Encampments of Unhoused Individuals in Transportation Rights-of-Way: Laws and State DOT Practices (2022)

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NCHRP LRD 87 3 ENCAMPMENTS OF UNHOUSED INDIVIDUALS IN TRANSPORTATION RIGHTS-OF-WAY: LAWS AND STATE DOT PRACTICES Edgar Kraus, Texas A&M Transportation Institute, San Antonio, TX, and Brianne Glover, Jacqueline Kuzio, and Beverly Storey, Texas A&M Transportation Institute, College Station, TX SUMMARY Unhoused populations continue to be a nationwide prob- lem throughout the United States. It is not unusual for indi- viduals experiencing homelessness to establish refuge and shelter in encampments that encroach within, around, under, or upon transportation rights-of-way, including highway/ freeway interchanges, overpasses, bridges, and tunnels. e responsibility for addressing encroachments involves agencies at the state and local levels depending on jurisdiction, in many cases state departments of transportation (DOTs) or local governments. State DOT ocials and local communities express concern about signicant social, health, safety, welfare, law enforce- ment, and management issues. Removal of unauthorized encampments can result in signicant legal issues, includ- ing claims of illegal search and seizure based on the Fourth Amendment of the U.S. Constitution, claims of cruel and un- usual punishment under the Eighth Amendment, violations of due process under the Fourteenth Amendment, and violation of free speech under the First Amendment. e objective of NCHRP Project 20-06/Topic 25-04 was to produce a digest that documents the laws, statutes, cases, pro- cedures, policies, and other resources governing or addressing: 1. A transportation agency’s prevention and removal of encampments from the transportation right-of-way. 2. e authorized use of the transportation right-of-way for shelters for people experiencing housing insecurity and social services to assist transportation agencies in address- ing safety, health, and public welfare issues and the ability of transportation agencies to control their right-of-way. is digest further provides a comprehensive overview of the types of legal claims against transportation agencies that involve prevention or removal of encampments from the transportation right-of-way and the authorized use of the transportation right- of-way for homeless shelters. Study Approach e research team conducted the following activities to meet the objective of the project: • Analyzed federal laws, rules, and regulations that aect transportation agencies’ practices, procedures, and policies for prevention and removal of unauthorized access to the right-of-way and authorized use of the right-of-way for shelters for people experiencing homelessness. • Analyzed legal claims against transportation agencies that involve prevention or removal of encampments from the transportation right-of-way and the authorized use of the transportation right-of-way for shelters for people experiencing homelessness. • Surveyed all U.S. state DOTs to determine state DOT prac- tices, procedures, and policies for prevention and removal of unauthorized access to the right-of-way and authorized use of the right-of-way for shelters for people experiencing homelessness. • Analyzed the law of all applicable states to determine each state’s statutory and regulatory authority with respect to prevention and removal of unauthorized access to the right- of-way and authorized use of the right-of-way for shelters for people experiencing homelessness. • Collected and analyzed local ordinances of 11 metropolitan areas with respect to prevention and removal of unauthorized access to the right-of-way and authorized use of the right-of- way for shelters for people experiencing homelessness. • Interviewed DOTs or major U.S. metropolitan agencies to determine local practices, procedures, and policies for pre- vention and removal of unauthorized access to the right-of- way and authorized use of the right-of-way for shelters for people experiencing homelessness. Key Legal Issues A network of constitutional protections, federal guidance, state statutes, and local ordinances dene the rights and subse- quently impact the management of unsheltered populations in the right-of-way. At the constitutional level, the First Amend- ment, Freedom of Speech and Religion, protects the right of beg- ging and panhandling. However, the U.S. Supreme Court found that the First Amendment protects speech, not conduct. is has impacted jurisdictions that attempted to outlaw begging and panhandling, shiing the focus to conduct, for example, “aggressive” begging. e First Amendment has also been cited in cases involving unhoused individuals trespassing on public property. e denition of criminal trespass varies greatly from state to state and even local jurisdiction. An important distinc- tion is that some jurisdictions evaluate whether harm was done in the unauthorized entry, and others require verbal or written warnings such as posted signs. Further, some jurisdictions focus on the acts committed on a property, rather than entry to the property. e Fourth Amendment, Illegal Search and Seizure, might apply when law enforcement procedures, such as the tearing down of encampments for people experiencing homelessness,

2 NCHRP LRD 87 CONTENTS Summary, 3 I. Introduction, 5 A. Project Purpose and Objectives, 5 B. Study Approach, 5 C. Digest Organization, 6 II. Legal Issues and Guidance Related to the Use of Right- of-Way by Unsheltered Populations and for Shelters, 6 A. Introduction, 6 B. Constitutional Protections, 6 C. Federal Guidance, 8 D. Current Legal Framework at State Departments of Transportation, 10 E. City Ordinances Targeting Unsheltered Encampments, 14 III. Stakeholder Recommendations, Current Practices, and Implementation Experiences, 19 A. Online Survey, 19 B. Follow-Up Interviews, 20 C. Key Issues, 20 D. Policies, Practices, and Procedures of State DOTs, 21 E. Other Issues Noted by State DOTs, 24 IV. Conclusions, 25 Appendix A: Survey Questionnaire, 27 Appendix B: Survey Results and Discussion, 34 Appendix C: Survey Follow-Up Interviews for Case Examples, 58