Thursday, April 20, 2006


My blogging colleague, moderate in training Karl at Leaning Straight Up, offers counterpoint to my arguments yesterday for the 9th circuit Court’s recent decision granting homeless persons in Los Angeles a stay of enforcement from the city’s draconian “loitering” ordinance:

“9th Circus…err…Circuit Court rules in favor of vagrancy”

» 9th Circus…err…Circuit Court rules in favor of vagrancy » Leaning Straight Up » Blog Archive »

Karl, I’d like to offer a few points for your consideration:

First, I note you are not linking the decision. Did you invest the effort in reading it and understanding it, as I did? I suspect not... More on that later...

And I see you are implying I am being heavy-handed with “Officer Dunby”… I’m “unfair,” you assert. Fair? Where we go to look at bunnies? Am I unfair? I think not…

On the issue of my suggestion Officer Dunby should “find a new job:”

I long considered adding those two last paragraphs and decided in balance they belonged there BECAUSE, as you apparently have, "Officer Dunby" ignored the decision in favor of his own unleavened views. In fact, as I pointed out, Dunby, possibly deliberately, misconstrued the decision. In a sense Dunby is like a general in a war. If he can no longer follow his leaders, he should resign. Especially if he feels compelled to lie - I won't minimize this - about the court's decision he is out of order. There are too many people, including bloggers like yourself, who will read his well-written piece, look at his badge and length of service... and be fooled. Misrepresenting the court is unforgivable.

Furthermore, if the man is this one-sided in his views, how can he be trusted in the clinches? I intuit a man so frustrated he could crack... Like the next time he is called "pig"... after he roughs up "a bum."

Do you want another Rodney King? Even if, as many say, King had it coming, do you want the LAPD dispensing summary justice? I think that's where Dunby is heading, based on his tone, his views, and his apparent self-need to misrepresent FACT.

As I say, I was conflicted on this matter. A little personal mea culpa... No, this isn't another revelation of an unsavory past like Daniel is Right was forced into.... More an admission of a sheltered past:

I have never been near anything like this. In fact, I have never lived in a town larger than 30,000. Things like Skid Row are beyond my experience. But a “thought experiment:”

The small town I live near has about 12,000 people. It could be divided into thirds, a central third on a bay with the other two-thirds on a low plateau, surrounding like a horseshoe. The central third is about the same size as LA’s Skid Row. So, take the whole population, cram them into 1/3 the space, and make a thousand of them sleep on the street. Now, assume some are criminal predators, some are addicts, some are fugitives... Some are loons...

All are still human, entitled to a minimum of respect. Dunby deals with that. He ought to be frustrated.

Disclaimer - I have some legal training - I AM NOT an authority!

When I read the decision - and I mean I put time into it - I read the dissent first. I was pretty much on board until I read the prevailing opinion. The dissenter, like Dunby, clearly mis-construed issues of fact in at least two precedential cases, and this was crucial to the issue. I think J Rymer, the dissenting judge, went into the case with his mind made up. He went after everything, including standing, and some of his points made sense in a very narrow way. But he ignored the larger issues of justice. I'm not going to reprint the whole 87 pages, but in short the issue is whether or not being homeless is avoidable. A secondary issue was whether or not the laws as written contain recourse.

The case was argued using the 8th amendment, which has long been interpreted as having three clauses. Aside: The dissenting judge suggested it was a 14th amendment case - one of his objections... Two of the clauses apply only after conviction. The lower courts and the dissent insisted on arguing the case should be judged based on the first two clauses. I find with the majority - the third clause applies to "what can be made a criminal offense." Thus the dispute over interpretation of the Ingraham and Robinson cases was crucial to the issue - both cases centered on involuntary acts.

Do you understand injunctive relief? It's a concept that dates back to the Normans - something else you can blame the French for - and it is invoked to prevent "irremediable harm" which is "immediate" and where "no other recourse" exists. It is just a stay of action, which is what the plaintiffs won. And the stay was very narrow...


The 8th amendment, by accepted precedent in Robinson, proscribes punishment for involuntary acts. Under the circumstances - living in LA with no reasonable shelter alternative - sleeping on the sidewalk became involuntary. Do these people have a "right" to be in LA? Nobody has addressed this matter. But it is assumed they do. Collaterally, is being indigent "involuntary?" It was assumed that in at least some cases this is true, and all three judges agreed. Testimony backed the assertion. The immediate harm suffered was the plaintiff's losing all their possessions upon arrest - an immediate and irrevocable harm. Frankly, this was the key issue to me. The likelihood of this occurring again and again conferred standing.

Recourse? Recourse only applied post-conviction, a distinction the dissent refused to acknowledge. There is the necessity defense:

"A court must instruct the jury on the necessity defense if there is evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency."

But this doesn't apply before the fact, when the harm occurred.

It was also argued the defendants couldn't prove injury because they couldn't prove there was no shelter available at the time of arrest. The majority was convinced by evidence provided by surveys that Los Angeles has a constant shortage of emergency shelter. This was another issue the dissent misconstrued, claiming, incorrectly, and frivolously, I think - Los Angeles wasn't part of the surveyed population when it clearly was.

So, not to drag this out:

The defense established standing by demonstrating a harm likely to be repeated in the future. They demonstrated the harm was irremediable in current law - that no recourse existed - and that it was immediate. They demonstrated the harm was contrary to precedent - it was a necessary part of an involuntary status, unprosecutable under the 8th amendment. It was further agreed by all that the necessity defense would nullify the convictions, but that didn't bear on the harm of losing possessions, etc.


The Court allowed a stay in the Skid Row area only, from 9PM to 6:30AM. Anywhere else, and at any other time, officer Dunby and his cronies can roust to their heart's content.

I think this was a good decision.

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