rationally BASED
Welcome to rationally BASED, a podcast about law and politics, on the edge. Law professor Ilan Wurman, with co-host Kathryn Johnson, cover cutting-edge, and edgy, legal and political news, ideas, and developments.
rationally BASED
Episode 21 | America's Disordered Cities
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In this special episode of Rationally BASED, our host, law professor Ilan Wurman, is joined by guest co-hosts Sanjana Friedman and Judge Glock. Both write about homelessness, public encampments, and other disorders in America's progressive cities. Our hosts talk about the state of the homelessness-industrial complex in Los Angeles and San Francisco. Do NGOs have an incentive to perpetuate homelessness? Was Spencer Pratt right to describe homeless people as simply "drug addicts"? (Answer: mostly yes.) Our hosts talk about how progressives manipulate language to dull the mind and advance their radical agenda, for example by describing homeless persons as "unhoused." Our hosts then dive into legal issues surrounding "public nuisance": Can taxpayers and homeowners use public nuisance to fight back against public encampments and other insane progressive policies? And why are progressives so against public nuisance laws in these obvious contexts, when they use public nuisance laws for absurd purposes like suing energy companies for climate change or gun manufacturers for gun violence? Is this another example of progressives abusing the legal system? Tune in to find out.
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Welcome back to Rationally Based, a podcast about law and politics on the edge. I'm your host, Elon Werman, a law professor at the University of Minnesota Law School. We have something of a special episode for you today. Catherine and Joshua are not here, but I am joined by two of my colleagues at the Manhattan Institute, with which I am also affiliated. Here's what we're gonna talk about today. We're gonna talk about the state of San Francisco and Los Angeles and generally the failed state of California. What is going on with public order, crime, homelessness? And then we're gonna talk a little bit, a little bit about how progressives have been abusing uh public nuisance laws and maybe how conservatives can properly use public nuisance laws, uh, nuisance laws to uh advance important conservative ends. You really won't want to miss this show. Let's dive in. First, some introductions. I'm here with Sanjina Friedman. Sanjina is a fellow at the Manhattan Institute, a contributing editor of City Journal, where she writes about San Francisco, tech, and what I like to describe as the failed state of California. I would describe you, Sanjina, as a writer and philosopher. Uh, she's written for Pirate Wires. She was on the Pirate Wires podcast. Well, uh, that was operational. Uh, we first met, Sanjana, I think when uh you were working on a story about public encampments in maybe San Francisco, and you found uh me, because because I was doing this uh public nuisance lawsuit um in Phoenix. Uh so that's how we know each other. Sanjina, welcome.
SPEAKER_00Thank you. Thanks for having me, Lum.
SPEAKER_01Oh, it is my pleasure. And we are also joined here with uh Judge Glock, um the director of research at the Manhattan Institute, also a contributing editor to City Journal and formerly policy director at the Cicero Institute, where he wrote about homelessness. But Judge is best known uh for being my expert witness in some of my uh homeless encampment litigation uh that you know pursues these public nuisance theories that we're gonna talk a little bit uh about today. Judge, welcome.
SPEAKER_02Thank you so much for having me along. Look forward to it.
SPEAKER_01Great. So the reason I wanted to have this podcast is because here at the Rationally Based Podcast, we are first and foremost a legal podcast. I'm a law professor, everyone understands that. Uh, but we're also a podcast about politics and philosophy, and we want to investigate the various issues at the intersection uh of these and other fields. And I could think of no better people uh to bring in for this purpose than my colleagues at the Manhattan Institute. And I uh hope um that uh you will uh enjoy the experience and will come back and guest co-host uh occasionally. So I thought uh we would just start with the state of where things are going. Okay, Judge, you just wrote an article about the LA mayoral race. Homelessness has played an issue. I mean, of course, the Palisades fire has been like really the impetus for Spencer Pratt running and so on, but homelessness is a big part of the campaign, which is kind of crazy. Like, I has there been other sort of mayoral races where you know people are like, oh, homelessness is a problem, right? As opposed to how many drug needles can we give, how many people and so on. So, what is going on in the LA mayorals race? Why don't you tell us uh about your piece and what's going on down there?
SPEAKER_02Yeah, so I homelessness was for most of the, let's say, late 20th century, early 21st century, a fairly niche issue, even in urban areas where they were uh where the homeless were clearly most prominent. Uh, but you know, in the last 10 to 15 years, it has become uh in some of these urban races, even some of these state races, the number one issue uh to voters, according to some polls. In some recent California polls, you ask them what is the number one issue in the state? And they will say homelessness, which is pretty wild because even in states like California, the homeless are only about 1% of the whole population. So it's a relatively small number of people, but I think anyone who has lived in these cities or lived in California understands that it is a massive issue for anyone trying to live, to work, uh, to get about their daily lives uh in these cities. So, and kind of the epicenter of this has definitely been Los Angeles. One of those facts that seems untrue or implausible, but it's actually correct, is I think the number is about 10% of all the homeless in the United States of America uh are located in Los Angeles County. So it is just a massive, massive concentration there. And unlike most of the homeless in America, in Los Angeles, they're overwhelmingly what's known as unsheltered, meaning they're out on the streets, they're not in a shelter, they're not in uh a cot and a transitional home or anything else. They're out there in a pup tent on a public street or a public sidewalk or a public park. So this is for places like Los Angeles, this is absolutely huge. And this has been the centerpiece of Spencer Pratt's campaign for the mayoralty uh in LA, uh, where he's kind of spit and mad, and with good reason, many citizens would say, about the state of homelessness uh in the city. So one of the things that got him in a bit of a kerfuffle uh and that I wrote about was his claim that uh the exact language I'll forget, but it was something like they are not homeless, they're drug addicts, and if we cut off the drugs, uh they will move to somewhere else. And obviously, this is something that engendered a fair amount of discussion. My basic argument was, though, that contra those activists and and uh liberal commentators, he was largely correct about the vast majority of the people in the streets having a severe drug or alcohol addiction. That is the facts. You will just hear uh a parade of homeless activists say, listen, most homeless people do not have a problem with drug or alcohol addiction. And in one sense, they are correct. But in another, more accurate sense, they are wrong because they are confusing the sheltered homeless, which is about 50% uh families with children, people who are in shelters for a short period of time, and they get back on their street uh their feet with the people who are out of these pup tents. Who one of my favorite lines is from a homeless outreach worker that I uh toured around with in San Antonio County, uh, who I asked how many of these unsheltered out there have a drug or alcohol addiction? And he kind of thought for a second and said, you know, conservatively, about 100%. Uh, you know, that that might be a little extreme. That might be a that might be a little extreme, but in a lot of these communities, that's that those are the facts. There are not a ton of these people out there in a pup tin for an extended period of time without being addicted to drugs or alcohol. Um, and I think the Spencer Pratt's other main argument about the these homeless drug addicts that are out there is not only are they a danger themselves, which they clearly are. I was citing in my New York Post slash California Post piece that LA has now regularly faced about 2,000 homeless deaths a year. Like these are absolutely insane death rates. Um, but it has absolutely unparalleled levels of violence uh around these homeless encampments. Not surprising you, you put a lot of drug-addicted, often mentally ill people together in an unsupervised space, they're gonna start killing and stabbing each other. And that's what happens. Uh so even in LA, about only about 1% of the population is homeless. Uh, but 25% of all the murder victims are homeless. Just wild numbers. Just wild. So anyway, that's all a very long-winded way of saying that Spencer Pratt is largely correct. One could say he's using slightly infelicitous language or not uh queens in the case. Yeah, yeah, okay.
SPEAKER_01Yeah, yeah. Infelicitous language. Okay. I was gonna push you on this because when you said unsheltered homeless, I was a bit offended, Judge, because don't you know that the term is actually unhoused? Because don't you know they have a right to be housed by other people? And the reason so they're not drug addicts, they're not even unsheltered, they're unhoused. Why didn't you use that term, you bigot?
SPEAKER_02Well, uh as always, Alana, I appreciate your pointed uh intervention and discussion in that, and I will unfortunately accept all of those criticisms and work to improve myself. Uh, I have to do the work uh as we all do to uh become more enlightened and more appropriate about these discussions. No, I mean the wildest thing about the unhoused language, which I feel like hit its uh zenith like a few years ago, and then like even a lot of the homeless activists kind of gave up on because they're like, it's so awkward. And wait, who's judges unhoused?
SPEAKER_01I'm glad I'm glad to hear that. Judge is, by the way, judge is not a real judge, he's not a judge. It's just not a judge.
SPEAKER_02Important distinction. Yeah, yeah.
SPEAKER_01You do own a Glock, though, right?
SPEAKER_02No, I never fired one until like a few years ago, and I finally fired, so I I at least can get some credibility for the second part of the name now, but not a judge.
SPEAKER_01Judge Glock, we love uh having you here. I'm so glad to hear that the unhoused terminology is falling into disuse because I swear to you know, um, whatever God you believe in, I swear to that God, there are federal district judges who are saying unhoused in their opinions. You know, we're we'll talk about some of the cases that I'm litigating. Sanja know knows some of the cases in the in the Berkeley um encampment case, like at the federal case. The federal judge uses unhoused, the state court judge uses unhoused. I just filed a motion to intervene recently in the in the in the Ninth Circuit. And I even I use the word unsheltered. Uh no, no, no, I'm sorry. I used the word camper and I dropped a footnote. I dropped a footnote and I said, I don't mean to be offensive, okay? Some people describe them as unsheltered, but it's actually technically they have a shelter. They have tents and tarps and things like that. It's true they're not in like a shelter like uh fit for human habitation, like a non-congregate shelter with like homeless services. That's true, but they're also not unhoused. Like they were all offered houses by the city of Berkeley, right? And they just declined them. They declined them. They were offered hotel rooms, right? They use they they manipulate language in this way. It dulls the mind, it dulls the senses. And so, like, I you said influencidous language, and I just really wanted to harp on that. Okay, I'll throw it back to you, Judge. Yeah, no, no, no.
SPEAKER_02And you're right. I mean, the the thing that drives me the nuttiest about the unhoused language uh is that they're trying to get away from the homeless language, which is actually itself a euphemism created by the left 40, 50 years ago to try to kind of redirect the homeless conversation. So homelessness historically was actually divided, as my colleague Stephen Einman had institute points out, was actually this uh concatenation of different things. There was, I now here we're talking about infelicitous language, there were vagrants, bums, and hobos. And these had clear, these had clear etymological and kind of uh denominational distinctions here. Hobos, if I remember correctly, moved around and didn't work. Vagrants moved around and did work. Uh bums stayed in the same place and didn't work. So these were all categories, and these were kind of smooshed together in the 1970s and all declared to be part of the homeless population. And the idea there was that the term itself claims to have the solution to it, and that they are homeless, therefore the solution to homelessness, by very definite, by its very definition, is giving them a home. Not ignoring all the stuff that Alan you pointed out in others, that often they're uh they've been offered a home, often they were in a home, and they've burned all of their bridges in that, or sometimes even burned the home itself, and then were put out in the streets. And uh the home itself was not the solution. Uh, but that's what the language does. And yet the in the classic euphemism treadmill fashion, uh, the the activists are now upset that their own term has acquired a negative connotation because most people aren't too favorably defined, uh too favorable to the people out in the streets abusing drugs and often uh hurting each other.
SPEAKER_01Okay, Sanjana, I want to bring you uh into this by connecting something that that judge uh just said. Uh so he said, well, the conservative estimate is that 100% of them are addicted. In the Berkeley case, the Berkeley encampment case, uh, with which uh you are familiar, the Harrison Street encampment in Berkeley, it's like a persistent encampment, right? And one of the reasons it's so persistent, they the city of Berkeley published its own report, which I just found to be astounding that they that they did this, um, showed that 85% of them have one or the other mental health illness or drug abuse, right? And so you're dealing with like a very persistent, service-resistant population. In other words, if they're not given this choice, right, if they're not given this uh choice, of course they're gonna rather let me put it this way. If one of the options available to them is to stay out in a tent doing drugs, then of course they're gonna choose that as opposed to going somewhere where they can't do it. But once you actually say, okay, now the choice is jail or you gotta go to a shelter, like they'll start going to a shelter, you know, like they're not that crazy, uh, right? Uh it who I don't know who I I heard this story recently, and I can't, I don't know who to credit for. It's about this like crazy guy on the subway in New York who's like muttering to himself and nobody gets near him, right? And then a really psychotic lunatic gets on the subway, and all of a sudden, you know, the muttering, the other muttering, you know, guy that seems crazy sits up straight and you know, totally sober, totally, you know, sharp and concentrated. It's kind of like that. Like they they have mental health issues, but once you say it's jail or this other option, they're smart enough, they're intelligent enough, they're put together enough that they know they don't want to go uh to jail. So, my question for you, Sanjana, you've written a piece, okay? I can't remember, was it City Journal about the growth of you know homeless NGOs and social services and so on? And like, is there an economic incentive to perpetuate homelessness? You know, that's one theory. What is your theory of what's going on? And then you've also written some really other interesting uh things in City Journal. Um so one of the things that uh I read and I was really uh fond of, uh, there was a piece called Um uh San Francisco's, I think it was maybe it was a different piece. I think it was San Francisco's Partial Comeback. Um, is that the story with the swing and how they kept taking down the it opens with the swing. Uh I just I what it was this beautiful opening of this piece that Sanjana wrote where there's this swing man in a park, Bernal Park, Bernal Heights somewhere. I don't know exactly where it is, that he kept putting this swing up. Like, what joy was he bringing? And the parks department every day made sure to tear it down, right? So they have plenty of time and resources to do that, but they can't be bothered with the meth attics and the public encampments. Like, so okay, what's your take on all of this? What's going on in San Francisco? How are things looking there? Uh, is there economic incentive? What are we doing with this growth of homeless services, right? Are they just spectacularly failing at their jobs? So should should we stop giving them money? What's going on?
SPEAKER_00Yeah, it's it's such a I mean, in some ways, it's it's not a complicated question. Yes, there is a financial incentive, and the incentive is that you have this, you know, massive outgrowth of homeless service providers whose only reason for existing is the assumption that there will be a population of um, you know, bums, I guess to use the technical term, if we're going back to this fine-grained taxonomy on the streets to whom they have to provide services instead of just, you know, having these services in the homeless shelters. In that case, you would still have probably some need for these services, but maybe they could be provisioned by the city. Instead, you have this kind of strange hydra of like public-private partnerships. Um, and in San Francisco, I mean, some of the stuff I've written about are the more absurd manifestations of this, like this nonprofit urban alchemy that we have. They actually have it in LA as well. We have it in San Francisco and throughout California. And the conceit there is that they've taken um sort of ex-convicts and put them in positions where they are supposed to de-escalate potentially violent situations and encampments and on the streets. And the idea is that because these people have been to prison, they have kind of more street smarts or whatever, and they, you know, maybe can speak the language uh, so to speak, of the people they're dealing with. So they're kind of like an alternative to law enforcement, and that has gone really wrong in a bunch of situations in California. And in the encampments in particular, there have been cases where these you know state-sponsored urban alchemy employees have been dealing drugs and sleeping with people in the encampments, and it's just been kind of a really obscene mess.
SPEAKER_01Um totally unpredictable.
SPEAKER_00Yeah, who could have predicted that if you give like ex-convicts, if you put them in law enforcement-esque situations, things could go wrong. Um so there definitely is a financial incentive. I mean, one thing I often think about to judge's point, that there is this distinction that I think a lot of progressives feign ignorance of because it's not convenient for them. There's really a distinction between this core of drug, like usually drug addicted, almost always mentally ill, people who live on the streets and in these tents, and the kind of other homeless population, which maybe is transiently homeless, families in shelters, um, you know, this this core population of people on the streets, the people in the Berkeley encampment, which um became quite a scandalous story because there was an outbreak of leptospirosis, as you know, Elon, and you know, this is this, you know.
SPEAKER_01Not leprosy, to be clear, not leprosy, but it's not good either, okay?
SPEAKER_00No, I think it can cause organ failure in the most extreme cases, and it can like infect humans and dogs. It's it's pretty uh are we allowed to say it's pretty third world? Is that politically politically incorrect?
SPEAKER_01On this podcast, it is both uh you may say it and it is probably accurate. You can also say medieval.
SPEAKER_00Uh it's quite medieval, it's quite plague-like, actually, is what it is, because it's spread by rats. Um, yeah, it's very medieval Europe, I'll say. Um, but basically, my my point is that this core group of people are actually, these are the candidates for institutionalization in a lot of cases and conservatorship. Conservatorship. And um, so what I think is interesting is that you know, there's this interplay between, on the one hand, you have this outgrowth of homeless services, which of course is extremely costly. In San Francisco, we spend billions of dollars. I mean, California in general spends billions of dollars a year on this stuff. Um but a lot of it I think is connected to the story of California's failed deinstitutionalization and the fact that we, you know, got rid of all of the straightforward pathways to get this relatively small, severely mentally ill, drug-addicted population into involuntary care. And so I completely agree with you that like the point, you know, when you offer these people a choice of do you want to stay in your tent, like either you go to jail or you go to shelter, they will probably go to shelter. But I also wonder if for some of them, you know, we shouldn't even be offering them a choice because they are not um, you know, they're not competent, probably in a psychiatric sense. And um, you know, that sort of gets to this somewhat difficult question of how do you roll back this like series of decisions that have been accumulating over decades in California that really weigh strongly on the patient's right side, such that even if someone's in a tent and using meth and stealing copper wires, like this happens in Oakland, steals copper wires from traffic signs or um from stoplights to like you know power their encampment electronics, this person is this person fit, right? Like, should they you know even be in a shelter? Like maybe they should be in a state hospital.
SPEAKER_01Can I ask you about this? And and Judge, you actually may know a lot about this um as well. So, Judge will remember from our trial. I think, Judge, were you excluded from the wit from the courtroom, or were you you were allowed to be there, right, as an expert witness?
SPEAKER_02Yeah, for most of the time I was allowed to be there when I wasn't testifying and being uh being grilled by the opposing counsel, which was always fun. But uh yeah, yeah, I was sitting through it and join it.
SPEAKER_01Yeah, judge would always talk way too fast. That was my problem.
SPEAKER_02Yeah, yeah.
SPEAKER_01But good, good, uh, good for podcasting. But one thing that they would say, both, for example, in the Phoenix lawsuit that I filed and in the Tucson lawsuit I filed, both of which we won, by the way, and Judge was, you know, you provided the testimony there. It was crazy to me that they would say things like, Well, everything's voluntary, everything's voluntary. We can't involuntarily force them to do X, Y, or Z. This is all over the Berkeley documents, too, Sanjana. In the leptospirosis case, they say, Well, it's a voluntary thing. And I remember distinctly when I was uh cross-examining one of the city of Tucson's witnesses, and I was saying, like, okay, so you know, you provide them shelter, let's say it's non-congregate, gold standard, hotel room provide everything they want, and they say no. Why can't you arrest them? And she'd say, I can't kidnap them. I can't kidnap them. That's literally what she said. And I'm I'm like, wait, wait a minute. Like, you don't even you don't have to kidnap them. You can just arrest them for trespassing or you know, for interference with the public rights of way. I I promise you every yeah, yeah.
SPEAKER_02Isn't this like this is something I've been trying to get a handle on and trying to figure out for for ages now and never gotten a good answer uh for and never like satisfied myself what what changed. But like I grew up in American cities. In the 80s and the 90s, when they were disaster zones. Like, you know, things are bad now in many cities. I'm not going to deny it. But there, there were like, you know, in the 80s and 90s, there were many neighborhoods that were just burned-out husks of their former selves and just kind of roving wild dogs and people where people would cry if they took the wrong turn. Anyway, but nobody, even back then, during the city's kind of nadir, thought, like, hey, if I set up a few pup tents in like the middle of a downtown sidewalk, nobody will do anything about it. They'll just let it happen. Now, like, literally in the past 10, 15 years, for some reason, most cities assumed, well, that just has to happen now. If people want to set up pup tents in parks and sidewalks, what are we going to do? People are baffled by this. And it's like, well, we always arrested them. Like, are you you just didn't allow them to do that? That was a clear breach of the law, and everyone rightfully assumed you weren't going to allow that to happen. But for some reason, some combinations of just changing social mores, the activists, they convince most cities that, yeah, like, what are you supposed to do about these homeless pup tents and encampments? You have no options. But, like, as I do tell people, the alternative to say enforcing the law is not that these people eventually pull themselves together and get a nice corporate job and start going in nine to five. The alternative is that almost inevitably they will end up in jail for another reason or they will die. Like those are really the two main pathways out of the encampments. Oh, let's not arrest them for uh setting up an encampment in a public park. But you leave a homeless, drug-abusing, mentally ill person out there for enough time, I guarantee they will break the law. And they do, and they ended up arrested for a much worse crime.
SPEAKER_01So the thing though about the voluntary involuntary, also, not just that they're committing crimes and inevitably should end up in jail, but what does this even mean? Because if you're the homeowner or if you're the business owner, you didn't voluntarily choose to have someone in front of your property. In other words, like so why is it that uh they get a voluntary choice whether to pitch a tent in someone's yard? Not I mean not on private property, but like right in front of their business, okay? Harming their business, harming their quality of life, leads to defecation on their property, does lead to private nuisances and trespasses and so on. So you say, well, we can't force them to do anything, or we don't want to force them to do anything unless they're voluntarily ready to go. But what about our choices as the homeowners and the business owners, right? In other words, like a uh a story that I tried to tell at trial, like a theory, which is legally supportable. I think this is like part of public nuisance law, right? Is in a civilized society, you don't get to choose to pitch a tent and do drugs in front of someone's business and obstruct the public rights of way. Certainly, if there is somewhere for you to go. That's a that's a whole other situation, right? The the crazy Ninth Circuit rulings of Boise and Grants Pass that then got overturned by the Supreme Court. But the reality is most of these people have an option in Berkeley. They have an option. They were offered shelter. Each one of them, they rejected it. Partly because I think, by the way, they're coached to reject it by the advocates, which is like super, super dark, if that's true, right?
SPEAKER_02Which is we uh we sometimes they they're also holding out for better options. So I had a colleague I worked with in Austin who accompanied one uh homeless guy to these regular uh sort of housing meetings, and you keep rejecting how uh offered like independent housing units as permanent supportive housing. And you know, they were too far away, or you know, it wasn't close to his friends, or like, you know, he didn't like the layout of the room. And my colleague was just kind of shaking this guy. He's like, what's with this pride? Just take the house. And they didn't want it. So like there is that, but the on the other side of like, yeah, why do they have the option? One of my regular lines on this is a lot of these cities get the fundamental purpose of government 180 degrees backwards, like literally backwards, in that in San Francisco, if I want to do uh you know, retile my roof without solar panels or install a sink, I have 10,000 forms to fill out. You got a million things you gotta, you know, uh uh pay off to the government to do. But uh, on your private property, they're really, really strict about what you do. And on the public property, you can do whatever you want. Take it, take in a you know, take a dump, light fires, do whatever. It's like this is backwards. The government's job is supposed to be protect you in your private property uh and allow you to do what you want, and then protect the peace in the public property. And they literally have the whole thing 180 degrees backwards. It's just insane.
SPEAKER_01Speaking of 180 degree degree backwards, so Sanjana, I want to ask you about the Berkeley case, because I think you've been following sort of the federal lawsuit. You said there's leptospirosis. Okay. And so, like you would think that the judge, so so a lawsuit was filed, and maybe you could talk us through that. I know obviously something about it too, and so I'm happy to explain. But like progressive advocates sued the city of Berkeley, even Berkeley, which for years was just letting that in Canon Fester. Even they were like, Okay, you know what? Leptospirosis, maybe we need to clean up. Okay, that was a bridge too far, apparently, even for Berkeley. Not a bridge too far for federal district judge in San Francisco, okay, who basically, you know, is is thwarting the city's ability to do it under this Americans with Disabilities Act claim. So speaking of 100, speaking of 180 degrees, I thought the ADA was like, oh, a disabled person needs to use the sidewalk. Not, oh, you want to sleep on the sidewalk, and the ADA gives you an exemption from generally applicable laws? Like it's 180 degrees, it's totally backwards. So, what's going on in the Berkeley case? Has the leptospirosis thing not like budged the needle there at all? What are what are you hearing? What are you you're seeing? I don't know if you've done reporting, what's the city trying to do? Where's the court case is going?
SPEAKER_00Yeah, I mean, I'm sure you have much more context on the, you know, what is where it is legally right now. But I've been following this out of the corner of my eye. And from what I understand, as you said, there was this uh progressive, you know, Berkeley homeless union. I'm sure they allied themselves with some, you know, pro bono law firm that that helped them with the litigation um that sued asking for a preliminary injunction uh against Berkeley's attempts to clear this encampment. And um from what I understand, the judge basically said, you know, obviously, now that grants passed versus Johnson has happened, the Eighth Amendment is no longer justification to not clear these encampments. However, but he imposed a series of pretty restrictive um requirements on Berkeley for how they need to clear the encampment when they do it.
SPEAKER_01And so um, you know, leptospirosis, which I had not actually heard of before learning about the story, um, is really because it's a medieval, not quite medieval, but it's not the kind of thing you ordinarily test for in America. That's how insanely backward, backwater it is.
SPEAKER_00It's very backwater. Um, and you know, basically there was this question of well, you know, if you if you take these people's tents, is this a violation of the Fourth Amendment? Is this unlawful seizure of their property? Do you need to kind of provide them? He ultimately ruled they need to provide them with replacement tents and replacements for any property they seize, but there was this question of um, you know, Berkeley was saying we don't want to store people's leptospirosis infected objects because it's a health hazard to our employees. And finally, there was this um I think the judge said, you know, if you can if if it's plausible that this object is infected with or like, you know, contaminated with leptospirosis, you don't need to store it, but you do need to store uh objects that are not plausibly contaminated with it. With towing their trucks, they basically have to um the city has to prove that they can't just first of all, they have to prove that the truck is actually obstructing traffic or you know free uh you know ingress and egress from the outside of the the street. Um which they all do, by the way. Right, which they all do by definition. Like an RV parked with a bunch of stuff around it is is you know obstructing traffic. Um and there's there's a bunch of other kind of restrictions that the the judge placed on on how Berkeley has to do this, and it made me think about you know, as someone who's kind of been following this the encampment litigation out of the corner of my eye for the past couple years, I think most people assumed that when Grants Pass, the Grants Pass decision came out, this just meant cities can clear encampments. And, you know, that was kind of the lay person's assumption. And in fact, the progressive homeless activists still have this kind of arsenal of tools at their disposal, you know, the Fourth Amendment, that they can use to make it incredibly difficult for cities to actually clear them. Um, which I mean, one corollary to this is just that the progressive legal apparatus is kind of impressive in their relentlessness on this. And, you know, I don't know, I'm sure they're coordinating somehow, but the fact that in Berkeley, I mean, this is not the Coalition on Homelessness, but it seems to be a carbon copy of it there. Same case where they're going, you know, they have the advocates who go and engage these homeless people, and then they immediately go and engage lawyers who can put together uh, you know, these cases on their behalf, and they just do it relentlessly. Um, and so it seems like I mean, one one question I have is for you guys is is there a version of this that we can build on you know, the conservative side that I mean, I know Elon, you're part of this movement, but like what else needs to be done?
SPEAKER_01Because part of it, I mean, like I think we have common sense on our side, and it seems like the law as well, but part of it is just like getting bodies in these courtrooms and litigators and I I mean, so I don't know, in some ways this is getting very dark and based, right? This is why we have this podcast. A lot of times on those podcasts, what we talk about is the way the left just abuses law and the legal process. They file these things that they know are borderline frivolous, they're literally making things up, but there are enough judges in certain jurisdictions that allows them to basically get away with it, right? And so that's what they do in these homeless cases, right? So it took six years for the so just so our listeners know, and we've talked about it a bit on the podcast before, Sanjana is referring to the Grants Pass case, which overturned the case called City of Boise. That was in 2018, which held that there was this novel constitutional right uh to basically shelter in public if there is insufficient shelter available for the entire homeless population, even if like you had a shelter available. It is totally preposterous, totally unrelated to the Eighth Amendment, and it took six years. It took six years for the Supreme Court to reverse that, okay, in City of Grants Pass. And so, first of all, as I've been saying, and Sanjana, you've pointed this out, getting rid of City of Grants Pass doesn't compel a city to clean up. It simply gives the city a writer option to clean up. It's my public nuisance lawsuits, right? The ones that judge has participated in that forces cities to clean up. But we're not even there because, as you said, Sanjana, there are all these other tools that they can deploy. Well, we won on the Eighth Amendment, but you, you know, jokes on you. I've got the Americans with Disability Act, which this is, again, what the judge ruled on. And it's been going on for two years. Now, is this ever, it's now in the Ninth Circuit? If it gets to the Supreme Court at all, it's gonna be another four years just on the ADA. And to be clear, not only is it backward, but the theory is that you have, if you're homeless, you have some sort of ADA right to a general exemption from generally applicable laws. Like, do you do you do you get an accommodation from the murder laws if you're disabled? Oh, I was disabled. I'm allowed to murder.
SPEAKER_02Like, no, which I mean, that was the that was the basic uh argument that they overturned in the Grants Pass case that being homeless was this involuntary status that therefore allowed you to camp out wherever you want effectively, because it was all coming from this what Robinson Robinson case in the 1960s that said, you're a drug addict and being addicted to drugs is just this thing that happens to people like uh the sun or the rain, and you just have to allow drug addicts to be drug addicts sometimes. And it was that was an insane idea, and then applying it to homelessness was even more insane. And then, yeah, now you have this thing of like being homeless is now a disability. It's all these attempts to like shove these actual status, which is a status, like which to shove all these human choices into these protected status categories as if they're immutable facts of nature, or if they're going back to the 1930s, yeah, what is it, uh a discrete and uh immutable characteristics, whatever the 1930s footnote, uh Caroline Caroline Caroline products, yeah. The Caroline products case. Uh like these are trying to shove all these things that are into these categories that just don't make sense. Being homeless does not make you disabled. Uh it just doesn't. And even if you were disabled, it would be in the same claim to say you can basically do whatever you want when you're when you're disabled. Uh the other, yeah.
SPEAKER_01The other the other claim, by the way, was 14th Amendment, Sanja. Not, I mean, there is Fourth Amendment, which is like just a procedural hurdle. Like you have to store them, and you know, you can't get just search their tents, or but like I don't want to search the tents, I want their tents gone. Like, again, the Fourth Amendment, or it's a seizure of their person. It's like, yeah, you're violating the law. I can seize you to prevent you from sort of violating the law.
SPEAKER_02I I forgot what was the case. There was a case, or at least part of a part of a larger case on one of the encampments clearances, like over a decade ago in Los Angeles, was the debate of whether bags of feces constituted your property property, and then whether or not you could confiscate the property under the Fifth Amendment. And this is like it's it seems like again, one of these reductio and absurdum sort of cases, but this is what they were actually, the homeless arg advocates were actually arguing in court. Like you took his bags of feces, he was trying to store these, and you refused to put them in an appropriate place so we could pick them up later. It just that's someone said that with a straight face to a judge. Yeah, yeah. Sorry, what was that, Sanjana?
SPEAKER_00I just said they've got all the theater kids on their side, which is uh a boon when they have to make these arguments in court.
SPEAKER_01No, it's it's it's it's it's crazy, but like it it's dark because like we are, as you said, Sanjana, like way behind the game here, right? Like they're playing this game, and we've got this 14th Amendment state created danger, which is insane, just so I can like put our pin on that one. They say, oh, well, if they pitch a tent illegally on the streets illegally, if you remove the tent, you are exposing them to the elements and creating a danger in violation of the 14th Amendment. Like it is so preposterous, but it's again gonna be years for this to go up. But I feel like they are always three steps ahead, which is why I filed this public nuisance lawsuit, right? In in Phoenix, saying, when are the homeowners and business owners, okay, and residents and the taxpayers, right? For like whose benefit government was created. Like, not, you know, of course, homeless people are part of the social compact, but right, but we are a part of the social compact too. We pay taxes, we obey regulations and so on. And the exchange, the whole social compact theory is that we get out of the state of nature, right, and we agree to obey the sovereign. We give allegiance in exchange for which the sovereign protects us, gives us protection. This is the allegiance for protection theory that protects us in our rights to life, liberty, and property. And they're not holding up their end of the bargain. Not just your private rights, but public rights, the benefits of a civil society is that you get to use the streets and sidewalks and public rights of ways and waterways and so on. And you can't anymore because they're they're abstracted, they're blocked, and it's dangerous. And so this was the theory that we pursued in Phoenix. Like, when will homeowners have a seat at the table? So we sued cities on a public nuisance theory. We basically said we relied on the restatement of torts, which says a landowner. The cities are landowners, they own the public rights of way. A landowner is liable for the nuisance creating activities of third parties on their lands if certain conditions must be met, right? They know of the activities and consent to them. Okay. Which is what we argued. Like you have voluntary compliance. That's consent. That's literally consent. Oh, sure, you could stay if you want. That's literally consent. Or if they fail to take sufficient steps to abate the nuisance or prevent the nuisance. And so this was the theory. It won Sanjana in Phoenix, as you'll remember. That's when we first met, right? And and you interviewed me about this case. We got an 800% encampment. And this goes back to Judge's point. It turns out once they knew they couldn't stay there anymore, they found other places to go, including shelter, and including a sanctioned campus, something like 80% accepted shelter or something like that. As soon as the choice to be out on the street is taken away from them. This one in Tucson as well. And we filed, Sanjana, a case in Berkeley, uh in state court making this claim too. And it was uh it's going to trial sometime this year. So it is going parallel, it is running parallel to the federal lawsuit. But Sanjana, to your point about are we like steps behind here? I've tried to raise money for this, right? There were, once we did the Phoenix lawsuit, there were people coming out of the woodwork everywhere in Seattle, in Denver, New Orleans, were saying, like, we want a lawsuit, but like you need money to bring a lawsuit. And you've got these organ progressive organizations funneling tons and tons of money. You've got Latham and Watkins giving free legal services in Phoenix, Snell and Wilmer until they backed out. So I guess they saw like what was really going on. No big law firm comes and supports the business owners and homeowners in our lawsuit. And again, like if Elon Musk, I could only hear this podcast, if someone knows him and could afford it, like give me $10 million and I will create a real foundation, the real American civil liberties union that actually cares about Americans and their civil liberties, like the residents and homeowners whose rights sort of are violated here. And we'll bring these lawsuits everywhere. But we can't, we can't, because why? Why do we just not as our horizon?
SPEAKER_02Well, I mean, this is uh my my good friend Stephen Tellis wrote a lovely book that I'm sure you and some of your listeners are familiar with called The Rise of the Conservative Legal Movement, which was describing how the conservatives created this counterweight to the traditional leftist economic regulatory state and a lot of the efforts upon uh you know among some of the more activist groups to uh mandate certain types of welfare, whatever. But like one of the, I think, underappreciated aspects of that book and tells the story is that the early attempts to make conservative public safety sort of arguments before courts came acropper and didn't succeed. So we had these great groups like Institute for Justice and Center for Constitutional Rights that really started to push courts to enforce private property rights against regulatory takings, against other things. But if you look at the book, there was also these cases in the 70s and 80s that like the Center for Constitutional Rights tried to bring up about, hey, public housing projects descending into chaos because they were the government refused to enforce the law, all of these sort of public nuisance, public rights things that you're talking about. And for whatever reason at the time, the courts just didn't buy it and it didn't take off with funders. But like, but that became the big hole in the conservative legal movement. The conservative legal movement was doing a yeoman's work on trying to create all of these new anti-regulatory sort of barriers. But on the public, public nuisance, public rights, safety uh stuff, they just dropped the ball. And now we have these situations where, yeah, the homeless advocates, well funded by Ford and Rockefeller and all of these uh uh nut jobs, will make the most obscene arguments in court, and like people that are like you, Alan, or me, are just kind of like trying to play pickup basketball against people who were like, you know, been doing this for decades because there's nobody on the other side. This is like for a short period, I was doing uh research for the Department of Justice on Indian cases, and the Indian lawyers would always wipe the floor at their opponents because it was somebody who like who who would study Indian law from the second they came out of uh grade school. Like this was their passion, they did it, and they'd have some Tom Dick or Harry that came up and didn't want to devote his life to fighting Indian tribes, and he would just get wiped. And so, like, we've had you've had to build this up, and like there just needs to be more of a recognition that the other side's been building for decades on this. You need a counterweight, and it's just not there yet.
SPEAKER_01So, can I, in our last sort of seven or eight minutes here, I want to zoom out a little bit and ask, you know, so the reason I've been deploying this public nuisance theory, and maybe this is a more philosophical question as well as sort of legal question, but um, when I first developed this public nuisance theory, I guess, for homeless encampments, it struck me as worthwhile doing because it's just fundamental to the social compact, right? This is exactly how public nuisance should be used, right? I mean, a classic public nuisance is an interference with the public rights of way, right? And like that's what these are, right? You're literally interfering with various public rights, which are often also broadly defined to like having uh clean air and safety and and and so on. And you have very concrete applications, and the progressives are nowhere to be found, nowhere to be found, don't want to deploy the public nuisance laws, but you know where the progressives will deploy public nuisance laws to advance very particular progressive agenda items. So let me give you three, and then Sanjana will take your take on it and judge your uh as well as we wrap this up. Uh, number one that you may not know about, because the other ones you will know about. Chris Mays, the Attorney General of Arizona, threatened the federal government with a public nuisance lawsuit over an ICE facility. So wait, let me get this wrong. Let me get this straight. Your position is putting a bunch of criminals andor just immigrants in a facility in one area of town is likely to create a public nuisance, but you were nowhere to be found when you had an 800 person outdoor encampment where like a fetus was burned alive and like dumped in a dumpster and like
SPEAKER_02True story. True story.
SPEAKER_01Yeah, it's really happened. This really happened. And so, like some of the things that I pulled this up that Chris Mays uh said, uh, she demanded of the Department of Homeland Security. I want uh we want your detailed detailed plans regarding your DHS's plans to ensure all persons housed or working at the proposed facilities are provided adequate medical care, including mental health services. Uh okay, where were you when that huge encampment? There are still encampments throughout Phoenix. Are you making sure that the city of Phoenix isn't engaged in a public nuisance and that they'll have sufficient mental health services available? They say uh details regarding impacts on fire, law enforcement, emergency response. Uh hello, we literally introduced a trial, all of these police records, like several calls a day in Berkeley, Sanjana. This is happening. Several calls a day, police fire. I mean, and like, where are the Democrat attorney generals and DAs threatening public, but no, we'll use public nuisance against ICE. Okay, the other big one is climate change. This is going to the Supreme Court right now. It's a case uh called Suncourt Energy v. Boulder, where the Colorado Supreme Court basically allowed, under public nuisance, lawsuits against energy companies for global climate change. And here's the thing that they're literally asking for. This is from the earlier, uh, an earlier case that the Supreme Court rejected as a matter of federal common law, the US Supreme Court rejected. Plaintiffs are asking for a decree setting a judicial decree, right? Under public nuisance theory, setting carbon dioxide emissions for the defendants to be reduced annually, right? It's like they're literally willing to abuse this over this eight, like again, like yes, it's true, like you're entitled to clean air. I think the problem here, by the way, is almost less public nuisance and more like carbon dioxide is just not an air pollutant. Okay. It's not local impurity, it's not locally concentrated. Gun manufacturers is the other big thing that they used to do, right? That guns created a public nuisance and that the manufacturers knew about it. All of these strike me as totally preposterous uses. Again, abuse of a legal theory that they're unwilling to use in its traditional and ordinary application, like pitching a tent and obstructing a sidewalk. Am I just very pessimistic and dark about how we're just at a structural disadvantage if they're willing and find receptive judges, you know, to use these crazy, crazy public nuisance theories in areas totally unrelated to historical public nuisance. And we're just caught flat-footed. You know, we can't even get judges to, except in Arizona so far, you know, to say, yeah, like public nuisance, you should clean up these homeless encampments. Okay, general reactions in our last five minutes. Sanjana, why don't you go first?
SPEAKER_00I mean, my first reaction to what you've just said is that the left, as I said earlier, they are shrewd in that they seem to begin with their desired state, like status quo, right? Their desired political outcome, and then find um, you know, after the fact a legal justification, the most sort of expeditious legal justification they can find on hand to uh you know support that status, that, that, that state of play, even if it's, as you say, a complete distortion of the intended spirit of, for example, public nuisance. Um, and so, you know, to their credit, they are just institutionally formidable in that sense. I mean, of course, it's disheartening that you could have people advancing these clearly um, you know, dishonest or sort of silly interpretations of the law. Um Yeah, I mean, I think that one thing that I think about a lot as a writer and you know, someone who's not a lawyer but is kind of interested in in political organizing is just that you need to somehow get a critical mass of small business owners and ordinary people organized. And the difficulty is that these people have jobs and they are productive members of society. And so the left has this advantage in these cases where I mean, I don't know who the um the plaintiffs are in the Colorado case. Um, I don't know if they just found like pissed off climate activists who claim that they were are they being harmed by by emissions or like because I know in public nuisance you have to find like specific people with specific instances of demonstrated harm, right? Who you can use.
SPEAKER_01Uh Sanjina, it's very quaint of you to think that that matters to every single judge out there. This idea that it's not a generalized harm, that you like you need standing, that you need to prove causation, like that this particular defendant's contribution led to some particular harm. What quaint legal ideas you entertained, Sanjana.
SPEAKER_00Like, yeah, I mean, well, basically, my sense is that the left benefits from, you know, in the homeless encampments case, you have this indigent population that is just there and easily manipulated to their ends, or or you know, willingly sort of used for their ends. Um, and the difficulty with public nuisance stuff is that you have to sort of get specific people who are willing to document instances of harm. And of course, there are a lot of them. And in Berkeley, you know, you've got people who are walking their kids through a leptospirosis infected encampment on the way to soccer practice. Clearly, that's, you know, a documented harm. Um, but my sense is like maybe part of the solution here is just getting this public nuisance message out to as many people as possible who live near encampments and being like, who wants to sign up for a lawsuit? And trying to basically, I mean, this is the way the left does it, right? Is they send people out. Uh, maybe we get like uh similar structure where you have kind of, you know, I don't know if you want nonprofit advocates or something to go out into the field and and find uh, you know, people who are willing to sign on to a lawsuit and then try to fight fire with fire because it seems like that's the way out. Um it succeeded in in um in Arizona, and I think it also succeeded briefly in San Francisco in the tenderline, where UC Hastings brought um uh a lawsuit on public nuisance grounds for the encampments in around COVID time, and and that was successful. I mean, it then I guess that was that all kind of tied in with the the ninth step.
SPEAKER_01And I think they yeah, they settled, they settled that case.
SPEAKER_00They settled it, yeah.
SPEAKER_01Yeah, and so that's uh again, the left is good at stuff like that. Sue and settle, but I sue, no city will settle with me. Uh Judge, we are running out of time. We have a hard stop. One minute, last word, 30 seconds.
SPEAKER_02Uh yeah, I love the public nuisance uh lawsuits because I'm a big believer in uh what's good for the goose is good for the gander. If I kept uh a bunch of uh tents on my property and was burning things and was allowing people to play music and shoot up in public all the time, the city would certainly uh close my house down or try to abate that nuisance. So if they're doing the same thing on their property, I very much would look forward to seeing uh them get this lawsuit and uh uh be forced to stop it. So that's one of the reasons I love it. They should obey their own their own laws and they don't.
SPEAKER_01Well, Sanjana Judge, what a fun discussion. I wish we had twice as long. We will have you back. Thanks for so much for joining us. I will be back to uh other programming uh next time. Thank you.