Wausau City Hall

By Shereen Siewert

Federal court rulings have repeatedly determined that prosecuting homeless people for sleeping on the streets when there is no shelter available is a form of cruel and unusual punishment that violates the Constitution.

Homeless advocates are now raising legal concerns about Wausau’s own proposed ordinance, which was passed unanimously last month by members of the Public Health and Safety Committee. The committee includes Dist. 1 Alderman Pat Peckham, who is on the board of the Wisconsin Coalition Against Homelessness.

The proposal includes a $50 fine for people who violate the ordinance. Police officials say the ordinance is not being proposed to give officers the ability to write tickets, but rather to give officers the lawful authority to ask people to leave.

But similar ordinances in other municipalities nationwide have prompted lawsuits from the ACLU. A Boise, Idaho case gained national attention in 2015 when the United States Department of Justice filed a Statement of Interest brief in the case, arguing that making it a crime for people who are homeless to sleep in public places unconstitutionally punishes them for being homeless.

“No one wants people to sleep on sidewalks or in parks, particularly not our veterans, or young people, or people with mental illness,” said Director Lisa Foster of the Office for Access to Justice, in the DOJ brief. “But the answer is not to criminalize homelessness. Instead, we need to work with our local government partners to provide the services people need, including legal services, to obtain permanent and stable housing.”

In a 32-page opinion, the judges in the Boise case wrote, “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

In a Facebook post, Wausau Police Department leaders say officers already actively work with homeless people to match them with critical services to address their needs.

“The reality is, we work to find shelter for anyone who really wants it. We work closely with The Salvation Army of Wausau, WI and Catholic Charities of the Diocese of La Crosse (Warming Center) and at times place people in hotels with charitable funds,” the post reads. “We’re very glad attention has been brought to this issue and if you are concerned about the welfare of these individuals we encourage you to make donations to those organizations to help them with their needs.”

But Joe Volk, executive director of the Wisconsin Coalition Against Homelessness, said the proposal appears to be counterproductive. He pointed to other communities with homeless outreach teams that work to get people off the street as a more productive paradigm.

“Having a police officer write a ticket to someone because of mental illness, because of alcohol, because of poverty, doesn’t seem to be solving anything,” Volk said.

In most municipalities, Volk said, officers cannot physically remove the person, so they may simply write a ticket and leave. If the ticket is unpaid, the municipal court must issue a warrant. The next time an officer encounters the person and runs a check on the person, that warrant would appear and the person could be taken to jail.

Larry Dupuis, legal director of the ACLU Wisconsin, also pointed to the Boise case in discussing the legal implications of fining people who are sleeping in public.

“The policy question is, what good does it do to punish these people” Why not come up with a solution that addresses the lack of shelter or the lack of affordable shelter? We have all these tax incremental financing things that are supposed to be used for blighted areas, and instead they’re often being used for gentrification purposes. It’s a question of priorities.”

In an email, Peckham said he has only been contacted by two people about the ordinance, which is subject to full council approval.

“As a local official and as a board member on the Wisconsin Coalition Against Homelessness, it is my hope that if the city council passes this when I assume it will be on the agenda, Nov. 12, that it brings further attention and a further sense of urgency for the entire community to push harder to reduce homelessness,” Peckham said.

He added that he is confident that police will continue to “treat this segment of our population in a humane way.”

“That additional authority seemed to be more important than the ability to levy a fine, an action I would not expect them to take except in a rare circumstance,” Peckham said.