Commissioners advance illegal camping ordinance

John Richmeier
The Leavenworth Times

When they met this week, Leavenworth city commissioners advanced a proposed illegal camping ordinance that is aimed at addressing homeless encampments.

Commissioners reached a consensus Tuesday to advance the proposed ordinance for a final vote. It likely will be brought before commissioners for final action in two weeks.

The ordinance, if approved, would make it illegal to camp on city property or public right-of-ways. The ordinance would create an exemption for the campground at Riverfront Park. The ordinance also would allow the city manager to grant permission for camping on public property for special events.

The ordinance was proposed following recent instances of people camping on public property including Bob Dougherty Park.

The decision to advance the ordinance for a formal vote came after city commissioners were sent a letter from representatives of the American Civil Liberties Union of Kansas and the National Homelessness Law Center.

In their letter, Eric Tars, legal director for the National Homelessness Law Center, and Kendall Seal, advocacy director for ACLU of Kansas, urged commissioners to vote against the ordinance. They expressed concern the ordinance may run afoul of a federal appellate court ruling.

Commissioners did not mention the letter Tuesday as they discussed the ordinance.

Leavenworth Police Chief Pat Kitchens first reviewed the proposed ordinance with commissioners during a July 6 study session. It was brought before commissioners Tuesday for what is referred to as first consideration.

Speaking Tuesday, Kitchens addressed questions previously raised by commissioners.

During the earlier study session, Mayor Nancy Bauder questioned the possible penalty of a $500 fine for a violation of the ordinance.

Kitchens said $500 would the maximum amount for a fine.

"It would be entirely up to the judge's discretion," he said.

Bauder said Tuesday that she is OK with this provision of the proposed ordinance, but she does not know how a homeless person would pay such a fine.

"Our intent is not to fine," Kitchens said.

He said the ordinance would provide the framework for taking action when officers feel it is necessary.

Kitchens said Commissioner Mark Preisinger had previously suggested simplifying the ordinance. But the police chief said it is important that the ordinance not be too vague.

Kitchens also addressed an earlier question raised by Commissioner Mike Griswold about the effectiveness of the ordinance.

Kitchens said similar ordinances are in place in Lawrence and Topeka. He said the ordinances in those communities are used to address serious issues with homeless encampments.

In their letter, Tars and Seal cited the 2018 ruling in the Martin v. Boise case by a panel from the 9th Circuit Court of Appeals.

The case concerned the enforcement of camping and disorderly conduct ordinances in the city of Boise, Idaho. Judges for the 9th Circuit ruled the cruel and unusual punishments clause of the Constitution's "Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. The panel held that, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter."

Kitchens said Wednesday that the city of Leavenworth's legal team has made a preliminary review of the case and will continue to evaluate it.

The police chief believes the circumstances in the Boise case differ from those in Leavenworth. He suggested people in Leavenworth have another option other than sleeping on public property.

An organization called Leavenworth Interfaith Community of Hope operates a shelter in the city.

Twitter: @LVTNewsJohnR

In other business

The Leavenworth City Commission:

• Reached a consensus to advance a proposed ordinance that would make changes to city regulations related to cereal malt beverages and liquor. The changes are proposed as a result of a change in state law.

One proposed change to city regulations would allow the sale of alcohol to begin at 9 a.m. Sunday instead of noon.

The ordinance will be brought back to commissioners during a future meeting for a final vote.

• Approved an ordinance to vacate the right-of-way for a portion of Sanders Street that has never been constructed.

• Approved a resolution to give the owners of a fire-damaged structure at 1006 Kickapoo St. 90 days to complete repairs.

The vote came at the conclusion of a public hearing on the matter.

• Voted to schedule a public hearing for Sept. 14 to consider the possible demolition of 13 structures that may be deemed to be unsafe.