and adequate nighttime residence” and whose normal nighttime shelter is either a public or private emergency shelter or “a public or private place not designed for…regular sleeping accommodation[s] for human beings.” As of 2016, 17.7% of the U.S. population met the federal definition of homelessness. On a single night in 2016, thirty-two percent of homeless individuals spent the night in an unsheltered location possibly on a park bench, sidewalk, or alley. The causes of homelessness are diverse but the most common reasons include mental illness, a lack of affordable housing, and landlord discrimination. During 2015, the average wage needed to afford a one bedroom apartment was $16.35, over double the current minimum wage of $7.25. Even for those able to find housing, a criminal history prevents many individuals from being able to obtain housing as private landlords refuse to rent to them and federal housing guidelines deny applications for individuals with a criminal conviction. 
Without housing, the homeless must turn to whatever resources they still have which may consist of only their car and a few belongings. A fine or conviction for living in one’s car entitles the city to impound a vehicle leaving a homeless individual with no shelter, no resource to travel, and no money to get their vehicle back. Additionally, the conviction can have a lasting effect. An arrest record or unpaid tickets can hinder obtaining a job through private employers or searching for a job if a driver’s license is suspended for unpaid citations. Thus, a homeless person may find herself punished for the involuntary activity of simply trying to survive by sleeping in her automobile to protect herself and her property from the elements.
However, according to the federal government, punishing involuntary acts increasingly qualifies as a cruel and unusual punishment under the Eighth Amendment. The Department of Justice makes it clear that if stay at an emergency shelter is impossible, due to no vacancy or restrictions, than sleeping in public is a necessity for the homeless, a “universal and unavoidable” activity of human survival. Thus, criminalizing universal and unavoidable conduct is a violation of the Eighth Amendment. However, criminalization of involuntary acts is only barred when shelter is unavailable requiring plaintiffs to prove that on the night in question they had no choice but to camp or sleep in public. But, an availability of shelter does not imply voluntary homelessness.
In 2015, many shelters across the country ended up turning away an average of twenty-five percent of individuals seeking shelter due to a lack of beds. Even for shelters with adequate beds, inadequate facilities and restrictions on gender leave many homeless unsheltered as families are turned away from all women or all men facilities. Even if a shelter has vacancy, the individual may lack the knowledge or time and resources to check every single shelter before the gas in his tank runs out. Considering an individual’s homelessness as voluntary when they lack resources to find an available bed or are dismissed for failing to meet shelter requirements is too narrow a holding and further litigation is necessary to obtain a broader definition of what can be considered “voluntary” for homeless individuals.
Alternatively, a code provision criminalizing sleeping or living in a vehicle can be challenged for unconstitutional vagueness creating a violation of due process by the city’s criminalization of common conduct. Circuits split over the years on their views of sleeping in a vehicle with some courts finding the state presented a legitimate interest in prohibiting living in a vehicle for sanitation reasons and others holding there was an abuse of constitutional rights because the codes punished behavior that did not threaten others. Sleeping in a vehicle statutes may be voided on grounds of vagueness, situations where the statute would punish everyone from the sleeping child in the backseat to the eating driver to the homeless. A lack of clarity on what the prohibited conduct consists of leaves the public unsure of what actions are illegal. Additionally, vagueness typically leads to arbitrary enforcement because interpretation of the statute largely lies in the hands of police to decide who goes to jail for the offense. Unguided, unconstitutional enforcement recently appeared in Los Angeles, California where the statute covered a broad range of conduct but was only enforced against the homeless requiring the city to pay over a million dollars to the plaintiff’s counsel for legal fees. While neither sleeping in public or in one’s car is constitutionally protected activity of itself, the criminalization of such activity tends to criminalize common acts required to survive, sleeping and having shelter, that hurt no one and leave police choosing who to punish.
For cities concerned about sanitation, a decrease in tourism, or safety, alternate solutions remain available that are more cost effective and compassionate to the homeless than citations and arrest. Cities are beginning to set aside designated parking areas with sanitation facilities for the homeless to have a place to rest. Additionally, police training requiring officers to maintain up to date information on available community resources including shelters, designated parking lots, or non-profit homeless ministries enables the city to aid the homeless, free up officers to handle real crimes, and begin to alleviate the homeless population by deferring them from the court system.
The criminalization of sleeping in a vehicle only serves to “create a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.” Laws criminalizing homelessness send a clear message to homeless individuals that “We don’t want you here!” Specifically, codes prohibiting sleeping in a vehicle shows that cities do not care if the only other option for the homeless is living on the streets once their vehicle is impounded or they are unable to find employment or housing due to an arrest record. An act on the part of private citizens to show city leaders that shelter for a fellow human being is more important than city appearance is the first step towards getting the homeless off the streets and back into society with the aid and shelter they deserve.
 Tristia Bauman et al., Nat. L. Ctr. on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities 9-10 (2016), https://www.nlchp.org/documents/Housing-Not-Handcuffs.
 Bauman, et al., supra note 1, at 25.
 See Hershey v. Clearwater, 834 F.2d 937, 940 (11th Cir. 1987) (citing the city’s reasons for implementing a ban against sleeping or lodging in an automobile); Bauman, et al., at 4.
 Stewart B. McKinney Homeless Assistance Act of 1987, 42 U.S.C. § 11302(a) (2000).
 Nat. All. to End Homelessness, The State of Homelessness in America 2016 12-13 (2016), http://www.endhomelessness.org/page/-/files/2016%20State%20Of%20Homelessness.pdf.
 Meghan Henry, et al., U.S. Dep’t of Hous. and Urban Dev., Office of Cmty. Planning and Dev., The 2016 Annual Homeless Assessment Report (AHAR) to Congress 1, (2016), https://www.hudexchange.info/resources/documents/2016-AHAR-Part-1.pdf.
 See Bauman et al., supra note 1, at 9; Tanene Allison, Voice: Confronting the Myth of Choice: Homelessness and Jones v. City of Los Angeles, 42 Harv. C.R.C.L. L. Rev. 253, 257 (2007); Zoe Loftus-Farren, COMMENT: Tent Cities: An Interim Solution to Homelessness and Affordable Housing Shortages in the United States, 99 Cal. L. Rev. 1037, 1044 (2011).
 Bauman et al, supra note 1, at 47.
 Id. at 19, 36.
 Id. at 25.
 Id. at 36.
 Statement of Interest of the United States at 9, Bell v. City of Boise, 709 F.3d 890 (2013) (No. 09-540), https://www.justice.gov/opa/file/643766/download (citing two previous amicus briefs submitted by the United States arguing that in the absence of shelter criminalizing camping in public violates the Cruel and Unusual Punishment Clause).
 Id. at 4, 12.
 Id. at 13.
 Jones v. City of Los Angeles, 444 F.3d 1118, 1137 (9th Cir. 2005) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007)); See also Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013); Harrison Berry, Homeless Camping Ordinance Lawsuit, Boise Weekly (Sept. 29, 2015), http://www.boiseweekly.com/boise/federal-judge-dismisses-boise-homeless-camping-ordinance-lawsuit/Content?oid=3608241 (discussing the dismissal of Bell which was dismissed on remand from the Ninth Circuit because the plaintiffs could not show they were unable to secure shelter on the night they received citations for camping and sleeping in public).
 U.S. Conf. of Mayors 2015, The U.S. Conference of Mayors 2015 Status Report on Hunger and Homelessness 2 (2015) https://www.usmayors.org/pressreleases/uploads/2015/1221-report-hhreport.pdf.
 Statement of Interest of the United States at 4, supra note 13; Bauman et al., supra note 1, at 28.
 Pompano Beach v. Capablo, 455 So.2d 468, 469 (4th Cir. 1984).
 Hershey, 834 F.2d at 940.
 Capablo, 455 So.2d at 470-71; Desertrain v. City of Los Angeles, 754 F.3d 1147, 1156 (9th Cir. 2014).
 Capablo, 455 So.2d at 470-71; Desertrain, 754 F.3d at 1156.
 Desertrain, 754 F.3d at 1157.
 Id. at 1156.
 Desertrain, 754 F.3d at 1157; see also Gale Holland, L.A.’s Voided Law Against Sleeping in Cars Costs it $1.1 Million in Legal Fees, Los Angeles Times, (Aug. 19, 2015), http://www.latimes.com/local/lanow/la-me-ln-la-homeless-legal-fees-20150819-story.html.
 Hershey, 834 F.2d at 940 n.5.
 Holland, supra note 25; Courtney Tompkins, Long Beach Eyes ‘Safe Parking’ Program for Homeless Living in RVs, Vehicles, Press-Telegraph, (Oct. 9, 2016), http://www.presstelegram.com/social-affairs/20161009/long-beach-eyes-safe-parking-program-for-homeless-living-in-rvs-vehicles.
 Stacy Lee Burns, ARTICLE: The Future of Problem-Solving Courts: Inside the Courts and Beyond, 10 R.R.G.C. 73, 84 (2010).
 U.S Interagency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness 8 (2012), https://www.usich.gov/resources/uploads/asset_library/RPT_SoS_March2012.pdf.