Tent Cities Dispersed and Destroyed

High court hears arguments in Providence’s eviction of homeless

01:00 AM EDT on Wednesday, May 11, 2011

By Tracy Breton

Journal Staff Writer

PROVIDENCE –– Tent cities that have sprung up around the country have become a symbol of the problem of homelessness. Sometimes, shelters become too crowded to accommodate everyone. Sometimes, the homeless decide that shelters are unsafe, that they’d do better to band together and find a place outdoors to reside.

On Tuesday, two volunteer lawyers representing homeless people who, for a time during 2009, lived in a city park off Pleasant Valley Parkway, urged the state Supreme Court to vacate a preliminary injunction issued by a lower court judge.

They argued that the city used the wrong legal vehicle to try to eject the homeless group.

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Bedford and De Simone claimed that

Lanphear had no authority to issue an

injunction. The city should have either

prosecuted each of the people criminally

gone to District Court to try to eject each

of them civilly as a landlord would

with a tenant, or hauled them before the

Municipal Court for violating city

ordinances, they asserted.

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Although lawyers Peter G. De Simone and Neville Bedford conceded after the hearing that the high court could not just order the city to reopen its parks to the homeless, they hope the court rules that Superior Court Judge Jeffrey Lanphear erred in issuing the injunction against their clients, and that by being forced to jump through more legal hoops, the state or its municipalities will approve some outdoor space where the homeless can live in nicer weather.

De Simone noted, in an interview after the hearing, that a few federal courts, including those in California and Florida, have sanctioned tent communities in public parks. He also asserted that if the City of Providence was forced to criminally prosecute the homeless for camping on its land, it would be easier for the defendants to litigate their civil-rights issues.

The justices questioned whether the case was moot since the homeless never balked at being ordered to leave the tent city they erected in September 2009, after Lanphear issued his preliminary injunction.

Justice Maureen McKenna Goldberg also questioned whether the court had authority to consider the issues raised when all of the people appealing, except for one, were identified as Jane Does and John Does.

“What are your appellants’ names?” Goldberg asked Bedford. When he named the one person identified as an appellant — Barbara Kalil — Goldberg responded, “so that’s the only client you have.”

Justice Francis X. Flaherty asked: “Who has a stake in this outcome? We don’t know who it is.”

De Simone told the court that the reason the parties were unnamed except for Kalil was to spare them the stigma of bad publicity.

He and Bedford argued that the court should order full briefing of the issues and then hear more arguments, instead of ruling at this preliminary stage, because “the issues are of extreme public importance.”

But Goldberg replied: “The unnamed parties aren’t before us. We can’t give unnamed parties any relief.” The case is still before Lanphear, she said, because he never issued a permanent injunction. She told the lawyers they were asking the Supreme Court to rule on the validity of a preliminary injunction “on somewhat amorphous grounds.”

“This is an amorphous population,” Bedford replied.

“The law is not amorphous,” Goldberg told him.

Bedford persisted: “This is a class of people, impoverished people who have no place to live.” In papers submitted to the court and in their oral arguments, he and De Simone argued that the situation that the city faced at the park is apt to repeat itself this year.

Eric Hirsch, a sociology professor at Providence College who’s been compiling Rhode Island homeless statistics for almost two decades, says there has been an increase each year from 2007-2010, “particularly with regard to single adults, who increased from 1,850 to 2,461.”

Bedford and De Simone claimed that Lanphear had no authority to issue an injunction. The city should have either prosecuted each of the people criminally, gone to District Court to try to eject each of them civilly as a landlord would with a tenant, or hauled them before the Municipal Court for violating city ordinances, they asserted.

Senior Assistant City Solicitor Kevin F. McHugh argued that the case is moot, and that the Supreme Court should dismiss the appeal. The matter is not apt to repeat itself because the people are no longer living there and Lanphear’s order applies to parks citywide, he said.

McHugh said the city alleges that the tent community members were trespassers, not tenants, because city parks close at 9 pm and no one has a right to camp there overnight. But he said the city did not want to arrest the homeless people, “have them prosecuted, incarcerated, have them fined a fine they can’t pay. We have discretion as to how to proceed,” he argued.

“A group of people living in a city park with open refuse, storage of propane tanks that create the potential for fires…The health and welfare of the general public were part of the grounds for asking” for the preliminary injunction, McHugh told the court.

tbreton@projo.com