Arrest all street mendicants and beggars:' homelessness, social cooperation, and the commitments of democratic policing

• Author: Brandon del Pozo
• Position: Postdoctoral Fellow, the Miriam Hospital and the Warren Alpert Medical School of Brown University
• Pages: 1681-1696

“ARREST ALL STREET MENDICANTS AND BEGGARS:”

*

HOMELESSNESS, SOCIAL COOPERATION, AND THE

COMMITMENTS OF DEMOCRATIC POLICING

Brandon del Pozo**

ABSTRACT

In “Are Police the Key to Public Safety?: The Case of the Unhoused,” Barry

Friedman argues that one of the problems with policing in the United States is that it

encompasses too narrow a view of public safety. In the case of homelessness, this nar-

row view fails to understand that providing shelter and subsistence to the unhoused is

providing them with a basic form of safety as well. By this view, enforcing most laws

against the behaviors associated with homelessness is unjust because it penalizes peo-

ple for seeking a form of personal security that the government should have provided

them with. This Essay argues that while this concern should guide police conduct in

many cases, it does not mean the police have no legitimate reason to regulate the

behavior of homeless people using discretionary enforcement of the criminal law.

Police are not only tasked with providing some conception of safety but have a man-

date to equitably broker and enforce the cooperative use of a community’s public

spaces, which is a critical feature of democratic equality for both housed and

unhoused people. Enforcing laws against the behaviors associated with homeless-

ness should therefore be a balance between ensuring everyone has access to public

spaces for various conceptions of recreation, transportation, expression, and com-

merce, and an awareness that even the most disruptive and uncooperative uses of

public space by homeless people are a product of duress rather than choice. Both

the housed and the unhoused have a legitimate claim on the commons, and while

one is more urgent than the other, this does not mean the more urgent claim is an

unrestricted one. Requirements of social cooperation may still apply to unhoused

citizens, and when they do, it is the criminal law that empowers the police to broker

and enforce them as necessary.

1

* This is one of the mandates accorded to the New York City Police Department by the city’s charter. See

N.Y.C. CHARTER, ch. 18, § 435 (2004).

** Postdoctoral Fellow, the Miriam Hospital and the Warren Alpert Medical School of Brown University. Retired

Deputy Inspector, New York City Police Department, and former Chief of Police of Burlington, Vermont. I would

like to thank the law faculty at Arizona State University for organizing the event that engaged with these critical

issues, especially Ben McJunkin and Erik Luna, and Barry Friedman for dedicating so much effort to improving

American policing theory and substance. Also, many thanks to the editors of the American Criminal Law Review at

Georgetown University Law Center for their excellent editing work on this Essay. © 2022, Brandon del Pozo.

1. We commonly use a lot of different adjectives to describe individuals without secure housing, including

“homeless” and “unhoused.” For the purpose of this Essay, I will use these terms interchangeably. None of these

terms should be read to objectify or dehumanize these individuals, nor to degrade their experience.

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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1682

I. A SCENE FROM GREENWICH VILLAGE . . . . . . . . . . . . . . . . . . . . . . . . . 1684

II. THREE ROLES OF THE POLICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1685

III. DEMOCRATIC EQUALITY IN TENSION WITH HOMELESSNESS . . . . . . . . . . . 1689

IV. BROKERAGE AND LEGAL DISCRETION . . . . . . . . . . . . . . . . . . . . . . . . . 1690

V. CAN VS. MUST IN ENFORCING LAWS AGAINST THE HOMELESS . . . . . . . . 1693

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1695

INTRODUCTION

In his lecture Are Police the Key to Public Safety? The Case of the Unhoused,

Barry Friedman argues that the way in which the nation polices its homeless speaks

volumes about more general problems with the police. That much is certainly true.

He concludes by saying we need a more capacious understanding of public safety,

one that prioritizes the security of this population by meeting its needs for shelter

and security rather than criminalizing conduct such as sleeping in public or seeking

subsistence through panhandling, especially when it is involuntary, so we can keep

an undesirable population out of public view. That seems quite reasonable. In the

end, he advocates for a conception of public safety that goes beyond a default

recourse to the police, which may require expanding the police remit to social

work and more specialized interventions. That is open to debate.

2

This Essay will

not contribute much to that debate, however.

I intend to argue that we need not only a more capacious understanding of public

safety, but also a broader understanding of police’s role in public safety. Safety is

certainly one of the things police are tasked with providing, and we are overdue for

reconsidering what “safety” actually means if the way we achieve it imposes

another set of unnecessary harms on people.

3

For the most part, however, I will

bracket that off and observe that there is a lot of work to be done in figuring out

who should partner with police in such a project, and how the work should be di-

vided. Here, I will argue that in a democracy, the police should also broker and

enforce the fair terms of social cooperation in public spaces when people lay legiti-

mate but competing claims to them. In these cases, police need to resolve conflict-

ing rights claims; if we let people sort it out for themselves, the results can often be

illiberal and counter to a commitment to democratic pluralism. The problem with

the police brokerage and enforcement of this cooperation, however, is that we

empower them to do so principally via the criminal law. The same discretion and

underdetermination built into criminal laws regulating public behavior that could

make for careful compromise also allow for excessive criminalization and a

2. For an example of a reply to Friedman, see generally Ben A. McJunkin, Ensuring Dignity as Public Safety,

59 AM. CRIM. L. Rev. 1643 (2022).

3. See, e.g., Jeremiah Goulka, Brandon del Pozo & Leo Beletsky, From public safety to public health: re-

envisioning the goals and methods of policing, 6 J. CMTY. SAFETY & WELL-BEING 22, 22–23 (2021).

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