On The Front Lines
Napping Not Allowed: Ban on Sleeping in Cars Could Allow Police to Seize Car Occupants, Vehicles and Carry Out Warrantless Searches
ROANOKE, Va. — The Rutherford Institute is sounding the alarm over a local Virginia ordinance that makes it illegal for people to sleep in their cars and subjects them to warrantless seizures and searches by police and a fine of $250. Warning that government officials have opened themselves up to legal jeopardy with the enactment of Roanoke County Code § 13-14, a constitutionally vague, overly broad ordinance that could subject all motorists who nap in their vehicles to warrantless seizures and searches by police, The Rutherford Institute is urging the County Board of Supervisors to repeal the ordinance. Institute attorneys also voice the concern that the ordinance—a thinly veiled attempt to crack down on the area’s homeless population—echoes a national trend in urban and suburban communities to criminalize homelessness.
“Not only does this ban on sleeping in cars subject the area homeless population to heightened legal peril, but by its plain terms, this law also gives police broad enforcement powers that can be abused to violate the rights and privacy of all citizens,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “By criminalizing common activity that is wholly innocent, this ordinance gives police an additional basis for conducting arbitrary and pretextual seizures and searches of citizens and their vehicles. It threatens not only the homeless, but also law-abiding citizens guilty of nothing more than fatigue while driving.”
The Roanoke County Board of Supervisors adopted Code § 13-14 in February 2019, an ordinance that prohibits persons from using automobiles for sleeping, despite the fact that the problem of sleeping in cars is “not widespread” and has cropped up only “occasionally” over the years. In proposing the ordinance, County staff were reportedly concerned that the use of automobiles for sleeping “can have a negative effect on neighborhood aesthetics.” The ordinance specifically provides that it shall be a Class 4 misdemeanor “for any person to use an automobile for sleeping quarters, in place of a residence, hotel or other similar accommodations, within the County.” The ordinance defines “hotel” and “automobile,” but does not define “sleeping” or otherwise limit what kind of “sleeping” violates the ordinance. Under the County Code, a Class 4 misdemeanor is punishable by a fine of up to $250.
In its letter to the Board, The Rutherford Institute warns that courts around the country have not hesitated in finding similar ordinances to be invalid as unduly vague and an arbitrary exercise of government power. For example, an Alabama appeals court struck down an ordinance forbidding sleeping in a car on a public street because it left to police the unfettered discretion of whether the conduct of the person cited was lawful or unlawful. Similarly, a Florida appeals court found an ordinance making it unlawful for a person to “lodge or sleep in or about, any automobile or truck” to be overbroad by criminalizing conduct that does not impinge upon the rights of others. It also found the ordinance unduly vague because it covered a variety of wholly innocent activity, yet left to the police officer’s unbridled discretion whether to enforce the ordinance. Just last year, a federal court held that a city ordinance making it illegal to use public streets or parks for temporary lodging constituted cruel and unusual punishment as applied to homeless persons who had no other shelter available to them. As such, the Eighth Amendment forbids making it criminal to be homeless in a public place.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated.