The Supreme Court Wants Nothing to Do With Homelessness
Justice Neil Gorsuch suggested that even without the Eighth Amendment to rely upon, a homeless person might be able to invoke other common-law defenses to avoid punishment if they had nowhere else to go. “Do you concede that there are instances in which a necessity defense, long recognized at common law, would apply to eating in public, sleeping in public, or other things like that?” he asked. Evangelis agreed and claimed that Oregon law already incorporated that defense.
That option also seemed appealing to Justice Brett Kavanaugh, the court’s median vote. “Given the line-drawing problems that we’ve been going through, if a state has a traditional necessity defense, won’t that take care of most of the concerns, if not all, and, therefore, avoid the need for having to constitutionalize an area and have a federal judge superintend this rather than the local community?” he asked at one point.
Kagan, however, noted that it would still require a certain amount of police interaction with otherwise law-abiding homeless persons. “You’re not willing to say no, we’re going to tell all our police officers that they shouldn’t give a citation in that circumstance?” she pointedly asked Evangelis. “You know, ‘we’re going to give a citation, and then we’ll see how the courts deal with it,’ is all you’re going to tell me?”