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The Homeless Are Not Stateless : Their Poverty Challenges Our Fidelity to Equality of Law

July 03, 1988|SAMUEL H. PILLSBURY | Samuel H. Pillsbury teaches criminal law at Loyola Law School

Early on the morning of Friday, June 24, Los Angeles police and sanitation workers were called in to remove an encampment of homeless across the street from City Hall. From newspaper accounts, it sounds like they did a thorough job, hauling off to the dump two truckloads of the street people's possessions. Despite protests that the items, ranging from blankets to identification papers, belonged to others who were away seeking work or food, the government workers removed all goods not immediately claimed.

What are we to think of such an event? Well, worse things happen all the time. Yet there is something particularly disturbing about this incident that should serve as a reminder of some old but easily forgotten truths--one moral and one legal.

To understand the moral issue, consider how appropriate it is that this forcible eradication of a settlement should be done by those government servants charged with keeping our city orderly and clean--police and sanitation workers. These are the people we call when things get too messy for ordinary citizens. And who are messier than the homeless? The homeless are not of a single type, capable of simple description, but their image to the rest of us, drawn from their most dramatic examples, is clear enough. With their deeply stained, ragged clothes, their odor, their wandering minds and bodies, they seem like aliens from another planet on our metropolitan streets. Their belongings, packed into bulging knapsacks, plastic bags or shopping carts, their collections of cans, papers and items collected from the streets appear to our eyes as moveable refuse. That was the way it was treated by the police and sanitation workers.

In nearly 10 years of working in and around downtown, I have seen the numbers of homeless grow. Each year, the city center looks more and more like a Third World city. It is tempting to think that with a great flexing of social might we could sweep the street people and their possessions away, like a parent cleaning out a child's bureau full of paper dolls and pebbles. It is tempting to think this way because it is hard to consider these people who beg for handouts in the same way as we do those who work for a living or at least have a firm shelter to call home.

Yet it should go without saying that our first obligation to all persons, with homes or without, is to treat them with dignity. It should go without saying that the most prized possessions of the homeless should be accorded the same respect as the more financially valued possessions of those who have traditional shelter.

This principle of equal respect leads to the legal aspect of the matter. The Fourth Amendment to the Constitution establishes the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It does not distinguish between types of people. It refers as much to a street person's shopping cart as to the lawyer's BMW. This is not mere rhetoric. It makes a difference--or should make a difference. The Constitution supplies words to live up to as much as rules to obey.

For the most part, people with power don't need constitutional rights. Their power is their guarantee of respect and fair treatment. No government official would dare raid a private home and destroy its contents without the most elaborate of legal procedures. It would be unthinkable because homeowners are generally respected and, as a group, wield great power. Neither is true for the homeless.

This provides an insight into the more familiar setting for questions about Fourth Amendment violations--the criminal case. Those suspected of crimes are often powerless and are peculiarly vulnerable to the government's monopoly on force. Once criminally charged, they have the incentive and, thanks to the right to counsel, the means to challenge the government's use of coercive power.

Of course they do not make the most attractive of civil-rights advocates. Often they are clearly guilty. The police have caught them with the contraband or incriminating evidence; it's simply a matter of deciding whether it can be used in court. It is a frustrating business to decide whether we can take legal notice of what is often the most important, most obvious evidence of guilt. To ignore it seems too technical, so persnickety, so legal in the worst sense of that word. But maybe there really is something more important at stake.

Every so often, something like the June 24 incident occurs that raises the constitutional issue in a more sympathetic light. Here it is not some drug dealer complaining about the police's discovery of a kilo of cocaine in his trunk, but the helpless being deprived of their last worldly goods.

It is worth remembering that the reason we need constitutional restraints is because all governments are intolerant of the different and the powerless. And it is worth remembering that in a democracy, where popularity is power, constitutional rights are, most important, protections for the unpopular.

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