A woman has asked the court to dismiss her citation for unlawful camping while she was going into labor, in what her lawyer believes to be the first constitutional challenge to Kentucky’s street camping ban.
The woman, who wishes to remain anonymous, gave birth the same day she was cited under a new ban on street camping in late September. Both she and her child are healthy and have found shelter, her public defender told Kentucky Public Radio. Her case first became public when KPR published the footage of her encounter with police last month.
In the filing, her lawyers argue the statute that makes street camping illegal is unconstitutional under four amendments to the U.S. Constitution and another four sections of the Kentucky Constitution.
“The treatment of [the woman] in this case is egregious, but it is unsurprising,” the filing reads. “The explicit criminalization of not just sleeping outdoors, but also the mere intent to sleep or ‘camp,’ which is defined broadly enough to encompass sitting on a mattress, encourages exactly this sort of cruel and arbitrary enforcement.”
Created under last year’s Safer Kentucky Act, the unlawful camping statute blocks anyone from “knowingly” entering or remaining in an undesignated public or private area — including under and overpasses or on a sidewalk — with the “intent to sleep or camp” there. It’s a violation on the first offense and becomes a Class B misdemeanor on subsequent offenses.
In body camera footage of the incident, the woman told Lt. Caleb Stewart, head of Louisville Metro Police Downtown Patrol, that she was in labor. After calling her an ambulance, he detained her and cited her for unlawful camping. He handed her the citation as she sat, breathing heavily by the side of the road as an ambulance approached.
Some of the arguments made in the woman’s filing are not dissimilar to ones made at the federal level before the U.S. Supreme Court. In that case, based on an Oregon city’s ordinance, six justices reversed a lower court decision, ruling that such camping bans do not constitute cruel and unusual punishment.
Several states, including Texas, Tennessee and Florida and more than 100 cities around the country have adopted variations on these anti-camping laws, according to the Washington-based National Homelessness Law Center, which advocates for the rights of unhoused people.
Ryan Dischinger, her public defender, said the law is too vague and could apply to a number of behaviors that are innocent, like accidentally falling asleep while reading in a park. Kentucky’s law also blocks someone from “intending to sleep” in an undefined area — not just the action of sleeping or camping itself.
“Somebody who doesn't have shelter probably has the intent to sleep somewhere. That's true of all of us, but probably has the intent to sleep somewhere in the area pretty much all the time,” Dischinger said. “It allows for police officers to, just at their discretion, at any point, hassle someone if they’re homeless, under the color of law, which is exactly what the Constitution is supposed to be prohibiting.”
Dischinger said he foresees three possible responses to the motion. The county attorney’s office prosecuting his client’s case could decide to accept the motion, which would create a broad precedent for other street camping cases. Alternatively, the office could ask to dismiss the case without addressing the motion or could actively fight it in court.
Neither the county attorney’s office nor the state Attorney General responded to a request for comment in time for publication.
The U.S. Supreme Court ruling that found camping bans similar to Kentucky’s are constitutional is a potential obstacle, Dischinger said, but the state court’s have the authority to take a different stand on the state constitution. He pointed, for example, to a 1992 Kentucky Supreme Court ruling that found the state’s anti-sodomy laws were a violation of the equal protections clause and the right to privacy — a ruling that came a decade before the U.S. Supreme Court came to a similar conclusion in 2003 Lawrence v. Texas.
“Our courts always have the ability and the authority to interpret the Kentucky Constitution as providing more protection to individuals than the federal Constitution and the Bill of Rights do,” Dischinger said. “That doesn't mean that they will, but they have the ability to do it.”
Just over a week ago, LMPD Police Chief Paul Humphrey acknowledged that, in hindsight, it was an error to cite the woman for unlawful camping. He also said that officers “get lied to every day” and that it was “sound reasoning” to assume the woman was faking a medical emergency to get out of a citation.
“It just happened to be wrong. These things happen,” Humphrey said in an interview with WAVE 3 News.
The woman’s next court date is Jan. 29, as part of a recently-created docket designed solely to address unlawful camping citations in Jefferson County.
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
