A federal court decision issued Nov. 28 protects the constitutional rights of Pottstown College Drive Encampment residents experiencing homelessness. The ruling granted a preliminary injunction, in part, for plaintiffs, Better Days Ahead Outreach, Inc. et al. Judge Mia R. Perez, of the U.S. District Court for the Eastern District of Pennsylvania, cited the Eighth Amendment protection against cruel and unusual punishment as the basis of her decision.

The Borough of Pottstown threatened that anyone who remains at the College Drive Encampment after Dec. 1, 2023 would be subject to potential criminal actions. The judge’s order prevents the Borough from engaging in criminal enforcement. Specifically, Judge Perez ruled that the encampment residents cannot receive or be threatened with criminal citations, arrests, or fines, “as long as there are more unhoused individuals than there are shelter beds in Pottstown.”

Community Justice Project (CJP) and Legal Aid of Southeastern PA (LASP) argued the Motion for Preliminary Injunction on behalf of the homeless individuals living in the College Drive Encampment, along the Schuylkill River Trail in Pottstown. CJP’s Marielle Macher and LASP's Charles Burrows and Erica Briant asked the court to order the Borough of Pottstown to refrain from using criminal sanctions to close the encampment of approximately 25 residents experiencing homelessness on Dec. 1, 2023 without an offer of adequate alternative housing.

The hearing for Better Days Ahead Outreach, Inc. et al v. Borough of Pottstown took place on Nov. 16 and 20 at the James A. Byrne U.S. Courthouse in Philadelphia. Judge Perez issued a 16-page opinion and 2-page order on Nov. 28. 

Excerpt from the order from Judge Perez:

“Borough of Pottstown, its agents and employees, are preliminarily enjoined from issuing any criminal citations, arrests or fines or threats to cite, arrest, or fine the unhoused residents of the College Drive Encampment who cannot practically obtain shelter as long as there are more unhoused individuals than there are shelter beds in Pottstown.”

Excerpts from the opinion from Judge Perez:

"For purposes of the preliminary injunction assessment, the Court finds that Plaintiffs have established a likelihood of success on the merits for their Eighth Amendment claim, but have fallen short on the merits analysis for the state-created danger claim brought under the Fourteenth Amendment. Plaintiffs have demonstrated that they are subject to a credible threat of being arrested, cited, or prosecuted and potentially jailed for sheltering outdoors at the College Drive Encampment. Further, the Borough does not contest that there is a shortage of shelter space in Pottstown and Montgomery County generally. The issue here is with the manner in which the closure will be enforced. This Court finds that the Borough may take steps to close the College Drive Encampment—however, Defendant may not do so through the imposition of criminal penalties." [page 2; boldfacing added]

In discussing protections under the Eighth Amendment as recognized in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019):

“So long as the unhoused residents of the encampment do not have a single place where they can lawfully or practically sleep within the Borough, the imposition of criminal sanctions for living, sleeping, or simply existing on Borough-owned land would effectively punish them for something for which they may not be convicted under the Eighth Amendment—that is, their status of homelessness.” [page 10]

In discussing the differences between Philadelphia encampments during COVID-19 and the Pottstown encampment, Judge Perez observed regarding the Pottstown College Drive encampment:

“…[I]ts residents are simply camping in the woods, trying to avoid detection and live with a level of dignity.” [footnote, page 10]

Impact of criminal sanctions on people experiencing homelessness:

“Without a preliminary injunction, Plaintiffs face a continued threat of citation, arrest, and prosecution. On its own, the threat of criminal sanctions is a hardship because enforcement of the ordinances against individuals that cannot practically obtain shelter violates their Eighth Amendment right to be free from cruel and unusual punishment. Practically speaking, the imposition of criminal sanctions also makes homelessness even harder to exit. Criminally sanctioning unhoused people creates further barriers to employment, housing, and access to services. The Borough has raised safety concerns about flooding on the Schuylkill banks, however, the Borough may still lawfully evacuate the site in a manner that does not run afoul of homeless people’s Eighth Amendment rights. Moreover, entering a narrow injunction preventing the Borough from using criminal sanctions to close the College Drive Encampment is also in the public interest. The public is not harmed by an injunction requiring basic constitutional protections for unsheltered persons who have nowhere to go.” [page 16]

Marielle Macher, Community Justice Project Executive Director, noted, “Criminalizing homelessness is unconstitutional. The Court’s decision recognizes this principle.”

Carolyn Johnson, LASP Chief Counsel, stated, "This result is a protection of the constitutional rights of those experiencing homelessness. Legal Aid of Southeastern PA is dedicated to serving those with low incomes, ensuring they have essential housing and other critical resources, whether they are indoors or outdoors. Our legal efforts are aimed at preventing the criminalization and mistreatment of homeless individuals, upholding their basic human right to live and exist. Presently, there are limited options for alternative housing and shelter in Pottstown. Not everyone can be housed indoors, but it is an ideal to pursue."

Charles Burrows, LASP Staff Attorney, said, “It is well-established that our clients’ constitutional rights are at risk of being violated by the refusal to offer adequate shelter space. As the Martin decision establishes, 'so 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.' This decision affirms that criminalizing a person’s status as homeless violates the Eighth Amendment’s protections against cruel and unusual punishment and will protect both our clients’ rights and potentially many more beyond Pottstown.”

Erica Briant, LASP Director of Community Engagement & Training, said, “I've seen through my work, time and time again, the huge negative impact faced by people with criminal records in getting housing. It's a huge relief to be able to share the news with our clients and the people impacted by the order. They have just that little bit of extra certainty, when they're already struggling with so much, to know that they won't face criminal charges that would create an additional barrier for them.”

BETTER DAYS AHEAD OUTREACH INC. v. BOROUGH OF POTTSTOWN

CIVIL ACTION NO. 2:23-CV-04234.

ATTORNEYS for Plaintiffs

Marielle Macher, Esq., Community Justice Project 
Charles Burrows, Esq., Legal Aid of Southeastern PA 
Erica Briant, Esq., Legal Aid of Southeastern PA.

Order 
Memorandum Opinion

MEDIA CONTACTS

For Community Justice Project:  
Marielle Macher, Executive Director
Telephone: 717-236-9486, ext. 214
mmacher@cjplaw.org

For Legal Aid of Southeastern PA:  
Carolyn Johnson, Chief Counsel
Telephone: 484-681-2439
cjohnson@lasp.org

About Community Justice Project (CJP)
The Community Justice Project is a non-profit, legal aid law firm that is part of Pennsylvania’s Legal Aid Network. With the help of legal services organizations and community groups, CJP challenges policies and practices that cause hardship to low-income people throughout the Commonwealth. CJP fights for improvements to public benefits, increased access to affordable housing, better pay for workers, and many other issues.  communityjusticeproject.org/

About Legal Aid of Southeastern PA (LASP)
Legal Aid of Southeastern Pennsylvania (LASP), a nonprofit law firm, is celebrating 22+ years of service in Bucks, Chester, Delaware and Montgomery counties. It has local offices in Pottstown, Bristol, Chester (Delaware County), Doylestown, Media, Norristown and West Chester. LASP provides quality legal representation to low-income and vulnerable clients in cases involving domestic violence, Protection from Abuse, public benefits, housing, consumer and bankruptcy, employment, health, wills/powers of attorney, juvenile, elder law, Hurricane Ida disaster relief, expungements, veterans, and more. Information about LASP’s services is at lasp.org.