NYC blocked in bid to keep homeless off church steps

By The Associated Press

06.14.02

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NEW YORK — The city will fight a federal appeals court ruling that says the city cannot stop homeless people from sleeping outside a midtown Manhattan church, Mayor Michael Bloomberg said yesterday.

The comment came after the 2nd U.S. Circuit Court of Appeals on June 12 said it could not see the logic in the city's decision to roust homeless people camped outside the Fifth Avenue Presbyterian Church.

"We feel that the church ... should not have their steps used as a homeless shelter," Bloomberg said. "We're disappointed by the court's ruling but we do think that we will prevail when we go to trial. We will continue to pursue this."

The determination of the city to fight the issue in the appeals court already has raised the legal stakes, providing lawyers a rare federal appeals court case related to religious expression and the homeless.

Gene C. Schaerr, a Washington attorney who worked on the appeal, said the ruling would be "very important to churches around the country because it makes very clear that it really is up to the church to decide how to fulfill its own religious mission to the homeless."

The mayor said the city believed it was fighting for the homeless.

"We think ... letting people sleep outside without bathroom facilities, without security, without a bed, is just wrong. It's not compassionate," Bloomberg said. "We have tried and we will continue to try to convince the church that these people would be better served in the city's shelter system."

Tourists strolling along Fifth Avenue said homeless people should be allowed to sleep on the church steps.

"It's nice of the church to let them sleep there, and it's certainly better than having them sleep out on the street," said Brenda Brooks, a limousine company owner from Cookeville, Tenn.

The church sued the city on Dec. 17 after city police on three occasions in early December forced the homeless to leave church property during the night, prodding them along with threats of arrest.

The church relied on its First Amendment right to practice its religious beliefs, but the city said it operated the world's worst homeless shelter by failing to provide adequate facilities and protection.

In its ruling, the appeals court said the city had failed to cite a law that would justify evicting the homeless from around the church.

It noted that the homeless stay at the church voluntarily and that "common sense ... suggests that the majority of these homeless will not go to shelters if the city is permitted to disperse them; rather, they will find another place on the street upon which to sleep.

"Thus, it is doubtful that the 'ends' support the city's 'means,' nor has the city attempted to show that police dispersal in the middle of the night is the least restrictive means of accomplishing its goal of ensuring that the homeless have appropriate sleeping quarters," the court said.

The written ruling came just two weeks after the court heard oral arguments on the matter. It upheld a temporary ruling in January by U.S. District Judge Lawrence M. McKenna, who said it was likely the church would win a trial on the matter.

During oral arguments, the appeals court had shown little patience for the reasoning of lawyers for Bloomberg's administration in a case that began when Rudolph Giuliani was mayor.

"Do you seriously advance that a church tendering to the homeless is not a religious activity?" Judge Chester Straub had asked.

Judge Sonia Sotomayor had challenged the city's claim that the homeless were a threat to public safety.

"How do you have a public nuisance when nobody's complaining?" she asked.

Margaret L. Shafer, who tends to the homeless at the church, said the effects of the ruling "are much bigger than the church."

"Clearly it has implications for every church, every private space and indeed the whole question of how far can police go appropriately in our society," she said.

She said she recalls being awakened at 2 a.m. one December night to be alerted that the homeless were being forced by police from the protection of their cardboard boxes and tents in the middle of a rainstorm.

"It was as if the police were coming out of the midnight sky," she said. "How could it possibly hurt anybody to wait until it stopped raining or until morning?"

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