Art for Lawyers
A convenient starting point for homeless advocacy is the Supreme Court opinion in Kolender v. Lawson (1983) that a local government cannot implement and enforce arbitrary rules of conduct. City councils are elected, and as election turn-out is usually small, offices are jealously contested by the candidates. Particular constituents' interests are involved, leading to material support for sympathetic representatives. Sometimes these local initiatives run afoul of the Bill of Rights.
A city ordinance making “vagrancy” a crime led to the trial of Papachristou v. City of Jacksonville (1983). Jacksonville is not a small town, and the homeless problem came to overwhelm its citizens. Legal enforcement was thought necessary. Although well-intended, by making it a violation of the law, it fell to beat cops to decide who was (and wasn't) breaking the law. On appeal, the code was found to be as vague as the definition of vagrant.
If the homeless thought they could take refuge from the street by living in cars they were sadly mistaken. As a practical matter, Los Angeles has the problem (for the most part) under control by zealous enforcement of no-parking zones. Tabloid-style news sensationalized it with stories of destitute women living in cars alone, sometimes with kids, and (shockingly) even with pets. That touched a nerve. Los Angeles City Council approved an ordinance making it a violation to live in a car.
The definition of “live in a car” proved unpalatable even to persons living in fabulous homes, as everyone in Los Angeles spends a good portion of life in cars. To many, it seemed more like the ideal than a disadvantage (e.g., saving time between trips). In Desertrain v. City of Los Angeles (2014), the 9th Circuit Federal Court decided against the ban on gypsy lifestyle. Cars may now be considered a home-away-from-home.
Philosophically, punishing people for diminished status is dubious civics. When it was first suggested that many accused of crimes are themselves victims of circumstances beyond their control, it was the start of a revolution in criminal law. A moment's reflection takes in, at a glance, the vast sweep of legal ramifications. As far as the homeless are concerned, evidence to prove the deliberate, premeditated, choice to live that way is hard to find. Reluctance to dismiss homelessness as a mental health problem, as opposed to a social (and therefore legal) problem, is perhaps due to an over-developed sense of social responsibility.
The Good Samaritan defense has produced its antithesis, the ironic “Bad Samaritan” accusation. It is not unreasonable for a jury to doubt the good intentions of a defendant who claimed to have intended to perform CPR, but who cannot provide proof of certification, training, or experience lifesaving. By analogy, the courts have tended to find in favor of the rights of the homeless, rather than fault them.
Incidentally, I take this tendency as the grounds for my art. Homelessness certainly is a problem. Shooing the homeless away does not solve the problem. They will but go elsewhere, until returning to the same elsewhere, and so on. Endeavor to live with it, the way it is, like a chronic health condition. There exists a robust, deeply-felt, and profoundly-thought literature of personal endurance. Bring that wisdom to bear on this condition. So goes my artistic intent.
The legal trend is against criminalizing behavior. It is a matter better left to sociology professionals. For the rest of us, those who decline to simply look away, it is a subject of apparently inexhaustible interest. What is to be done when faced with an active, on-going situation, about which nothing can be done? It is a double bind. It is a double bind for everyone, above all, for the homeless. A legal precedent for the double bind defense is the decision by the Alabama Supreme court in State v. Adams (2010).
In Alabama, as in most States, a sex offender must register as such. But for a homeless sex offender compliance is, ipso facto, impossible. If physical place of residence is compulsory, i.e., permanent (not a mailbox), then the home requirement is unconstitutional under State charter. By default, it (mercifully) delegates the matter of homelessness to psychologists, and such empiricists as argue that mental illness is a double bind in the mind of sufferers of mental illness. Untying that cruel knot is the proper job of health care professionals -not law enforcement officers or, I might add, artists.