It was a crisp but bright day in late December, and James was taking advantage of the sunshine to dry his pants on a chain-link fence paralleling St. Paul Street just south of downtown. At the bottom of a small embankment, squeezed between the Interstate 30 service road and Dallas Heritage Village, were a half-dozen tents. He’d been staying there for a few weeks since he’d secured a tent for a few bucks on the thriving secondary market where much of the wares donated to the homeless by church groups promptly end up, graduating from the cardboard mat he’d been sleeping on beneath an adjacent underpass.
He didn’t want to give his last name but was happy to describe the broad outlines of his backstory. He immigrated from Kenya in the 1980s, fell hard into drugs, got clean and found Jesus but not, so far, a place to stay. Like anyone who’s spent much time on the streets here, he’s been ticketed repeatedly for what almost certainly ranks among the least offensive criminal offenses in Dallas: sleeping in public. Dozing, too, is illegal, but it’s all wrapped into the same statute: A person commits an offense if he sleeps or dozes in a street, alley, park or other public place; or sleeps or dozes in a vacant lot adjoining a public street or highway.
Twice he’s been busted on the steps of the Scottish Rite Temple, once by a Dallas ISD administrative building on Ervay Street, once by First Presbyterian Church, once in front of The Stewpot and once beneath an underpass in Deep Ellum where he was sheltering from the rain.
“So I’ve got about six,” he concludes. He hasn’t bothered to show up for court, which means he almost certainly has a warrant for failure to appear, but he shrugs it off. “I figure I’ll just go in there, spend two nights in jail and get rid of it.”
Sarge, who spends sunny days in Main Street Garden listening to classic rock on a tinny boombox and drinking bourbon from a styrofoam cup, has been homeless for 23 years. He, too, is a serial public sleeper, though, after pausing a moment to consider, he can only ballpark the number of tickets he’s received. “Psssh. Seventy-five?”
Adam P. Smith, who resembles a 30-something hipster but is in fact a 51-year-old serial bank robber (now retired), has been homeless off and on for years. “You can go to the city of Dallas website and look me up,” he says. There, one finds records of 40 citations Smith has received since 2010. Just less than half are for public intoxication. One is for a crime that seems even less offensive than sleeping: “attempted obstruction of a public sidewalk,” which Smith says he received after falling asleep at a DART bus stop. He owes more than $5,000 in fines and fees, which automatically blocks him from getting his driver’s license, and six of the offenses have turned into warrants. “They’re so stupid,” he says of the sleeping in public tickets.
Sleeping in public has been illegal in Dallas since the early 1990s, when the city responded to its surging homeless population by churning out a passel of “quality of life” ordinances setting curfews for public parks and making it illegal to do things like rummage through trash cans, drink in public and panhandle. The city was also aggressive about disbanding encampments. In 1994 the city unceremoniously bulldozed an encampment of several hundred tents beneath the freeway separating downtown from Deep Ellum, ostensibly for public health and humanitarian reasons but really, it seemed, because Dallas was preparing to host the World Cup and didn’t want to look bad on an international stage.
The same year, a federal judge pushed back against the city, temporarily barring the city from enforcing its sleeping in public ordinance on the grounds that, given the paucity of shelter beds and the rules attached to them, the law effectively made it a crime to be homeless. U.S. District Judge Joe Kendall’s discussion of the issue was almost as philosophical as it was legal:
It should be a foregone conclusion that maintaining human life requires certain acts, among them being the consuming of nourishment, breathing and sleeping. The evidence before the court … demonstrates that at any given time, there are persons in Dallas who have no place to go, who could not find shelter even if they wanted to — and many of them do want to — and who would be turned away from shelters for a variety of reasons. There are not enough beds available at the area shelters to accommodate the demand. Some persons do not meet particular shelters' eligibility requirements. For many of those homeless in Dallas, the unavailability of shelter is not a function of choice; it is not an issue of choosing to remain outdoors rather than sleep on a shelter’s floor because the shelter could not provide a bed that one found suitable enough. The evidence demonstrates that for a number of Dallas homeless at this time, homelessness is involuntary and irremediable. They have no place to go other than the public lands they live on. In other words, they must be in public. And it is also clear that they must sleep. Although sleeping is an act rather than a status, the status of being could clearly not be criminalized under Robinson [a case that struck down a law making it illegal to be addicted to narcotics]. Because being does not exist without sleeping, criminalizing the latter necessarily punishes the homeless for their status as homeless, a status necessarily forcing them to be in public. The Court concludes that it is clear, then, that the sleeping in public ordinance as applied against the homeless is unconstitutional.
The ruling didn’t last. The city appealed, and in 1995 the 5th U.S. Circuit Court of Appeals overturned Kendall’s decision on a technicality. Their discussion of the issue was considerably more prosaic than Kendall’s. “We have thoroughly examined the designated record on appeal. While we find that numerous tickets have been issued, we find no indication that any of the Appellees have been convicted of violating the sleeping in public ordinance.”
Since then, ticketing sleeping homeless has been fair game, and Dallas police have done so with gusto. Municipal court data shows that, between Janury 1, 2012, and November 15, 2015, Dallas police issued 11,123 sleeping in public citations. As of October 2015, the punishment for sleeping in public is a $146 fine. The Stewpot offers a handful of workshops per year that let violators work off their fines through community service, but a minority participate.
The tickets are heavily concentrated downtown. Among the homeless, it’s common knowledge that sleeping on a sidewalk north of Interstate 30 — sometimes even nodding off on a park bench — will net a ticket, or, if the officer’s in a good mood, a warning and stern order to move. Step south of the freeway, and the cops don’t really care.
“Police will deny it, but when you talk to homeless individuals they will say ‘They asked us to go south of 30,’” says Melissa Prycer, executive director of Dallas Heritage Village. “Well, what’s the first spot they go south of 30?” That’s a rhetorical question. The answer is The Cedars and, more specifically, the strip of land along the village's northern border. This drives Prycer and other Cedars stakeholders up the wall.
Putting aside neighborhood politics and the unseemliness of having sleeping bodies littering the city sidewalks, there’s plenty of reason to think that sleeping in public bans are bad policy, says Eric Tars, senior counsel at the National Law Center on Homelessness & Poverty (NLCHP). “Even if you did a simple calculation based on minor assumptions of what those [11,000] citations meant for the city of Dallas financially, especially if they turned into arrest warrants and people had to be brought into jail, all that is police time writing those tickets, police time bringing those people in, housing them overnight, [plus court costs]. All of that adds up to probably more than the cost of [providing adequate housing].”
Dallas’ ordinance is also legally dubious when considered in light of appellate court decisions in other jurisdictions, namely the 9th Circuit’s 2006 ruling in Jones v. Los Angeles and the 11th Circuit’s 1994 ruling in Pottinger v. Miami, both of which mirror the logic in Kendall’s overturned Dallas decision. “[Those] are kind of the leading ones that say, if you punish somebody for sleeping, which is an unavoidable consequence of being a human being, then you need to provide an alternative place to do that,” Tars says. “If you punish them without having an alternative place to go, that’s cruel and unusual punishment under the Eighth Amendment.”
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The available evidence (the 230 human beings in Tent City being just the starkest example) suggests that Dallas falls woefully short of having sufficient shelter space for all of the homeless. The Bridge homeless shelter’s 249 slots have been filled every single night since it opened in 2008. Austin Street’s 400 are perennially full as well. Beds fill slightly more slowly than normal on Christmas Day, but even then demand outstrips supply. Other shelters might theoretically have available beds, but they often cost money, include mandatory participation in religious services or require guests to enroll in intensive treatment programs.
The federal government has begun to stir on the issue. Last year, the Department of Justice waded into an NLCHP-led lawsuit in Idaho to argue that Boise’s ban on public sleeping was unconstitutional given its shortage of shelter beds. And the U.S. Department of Housing and Urban Development recently began scoring a continuum of care agencies (i.e., nonprofits like the Metro Dallas Homeless Alliance that act as a clearinghouse for federal homelessness funds) on efforts to roll back the “criminalization of homelessness.”
The trend has yet to influence city code or DPD’s rousing strategy, but eventually, Tars hopes, it will.
“Nobody wants to see homeless people on the streets of the city, but if somebody has no place else to go, they shouldn’t be punished for sleeping there. If you do, you’re just making it harder for the homeless person.”