ACLU Threatens to Sue Wheeling Over Homeless Dilemma
Trending
WHEELING - The American Civil Liberties Union of West Virginia has threatened to file a lawsuit against the city of Wheeling over its "treatment of unhoused people" in the wake of a new city ordinance prohibiting camping on public property.
On Friday, the ACLU-WV issued a letter giving the city an ultimatum - either rectify "constitutional concerns" in the city’s new ordinance or face litigation over the matter.
"It is uncommon for us to provide a letter to a municipality pre-suit, but we are doing so here because we genuinely hope that you will be called to meet your constitutional burden through your own reason, rather than as the result of a court order compelling your compliance," the letter stated.
Aubrey Sparks, legal director for the ACLU-WV, said that they warned Wheeling City Council that the ordinance was unconstitutional when it was passed late last year. The camping ban ordinance went into effect on Jan. 1, but that week, city leaders held off on dismantling the city's homeless camps, giving those living in them another 14 days to vacate.
In its letter, the ACLU-WV requested that the city stop the enforcement of the new ordinance until there are enough beds to house the entire homeless population of the city and there are established alternative locations available to them that are exempt from the camping ban.
"If you do not voluntarily agree to such a pause, then we will file suit against the city of
Wheeling to compel you to do so, and to request a court stay your decision to destroy currently
existing camps," the letter stated. "We take this opportunity to remind you that pausing the enforcement of (camping ban ordinance) is free, while litigating - and ultimately losing - a lawsuit is not."
The city’s new camping ban ordinance was passed by a 5-2 vote, with Mayor Glenn Elliott and Councilwoman Rosemary Ketchum voting against the measure. Elliott is serving his last term as mayor, and Ketchum's Ward 3 is at the center of the city’s homeless issues. The municipal election is in May, and the new mayor and all other council positions will begin new terms in July.
Those supporting the camping ban ordinance have noted that the "status quo" cannot continue with Wheeling’s homeless situation, which has continued to grow in recent years and has been linked to criminal activity and a loss of quality of life by other citizens in the city.
As a compromise in the ordinance, city leaders agreed to allow a managed homeless camp to be established and to be exempt from the ban. City leaders have worked with representatives of a number of local agencies that serve the homeless in establishing guidelines for a new managed camp, but a location has not yet been selected for such a camp. City officials have indicated that it will be up to local agencies, outreach groups and faith-based organizations to operate the managed camp.
City leaders set up the camping ban to go into effect after The Life Hub’s winter shelter opened in mid-December. Homeless individuals seeking shelter and a place to sleep between the hours of 8 p.m. and 8 a.m. can come to The Life Hub’s facility inside the former First English Lutheran Church on 16th Street in downtown Wheeling.
Although the city authorized establishment of a managed camp and even provided financial assistance to The Life Hub to help operate the winter shelter, the ACLU-WV described the city’s new camping ban ordinance as legislation that "effectively criminalizes homelessness."
"It is not illegal to be poor and it is not illegal to have nowhere to sleep," Sparks said. "The Constitution protects people from being criminalized based on who they are, which is exactly what the city of Wheeling has tried to do here."
According to the ACLU-WV, clearing the homeless encampments would be "leaving unhoused people with no shelter at all amid sub-freezing temperatures. The weather forecast calls for a low of 7 degrees Tuesday."
Sparks noted in her letter to the city Friday that the creation of a managed camp "meets your constitutional obligations and saves your ordinance from being per se unconstitutional."
"However, the mere possibility of a managed site is insufficient - it is necessary that homeless residents of Wheeling are not in violation of city code as a byproduct of their mere existence," Sparks wrote. "They must have a space to exist - to eat, to sleep - where such actions are not unlawful. Otherwise, the city will have unconstitutionally outlawed the presence of people experiencing homelessness as opposed to any voluntary act."
Late Friday, Wheeling City Manager Robert Herron said there had not yet been time for city leaders to have internal discussions about the letter.
"We will review their comments," Herron said. "Their position on this matter is not surprising. You will recall that we heard similar arguments from them when we were in Federal District Court in September 2020 in which the city's position prevailed."
When the city took action to dismantle a homeless encampment rife with criminal complaints in 2020, the ACLU-WV responded with a similar threat to take legal action, complaining that homeless individuals were being displaced during the height of the pandemic. Ultimately, U.S. District Court Judge John Preston Bailey ruled that when homeless camps are to be cleared out, the city must post notices of that upcoming clean-out where the homeless living there can see them, that those notices must be posted two weeks in advance and the city must give homeless advocacy groups two weeks advance written notice that the cleanups were happening.
According to the ACLU-WV’s recent letter, they are giving the city until Tuesday, Jan. 16, to respond to their demands.
"I'm not an attorney, so I can't comment on the validity of the lawsuit," said Vice Mayor Chad Thalman, who supported the camping ban legislation. "My vote on the issue has been clear. I disagree with the idea that anybody should be able to camp anywhere, at any time, for any reason and without permission.
"City staff has been given the authority to set up a managed camp," he continued. "My expectation is that city staff will continue to work with the local homeless advocates to come up with compassionate solutions and get a managed camp established sooner rather than later."
Ketchum on Friday added that unfortunately, the news of Friday’s letter from the ACLU-WV came as no surprise, noting that she had expressed concerns about the new ordinance ever since it was introduced last fall.
"Before its passage, I frequently warned my fellow members of council and the public of my concerns regarding the constitutionality of our ordinance," Ketchum said. "As someone who believes in the rule of law and good governance, it concerns me deeply for our city to be on the other end of a possible human rights violation.
"Homelessness is a complex, frustrating and serious issue facing our city which requires no-nonsense solutions," she added. "I'm hopeful that we can reverse course and do what's right, humane and legal."