This case involves the question of whether a church retains constitutionally-protected rights to permit homeless persons to sleep overnight on church property that abuts a public sidewalk. In 1999, the Fifth Avenue Presbyterian Church started sponsoring a program in which homeless persons were permitted to sleep on church property, guided by certain rules. The eventual goal of the program was to help the participants find work and get off the street. For more than two years, the New York City Police Department allowed the program to take place.

In early December 2001, however, police officers began ordering the homeless persons to leave the premises or face arrest. The church’s attempts to resolve the situation with the city resulted only in intensification of the NYPD’s actions. The church filed suit against the city in late December 2001, claiming it had been deprived of liberties – including the free exercise of religion and religious expression, freedoms of association, and protection of property – without due process of law. The suit requested a preliminary and permanent injunction restraining the forced removal of homeless persons from church property, as well as a temporary restraining order until the issue of the preliminary injunction was decided. The temporary restraining order was immediately granted.

The preliminary injunction was granted on Jan. 4, 2002, prohibiting police from interfering with those homeless people sleeping on the church steps. The injunction did not, however, prohibit police from preventing the homeless from sleeping on the sidewalks contiguous to the church. The court found that the church’s actions were part of its religious mission; that the church had not created a de facto shelter; and that the mere presence of homeless persons did not constitute a "public nuisance." Nevertheless, the court concluded that the city maintained a sufficient interest to prevent the church from permitting homeless persons to remain overnight on church property that abutted the public sidewalk. The preliminary injunction was affirmed by the Second Circuit. The NYCLU involvement in the suit ended after the preliminary injunction phase.

On Oct. 28, 2004, the District Court granted summary judgment to the church on its First Amendment claim that the city could not prevent people from sleeping on its steps. The city has appealed the ruling. The U.S. Court of Appeals for the Second Circuit affirmed the District Court's ruling on June 6, 2006. 

S.D.N.Y., Index No. 01 Civ. 11493 (LMM), U.S. Court of Appeals, 2nd Cir. No. 02-7073 (direct)

Attorney(s)

John R. Nelson, Christopher Dunn, Arthur Eisenberg

Date filed

Court

Federal

Status

Closed

Stay informed

The New York Civil Liberties Union is a state affiliate of the ACLU

Learn more about ACLU National