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The Constitutional Right to Be a Bum
More nonsense from the Ninth Circuit Court of Appeals.


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The continuing madcap antics of the Ninth Circuit Court of Appeals.

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Suppose your work required you to spend a few days in downtown Los Angeles. If you had business to conduct, say, with the city government, you might choose to stay at the very posh New Otani Hotel, at the corner of First and Los Angeles Streets. Just west of the hotel is the civic center, including City Hall and the various county courthouses. Beyond the courthouses you’ll find the cultural heart of the city, with the Frank Gehry-designed Walt Disney Concert Hall looking across First Street toward the Dorothy Chandler Pavilion, the Mark Taper Forum, and the Ahmanson Theater. East of the hotel are the restaurants and nightlife of Little Tokyo. And just across First Street from the New Otani is Parker Center, the headquarters of the Los Angeles Police Department so familiar to viewers of Dragnet. Los Angeles can hardly rival New York or Chicago for architectural grandeur, certainly, but if you were to confine your sightseeing to these areas you would surely go home with a favorable enough impression of the city.

But if you were to exit the lobby of the New Otani and head south, even for only a block or so, you would experience a different Los Angeles altogether, for if you cross Third Street, especially at night, you will have crossed the River Styx to find yourself immersed in an underworld far beyond your worst imaginings. The sidewalks will be barely if at all passable, for as night descends on the city they are claimed by the homeless–known to those who eschew politically correct euphemisms as “bums”–who erect camping tents and all manner of makeshift dwellings in which to spend the night. But before falling asleep in their tents and their “cardboard condos,” these men (and a few women) will pass their time drinking, smoking crack, shooting heroin, fighting with (and occasionally murdering) each other, and preying on those decent citizens imprudent enough to wander through.

If you were mistakenly to venture into this frothing maelstrom of depravity and somehow escape unharmed, you might walk over to Parker Center and approach the impassive police officer behind the counter in the lobby. “Listen here,” you might say, “what are the police doing about all those besotted bums down the street?” You will find the answer horrifying but somehow unsurprising. “There’s not much we can do,” the cop will say. “They are enjoying the blessings of freedom guaranteed them by the Constitution, as interpreted by the ACLU and the United States Court of Appeals for the Ninth Circuit.”

The sound you hear is that of James Madison spinning in his grave, for in a case decided last Friday, a panel of the Ninth Circuit created the constitutional right to be a bum.

In 2005, the city of Los Angeles enacted an ordinance making it a misdemeanor to “sit, lie or sleep upon any street, sidewalk, or other public way.” A violation is punishable by a fine of up to $1,000 and/or up to six months in jail. Six plaintiffs, represented by the American Civil Liberties Union, sued the city of Los Angeles, LAPD Chief William Bratton, and Captain (now Commander) Charles Beck after being arrested or cited for violating the ordinance. The United States District Court for the Central District of California granted summary judgment for the defendants, prompting the ACLU to bring the case before the presumably friendlier faces of the Ninth Circuit.

Judge Kim Wardlaw delivered the 2-1 majority opinion in favor of the plaintiffs. “Because there is substantial and undisputed evidence,” she wrote, “that the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times, including on the nights of their arrest or citation, Los Angeles has encroached upon Appellants’ Eighth Amendment protections by criminalizing the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless.” (Not all the judges on the Ninth Circuit are as far out in left field as Wardlaw. You can read the dissent here.)

Thus, if the city cannot provide a bed for every last bum on the street, it is enjoined from arresting those who make their home on the sidewalks. The opinion goes into some detail regarding each plaintiff’s history and the purported reasons he or she is “involuntarily homeless.” In accepting the plaintiffs’ sob stories, the majority has demonstrated a degree of gullibility troubling to find in those entrusted with high office. Some of the plaintiffs claim to suffer from various afflictions that prevent them from working, others were merely swept onto the sidewalks of Skid Row by an uncaring society and a series of unfortunate events. If these woeful tales are indeed true, then the plaintiffs are the only six people on Skid Row who are truly involuntarily homeless.

The population of Skid Row in Los Angeles can be categorized as follows: the addicted, the crazy, and the lazy. In more than 20 years with the LAPD, many of them spent working in and around Skid Row, I’ve encountered only a handful of the truly unfortunate, people whose lives collapsed suddenly and unpredictably to leave them no alternative but to seek refuge in the missions, shelters and cheap hotels of Skid Row. These people, after spending a few weeks or months among the homeless, almost always find their way back to a productive life, one that includes a roof over their heads. How, then, to explain the life of, to cite one example, plaintiff Robert Lee Purrie, who, according to Wardlaw’s opinion, “has lived in the Skid Row area for four decades.” The inescapable conclusion is that he lives there, like most of his fellow bums, because he likes it.

The problem with the missions and shelters, the bums will tell you in candid moments, is that they have rules: no drinking, no drugs, no prostitution, none of the activities that make life on the streets so attractive for the great majority of the so-called homeless. You could have all the shelters you like on Skid Row, you could even turn the New Otani into one for that matter, but if they all enforced those pesky prohibitions against the various vices there would still be a substantial number of bums out on the streets enjoying a life unconstrained by expectations that they behave themselves.

All of this would surely come as a shock to Judge Wardlaw, who apparently sees herself as a protector of the downtrodden. “All my life I have had a really keen sense of justice and injustice,” she once told the Los Angeles Business Journal. “A large part of that is derived from the fact that my mother was discriminated against in front of me when I was a young child. My father was disowned because he married a Mexican.”

Was it this keen sense of justice and injustice that inspired Bill Clinton to nominate Wardlaw for the Ninth Circuit in 1998? Or was it, as the cynic might suspect, the great heaps of cash she and her husband Bill Wardlaw bestowed on the Clintons? (The Wardlaws were among the Clintons’ guests who enjoyed a stay in the White House’s Lincoln Bedroom.)

I don’t know where Judge Wardlaw lives, but I’m confident there are two commas in the price tag of her home. And I’m just as confident there are no bums sleeping on the sidewalk outside. If there were, how long would it take her to call the police and have them rousted?

Jack Dunphy is an officer in the Los Angeles Police Department. “Jack Dunphy” is the author’s nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.



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