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News & Blogs The Constitution + Homelessness:


me, hellarity, oak, ca. about 2006
Oct 12, 2017
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San Diego, CA
The Constitution and Homelessness

By Steve Martinot


When the police violate the US Constitution, are they criminal? In
what court can their conduct be judged illegal? For recourse against
crimes against the people for violation of the Constitution, to whom
can we turn?
We finally found out that it was illegal all along for the Berkeley
PD to raid and disperse homeless encampments. It is a violation of the
Constitution. So said the Ninth Circuit Court of Appeals on Sept. 4,
2018. But it has been going on for years. All those former raids were
illegal, and those former arrests and confiscations of property were
also illegal. Now, the Court has made it official. Can this be turned
into anything but a civil suit. Can past victimization be turned into
anything but money?

We suspect that Berkeley city government doesn’t care. On Sept. 5,
2018, the very next day after the Ninth Circuit Court decision, the
Berkeley PD raided another homeless encampment. It was the one in
front of old city hall, on a street named after Rev. Martin Luther
King, Jr., who transformed an entire social ethic through civil
disobedience. Berkeley City Council had passed an ordinance a couple
of years back that said it was illegal to sleep on public property.
That ordinance does not supersede the Constitution. The reverse is the
case – has always been the case, but is now officially the case. The
Ninth Circuit Court said that a city could not prevent homeless people
from sleeping on public land if the city could not provide shelter for
them. To do so is a violation of the 8th Amendment.

But what does the 8th Amendment have to do with homelessness?

The 8th Amendment

The 8th Amendment says that “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishment inflicted.”
That’s all it says. It doesn’t say “congress shall …” or “shall not…”
It doesn’t point to courts or police departments. It doesn’t speak
about "infringements" as do other statements of rights. It addresses
government in general and says that in the US these things are outside
the purview of government. Period. It is not about "rights." It is
about "justice."

The case that came before the court was originally called Bell vs.
City of Boise – a later Martin vs. City of Boise, which is the case
the Court decided. Some long-term homeless people sued the city of
Boise back in 2015for violating the 8th Amendment. The federal
government (under Obama) wrote an "amicus" brief agreeing with the
plaintiffs (the homeless who sued the city).

Here in a nutshell is their argument. The fundamental principle
involved in punishing a person for wrong-doing is necessarily to grant
the person existence and choice in order to hold them responsible for
their choice. To cancel recognition of their existence also cancels
recognition of their choices. There can be nothing for which to hold
them responsible. Therefore, what pertains to a person’s existence, or
to their social status with respect to which they have no choice,
cannot be prohibited, because it cannot be punished. If a person lives
with or in some "condition" that is unchosen, then that condition
belongs to that person’s status rather than to their "conduct." To
hold a person responsible for their conduct, their status has to be
first granted as such. A prohibition against that status cannot be
legislated. Breathing, for instance, is part of being a live human
being, and therefore cannot be prohibited or punished. One has no
choice but to breath. Sleeping similarly is an essential part of being
alive. Sleeping cannot be prohibited or punished. And if a city cannot
provide shelter in which a homeless person can sleep, then that person
cannot be prohibited from sleeping on public land. That also holds for
sitting and lying down. In short, there are things government is
constitutionally barred from outlawing.

In short, if a government wishes to prohibit certain conduct, that
conduct must be choose-able by a person first. Since sleeping is not
choose-able (a person cannot exist without sleep), sleeping belongs to
"status" rather than "conduct," and thus cannot be prohibited.

Aspects of a person’s life that are conditioned by the economy are
also included in their "status." Poverty, for instance, can not be
punished. Those who end up impoverished because the society in which
we live prevents itself from curtailing landlords’ ability to push
rent beyond what some people can pay, those people cannot be punished
for living on the street. Homelessness is a condition established by
economic and political structures. People suffer from it. They do not
choose it. The city cannot prohibit people from living on the street
(public property) unless it can provide suitable space and shelter,
viz. a place to live. That includes a place to sleep, to sit, to lie
down and rest or eat and engage in social affairs such as holding a
job and visiting with friends. If one has no other place to sleep or
sit than public land because the economy has rendered one homeless,
and the city fails to provide what is lacking, then one’s sleeping and
sitting in public space cannot be prohibited or punished.

When the police raided the encampment at old city hall on Sept. 5, at
5 am, they had no shelter to send those people to. There are over 900
homeless people in Berkeley, and only around 130 places in shelters
offered, and only at night. During the day, those shelters are closed
and thus not available to legitimize a police raid.

Interestingly, the court, in its decision, applied this principle to
alcoholics. If a person gets seriously ill without alcohol, then their
comportment (conduct) in a public place when inebriated cannot be
criminalized. That’s why there are rehab centers.

This would also apply to those who walk around with serious cases of
PTSD, and who go through emotional crises in public for arcane
reasons. Those reasons could be anything, like having thrown a grenade
into a Vietnamese hut full of women and children and trying to live
with that (which is what pushed Ron Kovic over the edge and made him a
resistor), or like having dropped incendiary bombs on a wedding in
Afghanistan and having looked back at what one had done, or like being
forced to live on the street for years exposed to the elements. The
police have ways of torturing PTSD people. They give them commands
which the person in crisis simply refuses to recognize, and then throw
him to the ground in order to wrap him in a body bag for disobedience.
There is a video of the Berkeley PD performing this "procedure" in the
streets of this fair city. The cops want tasers so they can tase a
disobedient person until he is crawling abjectly on the ground begging
for forgiveness. Kayla Moore died under the weight of the police as
they tormented her for disobedience when she was going through an
emotional crisis in her own home.

To torture a person for going through an emotional crisis, which
pertains to their status as living a traumatized life, would be to
punish them for what that trauma had done to them. It would thus be a
violation of the Constitution under Amendment 8.

When the police raid an encampment without being able to provide
shelter for the people in it, they are committing a crime. They call
it "legitimate" because there is an ordinance that says sleeping on
public property is illegal. That ordinance is no longer valid. But the
principle it expresses is that property has priority over people. The
city says that people complain that the homeless reduce real estate
values, that they steal and make life uncomfortable, that panhandling
is bad for business. The dehumanization of this “property-priority”
doesn’t become clear until one is fired from a job or evicted from an
apartment or imprisoned for having smoked a joint or for being the
wrong color. It is the illogic of that “property-priority” that is the
real reason there are homeless people. "Housing is a Human Right" has
no standing next to a landlord’s right to raise the rent. And at
present, as long as Costa-Hawkins remains unrepealed, no city has the
ability to defend renters against those landlords.

We have to be able to talk about what it means that the police violate
the Constitution. They are not committing a crime against property.
They are not committing felonious assault when they torture people
with tasers or pepper spray. But they are violating a lot more than
the 8th Amendment. They are committing a crime against "law" itself.

Throwing the book at the police
But let us be more specific. When the Berkeley PD broke up the
homeless encampment in front of Old City Hall on Sept. 5, 2018, they
violated several terms of the Constitution – Amendments 1, 4, 5, and

Amendment 1 guarantees people (not only citizens) the right to
petition government for redress of grievances. The two associations of
homeless people in Berkeley called “First They Came for the Homeless”
and “Consider the Homeless” have set up encampments in central public
places in order to say to the government, what are you going to do
about the injustice to which our existence testifies? The city’s
police raids are the city’s answer. It is to commit a crime against
the people by suppressing that statement.

Amendment 4 says that a person (not only a citizen) is inviolable in
his/her residence. Yet the police come and throw people out of their
tents, and confiscate those tents. For a homeless person, their place
of "residence" is that tent, or their sleeping bag, or their cardboard
pallet or yoga mat, etc. The city shrugs and criminally confiscates
their entire place of residence.

Amendment 5 guarantees due process, which means that those who will be
deprived of anything, life, liberty, or property, must have a hearing
in which the depriving power must prove that the deprivation is just,
and legal, and moral, and in which the one to be deprived has equal
standing to argue against that. Due process must come first, before
deprivation, not afterwards. Afterwards, it is not due process any
more but "appeal." That’s different. When the cops swoop down on a
homeless encampment, they do it without there having been any hearings
or democratic process. Due process is the essential social equalizer
of individuals and institutions. Ignoring due process, more than
anything, signifies that the police are the primary anti-democratic
force in this society.

And finally, there is Amendment 8, which we have reviewed, and which
outlaws the ability of the police to punish people by removing and
destroying their ability to sleep and reside and exist in the
togetherness provided by the community of their encampment. It is
their existence which is threatened by such raids insofar as
confiscation of their property leaves them vulnerable to the elements
and the possibility of sickness or death. Since they can’t depend on
the city for anything but violence, their reliance on each other is
all they have for survival.

The priority of property rights

But aren’t property rights also guaranteed by the Constitution? Yes,
they are, very ironically so. The "real" law of the land is that
property rights have priority over human rights – even when the
defenders of property rights have to violate the Constitution, and
have to commit crimes against the people.

But where does the Constitution guarantee property rights? In only
one place. In Article 1, section 10, clause 1, where it states, “No
state … shall pass any … law impairing the obligation of contracts.”
That’s it!

This clause, providing for the inviolability of contracts, was
expanded and extended under Chief Justice Marshall at the beginning of
the 19th century into the foundation of all property rights and the
sanctities of property.

Consider the contrast! All property rights find their guarantee in
that one single phrase. The entire rest of the Constitution is about
the rights of people, the relations between people and government, and
the standards upon which civic responsibility, justice, security, and
participation are based. In actual practice, throughout US history,
that one small phrase has dominated all other aspects of social life
in the US.

On the name of that phrase, cities find it feasible to commit endless
unconstitutional acts in the interest of property. They will violate
due process, the sanctity of the home, free speech, and even human
status in the interests of property. Yet we have no real or juridical
language in which to speak about this travesty.

Endnote: For those who have an interest in the legal arguments
referred to here, the DoJ’s amicus brief for Bell vs. Boise is here.
https://www.justice.gov/opa/file/643766/download. And the Circuit
Court’s decision can be found here.
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