Can Governor McKee really evict homeless people sleeping on State House grounds?

On Dec. 7, people who have been sleeping outside in tents were given 48 hours to vacate the State House grounds or face fines or arrest. But some legal experts say the governor’s decision could be “criminalizing homelessness.”

A tent occupied by homeless people is set up in front of the Rhode Island State house.John Tlumacki/Globe Staff

PROVIDENCE — Local and national legal experts are questioning whether Governor Dan McKee has the authority to evict homeless people sleeping on the grounds of the Rhode Island State House, which is public property.

On Dec. 7 the people, who have been sleeping outside in tents, were given 48 hours to vacate the State House grounds or face fines or arrest. According to notices handed out at the time, the state promised to provide them with a bed in an emergency shelter and transportation from the State House.

But Rhode Island currently has a severe shortage of shelter beds for people who are homeless. And as the 9 a.m. deadline for eviction came and went on Dec. 9, it was still unclear where, exactly, the state was proposing to place those who had been camping on State House grounds. By noon on Dec. 9, McKee spokesman Matthew Sheaff that there were “less than 10″ remaining members of the encampment, though there were still about 25 tents set up outside the State House.

“If there aren’t enough available shelter beds, then you can’t criminally punish someone from taking care of their basic rights like sleeping and sheltering,” Eric Tars, the legal director of the National Homelessness Law Center in Washington D.C., said in an interview with the Globe. “There doesn’t seem like there are beds available, let alone accessible.”

On Monday, when questioned by members of the press at an unrelated event, McKee said the state was short “close to 200 shelter beds.” But according to data provided by the Rhode Island Coalition to End Homelessness, as of Nov. 30 there were approximately 615 people, including children, living in places not meant for habitation while they waited for spaces in shelters.

Tars noted that in Martin v. Boise, a case the center took on in the U.S. Ninth Circuit Court of Appeals, the court decided that unhoused individuals could not be punished for sleeping on public property if there were a lack of alternatives. Criminal and civil penalties used to punish those who are unhoused for existing in public spaces with nowhere else to go can be a violation of the Eighth Amendment, which refers to cruel and unusual punishment.

After 12 years of litigation, in 2021 the city of Boise reached an agreement and invested more than $1.3 in preventing homelessness, with at least one third committed to creating additional overnight shelter space.

Garbage, clothing, drug paraphernalia, and miscellaneous belongings lie near tents occupied by homeless people who have been camping in front of the Rhode Island State House.John Tlumacki/Globe Staff

“The rest of the country needs to take notice from that,” said Tars, who said threatening to fine or jail those who are sleeping outside on public grounds is “criminalizing homelessness.”

Tars said unplanned “sweeps” to evict homeless people force them to choose between their only possessions, which could include mobility devices, extra winter clothing, and necessities. If a homeless person loses their cell phone in the sweep, then providers can’t contact them for services or shelter bed information, leaving them on the streets longer.

“These sorts of sweeps destabilize people and make it harder for them to actually exit homelessness,” said Tars. “They might not be on the street in front of the State House anymore, but it doesn’t mean their homelessness is over.”

Steven Brown, the executive director of the American Civil Liberties Union of Rhode Island, sent a letter to McKee on Dec. 8, demanding that he rescind his order to evict the homeless individuals living in tents in light of “the serious legal and policy concerns raised by such an action on the state’s part.”

“State House grounds are open to the public,” read Brown’s letter, which noted that the state does not have any formal rules or regulations that would allow for such an eviction.

The McKee administration is citing a trespassing law they say does not violate the Homeless Bill of Rights, which was passed in 2012 after being introduced by Leader Chris R. Blazejewski, a Providence Democrat. It is unclear how the the encampment is trespassing on public grounds.

“All Rhode Islanders deserve safe, warm, and dignified housing,” Blazejewski said in a statement to the Globe. “I was proud to have been the lead sponsor of the Homeless Bill of Rights, the first such law in the nation in 2012. As to how the law applies here, the matter is currently before the Superior Court, and I defer to the Court’s judgment.”

The Homeless Bill of Rights says: “No person’s rights, privileges, or access to public services may be denied or abridged solely because he or she is homeless. Such a person shall be granted the same rights and privileges as any other resident of this state.”

“The State House is owned by the state. The people it represents are the citizens of Rhode Island. My clients are citizens of Rhode Island. So there is an argument that these citizens are owners of the grounds of the State House,” said Richard Corley, an attorney who used to serve on the Warwick City Council, who on Dec. 8 filed a suit on behalf of the people sleeping outside. On Dec. 9, Superior Court Judge David Cruise issued a temporary restraining order, preventing the state from clearing the tent encampment until Wednesday. A hearing is scheduled for Wednesday at 10 a.m.

Richard K. Corley, an attorney and former Warwick City Councilor, speaks to reporters on Dec. 9, 2022 outside of Rhode Island Superior Court.Alexa Gagosz/ Globe Staff

Corley said the interior and exterior grounds of the State House are used every day for events outside of legislative practices. For the last two years, many protests and rallies took place on the State House’s grounds at night. Last December, a candidate for lieutenant governor and many advocates slept outside in tents for weeks, calling on McKee to add more winter shelter beds. None received eviction notices.

McKee told reporters on Monday that state employees were attempting to find housing for members of the encampment.

“The people who are supporting the court action are trying to keep those people, the people who are homeless, homeless,” said McKee.

.@GovDanMcKee asked about the state’s legal position on State House encampment: “The people who are supporting the court action are trying to keep those people, the people who are homeless, homeless.” pic.twitter.com/InhXURIPPp

— Brian Amaral (@bamaral44) December 12, 2022

Attorneys R. Bart Totten and Stephen D. Lapatin, both of Adler Pollock & Sheehan P.C., are representing the governor in Wednesday’s hearing and did not immediately respond to the Globe’s requests for comment.

Though the state told the homeless people at the State House that they would be transported to emergency shelters, officials may not be able to do so immediately, according to Caitlin Frumerie, the executive director of the Rhode Island Coalition to End Homelessness. Frumerie said the state is looking to identify temporary shelter for those at the encampment who are at the top of the shelter priority list.

“But we can’t just skip everyone else already in line,” Frumerie told the Globe, explaining that the state might be looking for shelter spaces outside of the Coordinated Entry System (CES). It’s unclear, she said, where those units may be since shelter beds have long been at capacity. Not all shelters accept all people: some cater only to men, while others will not accept children or pets, or cannot accommodate people with disabilities.

Brown, of the ACLU, questioned how the state is trying to work outside CES, which was designed to “ensure that there is fair and equal access to shelter for those experiencing a housing crisis,” Brown said in an email to the Globe.

In a statement to the Globe, Speaker K. Joseph Shekarchi, who has called for prioritized housing legislation again during this upcoming session, said he respects the legal process regarding the temporary restraining order but that he was “extremely concerned” about those living outside throughout this state at this time of year.

People sleeping in tents outside the State House “is simply unsafe and is a microcosm of a much bigger problem that exists,” said Shekarchi. “We don’t have enough housing for those who need it. The legislature has allocated significant funding to address Rhode Island’s housing shortage, and those resources need to be deployed more rapidly and effectively.”