Appeals court ruling on homeless sparks local debate

Tuesday, April 18, 2006 | 7:12 a.m.

While a federal appeals court's decision last week makes it clear that there's no crime in being homeless, the court's notice of a Las Vegas ordinance is only going to ignite the debate locally.

City officials and defense attorneys disagree over the meaning of a ruling Friday by the 9th U.S. Circuit Court of Appeals on arrests of homeless people. The court cited a Las Vegas ordinance as an example of finding "ways to avoid criminalizing the status of homelessness."

"I think if you read the 9th Circuit opinion, the court has gone out of its way to approve the ordinance we follow in Las Vegas as it pertains to the homeless," Las Vegas City Attorney Brad Jerbic said.

But attorney Robert Langford, who oversees the criminal defense before Las Vegas Municipal Judge Abbi Silver four days a week, said the Las Vegas homeless population is "absolutely being criminalized simply for being homeless."

In Las Vegas, where homelessness has been a contentious issue for many years, it comes down to the application of the law.

The appellate court cited Las Vegas' ordinance in a case filed against the Los Angeles Police Department. The court said in Los Angeles the homeless were being arrested for sitting, lying or sleeping on public streets, sidewalks and public ways, and the police policy is "cruel and unusual punishment," and thus unconstitutional.

The Las Vegas ordinance requires the person to be voluntarily or involuntarily obstructing pedestrian pathways or roadways as they do so. The court said Las Vegas' ordinance worked "by making an element of the crime some conduct in combination with sitting, lying or sleeping in a state of homelessness."

Jerbic said the difference between Los Angeles and Las Vegas is: "We have a different ordinance with different facts."

Metro Police officials, who did not return calls for comment Monday afternoon, have said their policy is that homelessness is not a crime, but critics say it's a question of how the law is enforced.

"They're just calling it something else," Langford said. "Harassment by any other name would smell as sour."

The defense attorney said he regularly sees homeless defendants serving 60 to 90 days behind bars for "sleeping on a bus bench, walking the wrong way on a crosswalk - not on the right, but left side - and standing around or walking through a parking lot."

Jerbic said that while "Langford is entitled to his opinion, that's why we have the courts and I disagree with him."

The city has faced criticism over its handling of the homeless, from sweeps to prosecution. In January the Washington-based National Coalition for the Homeless ranked Las Vegas as the fifth "meanest city in 2005" in regard to how it treats the homeless.

Las Vegas Mayor Oscar Goodman, though, said he was pleased to see the city's ordinance cited "as being one that meets constitutional muster."

"We don't criminalize the homeless," he said. "To do so would be a sin. I feel for the homeless, but if they are violating the law by obstructing the sidewalks and roadways of the citizens of Las Vegas, they must be charged and prosecuted for those crimes."

And he defended his record on homelessness, saying if you asked the homeless who was trying to do all they can to assist them, the answer would be a resounding "me."

Jerbic noted that the court cited the Los Angeles situation as being much different than Las Vegas because Los Angeles has the largest homeless population in the country and does have a well-known shortage of shelter beds to house them.

Allen Lichtenstein, attorney for the Nevada's ACLU, however, interpreted the courts ruling to say "the argument that there are enough beds for the homeless in the Las Vegas Valley won't work because just as there aren't enough beds at shelters in Los Angeles, there aren't nearly enough here either."

"Hopefully the local government will get the message instead of having to go to court because the 9th Circuit has made it pretty clear you can't criminalize the homeless," Lichtenstein said.

"Ultimately homelessness can't be dealt with as a police issue because it's a social issue that needs to be dealt with by social services and not handcuffs."

Under the Las Vegas ordinance, the crime is a misdemeanor with penalties of up to six months in jail and a $1,000 fine.

"The policy is to first warn and then if not compliant cite and arrest," Jerbic said. "For the majority of the cases we never seek the maximum penalty unless an offender has been cited multiple, multiple, multiple times."

But Langford characterized the path most homeless defendants follow in the justice system as being much different.

For example, he said, a homeless person charged with trespassing will be kept in custody five to six days before ever seeing a judge. He said that when the person goes before a judge he is offered a deal: a 120-day suspended sentence, which, he's told, is enforced if he's arrested again.

Langford said in one case recently a homeless man took the deal and was arrested for trespassing 30 minutes after leaving the court. He said the man was told if he pleaded guilty to the new charge, the jail sentences would run concurrently and he'd serve 120 days in jail.

"It happens every day," Langford said. "We have repeat offenders simply because they plead guilty and are poor and homeless."