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- Title
"YOU CAN'T BE HERE": THE HOMELESS AND THE RIGHT TO REMAIN IN PUBLIC SPACE.
- Authors
RUDIN, DAVID
- Abstract
In cities throughout the country, homeless individuals are continuously relocated from place to place and faced with the quandary that by engaging in basic life activities they are breaking the law. Many of these individuals and their legal advocates have argued that laws prohibiting the homeless from sleeping or sitting down in public make it effectively impossible for them to exist, violating the Eighth Amendment ban on cruel and unusual punishments and the right to travel derived from the Fourteenth Amendment. However, the vast majority of courts have rejected these arguments because they do not readily fit into existing doctrines. This article argues that the Supreme Court's decision in Obergefell v. Hodges provides a mold for homeless individuals and their advocates to recast challenges to anti-homeless ordinances and regularly-issued move-along orders into a more compelling form. In Obergefell, the Supreme Court recognized the right to samesex marriage by looking at the confluence of several different lines of case law and allowing concerns for equality to guide its substantive due process analysis. This article follows the mode of substantive due process analysis that Obergefell endorsed and focuses on the connections between the right to movement, the Eighth Amendment, Fourth Amendment privacy concerns, the attention to inequality motivating applications of the right to travel, and the Court's vagueness cases as they relate to vagrancy and public spaces. This article then looks at how a right to remain in public space can be applied to shield homeless individuals from mistreatment while maintaining law enforcement's ability to regulate public spaces.
- Subjects
HOMELESSNESS; PUBLIC spaces laws; LEGAL status of homeless people; UNITED States. Constitution. 8th Amendment; FREEDOM of movement; UNITED States. Constitution. 14th Amendment
- Publication
Review of Law & Social Change, 2018, Vol 42, Issue 2, p309
- ISSN
0048-7481
- Publication type
Article