By William Lee
A homeless couple who say they had one tent after the other removed by city crews near Lower Wacker Drive is suing the city, citing a relatively new state law that aims to give them the same property rights as those with a roof over their heads.
Amie Smith and Shawn Moore, who have lived together on the street since 2015, allege that police targeted them for a year, repeatedly forcing them to move from the downtown Chicago spot and directing city crews to throw away what few personal possessions they had — including eight tents in the course of a year, identification and photos of deceased loved ones. Those actions, they say, violated the 2013 Illinois bill of homeless rights law. The state law guarantees homeless people access to public services and the right to “move freely” through public spaces such as sidewalks, parks and public transportation and prohibits discrimination based on someone’s living situation.
The couple couldn’t be reached for comment, but one of the attorneys representing the two say they were “targeted” by the city — threatened with arrest if they didn’t pack up and move and repeatedly deprived of their belongings. Those actions were discriminatory and violated the couple’s right to privacy in their makeshift home, the attorney argues.
Kate Schwartz, an attorney with Hughes, Socol, Piers, Resnick & Dym, compared the crews allegedly discarding the couple’s tent and possessions to the city taking and destroying an illegally parked car.
“The fact that you can’t park your car there doesn’t mean that the government can take your car away and never give it back to you,” Schwartz said. “The issue here is not about whether or not they have the right to be putting a tent there, because regardless of whether they do or don’t, the city doesn’t have the right to be taking (the couple’s tent) and destroy it when the reason they’re doing that is they’re motivated to by wanting to get homeless people to just not be in this area.”
A spokesman with the city’s Law Department said the city doesn’t comment on pending litigation, but added that the city is in compliance with the state’s homeless law.
Chicago Coalition for the Homeless, a 38-year-old nonprofit, alone has filed three such lawsuits invoking the Illinois Bill of Rights for the Homeless Act, including one filed on behalf of Smith and Moore in January. Attorneys with the coalition said they reached a settlement with the city last week on a similar 2016 suit involving a homeless Chicago man who claimed that his possessions were tossed by city sanitation crews. The city did not offer a comment, and details of the settlement were not available.
At least one legal expert says legal cases like this one are necessary to crystallize the rights of the homeless while giving authorities a better understanding of when to enforce local ordinances, such as the one in Chicago that calls for keeping public sidewalks clear.
“Just reading the plain language of the homeless bill of rights (act), it obviously doesn’t cover (the couple’s) situation,” said Steven Schwinn, law professor at John Marshall Law School. “It doesn’t specifically say police can’t take your property off the street. To that extent, it’s somewhat open and ambiguous.”
Around a dozen paragraphs, the law sets out its general aim, which is to “lessen the adverse effects and conditions caused by the lack of residence or a home.”
Smith and Moore allege that when the city seized the tents, along with items inside including photos of Smith’s dead son, their right to privacy under the homeless act was violated. Indeed, the law states in part that the homeless have a “reasonable expectation of privacy in his or her personal property to the same extent as personal property in a permanent residence.”
The expectation of privacy has been defined over the decades by judges largely examining whether law enforcement must have a search warrant in specific instances. For example, if a police officer is invited inside a private home, he or she cannot search a bag, or look through items without a warrant or the owner’s consent, except in a very narrow range of circumstances, said Rebecca Glenberg, a senior staff attorney with the American Civil Liberties Union of Illinois.
Under the state’s homeless law, that same privacy standard is extended to those living on the streets, she said. “A reasonable expectation of privacy is (when) everyone understands and agrees they are not supposed to touch your stuff,” Glenberg said. According to her reading of the law, “Just as you can’t touch someone’s property when it’s in their home without their permission or a warrant, you can’t do that to the property of a homeless person, even though, even by definition, it’s outside.”
Glenberg said that such suits are important in testing how strongly the courts will enforce new laws. “Particularly where there’s some dispute about the scope of the law. You don’t know how a court is going to interpret the law and how far the court will go to protect your rights until you actually go to the court and see what happens,” she said. “This kind of lawsuit is important in making sure the promises of the statute are actually fulfilled.”
City workers affixed warning stickers on tents on Lower Wacker Drive to warn their owners about a looming sidewalk cleaning, according to the lawsuit. Per city ordinance, stickers are to be placed on tents and other belongings before they’re removed.
Carol Aldape also cited the homeless law when she filed suit against the city last September after she and more than a dozen other homeless people were forced to move from beneath the Wilson Avenue viaduct on Lake Shore Drive to make way for construction of bike paths.
Aldape, 68, who spent five months living in the encampment with her two dogs, Bella and Chief, said the project to make the sidewalks under the viaducts thinner was created specifically to keep homeless people from setting up under the bridges and thus violates the homeless law.
Aldape, who says she suffers from diabetes and multiple sclerosis, moved there because the bridge provided relief from the elements.
“We were pushed out. There was nowhere to go,” Aldape said. The tent city was “a community of people who look after each other because we’re all in the same boat.”
Schwinn, the John Marshall Law School professor, doesn’t believe the case will make it to trial but says that if it does, the couple’s complaint appears to be on secure legal footing. He said the municipal code is primarily aimed at preventing the obstruction of sidewalk and street traffic, not uprooting homeless residents on little-traveled pathways. He notes that the couple’s suit clearly outlines that their tents were set up in areas with little to no foot traffic, meaning the municipal code wouldn’t apply to them.
“Looking at the (city) ordinance itself, it looks to me like it’s designed to keep people from leaving big stuff in the middle of the sidewalk in a way that’s going to impede passage by pedestrians or impede traffic flow,” said Schwinn, who previously represented homeless clients in Washington, D.C.
He added: “Had the plaintiffs in this case been pitching their tent in the middle of Michigan Avenue, I think you have a different case.”
“City agencies work with a community of partners toward the goal of ensuring all Chicagoans have a place to call home and the City treats homeless residents with respect and works hard to connect them with important support programs and services,” the Law Department spokesman said in a statement.
The couple’s suit seeks more than $75,000 in damages and asks the court to issue an order declaring the city violated the law and barring police and other city workers from seizing, moving or otherwise tossing the couple’s personal belongings in the future.