This statutory law is being used to order, under threat of arrest and incarceration, a homeless, unemployed, 57 year old retired serviceman, Kent Paul Dolan, not to sleep on the sidewalk in the shelter of a wall of the Clovis California Senior Citizens' Center, a place where he has been sleeping each night pretty much continuously since late June of 2001. This area is a part of the Clovis Civic Center and the Veteran's Memorial Center, which is a bit ironic.
This enforcement action is part of a long term series of actions by the Clovis Police Department attempting with respect to this individual to accomplish its avowed purpose of "solving" the homeless problem in Clovis by driving all homeless people out of Clovis, which purpose the individuals of the police department following this course of action attribute to "city policy".
It is noteworthy that this enforcement action is very much an individual choice of the Clovis Police Department officers who choose to pursue it. Other officers of the same force attest that the protested behavior is legal and appropriate behavior, and that California Penal Code section 647(j) has been overturned by the courts at least insofar as it applies to the current situation.
Let's explore the application of this law and see whether its use in this case is (1) a correct interpretation of the law, (2) an appropriate use of police authority, (3) in the public interest, and (4) appropriate moral behavior for a governmental entity.
Is this a correct interpretation of the law?
The wording of the statute:
§ 647. Disorderly conduct
The terminology in the statute:
Laws are written, for the most part by lawyers, so it is a bit bemusing that they remain so unclear. Several things about this statute need clarification, and the California Penal Code does not bother to define its terms. The usually accepted authoritative source of legal definitions, barring definition either directly in the statutory law or else as the result of a court decision, is Black's Law Dictionary, so we'll use that, and in particular the Sixth Edition, as our source document.
"Disorderly" as commonly understood seems a bit of a slap in the face for the normal and necessary human behavior of sleeping a part of each day. Black's on page 469 defines:
Disorderly. Contrary to the rules of good order and behavior; violative of the public peace or good order; turbulent, riotous, or indecent.
Black's on page 295-296 also defines:
Personal behavior; deportment; mode of action; any positive or
Putting the two together gets more complicated. Black's on page 469 defines:
Disorderly conduct. A term of loose and indefinite meaning (except when defined by statutes), but signifying generally any behavior that is contrary to law, and more particularly such as tends to disturb the public peace or decorum, scandalize the community, or shock the public sense of morality. An offense against public morals, peace or safety. State v. Cherry 185 Neb. 103, 173 N.W.2d 887, 888. Disorderly conduct statutes must sufficiently specify the prohibited conduct or they may be held to be unconstitutional. Baker v. Bindner, D.C. Ky., 274 F.Supp. 658.
A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. Model Penal Code, § 250.2.
Lodges. Arguably this is the most important word to understand in the statute for the current discussion. Its lack of clarity would explain why one judge declared the statute ambiguous and in the case of use for prosecuting sleeping similar to what is being considered here, also unconstitutional. The advice of the Civil Rights Division, Coalition on Homelessness, cited further below, suggests that merely arriving late in the evening with all ones possessions, sleeping until morning, and then leaving with all ones possessions again, is not a sufficiently permanent presence to constitute "lodging", or, in Black's phrase on page 941, a "temporary habitation". Black's does not define the verb "lodges", only several noun forms on pages 941 and 942: "lodger", "lodging house", "lodging place", or "lodgings"; all of which seem to imply also more permanence than is here being demonstrated. More useful, perhaps, is the verbiage Black's gives for "habitancy" on page 711: in part "the fact of residence at a place, together with the intent to regard it and make it a home." "Intent" is always a little dicey; for it not to require mind reading, it requires evidence, and lacking any evidence of "habitancy" for a big part of every day removes the presumption that there is intent to make it a home. Also useful is the phrasing for "habitation" on the same page: "in the civil law, the right of a person to live in the house of another ..." (emphasis added). Thus "lodges" probably does not apply to sidewalk sleeping under the stars which does not also become sidewalk dwelling during the day.
The protested behavior is not being done in "any building, structure, [or] vehicle," so that leaves "place", a rather ambiguous term. Black's, on page 1148, defines:
Place, n. This word is a very indefinite term. It is applied to any locality, limited by boundaries, however large or however small. It may be used to designate a country, state, county, town, or a very small portion of a town. The extent of the locality designated by it must generally be determined by the connection in which it is used. In its primary and most general sense [it] means locality, situation, or site, and it is also used to designate an occupied situation or building. See also Site, Situs.
While both are covered in the statute, it is worth emphasizing for other reasons that the sleeping spot is a "public place". Black's on page 1230 defines:
Public place. A place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public (e.g. a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals, and welfare of the community. A place exposed to the public, and where the public gather or pass to and fro.
While various members of the Clovis Police Department have repeatedly disputed the characterization of the sleeping place as "public property", from the definition in Black's, on page 1217, it clearly is just that:
Public property. This term is commonly used as a designation of those things which are publici juris (q.v.) and therefore considered as being owned by "the public," the entire state or community, and not restricted to the dominion of a private person. It may also apply to any subject of property owned by a state, nation, or municipal corporation as such.
since it is owned by the City of Clovis as a municipal corporation.
Black's in turn defines "good order" in a way not likely to make it applicable to the present situation, as it seems applicable to property, not persons, on page 693:
Good order. Goods or property are in "good order" when they are in acceptable condition under all the circumstances.
As the statute provides no other definition, that will have to stand.
The other option for "disorderly conduct" is a violation of public peace, but that also seems problematical. Black's on page 1130 defines:
Public peace. The peace or tranquility of the community in general; the good order and repose of the people composing a state or municipality. That invisible sense of security which every man feels so necessary to his comfort, and for which all governments are instituted.
The status of the law:
While the statutes are a part of the law, they are the lesser part. For every single line of the statutory law there eventually arise court decisions interpreting, clarifying, or in some cases repudiating that statutory law, and these decisions have force overriding the simple wording of the statute. Thus, a police department, a police officer, a city attorney, a city manager, or a private citizen are all constrained with respect to enforcement of the statutes by the findings of the courts.
The status of the law with respect to homeless persons sleeping in public places, and with respect to general police harassment and to police use of the penal code to drive the homeless out of their sleeping places is in flux and not at all clear. In the global sense this approach cannot succeed, for some other jurisdiction will just drive the same or other homeless back into the community that drove them out. Thus, this approach is a waste of public funds and destructive of the public confidence in law enforcement.
Some of the issues that have been raised in court hearings around the US include the following:
Sleep is a normal and necessary human function. Sleep deprivation is medically damaging to the human body and mind. Homeless persons, like all other persons, must sleep.
Homelessness being "legal" in California, the necessity for homeless people to sleep implies that sleeping is also legal conduct for California's homeless persons. Unsheltered homeless persons will thus be sleeping out of doors, implicitly legal by this argument.
Given a conflict between sleeping on private property, and sleeping on public property, and there being no third class of property, the clear choice is that this outdoor sleeping take place on public property, not private property, where the sleeper will "offer no insult to any person's private space."
Repeatedly awakening homeless persons to harass them, or to accuse them of violating vague laws, insofar as it leads to sleep deprivation, constitutes violation of the US Constitution's Eighth Amendment guarantee "nor [shall] cruel and unusual punishments [be] inflicted". Moreover this "punishment by peace officer" is being done without the benefit of a prior trial and a judgement, violating the US Constitution's Fourteenth Amendment guarantee "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unites States, nor shall any State deprive any persons of life, liberty, or property, without due process of law".
Lacking access to other shelter wherein to sleep, public sleeping by homeless persons enjoys the protection of the "necessity" defense. Black's on page 1030 and 1031 defines in part:
Necessity. Controlling force; irresistable compulsion; a power or impulse so great that it admits of no choice of conduct. ... Quality or state of fact of being in difficulties or in need; a condition arising out of circumstances that compels a certain course of action. ...
A person is excused from criminal liability if he acts under a duress of circumstances to protect life or limb or health in a reasonable manner and with no other acceptable choice. ...
The Fourth Appellate District Court of Appeal of the State of California, in James Warner Eichorn versus the City of Santa Ana, case G022777, ruled that the "necessity" defense was appropriate for Mr. Eichorn's being "in a sleeping bag on the ground ... outside an office building in the civic center" (a case close enough to the current circumstances to have been designed for my defense), and overturned his conviction: "The court must instruct if the evidence could result in a finding defendent's criminal act was justified by necessity. ... Eichorn's offer of proof was sufficient ... defendent slept in the civic center because his alternatives were inadequate and economic forces were primarily to blame for his predicament. ... The case is remanded ... with directions to set aside the judgement of conviction ... .
Similarly, in Ken Mosesh versus the City of Berkeley California, Alameda County Court judge Carol Brosnahan "set a new precedent for how California Penal Code section 647(j) applies to homeless people" (San Francisco Bay Guardian) when she said about his conviction for sleeping in the doorway of a building that the § 647(j) statutory code "was sufficiently ambiguous, and as it applied to Ken's conduct, that statute was not constitutional."
The National Law Center On Homelessness And Poverty advises:
Homeless people have the right to sleep in public if there is nowhere else to sleep.
Homeless persons may have the right to sleep in certain public areas at night if there are no other available places, such as shelters, for them to sleep.
The Civil Rights Legal Division Coalition on Homelessness advises:
Penal Code 647(j) - No Lodging on Public or Private Property
You are not lodging if you are just sleeping or hanging out for a little while. Lodging means that you are establishing 'living accomodations' or a 'place of temporary residence' by staying in one place for an 'extended period of time.'
The Civil Rights Legal Division Coalition on Homelessness also
Trespassing ... This law does not apply to sidewalks in front of businesses or other public places.
The Civil Rights Legal Division Coalition on Homelessness also advises:
Penal Code 647(c) - Blocking the Sidewalk
Blocking the sidewalk is not a victimless crime. You have to be blocking somebody who is trying to get by. If you are not blocking somebody, you're not breaking the law.
The rights of the homeless to sleep undisturbed have also received
international attention and treaty protection. In a paper on the
subject prepared at the request of the United Nations
Secretary-General, E/CN.4/1997/NGO/46, we read in part:
Violations of Protections Guaranteed by the International Covenant of Civil and Political Rights
Article 12(1) provides that "everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." ... homeless people ... have been prohibited from performing basic activities such as eating or sleeping, effectively prohibiting them from residence there.
Article 7 prohibits cruel, inhuman, or degrading treatment or punishment. Homeless persons rarely choose to be homeless or to live in public places. Punishing homeless people for performing essential life sustaining activities such as sleeping and eating in public -- in the absence of any alternative private place to perform them -- effectively punishes them for their involuntary condition of being homeless.
Article 26 "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as ...property... or other status." Legislation aimed at depriving homeless people of rights guaranteed other segments of the population violates the object and purpose of Article 26. Selective enforcement of existing laws so as to affect only homeless people also runs afoul of Article 26's guarantee of equal treatment under law.
Citing homeless people for sleeping on the ground in public while ignoring the same behavior among college students violates the US Constitution's 14th amendment equal protection clause: "nor shall any state ... deny to any person within its jurisdiction the equal protection of the law."
A judge has ruled the law (§ 647(j)) ambiguous and its application to homeless people sleeping in publically accessible places to be unconstitutional. A second judge has ruled the law offers the defense of "necessity". The law is in conflict with international treaty law, US Constitutional law, and case law around the country. Given all these defects, the application of § 647(j) to the situation of a homeless person sleeping on public property, in the absence of any other actionable behavior, is not an appropriate interpretation of the law in the context of other, higher laws, court decisions, or good sense.
Is this an appropriate use of police authority?
This question applies not merely to the police officers, but to those who assign them to this task.
It is worth noting that "disorderly conduct" laws are in very widespread disrepute for the very reasons seen in the current situation. They are laws against sometimes victimless crimes. They are typically vaguely and overbroadly written. They raise the danger, and the reality, of selective enforcement, and of enforcement for the purpose of harassment. That is, they raise the spectre of punishment by the very act of accusing someone of violating a law, before a case can be brought to court, and withut a judge or jury or both first deciding whether a law has been violated or punishment is appropriate.
This selective and harassing style of enforcement of (perhaps deliberately) vaguely written laws is of course a violation of all the state and federal constitutional guarantees of civil rights which the body politic hold dear. It is arguably extremely immoral behavior. It is arguably a contributing cause for the loss of respect for police officers and the law which the past 50 years have witnessed. It is arguably a contributing cause for the otherwise inexplicable unprovoked acts of random (and sometimes fatal) violence against police officers. It benefits no one for the police to be perceived as bullies, least of all the police officers.
The egregious use of police authority to violate civil rights of homeless persons guaranteed in the US Constitution breeds contempt for the civil rights and constitutional protection of all citizens.
This could be no more clearly demonstrated than by a Clovis City policeman's remark to me when offered the chance to read the US Supreme Court decision upholding the California Supreme Court decision upholding the California legislature's putting free speech rights over trespassing law in publically accessible places: "I don't want to hear about any Supreme Court decisions." Perhaps this officer missed that part of the swearing-in ceremony where he pledged to uphold the Constitutions of the Unites States and the State of California, and the laws of the State of California, or perhaps Clovis City police officers no longer undertake such an obligation.
The persons who are using the police authority to enforce or solicit the enforcement of a defective law, which they know full well to be defective, put themselves at risk in both criminal and civil law. Here are some of the laws and modifying descriptions of laws which apply to someone who creates a situation of false arrest.
Not only is it not a good use of police authority to enforce superseded, unconstitutional, invalid, or nonexistent laws in pursuit of some perceived public policy, not only is it not a good use of police authority to address structural problems in the country's economic system with the penal code in the hope of making problems less visible or visible only somewhere else, but also it is actively dangerous to the liberty and financial well being of public authorities or private citizens to attempt such enforcement. Where it can be shown that these actions were the result of malice, or done knowing that they were in violation of existing law, tort law provides for punative damages against the actors and their employers where they acted in an official capacity.
Is this prosecution of the homeless for visibly sleeping in public places in the public interest?
Pushing the homeless away from public places only forces them to live in dirtier, more unsafe, more crowded, less sanitary, more private, less visible places. It also provokes in them disrespect for law and government.
This leads to any or all of the following problems:
Is this a correct moral behavior for the City of Clovis?
International law condemns this behavior as explicitly violating accepted norms of human and governmental activity.
International treaties to which the US is signatory say the US will not act like this nor accept this behavior in its constituent governmental entitles.
Moral philosophy, such as Kant's categorical imperative, suggests that actions which would not be suitable for all are not suitable for any, so since it can be shown that every city trying to drive the homeless into the next city is self defeating, Clovis' attempt to foist its homeless off on surrounding jurisdictions is unsuitable. Marcus Aurelius expressed this as "bad for the swarm is bad for the bee" two thousand years ago, and nothing that has happened since changes that truth.
Religious philosophy, such as Christianity's "do as you would be done to" or "as you do to the least of these, so have you done to me", roundly condemns mistreatment of the disadvantaged.
Enforced as Clovis tries to enforce it, § 647(j) interpreted literally leaves the homeless nowhere at all to sleep, neither public nor private places, despite that homelessness is considered a legal status in California. Clovis should not be trying to thwart state law by misapplying other state law.
No, this is not moral behavior when San Francisco does it in the spotlight of public opinion, and it is not moral behavior when Clovis does it hiding in the shadows trying to avoid public notice, either. Clovis' behavior is embarrassing the United States in the eyes of the world, and also should embarrass every Clovis public official in the privacy of their own hearts. Those who aren't embarrassed by this behavior have no business holding positions of public trust.
The persons working at and patronizing the Clovis Senior Center are closest to and most affected by the presence of a homeless man sleeping on their back sidewalk, and over time they have for the most part grown accepting and appreciative of his presence, friendship, and occassional assistance. Clovis government and those few police officers still determined to bully and harass this visibly homeless person should take notes and learn from them. The present course of conduct benefits no one and promises potential for great pain for Clovis in the future.