In a case in which Friedman Kaplan Seiler & Adelman LLP serves as pro bono counsel, the U.S. District Court for the Southern District of New York recently held that the Fifth Avenue Presbyterian Church's program of homeless outreach is religious conduct protected by the First Amendment. On January 4, 2002, the Court granted a preliminary injunction prohibiting the City of New York from dispersing or arresting homeless persons who choose to sleep on the steps or in the entryways of the Church.

The Fifth Avenue Presbyterian Church, located at the corner of Fifth Avenue and Fifty-fifth Street in New York City, has for many years included in its religious mission outreach to the poor and homeless, including the operation of a year-round shelter housed within the Church. Several years ago, the Church expanded this mission to include outreach to the homeless individuals who sleep alongside the Church, on its steps, and in its entryways. By reaching out to homeless individuals on a daily basis, getting to know them and to understand their needs, the Church has been able to guide numerous people off the streets and into more stable housing situations.

Although the City had not previously interfered with the Church's outreach, in mid-December 2001 it began to drive the homeless away from the Church. The City conducted several nightly "raids" in which police officers ordered all homeless persons to disperse or face arrest. The Church and ten homeless individuals, with the assistance of attorneys from Friedman Kaplan, the Law Offices of Jonathan Robert Nelson, and the New York Civil Liberties Union Foundation, filed suit in the Southern District of New York, claiming that the City's interference with the homeless who sleep on Church property unconstitutionally inhibits the free exercise of religion.

Shortly after the suit was filed, U.S. District Judge Lawrence M. McKenna issued temporary restraining orders that prevented the police from disturbing the homeless for twenty days including the Christmas and New Year's holidays. On January 4, 2002, the Court replaced the temporary restraining orders with a preliminary injunction against the City. In addition to holding that the Church's program of homeless outreach is constitutionally protected, the Court rejected the City's arguments that Church is operating a de facto "shelter" contrary to City regulations and that the homeless are a public nuisance.

Judge McKenna held, however, that the Church's property on Fifty-fifth Street, which abuts the sidewalk alongside the Church building, is a "public place" and therefore subject to the City's power to regulate the sidewalks. The Court held that the City may therefore enforce a section of its Administrative Code, which prohibits the erection of obstructions on public sidewalks, to remove the cardboard boxes and property used by the homeless. Accordingly, the preliminary injunction is limited to the Church's stairways and entryways.

The Church's goal, in its program and the suit, has been to assist the homeless in finding stable housing. The Church believes that most people who choose to sleep at the Church, including most of the homeless plaintiffs, do so because they fear violence in the City's public shelters. In the Church's view, the City's approach of driving the homeless off public property merely conceals the problem of homelessness and forces these people into less safe places. The Church, on the other hand, seeks to build relationships of trust with the homeless in order to help guide them off the streets. "We recognize [sleeping on Church property] is not a permanent solution," explained Senior Pastor Dr. Thomas K. Tewell. "We think low-income housing is the long-term solution to this problem. We see ours as a ministry of compassion to dear friends who really feel they have no where else to sleep safely but outside of our building."

The administration of Mayor Michael R. Bloomberg has announced its intention to appeal the preliminary injunction, and the plaintiffs are now preparing to present their arguments to the United States Court of Appeals for the Second Circuit.

The plaintiffs have been represented by Friedman Kaplan partner Katherine L. Pringle and associates John V.N. Philip, Daniel B. Rapport, and Lee D. Sossen with the assistance of legal assistants Carine Hodges and Kathleen Lynch.

To view the legal papers:

Verified Complaint for Injunctive and Declaratory Relief

Plaintiffs' Memorandum in Support of Plaintiffs' Request for a Preliminary Injunction

Memorandum and Order

Information on the Church's homeless outreach program:

http://www.fapc.org/outreach/housing.html