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Homeless Problem a Council Dilemma

February 02, 1992

One has to sympathize with the Santa Monica City Council as it grapples with its homeless problem. On the one hand, it gets sound legal advice from its city attorney that a concerted effort to drive the homeless out of town would be unconstitutional. On the other, it feels the political pressure of constituents who grow tired of "bums" and "panhandlers."

It is a Hobson's choice, all right. Council members take an oath of office to uphold the Constitution. But that oath may become their farewell address if voters feel that fidelity to law is less important than protection of property values. Unwilling to make the hard choices themselves, the council first passes the buck to a task force, then to its city attorney, and now apparently to outside counsel who will be paid lots of money to take the heat.

Yet, it is sad when elected officials of whatever rank place their political interests above what is right and lawful. It's as if their continued tenure in office is more important than a homeless family's right to simply exist. But since polemics, not morality, is the name of the game in the '90s, here are some arguments the City Council could use should it decide to follow the advice of its city attorney rather than the expediency provided by some hired gun.

* Any effort to "exile" the homeless from Santa Monica is probably unconstitutional. For instance, an absolute ban on sleeping in public places would deny the most basic of human needs and civil liberties. Neither Santa Monica, nor any other city may exclude persons, however disagreeable they might be. Should its ban be found unconstitutional, the city may be exposed to large damage awards. Indeed, City Council members may be personally liable if they knowingly violate constitutional standards.

* Property owners in Santa Monica receive whopping benefits and subsidies far in excess of anything the homeless command. California could cure its homeless problem in a single stroke if either Proposition 13 or the mortgage deduction from state income tax were repealed. But just imagine the outcry. Property owners want their cake (tax subsidies), but don't feel the homeless are entitled to share the bounty. Is there no political leadership that can stand up and expose this hypocrisy? If Santa Monica council members want to solve the homeless problem, they should be in Sacramento every single day demanding tax fairness.

* Santa Monica renters who have joined the anti-homeless chorus deserve even less sympathy. They reap dramatic benefits from the rent control law their city attorney wrote. That good fortune is secure, at least for the moment. How do those who live in subsidized housing have the audacity to deny a homeless person the right to even sleep? Renters, too, could easily solve the homeless problem by using a fraction of their rent savings to fund homeless shelters.

As our economy grows weaker and weaker, reflecting the failure of Reaganomics and the fiscal mismanagement of Govs. Deukmejian and Wilson, more and more people will wind up on the streets. Relegating them to back alleys and Skid Rows is hardly the stuff America should be made of. Yet, rather than take a stand supporting the constitutional rights of the homeless, the City Council rushes forward to blame the victims. What courage!

Apparently, the City Council would effectuate Anatole France's 19th-Century sarcasm: "the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." If that is Santa Monica's vision of equality and justice, I'll have to look elsewhere for inspiration.

KARL MANHEIM

Los Angeles

Editor's note: Manheim is a professor of law at Loyola Law School.

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