City passes illegal camping ordinance

John Richmeier
The Leavenworth Times

Leavenworth city commissioners have approved an illegal camping ordinance that is aimed at addressing homeless encampments.

The ordinance makes it illegal to camp on city property or public right-of-ways. The ordinance provides an exemption for the campground at Riverfront Park and allows 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.

Commissioners had their first consideration of the ordinance July 27. It was brought back to commissioners Tuesday for second consideration and a final vote.

The ordinance passed Tuesday by a 4-0 vote. Mayor Nancy Bauder was absent.

Leavenworth Police Chief Pat Kitchens said a change was made to the ordinance following the first consideration by commissioners. He said the change is an addition of a provision allowing an "affirmative defense" to the ordinance in cases in which all local homeless shelters available to a person are full at the time of an offense.

Kitchens said this provision was added based on legal rulings reviewed by city officials.

Last month, representatives of the National Homelessness Law Center and the American Civil Liberties Union of Kansas sent a letter to city commissioners concerning the illegal camping ordinance. The letter expressed concern the ordinance may run afoul of a federal appellate court ruling.

The ruling concerned the enforcement of camping and disorderly conduct ordinances in the city of Boise, Idaho. Judges for the 9th Circuit Court of Appeals 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 police will need to determine whether shelters in the city are full before taking enforcement action of the illegal camping ordinance.

"We would evaluate all of that," he said.

If shelters are full, police can evaluate other options. He said officers can look at whether other violations are taking place such as littering, violating park hours and having alcohol in city parks.

Kitchens said the affirmative defense would not prevent action from being taken against someone who has been banned from a local homeless shelter.

"That would not preclude us from taking enforcement action in this circumstance because they had the alternative but they lost that privilege to do that," Kitchens said.

Twitter: @LVTNewsJohnR

In other business

The Leavenworth City Commission:

• Approved a ordinance that makes changes to city regulations related to cereal malt beverages and liquor. The changes were proposed as a result of a change in state law.

One of the changes to city regulations will allow the sale of alcohol to begin at 9 a.m. on Sundays instead of noon.

The ordinance is subject to a 60-day protest period before it can go into effect.

• Received a presentation about a 2020 audit.

• Approved a cereal malt beverage license for a new 7-Eleven store at 609 Metropolitan Ave.

• Reached a consensus to advance a proposed ordinance for levying special assessments to recoup city costs associated with the demolition of structures. The ordinance will come back to commissioners for a final vote.

• Reached a consensus to advance a proposed ordinance for levying special assessments to recoup city costs associated with the abatement of nuisances such as mowing, tree removal and cleaning up lots.