The Constitution And Homelessness

| Educate!

Above Photo:  Devin Smith | CC BY 2.0

Introduction

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 8thAmendment.

But what does the 8thAmendment have to do with homelessness?

The 8thAmendment

The 8thAmendment 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 8thAmendment. 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 Vietnames 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 proerty 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 feloneous assault when they torture people with tasers or pepper spray. But they are violating a lot more than the 8thAmendment. 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 8.

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 conficate 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 19thcentury 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.

  • disqus_YzQItOTWot

    Thank you for this strong defense of the people.
    Has the pendulum swung as far as it can toward property?

  • Well…lots of fancy words and legal logic…but yes and yes again to human rights over property rights. The violence inherent in the idea of private property and its symbolic representation as money is profound when it is elevated above basic human dignity. Our entire economic system of money and markets is exposed as the travesty of human relationships it is by this understanding. Thank you. Once we begin to defend the human rights of all with the same fervor with which we defend property rights, we will begin to reestablish the sanctity of all life.

  • Jon

    Study this article well and universalize it. Time for our side to go on the offensive in defense of the Constitutional guarantees. Consider citizens’ arrest provisions.

  • chetdude

    “Has the pendulum swung as far as it can toward property?”

    Yes, If they can get Kavanaugh or someone like him on SCOTUS… Then we’ll return to the good old days when people like Dred Scott could be considered property and therefore as Chief Justice Taney said, have “no rights which the white man was bound to respect.”

  • Jan

    Yes Arrest the Police! Educational Veteran Day Event. Freedoms fought For.

    I am looking forward to people who will help a small group of End All Poverty, get off the ground. We need gifts of all sizes. To incorporate in Colorado, and federally. One of our biggest goals is to Get people writing to their newspapers, US Senators, church leaders asking for their human Rights to Be enforced.

    We plan on having an educational rally nation wide and in Colorado Springs, at 12 noon, Veterans day Nov 11th ask those in Waterbury CT to LA, CA have an educational march. So maybe by 2020 the US judges will see they either can enforce Human Rights, put to paper and accepted as a goal by President Jimmy Carter in 1979. Or can accept International Courts courts decision on Human Rights.

    Human Rights differ because places like Citi owes Human Rights to workers and people who bank with them. Even a credit card with a five hundred dollars limit, could help us poor of funds, stand up and add to society.

    Please tell the people in your company we need cash, or a credit card, or an office gift card, or all. We need to make and put up flyers. As well as spend my time talking to people who Could educate, attendees. We need to snail mail News people. To get attention so this event is covered and reaches more people.

    Caring people out there, please send you heart felt donations to Jan Hoag, PO Box 25663, Colorado Springs, CO. 80918. Make payable to Jan Hoag as we yet to have a non-profit bank account. PUT End All Poverty, EAP in the memo line. My Phone is 719.465,3454 if you have any suggestions on the May 11 American gathering, or if you want to explain what no slavery Article #4 And Decent wage, #23 of human rights mean.

    One of the biggest Human Rights and US Constitution Rights is that individual corporations, and persons owe other persons rights as freedom of speech. It is not owed by government alone. Example I cannot stop white extremest from marching. But I can have a counter march later and they cannot stop me.

    The Homeless THROWN OUT TENTS, Needs to get ACLU and other legal organizations to bring a Human Rights in Geneva’s International Courts, and see if cops following illegal/Unconstitutional orders can be sued, for violation of Human Rights, or their bosses can. Ask for enough to be housed for a year.

    We need People asking to have International Human Rights courts to be LISTENED TO By USA. In order to Force enforcement in America of Human Rights. If the courts know many people are aware of their invisible human rights, they will be compelled to respect them.

    The world would be better off and you would have more profit once poverty and Climate change is addressed. More people would have the cost of living, and be able to not just pay rent and buy food, But they would be able to buy high end items.

    Please open up your heart, to this grass root organization. Jan Hoag