Fort Smith to give more review to public camping, vagrancy measures

The Fort Smith Board of Directors indefinitely tabled ordinances pertaining to public camping and vagrancy in the city at their Dec. 3 regular board meeting pending more input from the city’s legal counsel.

At a Nov. 12 study session, Directors Kevin Settle and Lavon Morton requested the board be presented with an ordinance that mirrors the ordinance from Grants Pass, Ore., that prohibits camping on city properties with proposed amendments. The Grants Pass ordinance went before the U.S. Supreme Court on June 28, and the Court said the ordinance did not violate the Eighth Amendment that prohibits the government from subjecting individuals to “cruel and unusual” punishments.

Fort Smith’s proposed ordinances added amendments to strengthen enforcement by specifically prohibiting sleeping on sidewalks and the obstruction of pedestrian passage, noted a memo attached the ordinances in the board’s meeting packet. The board package also included a letter from Colby Roe, an attorney for the city, regarding those amendments.

“As drafted, this proposed ordinance contains the following prohibition regarding the obstruction of pedestrian passage: No pedestrian shall loiter, stand, sit, lie in or upon any street, sidewalk, or public way or any portion thereof in such a manner as to unreasonably annoy or molest any other pedestrian thereon or so as to unreasonably obstruct or interfere with the free passage of pedestrians,” Roe stated in the letter. “We note the above provision is not within the Grants Pass ordinances that were found to be constitutional by the Supreme Court.”

Roe said the Supreme Court has held there is a denial of due process where inherently vague statutory language permits selective law enforcement. A city ordinance that does not give persons of ordinary intelligence a reasonable opportunity to know what is prohibited or fails to provide sufficiently explicit standards is considered unconstitutional because it can encourage arbitrary and discriminatory enforcement, Roe said.

Roe said he and other lawyers in attendance at the meeting expressed concerns that the proposed additions to the Grants Pass ordinance could be subject to challenge because of their vagueness.

“Additionally, we noted that the conduct sought to be prohibited is addressed by state law,” Roe said.

He said the city’s ordinance could be amended to utilize the provisions of the city’s trespass warning ordinances relative to individuals in violation of the prohibition of camping on city property.

Director Jarred Rego, who moved that the ordinances be tabled indefinitely, said he was simply making a procedural motion that administration had requested to complete ongoing work on the matter.