|
Highlights
|
|
Search
|
|
Sidley Updates
|
|
|
|
Publications
|
|
Events
|
Firm Wins Case, Federal Appeals Court Upholds Rights of Homeless to Sleep on Church Steps
June 13, 2002
A federal appeals court has ruled that homeless people can seek nighttime shelter on the steps and under the arches of a prominent New York church without fear of arrest or dispersal by New York police on the grounds that they are causing a public nuisance.
The case had aroused considerable controversy because the church – the Fifth Avenue Presbyterian Church – is located on Fifth Avenue and 55th Street in the center of New York’s prime shopping and tourist corridor, near Trump Tower and Tiffany’s and around the corner from the Museum of Modern Art.
The decision handed down June 12 by the U.S. Court of Appeals for the Second Circuit was striking because it came just two weeks after oral arguments. The case was brought on appeal by the City of New York, which was seeking to overturn an earlier decision by the U.S. District Court to issue a preliminary injunction against the City from making nighttime sweeps of the homeless from Church steps, as occurred last December.
The City’s lawyers argued that by allowing the homeless to sleep on its steps the Church was operating a de facto shelter without a license, creating a public nuisance, and violating City codes that prohibit makeshift beds and tents made of boxes and other materials to be placed on the streets.
Following courtroom questioning on May 29 over the City’s lack of any documentation of improper conduct or other public disorder by the homeless, the three-judge panel affirmed the lower court’s finding that "the City had not established the existence of a nuisance."
Moreover, the judges dismissed the contention that the Church was running an unregulated shelter, especially in view of numerous New York State social services rules defining and governing adult residential facilities. "An invitation to the homeless to sleep on outdoor property does not fall within the ambit of these regulations," the judges wrote.
In the ultimate test, the judges addressed the City’s claim that the Church’s open-steps policy does not meet the level of meaningful "services" entitled to constitutional protection as legitimate religious conduct. Here the Court of Appeals considered an affidavit submitted by Church officials stating that the Church is "commanded by scripture to take care for the least, the lost and the lonely of this world."
"On the present record," the judges wrote, "the Church has demonstrated…that its provision of outdoor sleeping space for the homeless effectuates a sincerely held religious belief and therefore is protected under the Free Exercise clause." Therefore, they assumed that "the City’s actions in dispersing the homeless substantially burden the Church’s protected religious activity, a proposition with which the City has not argued."
The Court of Appeals concluded that the City had not shown a law of neutral and general applicability that would justify dispersing the homeless from the Church’s landing and steps. Moreover, in rejecting an argument that there was a compelling state governmental interest in preventing "inadequate shelter" and encouraging a "safer, more civilized alternative", the Court stated that "common sense…suggests that the majority of these homeless will not go to shelters if the City is permitted to disperse them; rather, they will find another place on the street upon which to sleep. Thus, it is doubtful that the ‘ends’ support the City’s means."
Arguing on behalf of the Fifth Avenue Presbyterian Church was Carter Phillips, a partner in the Washington, DC office of Sidley Austin Brown & Wood, which is representing the Church on a pro bono basis. Other Sidley attorneys involved in the Appeal include James Johnson (a New York partner who is a congregant of the Church), as well as Gene Schaerr, Edward McNicholas, James Stansel and Patrick Llinehan of the firm’s Washington, DC office.
Let us know if you would like copy of the 12-page decision issued by Judges Straub, Sotomayor and Goldberg or would like to speak with any of the lawyers involved.
Fifth Ave Presbyterian Church et al v. The City of New York, Bernard Kerik and Rudolph Giuliani.
For more information:
212.839.8797