The Law and the Homeless

March 10, 1995|By JAMES J. KILPATRICK

Charleston, South Carolina -- The conflict in Tobe v. City of Santa Ana is as old as the plays of Euripides. It pits the power of the state against the rights of the individual. Every city in the country will be waiting on the outcome, for the case pits a resentful citizenry against the unfortunate homeless.

No one disputes the facts. Santa Ana is a pleasant city of 300,000 population, located in Orange County southeast of Los Angeles. Roughly 10 years ago the city became a kind of mecca for the homeless. In 1988 the city administration, fed up with ''vagrants,'' began to crack down. In 1990 the cops made a mass arrest of persons charged with everything from littering to jaywalking. It was ugly.

For this unseemly episode the city was soundly rebuked by the courts. The city settled upon a new policy, embodied in a 1992 ordinance forbidding ''camping'' on city property. Archie Tobe and other homeless persons felt they were threatened with renewed prosecution. They sued. In February of last year they won an injunction prohibiting enforcement of the ordinance against them.

Now that injunction has been argued in the Supreme Court of California. Whether the court decides in favor of the city or the homeless plaintiffs, the losing side will seek review in the U.S. Supreme Court. The issue involves some tough questions of constitutional law.

The 1992 ordinance makes it unlawful for any person ''to camp, occupy camp facilities or use camping paraphernalia'' in any public area. It forbids any person ''to store personal property,'' including such paraphernalia, in any park or street or sidewalk. The law defines paraphernalia, by way of example, as tarpaulins, cots, beds, sleeping bags, hammocks and cooking facilities. Camp facilities include tents, huts or temporary shelters.

The question is whether the Santa Ana ordinance, as applied to homeless people, violates their constitutional rights. A trial court held that it did. Justice Thomas F. Crosby found that the law (1) violated the right of the homeless to travel, (2) amounted to cruel and unusual punishment, and (3) suffered from vagueness and overbreadth. The court entered an injunction against enforcement of the law.

Though a right to travel appears nowhere in the Constitution, the Supreme Court has upheld the right in an series of opinions dating from 1849. Fine with me. But Justice Crosby went much further. He ruled that ''the right to travel includes the right to live or stay where one will.'' This strikes me as much too much of a muchness.

On the second issue, the trial court ruled that homeless people have a certain status. They are poor. The city's camping ordinance amounts to punishment for poverty, and such punishment violates the Eighth Amendment. I find it hard to follow Justice Crosby's reasoning, for the ordinance does not punish ''status.'' It punishes conduct -- specifically it punishes camping in a city park or storing paraphernalia on city property.

Is Santa Ana's ordinance ''vague and overbroad?'' Maybe. The lead case is Kolender v. Lawson, decided by the U.S. Supreme Court in 1983. There a California state law required vagrants to give credible and reliable identification. The high court held that the law encouraged arbitrary enforcement by police.

At one time or another, almost all of us have written something we should have slept on. Justice Crosby should have slept on his passionate opinion of February 1994. In his eyes the ordinance was outrageous. It lacked compassion. Therefore it was unconstitutional. But the law is not supposed to work that way.

In a friend-of-the-court brief, the Pacific Legal Foundation has made some cogent arguments before California's Supreme Court. Cities such as Santa Ana have age-old power to protect the health, safety and moral values of their people. Public streets, parks and sidewalks exist for the convenience and pleasure of all the people. Surely a city may prevent ''a small number of individuals from appropriating public property for their own private use.''

The Santa Ana case has national repercussions. Scores of cities have enacted similar ordinances to cope with the difficult problem of the homeless. These unfortunate people certainly have rights, but dammit, so do the tax-paying citizens whose tolerance they have sorely strained.

James J. Kilpatrick is a syndicated columnist.

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