Just under a year ago, the U.S. Supreme Court decided City of Grants Pass, Oregon v. Johnson. The court held by a 6-3 margin that the City could enforce its anti-camping ordinance against homeless individuals who camped on public property, and that doing so would not be “cruel and unusual punishment” under the Constitution’s Eighth Amendment. This was so even though there was inadequate space in local homeless shelters and other facilities to accommodate most of these folks.
At the time, the decision was bitterly denounced both by the three dissenting justices and by commentators in the press as “criminalizing homelessness,” with predictions it would lead to wholesale roundups of people whose “crime” was not having the funds to rent or purchase a conventional home. Yet, although the three Democratic-appointed justices dissented, the case was one of those “strange bedfellows” cases where those who supported the decision didn’t always follow the traditional liberal-conservative split.
One public figure who applauded the Supreme Court’s decision to accept the case had been California Gov. Gavin Newsom, normally seen as liberal, because as a politician he wanted police to have adequate tools to deal with homeless encampments. And most cities and other public entities backed the City’s position in the case, too.
At the time the case was decided, though, I likewise didn’t see it as likely leading to wholesale roundups of homeless people to receive jail sentences for camping on public property. And a recent article in this very newspaper, originally written by a journalist from the nonprofit news service CalMatters, seemingly confirmed this. An elderly homeless resident of Fresno with the colorful name of Wickey Two Hands was almost the first person to go to trial a Fresno ordinance similar to the one in Grants Pass that the Supreme Court upheld last year. But the criminal charges were dismissed at the last minute.
This was more or less what I anticipated last June when Grants Pass was decided. It seemed more likely that the decision would be used by police to get those living in public parks and along wide sidewalks to “move along,” backed up by the threat of arrest. Few if any people (unlike Mr. Two Hands) were actually swept into the criminal justice system.
In part, that’s because we’ve been here before. In the 1980s, a group of Los Angeles’ Skid Row challenged how the police there had been using California’s “drunk in public” statute, Penal Code sec. 647, subd. (f). Inebriated people, most of them male and almost all of them also homeless, would routinely be rounded up in the evening and taken to the “drunk tank” to “sleep it off.” While they were arrested for violation of 647(f), they would usually be released within a few days after sobering up. Some of them would go before a judge, while others were just released on a promise to appear.
Criminal prosecution rarely followed — which is one reason that the use of the law was challenged. The lawsuit, Sundance v. Municipal Court, was named after Robert Sundance, a Native American plaintiff who’d frequently been one those “swept” from the street but then rarely if ever prosecuted. They argued that the “sweeps” were just a pretext to get folks off the street without any plans to follow it up in the criminal justice system as the statute seemed to contemplate.
The Sundance case was decided December 31, 1986 — one of the last decisions issued by the court under Chief Justice Rose Bird, who had been defeated for re-confirmation to the court the previous November, and whose term ended on January 5. In an unsigned opinion, the court majority found that sec. 647(f) was constitutional, and that there was no evidence the police used the law as a pretext just to “clear the streets,” even if the effect of the “sweeps” was to take people to the “drunk tank.” The Penal Code section was thus mostly an administrative, not criminal, tool.
The only concession the Supreme Court made was that, because many of the detainees would undergo alcohol withdrawal in the pretrial facilities, it sent the case back for the trial court to determine if it was lawful to detain them in a setting without medical screening available. Chief Justice Bird dissented in part, writing that she would have found some of the police tactics unconstitutional.
Thus, anti-camping ordinances are likely going to be used much like sec. 647(f) going forward — to give law enforcement authority to clear encampments. But there will few if any of the “violators” who will actually be charged, and like Mr. Two Hands’ case, fewer still that will go to trial.
And so we beat on, boats against the current, borne ceaselessly into the past.
Frank Zotter, Jr. is a Ukiah attorney.
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