Apr 19 2006
9th Circus…err…Circuit Court rules in favor of vagrancy
In a divided 2/1 ruling, the 9th Circus Circuit Court of Appeals has ruled that homeless people essentially have a right to sleep on the sidewalk. It should come as no surprise that the suit was brought by the ACLU.
Justices Hand L.A.'s Homeless a Victory
A federal appeals court ruled Friday that the Los Angeles Police Department cannot arrest people for sitting, lying or sleeping on public sidewalks on skid row, saying such enforcement amounts to cruel and unusual punishment because there are not enough shelter beds for the city's huge homeless population.
The long-awaited decision effectively kills Los Angeles Police Chief William J. Bratton's original blueprint for cleaning up skid row by removing homeless encampments that rise each evening throughout the 50-block downtown district. That plan has been on hold for three years, and city leaders have recently backed a less aggressive policy.The ruling also has implications for police agencies around the nation that have grappled with how to deal with the homeless.
Although Los Angeles' policy was considered one of the most restrictive in the nation, other communities have tried milder variations of the same approach. Las Vegas and Portland, Ore., for example, bar sleeping or standing on a sidewalk or other public space only if it obstructs pedestrians or cars, and Seattle, Tucson and Houston limit the hours of enforcement, the opinion said.
City officials said Friday that the ruling makes it likely that the LAPD will move forward with a more moderate skid row policing plan, one that would crack down on crime while allowing cardboard cities.
Ok....to start with, we have to be clear that homeless people come in all shapes and sizes.
Some admittedly are the mentally ill, alcoholic or drug users we see in stereotypical tv roles. But is leaving them in dangerous and unhealthy environments really the best thing?
Some are simply people in a bad streak of fortune. My initial response is sympathy, for I like most middle class people have had hard times, and I have personally come closer to that state then I am comfortable admitting.
But at the same time, I have family that I could stay with if it came to that. So do many homeless people. And where my kids are concerned, and I apologize for being a bit harsh, but there is no way on God's green earth am I going to make them sleep in a tent on the side of the damn freeway, or in a car in an alleyway somewhere when I have better options available. For a day or two, maybe. But for weeks and months? Years? Is there truly no better choice?
Maybe not, for not everyone has a family like mine, but then again I have heard people specifically say they could have sent the kids to their parents or a sibling, and chose instead to keep the family together. To me this is a bad choice. I suppose I must allow them as parents the freedom to make that choice, to decide what is best for their family, but as a parent myself, I have a hard time respecting it.
Where I used to live in Everett, there was a homeless man who pan handled daily at the local grocery store, even handing out fliers to raise awareness of the plight of homelessness...with his 10 year old (or so) daughter at his side.
Dressed in dirty rag tag clothing, hair unkempt they tugged the heartstrings, and initially I was sympathetic. Then 6 months later, he was still there, and so was she. How is this good?
Which leads me to the last group that I want to discuss: The ones that choose homelessness.
In the Seattle area we have a roving tent city that every 3 or 4 months moves to a new location. Sometimes the receiving neighborhoods protest it however, and during one such event, several homeless people were interviewed on the radio. To many peoples shock and amazement, they claimed that they were homeless by choice, and had come to Seattle because it was homeless friendly. In fact they hinted of a sub culture that communicated and migrated from location to location to take advantage of the most friendly cities, and the best weather.
This has been a silent issue for years, and not just a local one. Consider this article from the Seattle PI in 2000 where a documentary was done about this issue:
What he found was a community with its own values and peer pressures, made up of fiercely independent survivalists who all infinitely prefer their hard life to a charity (to the point where the thing they fear most is ending up in a "shelter,".... )
Like it or not, homelessness is another area where any attempts to paint it with a broad stroke are foolish.
So where am I going with this?
I think that the Circus Circuit Court ruling sets a very troubling precedent in regards to whether a city has an obligation to help people who in many cases are not making practical decisions for themselves or have made conscious choices to be homeless and then demand that the city provide for them. A community should be there to care for people who need help, but should a city be required to help people who are essentially freeloading off the system?
Do people have a right to be a burden on their community even when it is by choice?
It is an uncomfortable situation, but it raises many questions about the entitlement culture we have carefully fostered for decades, and now is becoming a chronic problem. Telling the city to either house them, or ignore them is not the answer.
One other thing. Roadkill, another Seattle blogger, has written a blog chastising an LA Cop who wrote an article at National Review about the problem.
Jack Dunphy (his nom de cyber) nicely chronicles the dramatic change in environment that exists when you cross the twilight zone from LA into skid row. His account is not politically correct:
The population of Skid Row in Los Angeles can be categorized as follows: the addicted, the crazy, and the lazy...
I admit the author is a bit cynical, but I also have to candidly acknowledge that I have not had to deal with the problem in my face to the degree he has, and likely most of the people reading this have not either. He continues:
In more than 20 years with the LAPD, many of them spent working in and around Skid Row, I've encountered only a handful of the truly unfortunate, people whose lives collapsed suddenly and unpredictably to leave them no alternative but to seek refuge in the missions, shelters and cheap hotels of Skid Row. These people, after spending a few weeks or months among the homeless, almost always find their way back to a productive life, one that includes a roof over their heads. How, then, to explain the life of, to cite one example, plaintiff Robert Lee Purrie, who, according to Wardlaw's opinion, "has lived in the Skid Row area for four decades." The inescapable conclusion is that he lives there, like most of his fellow bums, because he likes it.
Again, I have never been there, so I cannot gainsay him, but his words do not seem too inconsistent to the accounts I have heard here, and what little I have seen.
He also notes that the Judge likely has a NIMBY attiude:
I don't know where Judge Wardlaw lives, but I'm confident there are two commas in the price tag of her home. And I'm just as confident there are no bums sleeping on the sidewalk outside. If there were, how long would it take her to call the police and have them rousted?
Roadkill tells him:
Get a new job. You and those of your fellows who stand with you on this. If this is an example of your approach to policing, you aren’t doing society any good. If you can no longer distinguish compassion from surrender, get a new job. If you can no longer support the Court but rather insist on mischaracterizing its decisions publicly, get a new job.
And the next time somebody calls you “pig,” consider for a moment they may have a point…
I think that is a bit unfair unless you have walked a mile on his beat. While the officer is obviously frustrated, he has some cause to be, as he sees people manipulating and abusing the system.
It should also be noted that the cop like many others may feel at odds for doing his sworn duty to uphold the law only to see the laws go crazy and inmates take over the asylum.
Dunphy has merely brought the light to a subset of the problem, one that he feels more people should know about so they can accurately understand the problem of the homeless. It is one facet that the media doesn't like to showcase, because it is not sympathetic. Hollywood likes to pan quickly past the reality in such a way as to almost glamorize by ignoring the ugliness of the people who abuse it.
My advice to Roadkill: Go get a job as an LA cop, walk the beat in skid row for 20 years, and then come back and see how you feel about being called a pig.
Also covered at Stop The ACLU, Sister Toldjah,
One Response to “9th Circus…err…Circuit Court rules in favor of vagrancy”
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You called me a SEATTLE blogger… Them’s fightin’ words! I have as little to do with the great wart on the bay as possible…
Good debate. A number of issues…
First, I note you are not linking the decision. Did you invest the effort in reading it and understanding it, as I did? I suspect not… More on that later…
Fair? Where we go to look at bunnies? Am I unfair?
It is not unfair… I long considered adding those two last paragraphs and decided in balance they belonged there BECAUSE, as you apparently have, "Officer Dunby" ignored the decision in favor of his own unleavened views. In fact, as I pointed out, Dunby, possibly deliberately, misconstrued the decision. In a sense Dunby is like a general in a war. If he can no longer follow his leaders, he should resign. Especially if he feels compelled to lie - I won’t minimize this - about the court’s decision he is out of order. There are too many people, including bloggers like yourself, who will read his well-written piece, look at his badge and length of service… and be fooled. Misrepresenting the court is unforgivable.
Furthermore, if the man is this one-sided in his views, how can he be trusted in the clinches? I intuit a man so frustrated he could crack… Like the next time he is called "pig"… after he roughs up "a bum."
Do you want another Rodney King? Even if, as many say, King had it coming, do you want the LAPD issuing summary justice? I think that’s where Dunby is heading, based on his tone, his views, and his apparent self-need to misrepresent FACT.
As I say, I was conflicted on this matter. A little personal mea culpa… No, this isn’t another revelation of an unsavory past like Daniel is Right was forced into…. More an admission of a sheltered past:
I have never been near anything like this. In fact, I have never lived in a town larger than 30,000. Things like Skid Row are beyond my experience.
The small town I live near has about 12,000 people. It could be divided into thirds, a central third on a bay with the other two-thirds surrounding like a horseshoe. The central third is about the same size as Skid Row. So, take the whole population, cram them into 1/3 the space, and make a thousand of them sleep on the street. Now, assume some are criminal predators, some are addicts, some are fugitives… Some are loons…
All are still human, entitled to a minimum of respect. Dunby deals with that. He ought to be frustrated.
Disclaimer - I have some legal training - I AM NOT an authority!
When I read the decision - and I mean I put time into it - I read the dissent first. I was pretty much on board until I read the prevailing opinion. The dissenter, like Dunby, clearly mis-construed issues of fact in at least two precedential cases, and this was crucial to the issue. I think J Rymer, the dissenting justice, went into the case with his mind made up. He went after everything, including standing, and some of his points made sense in a very narrow way. But he ignored the larger issues of justice. I’m not going to reprint the whole 87 pages, but in short the issue is whether or not being homeless is avoidable. A secondary issue was whether or not the laws as written contain recourse.
The case was argued using the 8th amendment, which has long been interpreted as having three clauses. Aside: The dissenting judge suggested it was a 14th amendment case - one of his objections… Two of the clauses apply only after conviction. The lower courts and the dissent insisted on arguing the case should be judged based on the first two clauses. I find with the majority - the third clause applies to "what can be made a criminal offense." Thus the dispute over interpretation of the Ingraham and Robinson cases was crucial to the issue - both cases centered on involuntary acts.
Do you understand injunctive relief? It’s a concept that dates back to the Normans - something else you can blame the French for - and it is invoked to prevent "irremediable harm" which is "immediate" and where "no other recourse" exists. It is just a stay of action, which is what the plaintiffs won. And the stay was very narrow…
So…
The 8th amendment, by accepted precedent in Robinson, proscribes punishment for involuntary acts. Under the circumstances - living in LA with no reasonable shelter alternative - sleeping on the sidewalk became involuntary. Do these people have a "right" to be in LA? Nobody has addressed this matter. But it is assumed they do. Collaterally, is being indigent "involuntary?" It was assumed that in at least some cases this is true, and all three judges agreed. Testimony backed the assertion. The immediate harm suffered was the plaintiff’s losing all their possessions upon arrest - an immediate and irrevocable harm. Frankly, this was the key issue to me. The likelihood of this occurring again and again conferred standing.
Recourse? Recourse only applied post-conviction, a distinction the dissent refused to acknowledge. There is the necessity defense:
"a court must instruct the jury on the necessity defense if there is evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency."
But this doesn’t apply before the fact, when the harm occurred.
It was also argued the defendants couldn’t prove injury because they couldn’t prove there was no shelter available at the time of arrest. The majority was convinced by evidence provided by surveys that Los Angeles has a constant shortage of emergency shelter. This was another issue the dissent misconstrued, claiming, incorrectly, and frivolously, I think - Los Angeles wasn’t part of the surveyed population when it clearly was.
So, not to drag this out:
The defense established standing by demonstrating a harm likely to be repeated in the future. They demonstrated the harm was irremediable in current law - that no recourse existed - and that it was immediate. They demonstrated the harm was contrary to precedent - it was a necessary part of an involuntary status, unprosecutable under the 8th amendment. It was further agreed by all that the necessity defense would nullify the convictions, but that didn’t bear on the harm of losing possessions, etc.
SO:
The Court allowed a stay in the Skid Row area only, from 9PM to 6:30AM. Anywhere else, and at any other time, officer Dunby and his cronies can roust to their heart’s content.
I think this was a good decision.
Cross-posted [eventually] to Roadkill journal.