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,

4 NCHRP LRD 87 rights-of-way. Seven states have statutes that specifically refer- ence camping or encampments on public land and rights-of- way. Other states rely on statutes that relate to the control and use of the right-of-way as well as the removal of property and obstructions from such spaces. Some states also reference public nuisance in their state statutes, while others have emergency shelter laws that require the provision of services under certain conditions. Legal concepts such as criminal trespass, promis- sory estoppel, and necessity have been used to argue for and against the removal of encampments for people experiencing homelessness. Local jurisdictions often focus on the removal of obstruc- tions in public areas or restrict the use of public spaces—for example, lying, sleeping, lounging, or camping—during certain times of the day. Some jurisdictions limit relocation activities to scenarios that present a public health hazard or safety risk. Ordinances may or may not require the availability of over- night shelters before relocating individuals. At the onset of COVID-19, some shelter spaces reduced capacity due to health concerns, which impacted the enforcement of local ordinances and resulted in special permits for sanctioned campsites of un- sheltered populations. State DOT Practices and Lessons Learned State DOT issues with the management of unauthorized ac- cess to the right-of-way are mostly related to the management of the unsheltered population encampments, concerns about safety and crime, and concerns about agency liability and legal processes. Most frequently, DOTs mentioned the issue of deal- ing with trash, litter, and debris removal. Related to the issue are concerns about time and resources that DOTs must expend to deal with the issue. DOTs also frequently mentioned a general lack of staff that have the skills to deal with the problem and a lack of training to improve the skills of existing staff, which might contribute to the fact that staff are often unmotivated or even unwilling to get involved with this type of issue. With regard to safety and crime, DOTs most frequently mentioned a concern about chemical or substance abuse and drug dealing at unsheltered encampments. DOTs also men- tioned concerns for the physical safety of the unsheltered popu- lation, including prostitution and human trafficking, as well as concerns for the safety of adjacent neighborhoods. With regard to agency liability and legal processes, DOTs mentioned concerns for holding the personal property of the unsheltered population during and following the removal from unauthorized rights-of-way, having the legal authority to re- move unsheltered individuals, ensuring due process, and using contractors for cleanup activities once unsheltered populations are removed from a site. Policies and procedures to manage unsheltered populations in the right-of-way are typically applied consistently statewide. Commonly, state DOTs manage the issue with the help of law enforcement agencies. To prevent unsheltered encampments in the right-of-way, state DOTs use signs, fencing, and some- times strategic vegetation management, which might involve seize and dispose of the belongings of unhoused individuals. In many cases, the law has ruled in favor of the unhoused. Related issues are the debate over privacy, how privacy should be ad- dressed on public property, and the definition of “private space.” The Supreme Court ruled that the Fourth Amendment protects people and not places; therefore, things that a person knowingly exposes to the public are not subject to the Fourth Amendment protection. Further, the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Uniform Act) has ex- cluded the unhoused from coverage under the act and eligibility for relocation benefits, including individuals residing in emer- gency shelters for people experiencing homelessness. The Eighth Amendment, Cruel and Unusual Punishment, has frequently been cited to protect individuals from cruel and un- usual punishment of policies that disallow or tear down camps for people experiencing homelessness. In such cases, support- ers have sought to protect unhoused individuals by interpreting homelessness as a status and arguing that anti-camping or anti- sleeping ordinances punish that status. The Fourteenth Amendment, Equal Protection of the Laws, has been cited to protect the rights of individuals to travel. Some jurisdictions have targeted unhoused individuals in pub- lic spaces through laws that prohibit loitering. These laws often prohibit an extensive range of behavior, and the U.S. Supreme Court has found several loitering laws to be unconstitution- ally violating the Fourteenth Amendment’s Due Process Clause, for example, due to vagueness. A law that does not give notice of prohibited conduct to affected individuals and encourages arbitrary police enforcement could be unconstitutionally vague. At the federal level, Executive Order 12898, Federal Actions to Address Environmental Justice in Minority and Low-Income Populations, directs federal agencies to avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on low-income populations. Executive Order 12898 provides guidance to federal agencies for considerations to mitigate the adverse impacts of agency activities, including maintenance, on low-income and unsheltered populations. As a result of the ex- ecutive order’s directive, the U.S. Department of Transportation adopted Order 5610.2, which sets forth steps to prevent dispro- portionately high and adverse effects to people of color or people with low incomes through analyses conducted as part of federal transportation planning and National Environmental Policy Act provisions. The protections and considerations reflected in the executive order are closely tied to Title VI of the 1964 Civil Rights Act, which prevents discrimination of a person on the basis of race, color, or national origin, and subsequent expan- sion of requirements in the 1987 Civil Rights Restoration Act. States use a variety of approaches to manage the issue of un- housed populations in the right-of-way. Some states have codi- fied practices regarding the use of the right-of-way, and others create policy using agency guidance documents and manuals. Legal frameworks relating to encampments in the right-of- way are limited in regard to codified practices, but states have broader powers in terms of use and control of public land and