by Matt Barr

The "involuntarily homeless"

Jack Dunphy colorfully describes a recent Ninth Circuit holding that police can't arrest the "involuntarily homeless" for sleeping on the sidewalk. I know this will be primarily interesting for its Continuing Adventures in Ninth Circuit Jurisprudence angle, but there are a couple of serious points to make.

That someone is "involuntarily homeless" and that there is not enough shelter in Los Angeles -- the bases on which the 2-1 court held that the Eighth Amendment was implicated -- should be an available defense to prosecution under vagrancy law. Whether it should be successful or not is another matter, but procedurally, necessity is a defense to crime. The Ninth Circuit is short-circuiting that time-honored tenet of law and saying you can't enforce a criminal law to begin with against the "involuntarily homeless."

This is akin to a (successful) constitutional challenge to prosecutions for murder where the defendant acted in self-defense. (Uniquely among crimes, lack of justification or excuse is an element of the crime of murder and must be proven by the state, but work with me on the analogy.) I should be able to claim the Eighth Amendment prohibits the police from even arresting me for murder because I acted in self defense. As you're probably thnking right now: Who's supposed to prove you acted in self defense or you didn't? You see the problem. This kind of rule would not afford the opportunity for my defense of "necessity" to be proven by anybody. You'd have to take my word for it, under the Eighth Amendment.

Ridiculous. Consider too that if police start rounding up homeless persons for drug possession or use, assault, littering, or other conduct that can't reasonably be argued is "necessary" because there aren't enough beds in Los Angeles, the ACLU (who was behind this lawsuit) will complain loudly that they're doing an end-around around the clear command of the Ninth Circuit to leave these poor people alone. What in the world is the matter with people?

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