Is it a “human rights and civil rights violation” to require that homeless encampments be managed? The folks at Street Spirit say it is. (You may recognize Street Spirit as the newspaper that homeless people sell on the streets of Oakland and San Francisco.) A recent op-ed piece, published after the Oakland City Council unanimously approved their Encampment Management Policy resolution last October, says, “In the City of Oakland, elected officials have passed a punitive new policy for ‘managing’ curbside communities, and they are starting to put this policy to use. That means there are more encampment evictions—and thus more curbside human rights and civil rights violations—happening than ever before.”
Whenever a marginalized group claims its human rights are being violated and that it’s being punished for being whom they are, you can bet that the media will perk up its ears. A good example was when the San Francisco Chronicle published this article about the removal of “one of San Francisco’s last big homeless camps,” a huge encampment South of Market. In that article, a “human rights organizer” with the Coalition on Homelessness told the reporter, “They call them resolutions, but these are sweeps.” One of those rousted from his tent told a reporter, “It’s my place, you know.”
Is it true that the homeless guy who was rousted had his human and civil rights violated? Was the tent on Merlin Street really “his place”?
This is an important question, and we need to answer it thoughtfully, because human rights are at the heart of the American experiment. Our Constitution, that magnificent document, seems to suggest that people have certain inalienable rights, among them “the right of the people peacefully to assemble.” While this is not explicitly about the right to live wherever one wants, it does seem to establish a certain penumbra of freedom emanating from the First Amendment that implies that right.
Then there’s the Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly in 1948, part of the world’s reaction to the horrors inflicted by the Nazis. In spirited, eloquent phrases, the UDHR proclaimed, in Article 13: “Everyone has the right to freedom of movement and residence within the borders of each state.” Article 17 proclaimed “No one shall be arbitrarily deprived of his property,” while Article 25 held that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care…”. Although the U.S. voted to ratify the UDHR, the declaration itself “is not a legally binding instrument,” according to the U.N.
Since there’s no explicit legal basis for the right to live wherever one chooses, either in international law or in U.S. law, it must be upon moral grounds that we discover that right. And it is upon moral grounds that homeless advocates base their claims. But it’s important to remember that cities also have rights, including the right to establish codes of conduct such as zoning restrictions, loitering and safety laws, noise ordinances and health laws. Sometimes, the rights of individuals and of cities conflict, and we have to figure out how to resolve them. Generally, morality has nothing to do with the resolution of such conflicts. The law must be consulted. So when the Oakland City Council passed the Encampment Management Policy, they created a new law or policy by which encampments should be managed. When Street Spirit argues that such “management” is “punitive,” they are applying a non-legal, or moral, standard, which has no jurisprudential standing and is therefore irrelevant. To say that a law governing where tents can be set up is “punitive” is akin to saying that laws preventing, say, shoplifting are punitive. Why should I not be allowed to take whatever I want from a Target store and not pay for it? My heart tells me it’s okay. I’m poor; I need the thing. Shoplifting is a valid redistribution of wealth, and besides, the chain store’s insurance will pay for it. What’s the big deal?
The big deal concerning the Encampment Management Policy is that it was a sane, responsible and legal reaction by local government to an unprecedented public emergency that was out of control. The City Council had the right, indeed the obligation, to enact it, for if the City Council can’t control the streets, what good is it? It may seem heartless that there is no “civil or human right” to put up tents anywhere and everywhere. But there isn’t, and homeless advocates should stop using that claim as their rationale.
Steve Heimoff