Article by Harry Simon
On August 15, 1990, police officers in Santa Ana, California arrested sixty-four homeless persons in the city's civic center area. Police officers stationed atop buildings spotted homeless individuals with binoculars and radioed their location to officers on the ground. Officers on the ground arrested homeless individuals, handcuffed them, and drove them to a nearby stadium for booking and fingerprinting. At the stadium, police officers chained the homeless to benches for up to six hours without food or water. The police used markers to write numbers on the arms of homeless arrestees. At the conclusion of the six hour detention, the police loaded the homeless into vans, drove them to the edge of the Central Command Area of the Santa Ana Police Department, and dropped them off.
In January 1990, police officers in Miami, Florida roused seven homeless people sleeping in a local park, handcuffed them, and dumped their belongings into a pile and set it ablaze. In New York City, police have repeatedly clashed with the homeless, often violently, during sweeps designed to drive them from Tompkins Square Park. The Mayor of San Francisco announced last summer that homeless people would no longer be permitted to sleep or camp on any public or private land within the city. As one commentator recently noted, “cities across the nation are starting to adopt a closed-door attitude toward the displaced.”
Official efforts to punish homeless indigents are not new. For more than six centuries, vagrancy and loitering statutes made it a crime to wander without visible means of support. Following World War II, these laws were condemned, first by legal commentators and later by state and federal courts. Finally, in Papachristou v. City of Jacksonville and Kolender v. Lawson, the United States Supreme Court struck down vagrancy and loitering laws as impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment.
These decisions changed the form, but not the substance, of official efforts to control the homeless. In recent years, police have arrested the homeless for camping or lodging on public land and sleeping in public and have engaged in property sweeps to seize and destroy the possessions of homeless persons. While these actions may or may not involve the enforcement of impermissibly vague laws, they do implicate other serious constitutional concerns.
The enforcement of laws against homeless individuals that prohibit sleeping on public and private land may constitute effective banishment, abridging the rights of the homeless to freedom of movement. Moreover, arrests of homeless persons for sleeping in public may penalize them for being in a condition that they are helpless to avoid in violation of constitutional prohibitions against cruel and unusual punishment. Additionally, singling out the homeless for punishment may also violate equal protection guarantees.
Furthermore, the seizure and destruction of the possessions of homeless persons implicates additional constitutional rights. Such confiscations may constitute unreasonable seizures in violation of the Fourth Amendment, as well as public takings of property without just compensation in violation of the Fifth Amendment. Finally, when officials seize or destroy the possessions of the homeless without adequate notice and hearing, they may violate the due process rights of homeless persons.
Official efforts to drive the homeless from American cities should not go unchallenged. Traditionally, courts have been reluctant to interfere with the enforcement of penal statutes by municipal authorities. This reluctance, however, should not permit local officials, out of frustration with the seemingly intractable problem of homelessness, to run roughshod over the rights of our nation's poorest citizens.
About the Author
Harry Simon. Staff Attorney, Legal Aid Society of Orange County, Santa Ana, California; B.A., University of Colorado, 1981; J.D., University of California, Hastings College of Law, 1986.
Citation
66 Tul. L. Rev. 631 (1992)