Occupy Wall Street and the Homeless

For the past seven weeks, the Occupy Wall Street protestors have used Zuccotti Park in Lower Manhattan as a staging area, and sleeping area, for their demonstrations. Similar movements around the country have been living around the clock in public places to fully embrace their political message of occupation: e.g. City Hall Park in Los Angeles, and Minneapolis’ Government Center in Minnesota.

Unfortunately for the Occupy movement, there appear to be few existing legal options to prevent potential evictions. Zuccotti Park in Manhattan, for example, is private property. And but for the strained patience of the property owners, and the temporary non-enforcement of city health and noise codes on behalf of the mayor’s office, the OWS protestors could be quickly forced to leave. Elsewhere, Occupy groups are living on public forums–parks, government plazas, sidewalks–that may be closed to them, political speech notwithstanding, based on constitutional time, place, and manner restrictions. As Professor Mike Dorf opined recently, “[t]he short of it is that under the Supreme Court’s 1984 ruling in Clark v. Community for Creative Non-Violence (CCNV), a prohibition on sleeping in a public park will be upheld.  As the NYCLU post notes, there may be circumstances in which CCNV can be distinguished, but OWS does not appear to present them.”

Given the Occupy movement’s argument that they have the right to sleep in public places, it is sad and surprising that they exhibit so little sympathy for another group that has been systematically denied that same ability. A recent NYTimes article reported that an increasing number of homeless have joined Occupy sites, and divisions have arisen about whether, and how much, the protestors should welcome those poorest comrades among them: “In Nashville, organizers described the homeless as more of a detriment to the movement than an asset. ‘This is keeping people away: It distracts a lot of energy away from the issues we’re fighting for when we’re just managing life in the camp,’ [said] one of the participants…” The Wall Street Journal quoted one disappointed advocate for the homeless in LA: “There have been some pretty anti-homeless sentiments expressed by some of the organizers and some strong accusations made.”

Yet while protestors may be trying to manage life in the camps, their homeless neighbors are simply attempting to hold onto life itself. While the Occupy campers are threatened by temporary suspensions of their ability to protest, the homeless are under constant harassment by ordinances that may restrict constitutional rights, and which criminalize their very existence. The regime of private property coupled with local laws that ban sleeping on sidewalks, in parks, and under bridges have made it de facto illegal for those without private property to perform basic human functions such as cooking, sleeping, and urinating. These laws are written broadly, but there can be no doubt that they are targeted against the homeless (there is an apropos french/France saying: “the law in its majestic equality forbids the rich as well as the poor to sleep under the bridges”), and indeed they are being suspended to accomodate the Occupy protestors. In a minority of jurisdictions, courts have found that these statutes violate constitutional rights. In 1992, the U.S. District Court for the Southern District of Florida found in Pottinger v. City of Miami that city practices effectively infringed on Eighth Amendment protections against cruel and unusual punishment, Fifth Amendment due process rights, Fourth Amendment rights against unreasonable seizure, and Fourteenth Amendment protections on the right to travel. In 2005, the Ninth Circuit wrote in Jones v. City of Los Angeles that because the homeless population exceeded the number of beds in shelters, the city “encroached upon Appellants’ Eight Amendment protections by criminalizing the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless.”

Jeremy Waldron has written persuasively that this state of affairs is “one of the most callous and tyrannical exercises of power in modern times.” Our system of private property laws and ordinances governing the use of public property has created a society where a homeless man is stripped of human dignity because he has no freedom to urinate privately and independently, and must instead “beg for this opportunity, several times every day, as a favor from people who recoil from him in horror, or, if he wants to act independently on his own initiative, he must break the law and risk arrest.” Thus the policy of criminalizing homelessness is not merely a problem for legal rights, it is an assault on fundamental freedoms and an ignominious mark on our current system of property ownership and wealth distribution. It represents, at its heart, precisely what the Occupy movement wants to change about our country.

If there is one unifying theme amidst the fractured messaging of the Occupy movement, it is that the protestors represent the 99% of Americans who are not the very rich. Yet by an apathy to the plight of the homeless, the movement risks being merely the 99% of Americans who are not the poorest of the poor. The National Coalition for the Homeless estimates that up to 3.5 million people will experience homelessness at some point during a given year. If we want clean parks, then we must offer meaningful alternatives: the poor require more temporary shelters, more public housing, better mental health care, and educational and employment opportunities that will allow them to exit lives of misery and fear. If the protestors truly wish to voice the needs of 99% of Americans, the Occupy movement ought not leave behind the most vulnerable 1%.

 

image from Fibonnaci Blue