Federal Judge issues temporary injunction on Philly's controversial outdoor homeless feeding ban

By Jon Campisi | Jul 12, 2012

In a highly watched case by those serving the city’s needy, a federal judge in Philadelphia Thursday morning granted a preliminary injunction temporarily barring the city from enforcing its recently enacted ban on public feedings for homeless men and women.

U.S. District Judge William Yohn, of the Eastern District of Pennsylvania, ruled from the bench following about an hour-and-a-half of final arguments offered by city lawyers and attorneys representing four religious organizations that were suing to overturn the ban on religious and freedom of expression grounds.

Lawyers with Pennsylvania’s ACLU office and attorneys with the civil rights law firm Kairys, Rudovsky, Messing & Feinberg filed for injunctive relief early last month on behalf of Chosen 300 Ministries, Inc., The Welcome Church, The King’s Jubilee and Philly Restart, as well as various individual religious figures.

The plaintiffs contend a city ordinance that went into effect June 1, which bans outdoor feedings in all city park spaces, violates the First Amendment of the U.S. Constitution as well as Pennsylvania’s Religious Freedom Protection Act.

The case quickly made its way through the federal court system after city officials stated their desire to get prompt closure on the issue.

Thursday’s final arguments, which followed two days of testimony earlier in the week, were viewed by a packed 14th-floor courtroom at the federal building at Sixth and Market streets in the city’s historic district.

Some in the audience wore clerical collars, reflective of their respective religious positions.

Plaintiffs’ lawyer Paul Messing reiterated his argument that the city’s ban on outdoor homeless feedings violates the constitutional rights of his clients, while city lawyers outlined why they feel the ban passes constitutional muster.

The city argued that an alternative plan, which makes food and other amenities available to the homeless on the concrete apron at City Hall, satisfies an obligation to make sure the needy are taken care of.

The plaintiffs, however, counter-argued that that option is anything but an acceptable alternative, partly because of the location – it’s not easy to get to for disabled homeless citizens, it’s fraught with noise and traffic, and it can be downright dangerous given the ongoing construction on the outdoor plaza – and partly because it has already been shown that the homeless have an aversion to traversing to the site given its proximity to the courts and law enforcement personnel; homeless people are afraid to be near people in positions of authority, testimony showed.

“The City Hall apron does not help, it in fact hurts,” plaintiffs’ lawyer Messing said. “They [the city] have made it impossible for them [the plaintiffs] to reach their audience. This apron does not provide an ample alternative.”

Messing argued that prohibiting the religious organizations from hosting their feedings anywhere in the city’s hundreds upon hundreds of acres of parkland will have, and is already having, unintended consequences; the ban has actually made things worse for the homeless, not better, which apparently is the city’s ultimate goal.

Assistant City Solicitor Amanda Shoffel said the case isn’t about city policy choices, but rather it’s about whether or not the specific plaintiffs’ rights were violated.

She argued they were not, saying irreparable harm has not been shown.

In court, Shoffel argued that the city’s ban on outdoor feedings doesn’t singlehandedly affect religious organizations, but rather it affects secular ones as well.

Shoffel noted that it’s the activity itself that is being regulated, not particular groups of people.

“The evidence has shown here that this is a content neutral law,” Shoffel said.

On the claim that the ultimate goal of Mayor Michael Nutter’s administration is to rid the city of its homeless problem, the plaintiffs – and the judge seemed to agree to some extent – argued that the ban is having the opposite result, since less homeless people have been turning out to City Hall for food and services than were attending the feedings in Fairmount Park, mostly in the area of the Benjamin Franklin Parkway.

(Some homeless advocates have alleged that the city’s real aim was to remove the homeless from areas such as the Parkway, which is viewed as a tourist attraction, especially since the ban was timed with the opening of the new Barnes Museum).

When Shoffel said the case isn’t about the homeless, per se, but rather about the specific plaintiffs, Judge Yohn disagreed slightly, saying: “It’s about the plaintiffs, certainly, but I think it’s also about the homeless.”

Yohn noted that while the city has employed an alternative plan to the public feedings, in this case, making such offerings available outside of City Hall, the problem is that “the homeless don’t want to go.”

Yohn went on to say that he truly believes all parties involved have only the best interest for the homeless in mind, saying both the plaintiffs and the city are “sincere in their beliefs.”

However, Yohn also noted that it is “not for me to decide the wisdom of the policy.”

At the end of the hearing, Yohn agreed to temporarily enjoin the ban until he conducts further research and prepares a formal memorandum with findings of fact and conclusions of law.

In issuing his preliminary injunction, Yohn acknowledged the “complex legal issues” involved with the case, and noted that he may change his mind about the injunction pending the outcome of his research; he further stated he rarely issues rulings from the bench.

In discussions with counsel from the bench, Yohn also signaled that he would like to see the ban held off for a year or so, giving the city and those representing the religious organizations a chance to try and sit down and come up with some meaningful solutions to the city’s homeless problem.

For now, though, those advocating for the homeless simply seem pleased at Thursday’s ruling issuing a temporary injunction on the ban.

After the proceedings ended, the plaintiffs and their supporters were seen hugging and congratulating each other inside and outside of the courtroom.

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