Zisser: Local politicians must protect the civil liberties of unhoused people

The Supreme Court’s decision in City of Grants Pass v. Johnson in June has caused a great deal of understandable alarm about how unhoused people will be treated. Unfortunately, local politicians now have substantially more authority to clear encampments without having to make alternative housing available. It is up to them, rather than lawyers and judges, to protect the civil liberties and dignity of a profoundly vulnerable population.

The decision allows cities and counties to take more aggressive actions against homeless encampments, but does not require them to do so. It will be critical for communities to be vigilant about what additional powers cities and counties seek to assert for themselves.

The court’s flawed decision was premised on the artificial distinction between the Oregon law at issue and a California law found unconstitutional in a 1962 Supreme Court decision because that law criminalized drug addiction alone. The Grants Pass decision held that the Oregon law criminalized conduct — camping outside — not status. The liberal members of the court dissented, pointing out the Oregon law was designed to target and only being enforced against unhoused people, in violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.

As a civil rights attorney, I join the dissenters in lamenting the abdication of the court’s role in protecting basic civil liberties spelled out in the Constitution. The justices were split along ideological lines, and the concept of “dignity” — a concept that frequently appears in Eighth Amendment jurisprudence — goes unmentioned by the court majority and is relegated to the three-justice dissent: “It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. Instead, the majority (of the court) focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

So what does this mean for our community?

Well, we know more affordable housing and shelter beds are needed. I have written before about the gaps in mental health services as a civil rights issue. Local leaders declared a mental health crisis two years ago, yet have jumped onto the Grants Pass bandwagon to make it easier to displace unhoused people, despite having few places to send them and insufficient services to offer.

San Jose Mayor Matt Mahan said the Supreme Court decision would not change the city’s approach to homelessness, but has failed to propose any additional safeguards against aggressive encampment sweeps. SJPD didn’t make a statement. Mahan later criticized Gov. Gavin Newom’s order (discussed below).

The local water district has indicated it will begin seeking fines from or even arrest of unhoused people refusing to leave encampments on its land — disclosure: My wife works for Valley Water regarding other issues. The district, which admittedly has to protect important infrastructure — as well as water quality and the district’s frontline workers — backtracked on its hasty proposal in order to, belatedly but laudably, hear from community members.

Newsom, who previously led efforts to allow forcing people into mental health treatment, has now ordered state agencies to clear encampments on state lands and recommended cities and counties do the same. He pointed out an existing Transportation Department directive, but that department faces unique challenges in protecting access to the transportation system; other state lands simply are not analogous. Newsom also disingenuously points to substantial investments in services and housing under his administration, but doesn’t actually claim those investments have paid off.

As the Supreme Court dissenters noted, “The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused. This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular.”

The court has forced politicians to be brave and compassionate in the face of strong public pressure. The supposed dispassion of the courts is, in theory, the remedy to such an unlikelihood. Let’s hope empathy and common sense prevail.

San José Spotlight columnist Aaron B. Zisser is a civil rights attorney based in San Jose (zisserlaw.com). He previously served as San Jose’s Independent Police Auditor and the Director of Equal Opportunity and Title IX Coordinator at Santa Clara University, investigated or oversaw investigations of police conduct in San Francisco and Oakland, and consulted on police, jail, and prison oversight. Early in his career, he spent more than five years investigating and monitoring correctional, mental health, and educational agencies as an attorney with the Civil Rights Division of the U.S. Department of Justice in Washington, D.C. and worked at a nonprofit civil rights organization in Philadelphia. His opinions are his own. His columns appear every first Friday of the month. Contact Aaron at [email protected].