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.
