Constitutionality is in the eye of the beholder. At least until a court weighs in.
And absent such a decision, it seems Tacoma’s newly modified ordinance on vehicle habitation will be left open to pointed legal debate.
As proof, take a letter sent to the Tacoma City Council and City Attorney Elizabeth Pauli last week from the Homeless Rights Advocacy Group at the Seattle University School of Law. The letter describes Tacoma’s vehicle habitation ordinance — including the changes recently made to it — as one suffering from “fatal flaws.”
“The municipal code at issue here easily meets the definition of homeless criminalization,” the three-page letter argues. It goes on to say that, even after it was updated, Tacoma’s vehicle habitation ordinance “may still fail a constitutional challenge.”
As I wrote Sunday, the Tacoma City Council recently voted to modify Tacoma’s existing law on car camping. The decision came in direct reaction to a 2014 federal court decision — Desertrain v. Los Angeles — that found a similar ordinance unconstitutionally vague and likely to promote arbitrary and discriminatory enforcement against the homeless.
In response, Tacoma officials expended a lot of effort to come up with an extremely detailed definition of what it means to illegally live in a vehicle.
By the new letter of the law, a list of “evidence of human habitation includes, but is not limited to,” things like sleeping or setting up a sleeping bag, cooking or storing cookware, and obscuring windows with possessions. The ordinance also states that, “any other activity where it reasonably appears, in light of all the circumstances, that a person or persons is using the vehicle as a living accommodation,” can become grounds for violation.
By the new letter of the law, a list of “evidence of human habitation includes, but is not limited to,” things like sleeping or setting up a sleeping bag, cooking or storing cookware, and obscuring windows with possessions.
The ordinance also states that, “any other activity where it reasonably appears, in light of all the circumstances, that a person or persons is using the vehicle as a living accommodation,” can become grounds for violation.
In tweaking Tacoma’s vehicle habitation ordinance, city officials took the positive step of extending the amount of time someone can park on a Tacoma street from 24 hours to seven days. This move, they say, is consistent with the city’s overall approach to homelessness, allowing for more time to connect people living in cars to social services.
That said, the ordinance still includes a maximum $250 civil penalty and the possible impoundment of a vehicle — though only in instances where the vehicle “constitutes an obstruction to traffic or presents a threat to public safety,” as defined elsewhere in city code. (The same basic violations that could get anyone’s car towed, for what it’s worth.)
Allyson Griffith, a program specialist with Tacoma’s Community Based Services, told The News Tribune last week that the imposition of fines or the impoundment of vehicles is at the discretion of law enforcement, and that issuing fines or towing people’s vehicles isn’t the ultimate goal.
Based on the work done to shore up Tacoma’s vehicle ordinance, Pauli tells me, “We believe that we have a constitutionally defensible language.”
We believe that we have a constitutionally defensible language.
Tacoma City Attorney Elizabeth Pauli
Others, it’s becoming increasingly clear, aren’t so sure.
Last week I spoke with Tristia Bauman, a senior attorney with the National Law Center on Homelessness and Poverty. While applauding the overall work Tacoma has done to confront homelessness, she indicated the ordinance is vulnerable to a court challenge.
Justin Olson, a teaching fellow with Seattle University’s Homeless Rights Advocacy Group, agrees. Only he goes further. Regarding the recent modifications, Olson says, “(Tacoma) tried to redefine human habitation, but they didn’t do a good enough job.”
Olson contends that Tacoma’s newly modified ordinance is still written so vaguely that residents will have “no idea how to exist in the bounds of the law.” In other words, he argues Tacoma’s ordinance is so open-ended that it could apply to any driver who carries personal belongings in their vehicle — like a student who doesn’t have enough room in their dorm for all their belongings, or a family going camping.
Which leads us to the possibility of arbitrary or discriminatory enforcement toward the homeless. Of this potential, Olson says, “There’s no way that this law could be enforced equally, because the only people doing (what the law intends to prohibit) are people experiencing homelessness.”
As unsatisfying as it may be, the only way we’ll ever get a firm answer to the question of whether Tacoma’s vehicle habitation ordinance passes constitutional muster is through a court challenge. And unless city officials start enforcing the law in a way that they promise is not their intent, it’s unlikely to get to that point.
Echoing Griffith, Pauli says the city’s “enforcement history speaks for itself.”
That, of course, raises a larger question: Why have an ordinance on the books, written in a way you don’t plan to enforce it? While acknowledging that the situation is a “tough” one, Pauli says it’s important for the city to have available options to respond to any number of concerns, including public health and safety.
Make the law reflect what you’re actually planning on doing. Anything else is confusing and duplicitous. … Just having it on the books is a problem.
Justin Olson, a teaching fellow with Seattle University’s Homeless Rights Advocacy Group
But as Olson contends, “Make the law reflect what you’re actually planning on doing. Anything else is confusing and duplicitous. … Just having it on the books is a problem.”
The truth of that charge, it’s clear, is also in the eye of the beholder.