The Coming Wave of, and Criminalization of Homelessness. The ADA Remedy
ABSENT INTENT OR AUTHORITY AS LEGAL ADVICE. This article is presented as aid and encouragement for those who would exercise and enjoy rights under the Americans with Disabilities Act.
Let’s face it. No matter what your politics are, the US is facing hard times. Fuel prices are out the roof, and if a minivan with a 25 gallon tank is costing 300/week to provide transportation for a family, and food costs have risen exponentially, it won’t be long until the results end in the average American’s inability to maintain rent or mortgage payments.
While homelessness is not, in and of itself, considered a disability (yet), it carries many substantial limitations on major life activities. Sleeping, eating, communicating, interacting with others, caring for oneself, concentrating, thinking, working, and performing manual tasks are all major life activities that are affected by homelessness.
I just read an article that spoke of Wisconsin and Arizona pursuing laws that would effectively criminalize homelessness.
I happen to have over 16 years of walking a principled path of poverty, I’ve experienced periods of “homelessness” several times. I can attest that my experiencing homelessness was, at any and all times. sourced from actions of the government, in particular, state or local government.
Maslow’s Hierarchy of Needs:
Below is a common presentation of what is known as Maslow’s hierarchy of needs, which shows the five-tiered model of human needs. All of these variables are affected negatively by homelessness.
Many of these needs correspond with a major life activity as listed in Title II of the Americans with Disabilities Act and ADA Amendments Act. (“ADA”)
How state laws that criminalize homelessness are discriminatory.
Title II of the ADA requires state and local governments to avoid discrimination on the basis of disability. This same law requires state and local governments to be equally accessible in their programs, services, and activities to qualified individuals with disabilities.
What is a disability under Title II of the ADA?
Under the ADA, a disability is a physical or mental impairment that substantially limits one or more major life activities. For a qualified individual to have rights to ask for reasonable modification, the disability usually needs a record of existing. This doesn’t necessarily have to be a record that is from a medical or mental health provider, according to ADA Title II.
This also includes “physiological condition” as a disability. Webster’s defines physiological as “characteristic of or appropriate to an organism's healthy or normal functioning”
When a state or local government, through it’s programs, services and activities, create a “physiological condition” that substantially limits one or more major life activities”, the state or local government is creating a “disability” as defined under the ADA TItle II.
Example: Arizona creates a law that says it is illegal to live in a vehicle. (I realize these kinds of laws are already on the books, and they are discriminatory)
This type of law takes someone that is already substantially limited in many major life activities, and it further exacerbates this (physiological) condition by criminalizing the major life activities, or seeking to control or severely restrict how those major life activities (sleeping, eating, breathing, etc.) occur. This disproportionately impacts those classified (by inference) as “homeless” or “poor” or “transient”, by creating a disability in the way they live by necessity.
It’s discrimination on the basis of physiological condition… The physiological condition that the state has created.
That’s the first problem.The local government creates a law that substantially limits the major life activities of only an unfortunate few (classified as homeless or transient by implication).
Then, the state or local government enforces these laws (newly created disabilities) by intimidation, threats, coercion, and interference with ADA rights.
Title II of the ADA, particularly 28 C.F.R.§35.134(b), prohibits coercion, intimidation, threats, or interference with ADA rights.
And after having just created the disability of their criminalization of homelessness, the state or local government proceeds to use all of these prohibited actions to enforce, and ensure that this disability (physiological condition that substantially limits the major life activities of eating, sleeping, breathing, etc.) stays in place.
This is a textbook example of the state creating a problem, and then saying that it is the solution to the problem, when neither are true.
The remedy of the ADA
Title II of the ADA removes state sovereign immunity concerning ADA matters.
A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.
Tennessee v. Lane, 541 U.S. 509 (2004) is a Supreme Court case that considered whether Congress rightfully waived the state sovereignty with this part of the ADA. The holding in this case is that sovereignty was rightfully waived.
With a reminder that I’m not issuing legal advice, state judicial immunity flows from state sovereign immunity, so using the ADA in a state or local court is to put the judge in a very awkward position of having their immunity removed while also emphasizing that they have a duty to:
provide equal access; and
reasonably modify their programs services and activities for equal access; and
avoid coercion, intimidation, threats, and interference when dealing with an individual who is engaged in the exercise and enjoyment of ADA rights; and
avoid coercion, intimidation, threats, and interference when dealing with an individual who is aiding and encouraging another in the exercise and enjoyment of rights under the ADA; and
avoid retaliation when someone opposes their unlawful acts regarding these things.
This can all be found in 28 C.F.R. §35.130 (prohibition against discrimination), 28 C.F.R. §35.134 (retaliation or coercion).
So, to invoke the ADA, and presenting that the state’s acts, in criminalizing homelessness, or sleeping in cars, or a multitude of other “physiological conditions” that are created by state legislation, Administrative court actions (or other court actions that deny administrative access) or by other means, is to cause the state or local entity to be in a position of having their immunity removed, while being called out for their actions.
The next step is to go into federal court, on a regular frequency, and pursue these actions against the state actors, including judges, sheriffs, county boards, state agencies, police divisions, and other actors that create, and carry out these disabilities and discriminations.
For that, I’m working on a non-profit for the funding of this purpose.
As Certified ADA Advocate, P.D., JAY V SHORE
adarights [at] protonmail [dot] com