New Law Would Reinstate Eighth Amendment Rights Stripped by Grants Pass Decision
There is a bill currently being debated in the Delaware House that would offer unhoused residents of the state protections similar to what they had before the disastrous Grants Pass ruling — essentially reinstating their Eighth Amendment rights to not be criminalized due to a status rather than an act.
According to the bill’s sponsor, Rep Sophie Phillips, “HB 135 will not allow arrests and fines simply for being homeless, specifically, if they have nowhere else to go.”
This would protect Delaware’s homeless residents from being subjected to criminalization they have no way to avoid and also re-incentivize the state to actually provide housing options for its poorest residents instead of sweeping them under the rug or into a jail cell.
What’s Actually in This Bill?
According to the text of the bill, it seeks to “incentivize localities to coordinate or create adequate emergency housing, permanent housing, and wrap-around services for individuals experiencing homelessness, which will ease the financial burden placed on emergency services, hospitals, and the criminal justice system, while providing unhoused individuals stability and dignity.”
To that end, the bill would allow unhoused people to carry out life-sustaining activities in public, as long as they do not block traffic or create a hazard and have not been offered access and transportation to an alternative indoor shelter. This means that it could not be considered a crime for someone to unobstructively sit, stand, sleep, eat, or store their personal property in public places if they have nowhere else to do so.
The bill also confirms that unhoused people storing their belongings on public property are entitled to the same constitutional protections against unreasonable searches and seizures that housed people enjoy on their private properties.
It also has special carve-outs for people living in RVs or other vehicles parked on public property. State and local jurisdictions will not be allowed to move people along just because they’re living in their vehicle, as long as it is properly parked on public property and is not impeding the flow of traffic or otherwise causing a hazard. Additionally, if the vehicle must be moved, the person living in it must be given the chance to relocate the vehicle before it is towed or issued a citation.
What it does not do is prevent the use of reasonable time restrictions on public places, as long as these restrictions apply to everyone and are not disproportionately enforced against homeless people.
It’s all pretty common-sense stuff, yet the business community and some local governments are still up in arms about it.
Businesses and Local Governments Are Afraid of Being Sued
Some business owners are opposed to this for the same shortsighted reasons they always are. They imagine that the proximity of unhoused people makes housed people reluctant to patronize their business, and they fail to see a future where those same unhoused people, once housed in secure, affordable housing, will have enough disposable income to then patronize their business.
They may have also stopped reading before the realization dawned that this bill only applies to noncriminal actions on public property. Police will still be available to respond to criminal actions and to move people off of private property at the request of the property owner. If a homeless person was trespassing, causing a hazard, engaged in criminal activity, or blocking the flow of traffic into your establishment, you would still be able to have them removed.
Local governments, however, are throwing a tantrum over the last clause in the bill, which says:
“This Act further permits an individual experiencing homelessness to raise a violation of this Act as an affirmative defense to any charge of violating a statute or ordinance that prohibits life-sustaining activities protected under this Act. The attorney general may commence a civil action against any State or local government, government agency, or government official that violates this Act, and this Act also contains a private right of action. This Act specifically waives sovereign immunity.”
Basically, they don’t want to get sued over their own bad behavior. State Rep. and House Minority Whip Jeffrey Spiegelman even said as much, giving a terrifying glimpse into his internal values system at the same time: “This is a cudgel. This is, if you don’t do as we say, you can be hit by a civil rights lawsuit. That is a very, very dangerous situation, especially at a time when every single one of us would love to have more businesses attracted to the Downtown Development districts.”
I’ll leave the reader to decide which is more dangerous — the metaphorical cudgel of a civil rights lawsuit, or the literal weaponry that accompanies every unnecessary encounter between police and homeless people who are just trying to exist in peace. And what is more important — the safety and well-being of Delaware’s most disadvantaged residents, or more businesses being attracted to the Downtown Development districts? Unfortunately, Rep. Spiegelman’s thoughts are clear, and he is not alone in that thinking.
These People Want Housing
Amidst all this debate over other people’s lives, a common refrain is that “they don’t even want shelter,” which somehow becomes a justification for criminalization, encampment sweeps, and arrests just for existing, which “they” also do not want, by the way. While Invisible People has covered the many different reasons why shelters are not right for every homeless person, that’s not even the biggest factor at play here. The issue is access.
In 2024, only 952 out of 7,131 households that contacted the Housing Alliance Delaware’s homelessness hotline were referred to housing assistance. Thousands of people in Delaware reached out for help finding a housing option for themselves or their families and were met with nothing, because the supply of emergency shelter beds, affordable housing units, and housing support services in the state is far below the current need.
The solution to that problem is not arresting people or charging them fines. The solution to homelessness is housing. Safe, supportive, secure, and permanently affordable housing — the same thing we all want for ourselves and our loved ones.
