June 16, 2024

Each year when June arrives in Lowell, three things will predictably happen: Anything left outside will be covered with a coat of yellowish-green pollen; school will end for the academic year; and city councilors will demand something be done about “the homeless.”

That last item came up Tuesday night at the council meeting in companion motions by Councilor Corey Robinson, one requesting the city manager “provide a detailed report on what plans are in place to ensure safe usage of our South Common swimming pool for all of our residents” and the other requesting the city manager “reach out to service providers for the unhoused to explore ways to create warming/cooling center space due to recent changes with some organizations operating in this area of service.”

In explanation of the first motion, Robinson provided a slide show of photos showing gatherings of people on the South Common including some that depicted camping-like scenes. He also recited a litany of problems resulting from the adoption of the South Common by a number of people as a gathering place, and for some, an overnight sleeping place. He added that city employees responsible for safely disposing of used needles will collect up to 60 a day on the South Common.

Councilor Rita Mercier, who works across the street from the Common, echoed the problems created by these gatherings. Both observed that a consequence of this situation is that the South Common is as a practical matter, rendered off limits to the majority of Lowell residents who understandably fear the health risks of unseen needles and randomly deposited human waste among other things.

When questioned, the chief of police said that even when officers observe criminal behavior and arrest individuals, the same individuals are frequently processed through the court system and released to the street so quickly, that they are often back to the Common while the arresting officers are still at the scene. The chief added that a majority of those occupying the South Common are not actually homeless but go there daily “to hang out and party” and that alcoholism, drug abuse and mental illness rather than a lack of housing are the drivers of this problem.

Several advocates for the homeless spoke in favor of the “cooling center” motion but mostly conveyed the message that those being complained of are human beings who are in need of care, services and understanding.

A frustrated Mayor Dan Rourke spoke from the chair, saying that the city does much for those who are truly homeless but that the bulk of the individuals being complained about either refuse beds in homeless shelters when offered or refuse to comply with the rules of such shelters. He commented that the two motions were contradictory: one sought the removal of the problematic people from the South Common but the other sought to give further reasons for such individuals to congregate. (Notably, Rourke’s fulltime job is as a Trial Court probation officer so he can draw on his daily experience in making these observations.)

In the end, the Council passed both motions unanimously so responses from the city manager should be forthcoming at some future council meeting.

Coincidentally, any day now the United States Supreme Court is expected to announce its decision in a case that might clarify how the law can be used to address homelessness. Because appellate court decisions in this area are so rare, this decision could have a direct impact on what the city of Lowell can or cannot do in response to the issues affecting the South Common and other places.

The case in question is City of Grants Pass v. Johnson which the Supreme Court agreed to hear back in January. The main issue in the case is the legality of a ban on public camping by homeless people. The case arose when three homeless individuals in the Oregon city of Grants Pass, a community of 40,000, challenged an ordinance that prohibited camping in public spaces. The US District Court ruled against the city, holding that such a ban violated the Eighth Amendment’s ban on cruel and unusual punishment.

This decision was based on an earlier case, Martin v. City of Boise, in which the 9th Circuit Court of Appeals held that cities cannot enforce criminal restrictions on public camping if they do not provide enough homeless shelter beds. The ruling states that criminalizing camping on public property when people have no other legal place to sleep is cruel and unusual punishment.

Oral arguments in Grants Pass were held in April. The city argued that the ban on public camping affected everyone equally so it was not unconstitutional, while the challengers argued that such laws essentially make homelessness a crime and therefore violate the Eighth Amendment’s ban on cruel and unusual punishment. According to the Scotus Blog website’s account of the arguments, the justices seemed divided based on their comments and the questions they asked of the lawyers.

One thing the justices did seem to agree on was that reaching a fair outcome of this dispute would be very difficult. There did seem to be agreement that, if no shelter beds are available, then someone cannot be arrested for sleeping outside. But then someone asked, what if the person in question owned a dog and all shelters had “no pets” policies? Or what if the person suffered from mental illness that prevented them from complying with the rules of the shelter. In both of those cases, a shelter bed was technically available, but not really.

The US Supreme Court term concludes at the end of June so a decision in the Gants Pass case should be announced within the next two weeks after which I’ll summarize the holding in a future newsletter. Hopefully it will establish some guidelines for how individuals who for whatever reason refuse available beds in shelters may be dealt with legally.

Until then, what options does the city of Lowell have to address this problem? One thing is to continue to ensure that adequate space in shelters is available and that the multidiscipline approach involving medical and mental health professionals and social workers along with the police that has been used by the city in the past continue. Advocating for more funding from the state is always important too.

Another thing that might not be as apparent is to put more effort into record keeping and collecting data. Back in 2015, the city of Lowell was a defendant in a case in which three individuals challenged the city’s recently enacted prohibition on any panhandling in the downtown historic district and on “aggressive” panhandling anywhere else. Those who challenged the law claimed it violated their First Amendment right to free speech.

In declaring the city ordinance unconstitutional, the US District Court agreed with the plaintiffs, saying that the ban was based on the content of the speech (asking for money because they were poor and had none) whereas the city allowed others to accost pedestrians in the same place as long as the message was different (“Vote for me!”). When the city countered that panhandlers made people “uncomfortable” the court answered that the essence of the First Amendment was protecting just that, speech that made people uncomfortable.

The city then argued that this ordinance was really intended to counteract the “secondary effects” of panhandling, namely increased crime, littering, public nuisances, however, the Court brushed aside that contention saying that the city had offered no data to support that claim.

Which brings me back to my suggestion that the city get more aggressive about collecting data and more imaginative about what data gets collected. Court cases are decided on evidence. Under cross examination, a general claim that crime increases in areas where individuals camp overnight in public spaces gets shredded pretty easily. But if instead of a general statement there was a data rich report that established the same point, it would carry greater weight in court and be more likely to support the city’s position.

In addition to being smarter about data collection, it’s important to be precise in the use of language. As Mayor Rourke observed at Tuesday’s meeting, the problems at the South Common are not caused by homelessness but by vagrancy and other crimes against public order. While the cost and unavailability of housing make homelessness a genuine crisis in our community, how that crisis gets solved does not necessarily address the problems at the South Common.

Imagine a Venn diagram: the problematic behaviors at the South Common is one circle; people who are homeless is another. The circles do overlap but not by a lot. When the public discussion merges the two issues together under the single umbrella of “homelessness” it prevents the kind of precision in language and policy that is essential to addressing both issues.

Yet simply changing the approach to targeting vagrancy is no guarantee of improvement and does come with some risks. Historically in the United States, vagrancy laws have been used to criminalize behaviors often associated with poverty and unemployment. And in the American South in the aftermath of the Civil War, these ordinances were strategically used to target formerly enslaved individuals which perpetuated a system of racial control and economic exploitation.

Still, carefully distinguishing between those who are truly homeless but striving to find a permanent residence and those whose behavior has engulfed the South Common – whether that’s called vagrancy or some other term – should become the norm when talking about these issues.  

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Lowell’s 2024 Franco-American Week begins next Sunday, June 23, 2024. The full schedule of events is on the organizing committee’s website, however, one first-time event deserves extra metion. It’s a “Poutine Picnic” at St. Rita’s Church parking lot on Sunday, June 30 from 2 to 4pm.

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On Saturday, June 29, 2024, at 10am, Charlie Gargiulo and I will lead a free 90-minute walking tour of Lowell’s Little Canada neighborhood. The tour will begin at the Coalition for a Better Acre at 517 Moody Street. Charlie’s memoir, Legends of Little Canada, tells the story of growing up in that close-knit neighborhood and of being forcibly displaced when the Urban Renewal wrecking ball demolished most of the residences. Charlie’s book is available at lala books at 189 Market Street in Lowell or from Loom Press.