It is probably appropriate that as I head off for my brief annual vacation for Thanksgiving, I revisit an issue that the Vanguard has addressed numerous times this year in the lead up to the Grants Pass decision and now in the aftermath of it—when it is disappointing to see the Davis City Council, at least in some respects, buy into the notion that we can simply clear encampments.
In August, the Vanguard honored the Lawyers’ Committee for Civil Rights (LCCRSF) for their work on behalf of the unhoused in San Francisco and beyond.
Sadly, the Vanguard feels that a lot of our work covering the debate was completely missed by folks who read this publication on a daily basis.
For the purposes of this column, we will reprint from the Amicus Brief filed by the LCCRSF on behalf of current and former elected officials in the Bay Area and San Francisco.
It is worth noting that the argument notes that “California’s crisis of street homelessness is the worst in the United States.”
They explain, “This is no accident. It is the direct result of decades of racist and exclusionary housing policies. In the 1880s, California cities were among the first to use explicitly racist zoning laws to exclude communities of color. This Court put an end to that brand of blatant racialized exclusion. Buchanan v. Warley, 245 U.S. 60, 82 (1917). In response, California cities invented single-family zoning laws as a pretext to keep people of color out.4 California’s aggressive use of these ordinances was praised at the time as “protection against invasion of Negroes and Asiatics.””
There is a recognition on the part of the city Council of Davis that the roots of our homeless problem are tied to the lack of affordable housing, there is at least tacit recognition that we cannot incarcerate ourselves out of this problem, and yet the only practical outcome of the policy passed by the city council seems to be precisely that.
Here I want to tie our current local issue into the broader debate over Grants Pass.
Prof. Jeffrey Selbin, UC Berkeley School of Law: “California officials who say they are ‘powerless’ to deal with the homelessness crisis are being disingenuous. They can provide shelter and build affordable housing, they can enforce all health and safety laws, and they can address encampments. What they cannot do is punish unhoused people for their mere presence in public and call it housing policy…”
SUMMARY OF ARGUMENT in AMICI CURAE
Californians deserve the truth. The Golden State’s failed housing policies have resulted in an extreme affordable housing shortage that has forced thousands of working Californians onto the street. Instead of addressing the problem, California has adopted so-called “vagrancy” laws to expel tens of thousands of residents from their home state. The term “vagrancy” is an ugly misnomer. It implies that homeless residents come from elsewhere. Not so. California cities intend to cleanse themselves of their own hardworking residents rather than take accountability for a housing crisis they created. This form of public banishment harkens the draconian penalties of Ancient Greece—and was repudiated across the United States long ago.
California’s elected leaders agree that it is unconstitutional to punish individuals who have no place to sleep overnight other than on a public street or sidewalk. In addressing this Court, Governor Gavin Newsom, San Francisco Mayor London Breed, and other California leaders intone that these punishments violate the Eighth Amendment, are cruel and unusual, and make “no sense.” They are correct. The Ninth Circuit should be affirmed on the sole, narrow question before this Court. Petitioner has violated our Constitution.
California politicians instead attempt to use this case to stage a farce at the expense of this Court and the American public. They purport that they are powerless to address homelessness because they have been “confused” by the Ninth Circuit’s narrow decision in Martin v. City of Boise, 920 F. 3d 584 (CA9 2019), and the decision below in Johnson v. City of Grants Pass, 72 F. 4th 868, 890 (CA9 2023). This is political theatre. Nothing stops California from investing in affordable housing and emergency shelter for thousands of its residents forced to sleep outside. Nothing stops California from providing shelter and services to eliminate street homelessness. And nothing stops California from enforcing every applicable health, safety, and other legal restriction to ensure safe conditions on our streets. California knows that it can and must take all of these steps. Cities across California have adopted policies that identify a panoply of options to address homelessness-including the enforcement of any number of applicable laws to address street homelessness or unlawful conduct—provided that no California resident is criminally punished simply for sleeping or resting outside if there is nowhere else for them to go. In short, there is no genuine disagreement about the Eighth Amendment’s clear and limited scope.
Despite brooking no actual disagreement with the Ninth Circuit on the law of what is cruel and unusual, California’s top politicians have manufactured their appeals to this Court, simply because they do not want to be held accountable for the facts. Nowhere is this truer than in San Francisco. San Francisco has cited, fined, and arrested hundreds of unhoused residents for the sole crime of having nowhere to sleep in violation of the Eighth Amendment, the City’s own clear laws and policies that pre-date Martin, and basic common sense. A federal court enjoined these practices because they are nothing short of egregious. The litigation revealed just how little San Francisco has accomplished on homelessness despite wasting millions of dollars in taxpayer money on unconstitutional enforcement instead of the affordable housing and shelter residents so desperately needed.
Thus began a political campaign of deflection and misdirection that is now on display before this Court. Politicians have looked to blame everyone but themselves for failing to properly address homelessness. But Californians deserve accountability, not excuses. The amici curiae briefs seeking reversal are factually wrong and have nothing to do with the narrow constitutional question at bar. They should be disregarded. Particularly because California’s political leaders agree with Respondents on the sole legal question before this Court: It is cruel and unusual to jail the unhoused and call it housing policy.
All you say is accurate, but it sidesteps some important considerations. I’ve read that there are five times the number of homeless in vacant San Francisco houses. Do we really need more houses? Or do we need to distribute them more equitably…which brings to mind Anatole France’s saying: “The law, in its magnificent equality, forbids rich and poor alike from sleeping under bridges, begging in the street and stealing bread.”
You also ignore “labor discipline.” That’s the message that people had better take whatever crappy job is on offer, or suffer the indignities of poverty, even homelessness or starvation…and if you are rebellious, we’ll put you in a cage.”
The indignities of poverty and everything else is the whip in the hand of the plutocrats. It’s why unionizing is resisted so fiercely. It’s the tacit assumption that the rich deserve their wealth, while the poor are the victims of their own poor decision making.
Someone I knew who worked in philanthropy met lots of wealthy people. He said that 90% of these guys were born on third base, but they all want to act like they hit a triple. “Just deserts” describes most people’s attitudes toward wealth and poverty. Reality is something different.
There is a phenomonon that occured in the comments of one of the housing articles last week, that has been seen other places, and is relevant here.
Those of us who think our community should be focusing much more on producing multi-family housing, faced criticism from commenters saying that we need to produce single family housing because “that is what “the market demands”, even questioning why we felt we have the right to dictate what a developer does with their land.
But here is the thing: “The market” is entirely fine not building housing for people with low incomes AT ALL. And I’m not talking about means-tested “capital A” affordable housing,, but market rate rentals. I believe that those kinds of units just got omitted from the Village farms proposal entirely.. correct?
Affluent people who live in single family homes assume that the only rational position for other people to desire is a single family home. Its “Housing Narcisism”.. an inability to understand that there are a LOT of people in this community, or who are displaced from this community, who are differentn from us, less succesful than us, born with fewer advantages than us, would would LOVE to see an increase in 500sqft studio apartments that they can afford.
That is the perspective that was missing in the comments last week.
We need both.
But Ron, that’s not happening at Village Farms. We aren’t proposing elimination of single family housing, but rather a smaller share placed away from where transit and walkable retail so we can reduce traffic impacts. We as a community can insist on these requirements and the project will still be profitable.
After decades of supporting Measure J you lament the people who have had enough with poor people living in the streets. You admit we need more housing but support the biggest impediment to building it locally.
Ron
Measure J/R/D is not going away–that’s democracy. But either it can be modified to maintain the core voter approval or the Council can package proposals to have an integrated plan that can be voted on. Total elimination is not feasible and may not be desirable.