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Notes -
More SCOTUS sanity, this time on the 8^th Amendment in Grants Pass:
For background, the 9th Circuit has embarked on what the Court calls a 5 year experiment in decreeing that certain offenses are effectively criminalizations of status (which the 8th still does prohibit, much more narrowly now) because committing those offenses are "involuntary".
The decision is likewise pretty sweeping, it goes all the way back to Martin and clears the entire are of law flat.
Part of the problem with the law was that, as enforced, it did indeed criminalize the status of homelessness. As Sotomayor pointed out during oral argument, a stargazer who happened to fall asleep on a blanket wouldn't be arrested, nor would a baby in a stroller, etc. The entire point of the city's enforcement was to Ban the Bums. I can sympathize with them. When I worked on the North Side I'd often see obviously homeless people sleeping on park benches near the riverfront in midday, and it greatly irritated me. On the other hand, I wouldn't want to make sleeping in a park an actual crime, because I'm admittedly not that concerned about a guy who simply wants to take a snooze in fresh air on his lunch break. This is akin to the problem I have with so-called "hostile architecture"; I have no problem with municipalities that want to discourage bums from sleeping in certain areas, but the solutions just make those areas a little more unpleasant for everybody (with the possible exception of running lawn sprinklers at night, which actually makes the most sense if you're going to use them, though I live in an area where they're not necessary and I think that areas where they are shouldn't worry about having lawns to begin with, but that's another argument entirely).
So, even if I wouldn't necessarily have voted to strike down this particular law (I haven't read the opinion so I don't know the legal niceties), I understand the urge. That being said, there's no reason why Grant's Pass couldn't have accepted their defeat and moved on; they may have won a minor victory, but I doubt this much litigation was necessary. In recent years, Pittsburgh has a problem with homeless people camping along the bike trails near the river. Most of the areas with homeless encampments here are areas that are sort of in a legal limbo as to who has enforcement rights, the sort of interstitial places that aren't economically valuable but nonetheless privately owned. If the city wants to clear them out they can't do so without a complaint from the owner, and the owner may be CSX, or US Steel, or some other company that has more important things to worry about. Or in areas that are technically city-owned but are burdened by easements from PennDot, or land owned by some independent municipal authority that doesn't use it so they're not even sure if they own it. No one is going to go to the recorder's office to untangle this mess unless the situation gets so bad as to generate the requisite complaints.
One place you don't see homeless, though, is Point State Park. It's hours are from sunrise until 11:00 pm, after which time you risk getting kicked out. That being said, I don't know how strictly this is enforced; there are certainly other park regulations that aren't enforced, like the prohibition on wading in the fountain (which children are doing almost continually during the summer months), but no park ranger is going to say on the record that they only enforce closing time against suspected bums. Saying that it closes at 11 except with special permission is easily justifiable on other policy grounds, and it doesn't require ridiculous statements like saying you'd arrest babies in strollers just to be consistent. Most anti-camping rules aren't written with homeless people in mind. Most state parks aren't in areas with any risk of bums congregating, but they still limit camping to designated sites because they're popular places and they want to limit the environmental damage it would cause if they allowed people to camp anywhere they chose. State forests are less restrictive, in that they generally allow primitive camping anywhere, but they still impose limits, like staying 500 feet from a road crossing or water source, limiting the duration of stay, requiring special permission for large groups, and requiring the destruction of fire rings upon exit. Again, the goal is to allow people to camp, but make it so backpackers aren't contaminating water sources and leaving fire scars every 50 feet. State Game Lands are even more restrictive, prohibiting camping almost entirely, but they're designed for hunting and wildlife management, not general recreation.
If Grant's Pass wanted to Ban the Bums, they could have looked at any number of other options that would have achieved the goal without raising any constitutional questions. First, the ban on "sleeping apparatus" or whatever it was should have been more narrowly tailored. I don't know what the climate is like there, but prohibiting tents, boxes, tarps, and other temporary shelters would have at least gotten rid of anyone who didn't want to sleep outside. Setting park hours would have helped, though it's understandable that they'd want the parks to be open overnight. Enforcing the alcohol rules would have probably eliminated at least half of the campers. They could have prohibited open flames outside of grills, and then limited the hours of grill use. Or they could have just removed the people without arresting them, which is what happens in most cases of minor violations where the cop isn't just being a dick. Had they done any of this after losing in District Court they could have saved the money they spent on challenging the law and used it to restore the areas that had been damaged, rather than let the problem get worse over the next 6 years.
I do not believe there is any cognizable principle of law that says that the State needs a complaint from the owner of a property in order to enforce generally-applicable criminal law.
If you can provide some more citation here perhaps it would illuminate why the city thinks they cannot clear out the encampment as a matter of enforcement of criminal law.
Because there is no crime. Pennsylvania trespass laws fall into three categories:
Criminal Trespass is the most serious (it's a felony) and involves either breaking into an occupied structure or using deception to gain access to an occupied structure.
Simple Trespass requires proof that the defendant entered the property for the purpose of engaging in damaging acts, like setting fires, threatening the owner, or engaging in vandalism.
Defiant Trespass is when you either remain on the property after being told to leave or ignore a posted warning, fence, or other clear indicator that you should keep out.
In other words, the act of simply remaining on public property without permission isn't actually a chargeable offense in Pennsylvania. Even if it were, they'd still have to prove that the defendants lacked permission to occupy the premises, and it's going to be hard to get a property owner in court to testify if they can't even be bothered to make a phone call about a homeless encampment on their land. Add to this the fact that it's not the job of police to know exactly who owns what property, e.g. everyone in Pittsburgh is familiar with the PPG Building but PPG never actually owned it. The current owner is HRLP Fourth Avenue LLC, a company that I can't find any information about meaning it's probably a subsidiary of another company that I'm not searching through incorporation records to find out. The police are only tracking this information down and getting the okay if the encampment is big enough to make the news or get a lot of complaints. They aren't doing this every time two guys are sleeping under an overpass.
But that is merely one offense.
An encampment on a railway is surely breaking a dozen other laws. It seems totally probably that they are otherwise totally law abiding.
I never said these encampments were on railways. Railroad companies own a lot of property that's near railways but not on the railways themselves. In fact, the actual rail property is likely to just be an easement and not owned by the rail company itself. I mean, yeah, if you look closely enough you can probably find evidence that they're breaking other laws, in which case you get to arrest them for a summary offense, ticket them, and let them go back to wherever they were camping. You certainly can't remove them from the premises (that for all you know they're allowed to be on) just because they commit some minor infraction. And even if you can, why would you? If they really have nowhere to go then you're just moving them to some other place they can foul up so they can do it again. Police have other things to focus on than playing whack-a-mole with encampments that are out of the way and that no one is complaining about.
You certainly can arrest them for those offenses. I don't suggest that as a first course of action, but I do think if they are fouling up an area with trash and human waste, a graduated set of consequences culminating in arrest is the only thing that will actually stick.
The goal isn't to play whack-a-mole, it's to make clear them that living on the streets and encampments is not viable and they need to accept shelters & treatment, even when they don't like the rules and conditions there.
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