In the year 2023, you wouldn’t think the Governor of California and the Mayor of San Francisco would be rooting for the conservative majority on the Supreme Court to deprive people of their rights. And yet, in public statements and litigation before the 9th Circuit Court of Appeals, these leaders of one of the nation’s most progressive states are doing just that. As previously covered in this space, Martin v. Boise and Johnson v. City of Grants Pass are 9th Circuit precedents that protect homeless persons from being criminally punished for existing in public without adequate shelter and housing available to them. As the 9th has consistently held, to enforce these laws constitutes a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.
The Martin and Johnson rulings have been a thorn in the side of municipal governments. Mayors, city councils, and county supervisors have long relied on two strategies to reduce visible poverty and assert to the public that “something is being done” about the “homeless problem”:
1) “sweeps” of homeless encampments, that is, using police and sanitation departments to confiscate and destroy homeless persons’ property, and
2) “vagrancy laws”, which make it illegal to, among other things, sleep or camp in public.
Fourth Amendment protections against unreasonable search and seizure have complicated municipalities’ efforts to conduct sweeps, and the Eighth Amendment, as interpreted through these court cases, have made it difficult for cities and counties to charge homeless people for their unhoused status. It has been notoriously difficult for government to construct new housing, especially low income and permanent supportive housing, thanks to vocal NIMBY advocacy and high costs, and municipalities want to be able to assert control over homeless peoples’ lives without having to do the hard work of providing the housing. The public is increasingly impatient with visible poverty and homelessness, and politicians want to preserve their reelection and score easy political points by appealing to the lowest common denominator and treating homeless folks like criminals.
To wit, San Francisco leadership is currently fighting with esteemed homeless advocates the Coalition on Homelessness in the 9th Circuit. The Coalition filed a lawsuit alleging both 8th and 4th Amendment violations by the City and County of San Francisco in its enforcement of vagrancy laws. (Coalition on Homelessness v. City & County of San Francisco, 2022 U.S. Dist. LEXIS 231388.) The District Court, finding sufficient likelihood of success on the merits and weighing the equity concerns, issued a preliminary injunction preventing San Francisco from enforcing some of its laws against homeless persons. Instead of refocusing its efforts on providing adequate housing and shelter to pass the 9th Circuit’s muster, San Francisco has thrown a public tantrum, with Mayor London Breed giving an unhinged rant against homeless persons and their advocates in a fiercely contested rally outside the 9th Circuit itself.
Perhaps responding to requests from his hometown political machine, Governor Newsom waded into the fray a few days later, tweeting support for Breed and noted right-wing troll, billionaire, and Most Divorced Man Elon Musk:
“On homelessness, @ElonMusk has touched on a key issue. California has made record investments — $15.3 bil. But federal courts block local efforts to clear street encampments — even when housing and services are offered. Courts must also be held accountable. Enough is enough.”
Governor Newsom knows better. He knows that criminalization and punishment don’t get people into shelter or housing – only providing adequate shelter and housing can do that. Nevertheless, cowering in the face of public opinion and hedging his political bets, the Governor has decided to align himself with some of our cruelest political actors: those who see the most vulnerable people in our society as stains to be rubbed out, not people to be helped and lifted into community.
In my experience challenging tens of thousands of dollars’ worth of homeless citations in court, bringing the force of criminal law to bear on homeless folks only makes efforts to help them worse. Sweeps destroy critical possessions like ID documents and medication. Unpaid fines and missed court appearances lead to warrants and debt. Even when a person has gotten back on their feet and is trying to land employment or education, these lingering consequences can be hard barriers to self-sufficiency.
Cities may claim shelter space is available (shelters are almost always full), but shelters themselves are not panaceas. They are often unsafe, especially for persons in the LGBT community, women, and young people – forcing them into shelter can be life-threatening. Some shelters are fronts for religious proselytization and have restrictive behavioral codes. In addition, most shelters do not allow pets – and many homeless persons refuse shelters so they don’t have to abandon their animal companions.
The only solution to combating homelessness long-term is investing in drastically increasing the supply of affordable housing and our public safety net. Just this week, a new study out of Vancouver confirmed, like many other studies before it, that direct cash transfers are one of the most effective remedies for homelessness. Social housing and a guaranteed basic income are the two lodestars California policymakers should be seeking. Continuing to double down on the failed criminalization efforts of the past, and robbing homeless persons of their constitutional rights, will do nothing to make the homelessness crisis pass any faster.
CCWRO Homelessness News and Notes 