R.I. judge denies preliminary injunction for McKee’s order to clear homeless encampment outside State House

The ACLU and the Center for Justice filed a suit this week claiming the state’s attempt to clear homeless Rhode Islanders from State House grounds is unconstitutional.

A tent occupied by homeless people in front of the Rhode Island State House.John Tlumacki/Globe Staff

PROVIDENCE — Superior Court Judge David Cruise on Friday denied a preliminary injunction sought against Governor Dan McKee’s order that an encampment of homeless Rhode Islanders must leave the State House grounds.

Cruise said he found “no violations” of the First Amendment or the state’s Homeless Bill of Rights, which prohibits discrimination based on housing status. His ruling focused on the state’s ban on overnight use of the State House’s grounds, which he said was a rule “not aimed at any one group.”

The defense, led by attorneys R. Bart Totten and Stephen D. Lapatin of Adler Pollock & Sheehan P.C., cited cases elsewhere which found that there was a time, place, and manner for protests on state-owned property, even if the policies were not shared with the public.

ACLU of Rhode Island cooperating attorney Lynette Labinger “respectfully” objected to Cruise’s decision.

“This case is 10 days old,” she said. “We’ve had no opportunity for discovery.”

It is unclear when the homeless Rhode Islanders living in tents on the State House grounds will have to leave. The state opened the Cranston Armory for use as an around-the-clock warming center on Friday evening, and the governor announced that Amos House, a provider of services for homeless people, will staff the facility, even though their proposal for running the warming center had not yet been approved.

The governor’s office responded to the ruling Friday afternoon.

“Over the last several weeks, members of our administration worked diligently to offer shelter options to all who were encamped at the State House. Thanks to their efforts, the majority of individuals accepted the offer of shelter and transportation to that shelter,” said Andrea Palagi, a McKee spokeswoman, in a written statement. “We were able to outline those extensive outreach efforts to the court and today’s ruling acknowledges the effectiveness of that work. The ruling also upheld the validity of the reasonable time, place and manner restrictions that the Department of Administration has in place for use of the State House grounds.”

Center for Justice executive director Jennifer Wood said she and the ACLU of Rhode Island would need to evaluate the judge’s decision before figuring out next steps.

She said there’s “always” a chance of an appeal.

Earlier this week, the American Civil Liberties Union of Rhode Island and the Center for Justice filed a lawsuit against McKee, claiming his order is unconstitutional and a violation of the Homeless Bill of Rights. The lawsuit, attorneys for both organizations said, is an extension of an earlier lawsuit filed Dec. 8 filed by Warwick-based attorney Rick Corley.

The complaints were filed in response to notices handed out by McKee staff on Dec. 7 giving the people living in tents on the State House grounds 48 hours to vacate, or face fines or arrest. According to the notices handed out, the state promised to provide people in the encampment with beds in an emergency shelter and transportation from the State House.

Attorney General Peter F. Neronha declined to represent the governor in the case, saying in a statement that his office had not “been previously consulted in any manner regarding their decision to evict and the way those evictions would be effectuated.”

The ACLU’s complaint states that some or all of the plaintiffs are in need of and unable to access adequate shelter, and that they believe that message is “best conveyed by their continuing physical presence at the seat of the Rhode Island government.”

The ACLU also argued that while a policy for the State House, which was revised Nov. 4, prohibited overnight use of the State House grounds, it was never shared with the public nor did it follow policy revision guidelines under state law.

The complaint also states that some people living in the encampment on State House grounds believe staying there “affords them more safety and security from exposure to crime and greater access to social services” than they would normally receive being in secluded, isolated locations such as woods or parkland.

In her closing argument, Labinger said this was at least the fourth protest of its kind in the last two years, showing “housing availability for the people of Rhode Island is in dire need” and has not “been adequately addressed.”

Capitol Police Chief Joseph Little, who was a witness for the state, said there were numerous incidents of human feces, urine, and syringes were that scattered on the grounds of the State House related to the encampment.

Labinger argued it was the individual’s First Amendment right to “make their statement to the government” even if “they were doing it in a way that makes people uncomfortable.”

”If they set up shop in the middle of the woods, they would be out of sight and out of mind,” Labinger said. “They want to make it everyone’s problem.”

Trotten said in his closing remarks that there is “no doubt” that homelessness is one of the most pressing issues Rhode Island faces and that individuals’ First Amendment rights “are the most important.”

“All of that aside, that’s not what we are deciding here. It’s a narrow issue,” said Trotten. “The right to speech is not limited. But the government has the right to limit how, when, and in what manner.”

This story has been updated with a statement from the governor’s office and information from the court proceedings.