Mental Health Disabilities and the Criminalization of Houselessness: Challenging Municipal Sit-Lie Ordinances as Disparate Impact Discrimination Under the Americans with Disabilities Act of 1990
Introduction
Abstract
Sit-lie laws and camping bans criminalize houselessness by imposing criminal penalties for sitting, lying, and sleeping in public spaces. These laws have a disproportionate impact on people with mental health disabilities. People with mental health disabilities are disproportionately affected by houselessness, more vulnerable to policing, and likely to face harsher consequences of policing under sit-lie laws and camping bans than people without mental health disabilities. It is essential to develop robust strategies for dismantling these laws to protect unhoused people with mental health disabilities. This is especially true as the number of people who are houseless, which has been on the rise since 2016, is projected to grow by over half a million people as a result of the COVID-19 pandemic. Constitutional challenges to sit-lie laws and camping bans have been met with mixed results and may be insufficient to protect most unhoused people from criminalization under such laws. I propose that advocates mount a facial challenge to sit-lie laws under Title II of the Americans with Disabilities Act of 1990 (ADA) based upon a disparate impact theory.
This Article proceeds in four parts. Part I provides an introduction to sit-lie laws and camping bans and their impact on people who are houseless. Part II explores the disproportionate effects of houselessness and policing on people with mental health disabilities. Part III provides a critical analysis of Martin v. City of Boise—a Ninth Circuit decision invalidating Boise’s sit-lie and camping ordinances under the Eighth Amendment—and its limitations. It also reviews the limited success of other constitutional challenges to sit-lie laws. Finally, Part IV provides a framework for a disparate impact discrimination claim under Title II of the ADA, explains why such a claim brought against a municipality for the enforcement of sit-lie laws is consistent with the purpose and mandate of the ADA, and considers the viability of affirmative defenses that may be raised by municipalities.
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