After a lengthy public hearing at its November 12, 2024, meeting, the Lowell City Council voted to amend Chapter 222 (“Peace and Good Order”) of the city’s Code of Ordinances by making it illegal to camp on public property. The vote was 8 to 1 in favor, with Councilor Wayne Jenness being the sole NO vote and Councilors Sokhary Chau and Paul Yem absent from the meeting.

Four members of the public spoke in favor of the amendment with 30 speaking against it. The comments of the opponents didn’t seem to change any council votes, but the criticism clearly rattled some of the councilors who felt compelled in their comments to make a variety of attacks on those who spoke against the ordinance.

The ordinance itself is well-written with an eye towards withstanding legal scrutiny when challenged in court (which it likely will be).

Here’s the gist of the new rule:

“It is unlawful for any person to camp or maintain a Campsite or Camp Materials in or on any public property or in the public right-of-way, including but not limited to any street, sidewalk, school or public park, unless specifically authorized or during a Period When Shelter Is Unavailable.”

The ordinance also states:

“No person may sleep on public sidewalks, streets, or alleyways at any time as a matter of individual and public safety.”

And

“No person may sleep in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk.” (I assume this is aimed at those sleeping in entryways to buildings.)

The ordinance goes on to say:

“Individuals in violation of this Ordinance . . . shall be subject to penalties.”

As for the penalties, the ordinance says this:

“All enforcement methods authorized by law, including G.L. c.40, s.21, non-criminal disposition authorized by G.L. C.40, s.21D, or enforcement authorized by G.L. c.272, s.59 (Ordinances or Regulations Relating to Streets, Reservation, or Parkways; Alcoholic Beverages; Profanity; Arrest Without Warrant) if the Lowell Police or other duly authorized officer on scene determines a violation of G.L. c.272, s.59 has occurred in their presence.”

Well, I don’t see how that could be any clearer. But seriously, that’s how laws and legislation get written, so it’s not purposely intended to be obscure and difficult to follow. But what exactly does it mean?

Massachusetts General Laws chapter 40 addresses “Powers and Duties of Cities and Towns.” Section 21 of that chapter is “By-laws of towns; purpose.” This section authorizes municipalities to make ordinances and by-laws “conducive to the welfare [of residents].” The municipality may also make the violation of such ordinances punishable by a fine not exceeding three hundred dollars. Notably, state law does not grant a municipality the power to impose a sentence of incarceration for the violation of an ordinance.

While the legislature has authorized these ordinances to deal with the “general welfare,” Section 21 specifically mentions topics such as snow removal, illegal sewers, the width of tires, violating bike lane rules, handicap parking spaces, and other things of a like nature as examples of things addressed by this law.

Section 21D of Chapter 40 allows for the “non-criminal disposition” of such cases, meaning that if a police officer witnesses a violation of the ordinance, instead of arresting the violator, they may instead give the violator a written summons to appear before the clerk magistrate of the District Court. The person may pay the fine outright, appear in court and pay the fine, or file a request for a hearing by the court. In any case, the matter shall not be deemed a criminal proceeding, and the alleged violator need not report to probation.

The Lowell ordinance also incorporates Mass General Laws c.272, s.59 which addresses ordinances relating to “streets, reservations, parkways; alcoholic beverages; profanity; and arrest without a warrant.” This section authorizes a police officer who witnesses a person “willfully violating” the relevant ordinance to arrest the violator and to keep the violator in custody until they can be taken before a court having jurisdiction over the offence.

Whoever drafted the Lowell ordinance wisely did not include a fine in the potential punishment. I use the term “wisely” because expecting a person who is in such desperate straits that they are sleeping in a tent in a public park to pay a fine would be laughable. However, that means there is no penalty for violation the ordinance. No penalty, other than being arrested and kept in jail overnight and taken to court the next day where the person will immediately be released because there is no penalty for violating the ordinance.

This, I think, will be legally problematic for the city. The precipitating event for this ordinance was the June 28, 2024, decision by the U.S. Supreme Court in the case of City of Grant Pass v. Johnson. That decision, made by a 6 to 3 vote, held that the enforcement of a City of Grants Pass ordinance that prohibited camping on public property did not violate the prohibition on “cruel and unusual punishment” contained in the Eighth Amendment to the United States Constitution. (The alternate view, expressed by Justice Sonya Sotomayor in her dissenting opinion, asserts that punishing individuals for sleeping in public when they have no alternative constitutes criminalizing homelessness which she viewed as both “unconscionable and unconstitutional.”)

The Lowell ordinance appears to have been carefully drafted to stay within the boundaries set by the majority in the Grants Pass decision and should therefore be able withstand a Constitutional challenge – a U.S. Constitutional challenge. The potential problem for the city of Lowell is that the Commonwealth of Massachusetts has a constitution of its own and that constitution is interpreted by the justices of the Massachusetts Supreme Judicial Court, not by the U.S. Supreme Court.

Forty years ago during the presidential administration of Ronald Reagan, the U.S. Supreme Court became more conservative in its opinions which seemed to weaken many individual rights, particularly in the field of criminal justice. Into that breach stepped the Massachusetts Supreme Judicial Court which held that the provisions of the Massachusetts state constitution provided stronger protection of individual rights than did its federal counterpart.

Should the Lowell anti-camping ordinance be challenged, as it undoubtedly will be the first time someone is arrested for violating it, the ordinance could be struck down by a state court as violating the state constitution which not only would invalidate the ordinance but likely leave the city liable for attorneys’ fees and costs.

Some may recall a similar outcome back in 2015 when the city council passed an ordinance that prohibited panhandling in the downtown. Three individuals charged with violating that ordinance challenged its constitutionality. In the case of McLaughlin v. City of Lowell, a U.S. District Court judge found that ordinance to be unconstitutional. I believe the city ended up paying a substantial amount in legal fees and costs to the plaintiffs and their attorneys in that case.

Setting aside the possible (state) constitutional infirmity of this ordinance, will it actually do anything to help the situation? In voting against the ordinance, City Council Wayne Jenness said he did not believe it would. It seemed that the two major complaints cited by councilors in promoting this ordinance were (1) the presence of used hypodermic needles all over the South Common; and (2) the intimidating nature of the individuals habituating the Common and its vicinity to students at the nearby Rogers School (aka the STEM Academy) and the patrons of local businesses. But the ordinance only prohibits camping. It doesn’t prohibit the same individuals from being in the South Common, nor does it prevent them or others from dropping used hypodermic needles (which are already illegal to possess) in public places. So other than prohibiting people from sleeping in these places, I’m not sure what this ordinance does to address the problem which transcends where someone sleeps.

Clearly something must be done to make the South Common safer and more hospitable for all, especially children living in the neighborhood and attending the adjacent school. The quantity of used needles alone is enough to make the park off limits for recreational purposes. The elusiveness of an effective solution is certainly frustrating. But passing an ordinance that courts will likely see as a vehicle for harassing homeless individuals by arresting them for violating an ordinance that has no penalty doesn’t seem like the right approach.

Maybe putting a fence around the South Common and locking the gates from dusk to dawn would help, but what’s to stop the same individuals you will keep out at night from walking through the gates during the day and engaging in the same problematic behaviors they do now?

As for those sleeping outside, my sense is that most of them would not go to a shelter even if one were available or would not be allowed in the shelter due to past noncompliance with the rules. They still need to sleep, and they will sleep outside. If they can’t do it on the South Common, they’ll go someplace else, and the business owners and residents of that place will (understandably) complain to city councilors about it.

What will the council do then? More rants, I suppose. That type of behavior was on display back at the November 5, 2024, council meeting during the discussion of a response to a previous motion by Sokhary Chau on “public safety at Lowell Housing Authority properties.” Two representatives of LHA, State Representative Rodney Elliott, in his capacity as a LHA commissioner, and Dennis Mercier, the facilities director of LHA, were present to answer questions. Nearly every councilor made comments or asked questions, but the remarks of two councilors really stood out, and not in a good way. Both Erik Gitschier and Corey Robinson repeatedly criticized the LHA for not ridding itself of tenants who are causing the most problems. Gitschier emphasized the “one strike” rule that theoretically says, “one violation and you’re out,” and Robinson read from the relevant LHA lease document that said violation for certain behaviors would result in eviction. Both were harshly critical of LHA and gave the distinct impression that the Housing Authority was either actively coddling wrong doers or negligently ignoring them.

Unlike members of the public who after speaking at public hearings are criticized by councilors but do not have the opportunity to respond, Elliott and Mercier, likely because of the positions they now hold and the firm position they hold within Lowell’s political universe, did have the chance to respond. They calmly but forcefully tried to introduce Councilors Gitschier and Robinson to the real world of landlord and tenant law.

If a tenant violates a term of their lease, the landlord may not unilaterally kick them out of the apartment. The landlord’s recourse is to file a complaint for eviction in the Housing Court. That process takes considerable time and even when a trial date is reached, the judges of the housing court are hesitant to evict people from their apartments, perhaps knowing that in the real world as opposed to in the heated rhetoric of the Lowell City Council chamber, the person so evicted would likely end up sleeping in a tent on the South Common.

Mercier, who is the LHA person who appears in court on eviction proceedings, I believe said that the LHA has more than 100 eviction cases underway in the Housing Court with some lingering for more than a year. (I know it might be hard to believe a court case could take more than a year to resolve, but it happens often, particularly when it is in the defendant’s best interest to keep delaying it.) All LHA can do is keep showing up in court and keep pursuing these cases within the system as it exists.

So just as councilors stamping their feet and criticizing the Lowell Housing Authority will not do anything to resolve the issues caused by troublesome tenants, neither will similar behavior by councilors magically make the South Common a safe centerpiece of the city’s park system. The only way to improve that problem is through the multi-pronged approach the city is already following with increased police presence, arrests when warranted by criminal activity, building more housing, provide supportive housing, outreach and engage with those living outside, substance abuse treatment opportunities, workforce development programs, and public/private partnerships with shelter operators and service providers. The city is already doing all of those things and would probably be better able to do them if critical personnel weren’t constantly being diverted from trying to solve the problem to humor micro-managing city councilors.

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One piece of good news from this past Tuesday’s council meeting (November 19, 2024) that could actually do something to help with the homelessness situation came in a report from Assistant City Manager/DPD Director Yovani Baez-Rose on the consequences of the city’s rapid adoption of the state’s MBTA Communities zoning rules. Recall that MBTA Communities is a recently enacted state law that seeks to increase the amount of housing, particularly affordable housing, in communities serviced by or adjacent to those serviced by the MBTA, including commuter rail. Many suburbs are vigorously fighting the requirements of this law and others are dragging their feet in implementing it, perhaps in the hope that the Supreme Judicial Court will strike it down or weaken it.

It turns out that Lowell is one of only 33 communities that have fulling implemented the law. The “carrot” provided by legislators as an incentive for communities to adopt this is a collection of grant programs intended to make it easier and cheaper for developers to build compliant housing Because Lowell is in such a small pool or eligible recipients, it gives the city “great opportunities” according to Baez-Rose to create more housing.

While the type of housing in the Lowell pipeline because of the MBTA Communities law may not immediately improve the problem of vagrancy on the South Common, everything is part of one big social organism. For every new housing unit constructed in Lowell, there is one more place to live. Someone in a precarious rental situation may find something more secure; then someone who is living in a shelter may move into the apartment, however precarious it may be, that was just vacated by the previously mentioned tenant.

That’s the only way to deal with homelessness. It’s not fast, easy, or cheap. But this is a challenge facing every city in America today, and those who are handling it best are the ones who take a deliberate, thoughtful approach.