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HousingHomelessnessBreed, Chiu gave right-wing Supreme Court ammunition to criminalize poverty

Breed, Chiu gave right-wing Supreme Court ammunition to criminalize poverty

Grants Pass decision on homelessness relies heavily on the city's legal brief.


One of the most disturbing elements of the Supreme Court’s decision in the Grants Pass case is its reliance on San Francisco.

At least eight times in his decision for the right-wing majority, Justice Neal Gorsuch cited a brief filed by City Attorney David Chiu and endorsed by Mayor London Breed.

Chiu and Breed filed what’s known as an “amicus” brief supporting efforts to overturn the 9th Circuit ruling that cities can’t fine or jail people for sleeping in public places if there is nowhere for them to go.

Mayor London Breed helped the Supreme Court criminalize poverty.

So in essence, the leaders of this city helped create an alarming court precedent that will in the future be used to criminalize poverty (and maybe even justify a return to a modern version of the “ugly laws”).

I can’t guess what Gorsuch and the Court majority were thinking, but the idea that a supposedly progressive city and its supposedly progressive leaders endorse the decision certainly makes it more politically palatable.

This decision could be legal precedent for decades, and already is unravelling a long-time concept that it’s not illegal to be poor.

Thanks, in part, to Chiu and Breed.

Some examples from the opinion (which you can read here):

Often, encampments are found in a city’s “poorest and most vulnerable neighborhoods.” Brief for City and County of San Francisco et al. as Amici Curiae on Pet. for Cert. 5 (San Francisco Cert. Brief );

Consider San Francisco, where each night thousands sleep “in tents and other makeshift structures.” Brief for City and County of San Francisco et al. as Amici Curiae 8 (San Francisco Brief ). Applying Martin, a district court entered an injunction barring the city from enforcing “laws and ordinances to prohibit involuntarily homeless individuals from sitting, lying, or sleeping on public property.”

That “misapplication of this Court’s Eighth Amendment precedents,” the Mayor tells us, has “severely constrained San Francisco’s ability to address the homelessness crisis.” San Francisco Brief 7. The city “uses enforcement of its laws prohibiting camping” not to criminalize homelessness, but “as one important tool among others to encourage individuals experiencing homelessness to accept services and to help ensure safe and accessible sidewalks and public spaces.”

(“[T]he Ninth Circuit and its lower courts have repeatedly misapplied and overextended the Eighth Amendment” and “hamstrung San Francisco’s balanced approach to addressing the homelessness crisis”)

It’s hard to predict how awful this is going to be; cities like San Francisco are already doing sweeps. But the decision goes beyond that; is sets up a frightening legal precedent. From the dissent by Justice Sonia Sotomayor:

Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment

The Ordinances might also implicate other legal issues. See, e.g., Trop, 356 U. S., at 101 (plurality opinion) (concluding that a law that banishes people threatens “the total destruction of the individual’s status in organized society”); Brief for United States as Amicus Curiae 21 (describing the Ordinances here as “akin to a form of banishment, a measure that is now generally recognized as contrary to our Nation’s legal tradition”); Lavan v. Los Angeles, 693 F. 3d 1022, 1029 (CA9 2012) (holding that a city violated homeless plaintiffs’ Fourth Amendment rights by seizing and destroying property in an encampment, because “[v]iolation of a City ordinance does not vitiate the Fourth Amendment’s protection of one’s property”). The Court’s misstep today is confined to its application of Robinson. It is quite possible, indeed likely, that these and similar ordinances will face more days in court

The majority countenances the criminalization of status as long as the City tacks on an essential bodily function—blinking, sleeping, eating, or breathing. That is just another way to ban the person. By this logic, the majority would conclude that the ordinance deemed unconstitutional in Robinson criminalizing “being an addict” would be constitutional if it criminalized “being an addict and breathing.” Or take the example in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” 370 U. S., at 667. According to the majority, although it is cruel and unusual to punish someone for having a common cold, it is not cruel and unusual to punish them for sniffling or coughing because of that cold.

Thanks, Mayor Breed and City Attorney Chiu. You gave the most right-wing court in my lifetime, a Trump court, the ammunition to criminalize poverty. We will be living with this dangerous attack on the essence of humanity for a long, long time.

48 Hills welcomes comments in the form of letters to the editor, which you can submit here. We also invite you to join the conversation on our FacebookTwitter, and Instagram

Tim Redmond
Tim Redmond
Tim Redmond has been a political and investigative reporter in San Francisco for more than 30 years. He spent much of that time as executive editor of the Bay Guardian. He is the founder of 48hills.


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