‘Homeless People Are Resourceful’: DOJ Lawyer Responds To Brett Kavanaugh’s Hypothetical About Food

5 months ago

During oral arguments in the City of Grants Pass v. Johnson on Monday, Justice Brett Kavanaugh questioned US Deputy Solicitor General Edwin Kneedler about the necessity defense for the homeless and a food hypothetical.

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Transcript

00:00 Justice Kavanaugh? You just said a minute ago that a lot of this is taken care of

00:05 on the ground as a practical matter and I think one of the questions is who

00:08 takes care of it on the ground. Is it going to be federal judges or is it the

00:11 local jurisdictions with working with the nonprofits and religious

00:16 organizations? So I guess following up on the necessity question, given the line

00:20 drawing problems that we've been going through, if a state has a traditional

00:25 necessity defense, won't that take care of most of the concerns, if not all, and

00:32 therefore avoid the need for having to constitutionalize an area and have a

00:36 federal judge superintend this rather than the local community, which you've

00:40 emphasized many times, working with the nonprofits and charitable and religious

00:45 organizations, which is how it works in most places. Well I think that the

00:50 necessity defense, at least traditionally, has required a much

00:54 stronger sense of urgency and imminence than this. If states had a

01:01 necessity defense and we knew that it was available in all of these places, but

01:05 even in Oregon, I think it's a case called Barrett, the court said it's

01:11 theoretically possible but there was a remand for factual issues. So we don't

01:16 know at this point in time whether there is such a defense and

01:21 that's really not in the case here. This comes up on an Eighth

01:25 Amendment challenge without reference to the necessity defense and

01:31 frankly without reference to the new Oregon statute, which seems highly

01:35 instructive in terms of time, manner, and place that jurisdictions grants passed

01:41 should examine. But I don't think the court should put this

01:46 core point about Robinson to one side because of the possibility that in

01:53 Oregon and maybe no other place, I don't know about California

01:57 law of necessity, maybe it would be taken care of. I think at this point in time

02:01 that is too... Well usually we think about before constitutionalizing an area or

02:05 extending a constitutional precedent, you might disagree with that

02:08 characterization, but before doing that we usually think about whether state law,

02:13 local law already achieves those purposes so that the federal courts

02:19 aren't micromanaging homeless policy. And it's on a daily basis when

02:25 you work with the homeless. It's a daily issue, how many people are going to show

02:29 up that day at the food bank, how many people are going to show up that day at

02:33 the shelter. So it's not like this is a once-a-year thing. For the

02:38 people actually dealing with it day to day, that is certainly true. The city,

02:42 the law enforcement, the city liaisons, the nonprofits, but it's not true for the

02:47 federal court. The federal court doesn't have to get into any of that. The only

02:50 time the federal court would get into it is if the core principle of

02:55 Robinson was being disregarded by criminalizing somebody for sleeping

03:03 outside when they have no place to sleep inside. That's the core principle. That's

03:06 the only thing a court should be enforcing, not whether people

03:10 show up. Another thing I would say

03:15 about the necessity defense, it may be that if the court issues an appropriate

03:20 injunction in this case or another case limited to the core principle of

03:24 Robinson, but it develops or the state law develops that there is a necessity

03:29 defense, then I think that should be taken into account. I mean that's in

03:34 effect a time, manner, and place or similar to that. If state law comes

03:39 along and establishes a realistic defense or a realistic approach to how

03:45 people can remain in the community, then the courts obviously should

03:51 defer to that. But we don't have that established state law at this time and I

03:55 don't think the court should decline to address this question, which is important

04:01 in the Ninth Circuit, both because the principle that those courts recognize

04:05 should be sustained, but the approach they've taken should not. Last question I

04:09 have on the food hypotheticals about stealing to feed yourself or cooking to

04:17 feed yourself. You kind of waved all those away by, "Oh that's all taken care

04:21 of by local communities, nonprofits, and religious organizations," and by and large

04:27 heroic efforts each day to make sure that happens, but it doesn't always

04:31 happen by any stretch. No, it doesn't always happen, but homeless people are

04:36 resourceful. They have friends who are also homeless. They may know

04:40 people in town. They may beg for money, and the towns are coping in the same

04:46 way, frankly, that individual homeless people do. They do the best they can under

04:50 the circumstances, but if those circumstances fail and the nonprofits,

04:54 etc., can't, you know, the truck doesn't show up one night, that doesn't become an

04:59 Eighth Amendment problem, and we're by no means suggesting that there should be a

05:04 federal judiciary overlay on top of all that. The cities and the nonprofits

05:09 should be left alone to do the work that they're doing, unless the core principle

05:14 of Robinson is not respected.

‘Homeless People Are Resourceful’: DOJ Lawyer Responds To Brett Kavanaugh’s Hypothetical About Food

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