The Law of Unintended Consequences in Action

As we may have mentioned in the past (go to www.gideonstrumpet.info/?p=3749), the U.S. Court of Appeals for the 9th Circuit is not always opposed to private property rights. For example, it is kindly disposd to private polo fields (Carpinteria Valley Farms v. County of Santa Barbara, 344 F.3 822 (9th Cir. 2003). It all depends on whose property and what kind. And so it came to pass that when the city of Los Angeles finally got tired of the homeless folks leaving their stuff and trash on skid row sidewalks and set out to clean up, they found out that their federal Lordships do respect private property after all. They issued an injunction barring the city sanitation department from scooping up and disposing of tons of debris that along with the homeless folks’ possessions, included not only your garden variety trash, but also tons of garbage like dead rats, human feces, etc. Why would their Lordships do that? Because advocates for the homeless complained that their clients, bereft as they are of a proper place to store their possessions, would just leave them on the sidewalk, interspersed with the less savory and much less sanitary detritus of their presence, so that the activities of the city’s sanitation department tended to scoop up, discard and destroy their legitimate possessions along with the trash.

Make no mistake, we sympathize with the plight of the homeless. Their presence in American cities is a tragedy. We are tempted to launch into a discussion of the origins of this problem, but that would take us afield from the topic at hand.

Our point is that however heart-rending the plight of the urban homeless may be, it hardly justifies a legal regime where they are privileged to engage in grossly unsanitary activities that would land anyone else in the calaboose. But be that as it may, this is not the point of this post.

It turns out that under the terms of the federal injunction, the city may not just seize the possessions of the poor homeless folks, and dispose of them, because that would interfere with the homeless folks’ property rights.

But this act of public compassion has now given rise to a new species of illegal activity. Some of the more enterprising homeless folks, realizing that they can store their stuff on the public sidewalks, secure in the knowledge that it won’t be seized by the city, have taken to stashing cans of beer in shopping carts, covering them up with their junk, and then selling them for $1.50 a piece to their fellow skid row types, thus maintaining an elevated level of cheer among them and making a few bucks in the process. See Sam Allen, Illicit Vendors Sell Beer on Skid Row — and Duck Police, L.A. Times, September 7, 2012, at p. A1.

The unfortunate L.A. cops who are assigned to policing this activity do what they can which is largely nothing or next to nothing (such as issuing warnings and occasional citations that at most cause the beer peddlers to move down the street a block or two and resume their trade a day or two later). The L.A. Times quotes one of the illicit beer peddlers as saying “Police is trippin’, but I still got beer.”  And so he does. And so, the current status of skid row includes both the unsanitary status quo ante conditions, and increased alcoholism among those poor folks whose lot in life is wretched enough without beer a la mode being served to them around the clock.

It does however bring to mind the line of Brendan Behan who supposedly said, “I cannot conceive of a human condition so wretched that the appearance of a policeman couldn’t make worse.”

Follow up. For a discussion of the legal ramifications of this problem by the usual academic suspects in the usual academic way, go to the Volokh Conspiracy — http://www.volokh.com/2012/09/06/the-takings-clause-and-government-destruction-of-homeless-persons-property/

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