Tucson Merchants’ Demand is Unconstitutional

Read John Cooper’s full letter to Tucson’s Mayor and Council—Ed

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis added).

KVOA has reported that the Downtown Merchants Association sent a request to the city for immediate action against the Safe Park Outdoor Homeless Shelter, stating in part:

Merchants have been experiencing an increase in crimes and incidents in and around our businesses and have come together to address this situation . . .The inhumane living conditions, waste and excrement; incidents of assault, violence, aggression, animal attacks, illegal drug possession, use and distribution of narcotics in the area have created a dangerous and unacceptable environment for everyone including the protestors, our community and guests. . .As a business community we are compassionate and actively engage with social service agencies and the downtown homeless population.

Occupy Public Land believes any attempt by the City to alter or amend its laws to prevent the free travel of downtown by homeless individuals, or barring sleeping, sitting, or lying on the sidewalks on the basis of the above complaints would violate the federal constitution; and we are prepared to file suit if necessary to prevent the implementation of any such enactment. It should be fairly obvious that, if one is not free to be in a certain place, one is not free to do anything at that place. It follows, strikingly, that a person who is not free to be in any place is not free to do anything; such a person is comprehensively unfree. The homeless are simply without freedom (or, more accurately, any freedom they might have depends utterly on the forbearance of owners). That conclusion may sound glib and provocative,but it is meant as a reflection on the cold and awful reality of the experience of men, women, and children who are homeless in America. For them the rules of private property are a series of fences that stand between them and somewhere to be; somewhere to act; somewhere to live. The only hope they have so far as freedom is concerned lies in the streets, parks, and public shelters; and in the fact that those are collectivized resources made available to all.

It is sometimes said that freedom means little or nothing to a cold and hungry person. We should focus on the material predicament of the homeless, it is said; not on this abstract liberal concern about freedom. That may be an appropriate response to someone who is talking high-mindedly and fatuously about securing freedom of speech or freedom of religion for people who lack the elementary necessities of human life. But the contrast between liberty and the satisfaction of material needs must not be drawn too sharply, as though the latter had no relation at all to what one is free or unfree to do. At Occupy Public Land, we focus on freedoms that are intimately connected with food, shelter, clothing, and the satisfaction of basic needs. When a person is needy, he does not cease to be preoccupied with freedom; rather, his preoccupation tends to focus on freedom to perform certain actions in particular. The freedom that means most to a person who is cold and wet is the freedom that consists in staying under whatever shelter she has found. The freedom that means most to someone who is exhausted is the freedom not to be prodded with a nightstick as she tries to catch a few hours of sleep on a Sun Tran bench. The freedom that means most to someone who desperately needs to shower or use the restroom is an abundance of public facilities.

The most common types of anti-homeless legislation are ordinances restricting or prohibiting the activities and presence of homeless persons in downtown areas or business districts. Activities prohibited may include anything from panhandling to lying or sitting on the sidewalk. Policymakers provide various justifications for the enactment of such legislation, including but not limited to protecting commerce, preventing crime, eliminating health hazards, and preserving aesthetic values. These ordinances permanently prevent inoffensive, life-sustaining activities—such as sleeping or asking for money—within the only area of the city where these life-sustaining activities are feasible.

Without housing alternatives, anti-homeless legislation forces homeless people to move from one area to another, while ignoring the underlying economic issues. Using the criminal justice system to address economic recessions, rather than providing housing and services to those in need, fails to create any long-term benefits or lasting solutions for the problem of homelessness. While the presence of homeless people may be an unpleasant reminder of poverty in our society, no one can reasonably argue that people sleeping, sitting, lying down in public places, or soliciting for handouts are direct threats to public health or safety. In many of these situations, the threatened behavior is already prohibited by existing criminal laws. Only when begging or charitable solicitation is accompanied by fraud, intimidation, coercion, harassment, or assaultive conduct does it possibly require government restriction. Of course, fraud, intimidation, coercion, harassment, and assaultive conduct are all covered by separate statutes which the police may use to arrest someone performing any of those infractions.

Cities committed to preventing crime by or against the homeless can most effectively do so by securing safe and affordable housing for homeless individuals. Without adequate housing, the arrest and/or threat of arrest will not deter the homeless from sleeping in public, but will instead drive the homeless to public places in surrounding communities where the presence of local law enforcement is less prevalent.

Health hazards will continue to abound whether a homeless individual on the street is sleeping or awake. Communities concerned about health hazards posed by the homeless population should concentrate their efforts on providing appropriate health care, hygienic facilities, and safe, well-maintained shelters. All are much more humane means of accomplishing public health goals than arresting large numbers of homeless individuals, incarcerating them, and destroying their belongings.

Criminalizing homelessness fails to address the fact that penalizing people for engaging in activities such as sleeping in public, sitting on public sidewalks, or asking for handouts will not deter these activities or keep public places clear of homeless people. People who are homeless have no alternative places to sleep or sit, and no other means of subsistence. Punishing people for actions and behavior they cannot reasonably avoid not only offends the Constitution, but is irrational and inhumane.


Homelessness is one of the most pervasive social problems in the United States. As the number of homeless individuals and families continues to increase, so do the myriad of obstacles and barriers the homeless face on a daily basis: the cold, the hunger, the disease and lack of medical treatment; the danger, the beatings, the loneliness; and the shame and despair that may come from being unable to care for oneself, one’s child, or a friend. Not only must the homeless secure the basic necessities of food and shelter, they must also defend themselves against harassment, discrimination, and inequality.

Anti-sleeping laws burden the fundamental right to travel. Their purpose and effect are to erect a barrier which bans the migration of homeless people into the jurisdiction, and to drive out those homeless individuals who already live in the community. These ordinances further burden the right to travel because they penalize the migration of the homeless into the jurisdiction by denying them a basic necessity of life. Not only does this violate the City of Tucson’s obligations under the Federal Constitution, these actions have created and continue to create hardship and inequity by forcing the homeless out of the city center—the very place where services for these people are located.

By turning to the criminal justice system to deal with the problem of homelessness, cities and towns ignore the sources of the problem, thus allowing it to worsen. Ultimately, the solution to this problem must come in the form of greater support services for the deinstitutionalized mentally ill and a commitment to resolve the low- income housing crisis. The solution certainly will not come from funneling the homeless through the criminal justice system without regard for their constitutional rights.

There are good reasons for the City of Tucson to pay attention to the issue of homeless freedom. They are not merely a strategic method to raise public standards; though in a society that prides itself as “the land of the free,” this may be one way of shaming a people into action and concern. Homelessness is partly about property and law, and freedom provides the connecting term that makes those categories relevant. By considering not only what a person is allowed to do, but where he is allowed to do it, we can see a system of property for what it is: rules that provide freedom and prosperity for some by imposing restrictions on others. So long as everyone enjoys some of the benefits as well as some of the restrictions, this system is bearable. It ceases to be so when there is a class of persons who bear all of the restrictions and nothing else, a class of persons for whom property is nothing but a way of limiting their freedom.

Perhaps the strongest argument for thinking about homelessness as an issue of freedom is that it forces us to see people in need as agents. Destitution is not necessarily passive; and public provision is not always a way of compounding passivity. By focusing on what we allow people to do to satisfy their own basic needs on their own initiative, and by scrutinizing the legal obstacles that we place in their way (the doors we lock, the ordinances we enforce, and the nightsticks we raise), we get a better sense that what we are dealing with here is not just “the problem of homelessness”—but a million or more persons whose activity and dignity and freedom are at stake.

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