ACLU-WV Agrees To Dismiss Lawsuit Against City of Wheeling
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WHEELING - Cleanup of homeless encampments throughout Wheeling is expected to resume at the end of this month, as the American Civil Liberties Union of West Virginia has agreed to voluntarily dismiss a lawsuit against the city over its new camping ban.
Both the city and the ACLU-WV issued statements on Tuesday about an agreement reached this week after the city granted a request for a temporary exemption to the camping ban at a leased site in East Wheeling. Homeless individuals in the city will be permitted to use the site across the street from the Catholic Charities Neighborhood Center as well as available shelters in town.
"The city is pleased this matter has been resolved and will move forward in a manner that is consistent with city ordinances and federal case law," Wheeling officials said in a statement released Tuesday afternoon. "The city government has an important interest in ensuring the overall welfare of the community. Those individuals who choose to stay outdoors do have various shelters available to them."
According to the Notice of Voluntary Dismissal signed by representatives of both parties on Tuesday, the city of Wheeling will provide a dumpster, maintain waste disposal service and assist with portable toilets at the site along 18th Street beneath the W.Va. 2/U.S. 250 overpass.
"Any demolition of campsites will be in compliance with the prior order issued by the court on Sept. 16, 2020," the agreement stated, referring to U.S. District Judge John Preston Bailey’s order to provide a two-week notice to occupants of a homeless encampment prior to clearing the property. "For purposes of this proceeding, the notices issued by the city of Wheeling on Jan. 3, 2024, for all camps wherein the notices were posted have complied with the order."
City officials noted that clearing of existing homeless camps on public property will proceed. After the city last Friday announced that the 18th Street site was being made available as an exemption to the camping ban, city leaders agreed to a one-week delay until Monday, Jan. 29, for the dismantling of camps where notices were posted on Jan. 3.
A majority of the members of Wheeling City Council last fall voted to adopt the new camping ban on public property as a means to get a handle on the growing homeless situation in the city. Many city leaders had indicated that the situation was getting out of control with people living on public property with sprawling campsites and trash. Criminal complaints have also been prevalent in and around the camps, according to city officials.
The camping ban went into effect on Jan. 1 and sites were posted with notices on Jan. 3. City crews began cleaning up a large encampment on the hillside above the Nelson Jordan Center last Thursday after the two-week notice had reached its deadline.
Representatives of the ACLU-WV and the many local homeless advocates still disagree with the city’s approach to address the homeless situation in Wheeling by implementing the camping ban. When the ban went into effect earlier this month without a designated exempt site available to homeless individuals, opponents of the ordinance described it as a constitutional violation that basically "criminalized" the existence of unhoused people in the community.
"No person should be put into a position where their existence is illegal because they are poor," said Kate Marshall, facilitator with House of Hagar Catholic Worker House, a plaintiff in the federal lawsuit filed by the ACLU-WV. "Filing a lawsuit was a last resort, but we could not stand by while the city effectively criminalized homelessness. We also could not remain silent while people experiencing homelessness witnessed bulldozers destroying what little they had.
"We are grateful to the ACLU of West Virginia for reminding the city of Wheeling that those experiencing poverty have the same constitutional rights as those with wealth. Much work remains, and we urge city officials to unite with service providers and community members to find genuine solutions that we have long asked for."
The city’s new ordinance allows City Manager Robert Herron to permit a managed camp or camps that would be exempt from the ban on public property. However, the ban and its enforcement began moving forward this month before any exempt property was selected.
"For months, our clients and others sought exemptions to this ordinance and were ignored," ACLU-WV Legal Director Aubrey Sparks said. "We are glad that an exemption has been granted in this case, and that the city is now at least meeting its constitutional obligations.
"The Constitution sets the floor - those rights with which government actors must comply. But we shouldn't be aiming for the floor, we should be aiming for the ceiling. Over the coming days and weeks, we hope the city will work with service providers and advocates on solutions that are not just constitutional, but also humane, practical and compassionate."
Ocean Smith, an ACLU-WV organizer and Wheeling resident, said community members must also demand more from elected officials.
"Meeting a constitutional obligation and crafting good policy are not one in the same," Smith said. "While I'm happy that a site has been exempted, this legal action and the outcry from local community members should be enough to convince city council that it's time to revisit this travesty of an ordinance.
"If the council is unwilling to do so, then the voters of Wheeling should remove them from office in the next election."
The majority of current Wheeling City Council members agreed that the "status quo" approach to the city’s homeless situation prior to the new legislation was not sustainable. The new ordinance was sought because most city officials believed that people should not be permitted to set up camp, store their personal belongings and do anything they want to do on public property.
Representatives of local service organizations and the city are expected to continue working on establishment of a managed campsite for homeless individuals. Until then, city officials indicated that they will continue to work collaboratively with local agencies to address issues regarding the homeless community.
"In the future, the city of Wheeling will work with the area social service providers on other possible exempted locations," the Notice of Voluntary Dismissal stated, adding that the current exempt location on 18th Street may changed based on the needs of the city or to meet increased need from Wheeling’s unhoused population.