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Articles
Controlling Chronic Misconduct in City Spaces:

Of Panhandlers, Skid Rows, and
Public-Space Zoning
Robert C. Ellickson t
CONTENTS
I. INTRODUCTION .................................... 1167
II. CHRONIC NUISANCES IN PUBLIC SPACES .................. 1173

A. The Tragedy of the Agora ......................... 1174
B. The Concept of a Chronic Street Nuisance ............. 1175
1. Harms of Chronic Street Misconduct in General ...... 1177
2. Chronic Panhandling ......................... 1179
a. Benefits of Panhandling ..................... 1179
b. Harms of Panhandling ..................... 1181
3. Chronic Bench Squatting ....................... 1183
C. A Recommended Doctrinal Definition of a Chronic
Street Nuisance ................................ 1184
1. A ProposedPrima Facie Case ................... 1184
a. The Proposal ............................ 1185
b. The Inadequacy of an "Effect on the Street
Headcount" Test .......................... 1186
c. Only Acts, Not a Status, Can Create a Nuisance ... 1186
t Walter E. Meyer Professor of Property and Urban Law, Yale Law School. I am grateful for
comments received from participants in workshops at the Lincoln Institute of Land Policy and the Harvard,
University of Southern California, and Yale Law Schools. In particular, I thank Scott Altman, Jack Balkin,
William Fischel, Owen Fiss, Abraham Goldstein, Alvin Klevorick, John Langbein, Dean Lueck, Jerry
Mashaw, Peter Schuck, Robert Spector, Kate Stith, and, most especially, Maria Foscarinis and Brendan
O'Flaherty. Nicole Stelle Garnett provided superb research assistance. Errors are mine.
1165
1166 The Yale Law Journal [Vol. 105: 1165
2. Defenses Available to Those Who Cause Chronic

Street Nuisances ............................. 1188
D. Distributive Justice and the Destitute ................. 1189
E. Why "Homeless" Tends to Be a Misleading Label ........ 1191
III. THE MANY SOURCES OF STREET ORDER ................... 1194

A. InternalizedNorms of Street Etiquette ................. 1194
B. Pedestrians' Self-Help Defenses ..................... 1195
C. Third Parties That Police the Streets ................. 1196
1. Individual Champions of the Public ............... 1196
a. Pedestrians ............................. 1196
b. Owners and Occupiers of Abutting Land ......... 1197
2. Organizations That Enforce Street Decorum ......... 1198
3. The Police ................................. 1200
IV. A BRIEF HISTORY OF STREET DISORDER AND SKID Rows ..... 1202
A. Trends in the Size of the Urban Underclass ............. 1203
B. Fluctuationsin the Strength of Social Controls .......... 1207
1. The 1950s: Informally Policed Skid Rows ........... 1208
2. 1965-1975: A ConstitutionalRevolution ............ 1209
a. Vagrancy ............................... 1210
b. Public Drunkenness ....................... 1211
c. Disorderly Conduct Stemming from Mental Illness . . 1211
d. Liability of Officials and Governments for
ConstitutionalViolations .................... 1212
e. The Revolution in Retrospect ................. 1213
3. The 1980s: PopularEmbrace of the Homeless ........ 1214
4. The 1990s: Backlash .......................... 1217
V. THE INFORMAL AND FORMAL ZONING OF PUBLIC SPACES ...... 1219

A. A Hypothetical Division of City Public Spaces into Red,
Yellow, and Green Zones .......................... 1220
B. Alternative Zoners of Public Spaces .................. 1222
1. Informal Zoning ............................. 1222
2. Municipal Zoning ............................ 1223
VI. THE FEDERAL CONSTITUTIONAL RIGHTS OF INDIVIDUALS

WHO CHRONICALLY MISBEHAVE IN PUBLIC SPACES .......... 1226
A. Panhandlers'Freedom of Speech .................... 1228
1. Commercial or PoliticalSpeech? ................. 1229
2. PermissibleRegulation of Time, Place, and Manner .... 1232
a. Alternative Channels of Communication ......... 1232
b. The Significance of the Government Interest ...... 1235
1996] Misconduct in Public Spaces 1167
c.
Narrow Tailoring: Of Street Performersand
Solicitorsfor Charities ..................... 1236
B. Bench Squatters' ConstitutionalRights ................ 1238
1. Freedom of Travel ........................... 1239
2. The Eighth Amendment Ban on Criminalizing Status ... 1242
VII. THE RELATIVE MERITS OF INFORMAL AND MUNICIPAL

ZONING OF PUBLIC SPACES ........................ 1243
VIn. CONCLUSION .................................. 1246
I. INTRODUCTION
To the bewilderment of pedestrians in the 1980s, panhandlers, aimless

wanderers pushing shopping carts, and other down-and-out individuals
appeared with increasing frequency in the downtown areas of the United
States.' During the same period, in an apparent paradox, the Skid Rows of
most U.S. cities were in sharp decline. While New Yorkers were encountering
more panhandlers in their subway system, their city's most famous Skid
Row-the Bowery-was fading from view. 2 While the number of homeless
campers occupying Palisades Park in Santa Monica rose, fifteen miles away,
Los Angeles's Skid Row east of Spring Street was losing population.3
By the early 1990s, the increased disorderliness of the urban street scene
had triggered a political backlash. Commentators began to report that the urban
1. See CHRISTOPHER JENCKS, THE HOMELESS at v (1994) [hereinafter JENCKS, HOMELESS] (visible
street poverty started to increase in late 1970s and worsened during 1981 recession); WILLIAM H. WHYTE,
CITY: REDISCOVERING THE CENTER 49 (1988) (in author's estimate, incidence of begging in midtown
Manhattan doubled between 1980 and 1987). On the onset of street homelessness, see generally BRENDAN
O'FLAHERTY, MAKING ROOM: THE ECONOMICS OF HOMELESSNESS 32-40 (forthcoming 1996).
2. The Bowery Skid Row dates from 1872-1873, when its first mission and cheap lodging house
opened. HOWARD M. BAHR, SKID ROw: AN INTRODUCTION TO DISAFFILIATION 31-32 (1973). In 1949, the
Bowery had 47 lodging houses with a total of 11,219 beds. Most of these were gone by 1980. In 1993, 11
lodging houses remained; these houses had some 2400 beds, many of them unrented. O'FLAHERTY, supra
note I, at 145, 178. By the mid-1990s, with the dwindling or disappearance of such institutions as gin mills,
flophouses, public baths, and cheap restaurants, the Bowery's traditional Skid Row culture was barely
detectable at street level. See Michael T. Kaufman, Last Call Soundsfor Last Gin Mill on the Bowery, N.Y.
TIMEs, Dec. 25, 1993, § 1, at 33.
3. More than half of the single-room occupancy (SRO) units in downtown Los Angeles were
demolished between 1970 and 1985. PETER H. Rossi, DOWN AND OUT IN AMERICA: THE ORIGINS OF
HOMELESSNESS 182 (1989) (citing 1987 study by Hamilton, Rabinowitz & Alschuler, Inc.). The Los
Angeles Skid Row endures partly because the city's Community Redevelopment Agency in the mid-1980s
began to encourage the development and concentration of low-rent housing there. See Edward G. Goetz,
Land Use and Homeless Policy in Los Angeles, 16 INT'L J. URB. & REGIONAL RES. 540, 544-45 (1992).
On the Santa Monica situation before and after the crackdown in 1994, compare Sarah Lubman,
Change of Heart: SantaMonica Grows Hostile to the Homeless Who ConsiderIt Home, WALL ST. J., Nov.
9, 1992, at AI (quoting 18-year resident: "I used to have picnics in the park. I don't do that anymore.")
with Nancy Hi ll-Holtzman, Two Arrestedfor Sleeping in PalisadesPark UnderNew Ban, L.A. TIMES, May
12, 1994, at 4.
populace was suffering from "compassion fatigue."4 Even in the nation's most
liberal cities, mayoral candidates campaigned for greater control of street
misconduct, and city councils passed crackdown ordinances. In New York, San
Francisco, Washington, D.C., and countless other cities, these legal measures,
coupled with a general hardening of pedestrians' attitudes, began to reduce the
incidence of disorderly behavior in public spaces.5 In 1994 alone, voters in
Berkeley, Santa Monica, and Santa Cruz-three of the most politically liberal
municipalities in California-compelled their local officials to take steps to
6
limit street disorder.
This Article describes the evolution from the Skid Row of the 1950s, to
the unruly sidewalks of the 1980s, to the emphatic backlash of the 1990s, and
seeks to explain this course of events. The Article's primary mission, however,
is normative. ACLU attorneys, poverty lawyers, and pro bono departments of
large law firms have been challenging crackdown ordinances on constitutional
grounds, generating an explosion of reported cases on the regulation of public
spaces.7 This unprecedented level of legislative and judicial attention to issues
of misbehavior in public spaces makes it timely to explore the appropriate
social controls that pedestrians, religious leaders, police officers, legislators,
and others should place (and, in the case of judges, allow to be placed) on
users of streets, sidewalks, and parks.
These open-access public spaces are precious because they enable city
residents to move about and engage in recreation and face-to-face
communication. But, because an open-access space is one everyone can enter,
public spaces are classic sites for "tragedy," to invoke Garrett Hardin's famous
metaphor for a commons. 8 The media are quick to report the gravest problems
of the streets, such as armed robberies, drug trafficking, and drive-by
4. Although "compassion fatigue" has become the phrase of the moment, "disorder fatigue" might be
more descriptive. At the same time that voters were supporting street-control measures, large majorities
were telling pollsters that they would support the imposition of higher taxes specifically to increase
government spending on aid to the homeless. See NATIONAL LAW CTR. ON HOMELESSNESS AND POVERTY,
THE RIGHT TO REMAIN NOWHERE 2 (1993) (hereinafter RIGHT TO REMAIN NOWHERE] (citing results of
Business Ieek/Harris Poll in BUS. WK., Nov. 1, 1993, at 35). A poll respondent could plausibly envisage
that increased financial aid to the homeless would reduce levels of street misconduct.
5. See, e.g., Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 714 (6th
Cir. 1995) (citing evidence that Cincinnati's enforcement of anti-begging ordinance had dramatically
reduced panhandling); Robert M. Spector, Vouchers for Panhandlers: Creative Solutions to an Old
Problem, 3 HYBRID: J.L. & SOC. CHANGE (forthcoming 1996) (manuscript at 52-56, on file with author)
[hereinafter Spector, Vouchers for Panhandlers](after police in New Haven systematically began to arrest
panhandlers soliciting alms near Yale University in summer of 1994, incidence of begging dropped); Alan
Finder, Change Found in Subways: PanhandlingIs Down, N.Y. TIMES, Mar. 19, 1995, at 37 [hereinafter
Finder, Panhandling is Down] (New York City Transit Authority crackdown reduced incidence of
aggressive and annoying panhandling).
6. On anti-panhandling and related measures in these three cities in 1994, see NATIONAL LAW CTR.
ON HOMELESSNESS AND POVERTY, No HOMELESS PEOPLE ALLOWED 10-12, 16-21, 36-39 (1994)
[hereinafter No HOMELESS PEOPLE ALLOWED].
7. On the ACLU's involvement, see Charlotte Allen, The ACLU Against the Cities: Challenges to
Urban Civility, CITY J.,
Spring 1994, at 40, 40-47.
8. Garrett Hardin, The Tragedy of the Commons, 162 Scl. 1243, 1244 (1968).
shootings. This Article focuses on problems that by comparison seem trivial:

chronic street nuisances. Chronic street nuisances occur when a person
regularly behaves in a public space in a way that annoys-but no more than
annoys-most other users, and persists in doing so over a protracted period.
Two hypothetical examples of street nuisances recur during the analysis that
follows. The first involves a panhandler, by assumption a mild-mannered one,
who repeatedly stations himself on a sidewalk in front of a particular
restaurant. The second involves a mentally ill bench squatter who, morning
after morning, wheels a shopping cart9 full of belongings to a bench in a
downtown plaza, stretches out a sleeping bag on the bench, and dozes there
intermittently until dark. The street behavior in both cases is assumed to result
in a net decrease in the use of these public spaces.'0 Because the panhandler's
presence inhibits pedestrians, the sidewalk is less used and the restaurant's
business suffers;" although the bench squatter himself contributes to the
daytime population in the plaza, the average headcount falls because fewer
2
pedestrians wish to linger there.'
Chronic street nuisances pose practically knotty and normatively
perplexing questions about the management of public spaces. Most courts have
held that a city can prohibit more aggravated nuisances, such as aggressive4
panhandling 3 and overnight sleeping in parks not designated for camping.'
Conversely, there is universal agreement that every person, no matter how
scorned, is entitled, assuming he behaves himself, to walk on every public
sidewalk and to sit on every bench in every public park. The examples of
protracted panhandling and bench squatting fall in the baffling normative
terrain that lies between these easier cases.
9. But cf. CAL. BUS. & PROF. CODE § 22435.2 (vest 1987) (criminalizing possession of shopping cart
away from premises of retail establishment that provided it).
10. But cf. infra text accompanying notes 96-97 (on shortcomings of focus on headcounts).
I1. See infra note 71 and accompanying text.
12. See infra notes 82-85 and accompanying text.
13. See, e.g., City of Seattle v. Webster, 802 P.2d 1333 (Wash. 1990) (rejecting battery of
constitutional attacks on ordinance intended to limit aggressive begging and obstruction of sidewalks), cert.
denied, 500 U.S. 908 (1991). Panhandling is seldom aggressive. See RIGHT TO REMAIN NOWHERE, supra
note 4, at 41 (San Francisco sting operation targeted at aggressive panhandlers resulted in few arrests
because most panhandlers were polite); Brandt J. Goldstein, Panhandlersat Yale: A Case Study in the
Limits of Law, 27 IND. L. REv. 295, 319-21 (1993) [hereinafter Goldstein, Panhandlersat Yale] (lucid
panhandlers consciously and strategically adopt respectful attitudes toward pedestrians).
14. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (rejecting argument
that First Amendment entitled protesters to sleep overnight in tents in Lafayette Park across street from
White House); United States v. Musser, 873 F.2d 1513 (D.C. Cir.) (affirming conviction for one night's
bedding down on pallet in Lafayette Park), cert. denied, 493 U.S. 983 (1989); People v. Davenport, 222
Cal. Rptr. 736 (App. Dep't Super. Ct. 1985) (rejecting constitutional attack on Santa Barbara ordinance that
prohibited nighttime sleeping in public parks and on public beaches), cert. denied, 475 U.S. 1141 (1986);
cf. Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d 71 (App. Div. 1987) (sustaining
involuntary hospital commitment of mentally ill woman who lived on public sidewalk in front of Manhattan
restaurant), appeal dismissed, 520 N.E.2d 515 (N.Y. 1988). A government, of course, may decline to
exercise this power. See Maureen Dowd, America's Front Lawn, N.Y. TIMES, Jan. 15, 1995, § 6
(Magazine), at 18 (describing chronic residents of Lafayette Park).
Most of the legal scholars who have written on street misconduct have
come at the topic from one of three angles: hyper-egalitarianism, free speech
libertarianism, and criminal defense. Each of these is a pertinent, but overly
narrow, perspective.
Commentators with a hyper-egalitarian outlook single-mindedly aim at
redistributing wealth, status, and opportunity to the poorest at hand-in this
context, to a street person whose misbehavior has annoyed other
pedestrians.15 For example, hyper-egalitarian analysts apparently would
excuse, on grounds of poverty and duress, a destitute panhandler who
aggressively hassled a pensioner. t 6 This exclusive stress on distributive justice
is criticized below, in part because surveys suggest
7
that street disorder annoys
low-income pedestrians as much as anyone.'
First Amendment scholars have produced a large literature on freedom of
speech in public spaces.' 8 These writers would first ask whether, say, a
request for money constitutes "speech." If they were to conclude that it does,
they would proceed to the intricacies of "public forums," "time, place, and
manner" regulation, and related First Amendment issues. This literature, while
insightful, self-consciously gives priority to the communicative aspects of street
behavior and downplays its other features, including its effects on the liberties
of other street users.
Finally, criminal law specialists have addressed issues of police control of
street behavior. A chronic street nuisance may fit the definition of an infraction
such as vagrancy, loitering, or disorderly conduct. Many criminal law scholars
15. See, e.g., Allan C. Hutchinson, Les Misorables Redux: Law and the Poor, 2 S. CAL.
INTERDISCIPLINARY L.J. 199 (1993) (asserting law's incompetence in dealing with needs of poor).
The authors of two articles published in the early 1990s in the HarvardLaw Review, then one of the
most politically correct of student-managed law journals, appear to have shared this perspective. In the first.
ACLU attorneys staunchly defend the First Amendment rights of panhandlers. See Helen Hershkoff &
Adam S. Cohen, Begging to Differ: The FirstAmendment and the Right To Beg, 104 HARV. L. REv. 896
(1991). Hershkoff and Cohen pay no serious attention to the interests of other street users, including the
poor, women, and the elderly. See, e.g., id. at 903-04 (discussion of "self-realization" that considers only
rights of beggars, with no regard to self-realization prospects of, say, elderly people whom beggars might
scare off streets).
Two years later, the Harvard editors published a second article (which does not cite Hershkoff and
Cohen's article), which calls for vigorous legal regulation of wolf whistles and other sexual harassment of
women by strange men in public spaces. See Cynthia Grant Bowman, Street Harassmentand the Informal
Ghettoization of Women, 106 HARV. L. REv. 517 (1993). Bowman argues that the state has a compelling
interest in policing the streets to protect the liberty interests of female pedestrians. As it happens, there is
evidence that panhandlers disproportionately target women. George Wilson, Exposure to Panhandlingand
Beliefs About Poverty Causation, 76 Soc. & Soc. RES. 14, 16 (1991) [hereinafter Wilson, Exposure to
Panhandling].
A hyper-egalitarian would agree with the conclusions of both of these HarvardLaw Review articles
because both favor the most "subordinated" party at hand-destitute panhandlers, not ordinary pedestrians;
women, not men.
16. See, e.g., Hutchinson, supra note 15, at 215. Apparently, a street person is perceived as living
under circumstances disabling enough to excuse what otherwise would be culpable. For criticism of
recognition of a duress defense against prosecution for street misconduct, see infra text accompanying notes
98-106.
18. See, e.g., Hershkoff & Cohen, supra note 15; sources cited infra notes 21, 346, 350, 369.
have focused more on deterring police misconduct than on controlling

individuals who disturb the peace. For example, Caleb Foote's landmark article
on vagrancy law stressed issues of vagueness and excessive police
discretion. 9 Because criminal sanctions are but one of many possible forms of
social control, 20 authors who narrow their focus to police enforcement tend to
underappreciate other sources of order on the street.
Notable and forceful advocates of controls on street misconduct are
relatively more prominent in the literature beyond the law reviews. 2'
Urbanologist Jane Jacobs and criminologist Wesley Skogan have both stressed
that maintaining the invitingness of streets, sidewalks, and parks is essential
to the viability of an urban neighborhood.2 2 The well-known "broken windows"
thesis of James Q. Wilson and George L. Kelling also sounds this theme.
Wilson and Kelling assert that the persistence of a minor disorder not only
disturbs a neighborhood on its own account, but also, like an unrepaired
broken window, signifies that social controls are attenuated at that locale.
Passersby, sensing this diminished control, become prone to committing
additional, perhaps more serious, criminal acts.23 According to Wilson and
Kelling, unchecked street misconduct thus has a multiplier effect.
A specialist in property law approaches the issue of street order as a
problem not of speech or of crime, but of land management. Many lawmakers
and scholars have treated municipal lands as an undifferentiated mass. City
spaces, however, are highly diverse in character and are subject to hugely
varied demands. A central normative thesis of this Article is that a city's codes
of conduct should be allowed to vary spatially-from street to street, from park
19. Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603 (1956); see also
William 0. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE L.J. 1 (1960) (on use and misuse of
vagrancy statutes); Foote, supra, at 643-47 (describing procedural travesties). But cf. Rollin M. Perkins,
The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958) (laudatory assessment of vagrancy law).
20. See infra text accompanying notes 141-0.
21. To date, the most conspicuous outlier among law review articles has been Robert Teir, Maintaining
Safety and Civility in Public Spaces: A ConstitutionalApproach to Aggressive Begging, 54 LA. L. REv.
285 (1993). Teir is associated with the American Alliance for Rights and Responsibilities.
22. JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES (1961) [hereinafter JACOBS,
DEATH AND LIFE]. Jacobs begins what is perhaps the most influential book ever written on cities with three
chapters on the functions of sidewalks, stating:
The bedrock attribute of a successful city district is that a person must feel personally safe
and secure on the street among all these strangers. He must not feel automatically menaced by
them. A city district that fails in this respect also does badly in other ways and lays up for
itself, and for its city at large, mountain on mountain of trouble.
Id. at 30. Skogan sets out his views in WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE
SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS (1990), and similarly notes that "[v]isible physical and
social disruption is a signal that the mechanisms by which healthy neighborhoods maintain themselves have
broken down. If an area loses its capacity to solve even seemingly minor problems, its character becomes
suspect." Id. at 48.
23. James Q. Wilson & George L. Kelling, Broken Windows: The Police and NeighborhoodSafety,
ATLANTIC MONTHLY, Mar. 1982, at 29, 31-32. Mayor Giuliani's police commissioner is an unabashed
proponent of the thesis. See William J. Bratton, The New York City Police Department's Civil Enforcement
of Quality-of-Life Crimes. 3 J.L. & POL'Y 447, 448-50 (1995).
to park, from sidewalk to sidewalk. Just as some system of "zoning" may be

sensible for private lands, so may it be for public lands. 24
A more general normative thesis, seemingly embraced by the Berkeley
voters who in 1994 approved a crackdown ordinance in an advisory
referendum,25 is that destitute street users have not only rights, but also
responsibilities to behave themselves.26 Few urbanites seek an antiseptic
city-a Singapore or a replica of Disneyland's Main Street.27 However, if city
dwellers cannot enjoy a basic minimum of decorum in downtown public
spaces, they will increasingly flee from those locations to cyberspace, suburban
malls,28 and private walled communities. 29 While one must admire the
forcefulness with which legal advocates for street people have represented
some of the poorest, least powerful, and most ostracized of citizens, one must
also weigh the consequences of these advocates' constitutional arguments for
the future of American cities.
A preview of the body of the Article is in order. Part II draws first on the
law-and-economics literature on property rights to analyze a public space as
an open-access territory where users are prone to create negative externalities,
and then sharpens the concept of a chronic street nuisance. With a bow to Jane
Jacobs and others with a sociological perspective, Part III reviews the large
cast of actors-for example, not only the police, but also merchants,
pedestrians, and vigilantes-who can help discipline miscreants on the streets.
To introduce evidence of the potential of various social-control systems, Part
IV sketches the history of street disorder in the United States, with some stress
on the rise and fall of Skid Row. This historical overview depicts how judges
constitutionalized much of street law beginning around 1965. Part V compares
the informal zoning of public sidewalks (for example, the old Skid Row
system) with the formal zoning, by city ordinance, of spatially differentiated
24. In the case of both private and public lands, this zoning need not necessarily be carried out by
municipal officials. See infra text accompanying notes 311-28.
25. On December 8, 1994, the Berkeley City Council passed an ordinance identical to Measure 0, an
advisory measure that voters had approved on November 8, 1994. Elaine Herscher, Berkeley Council Oks
Curbs on Panhandling,S.. CHRON., Dec. 9, 1994, at A23. In the teeth of Ronald Reagan's presidential
landslide in 1984, Walter Mondale garnered 83% of the vote in Berkeley. Gerard De Groot, People'sPark,
Berkeley, California, HIST. TODAY, July 1993, at 62.
26. See generally AMITAI ETzIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES, AND THE
COMMUNITARIAN AGENDA (1993) (criticizing increase in rights and decrease in responsibilities rhetoric in
contemporary society); MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL
DISCOURSE 76-108 (1991) (urging greater legal stress on responsibilities); Linda C. McClain, Rights and
Irresponsibility,43 DUKE L.J. 989 (1994) (evaluating irresponsibility critique of increase in rights rhetoric).
27. See ALLAN B. JACOBS, GREAT STREETS 4, 8-9 (1993) [hereinafter JACOBS, GREAT STREETS]
(suggesting that, while street should be safe, it should also function as space for social encounters that are
not always pleasant).
28. In general, the private owner of a regional shopping mall has greater authority over the use of its
common areas than a city has over the use of open-access public lands. Private owners, however, are also
constrained to some degree. See Curtis J. Berger, Pruneyard Revisited: PoliticalActivity on Private Lands.
66 N.Y.U. L. REV. 633, 633-37, 678-90 (1991).
29. See Edward J. Blakely & Mary Gail Snyder, FortressCommunities: The Walling and Gating of
American Suburbs, LANDLINES (Cambridge, Mass.), Sept. 1995, at 1, 3.
rules of public conduct. Part VI analyzes the principal federal constitutional

issues that public-space zoning and related municipal restrictions on chronic
beggars and bench squatters might pose, and demonstrates that judicial
decisions have tended to encourage cities to formally zone their public spaces.
Part VII compares the merits of an informal zoning system and official public-
space zoning; it argues that a city's first-best approach is to be informal-that
is, to employ trustworthy police officers and to give them significant
discretion. I conclude with a lament about the excessive federal
constitutionalization of street law, which has inhibited cities from devising
localized solutions to the management of downtown spaces.
II. CHRONIC NUISANCES IN PUBLIC SPACES
In large cities in the United States, governments own as much as 45% of

the developed land area and allocate most of these public lands for use as
streets and highways.30 In a society that not only accepts, but exalts, private
property in land, why does one observe so much open-access land? The basic
reason is that private firms cannot feasibly collect tolls from entrants who use
spaces for no more than a few moments. 3' As a result, market forces alone
cannot supply an adequate number of transportation corridors such as streets
and sidewalks. Nor can markets readily provide, in downtown areas, squares
and parks for pedestrians to use briefly for gathering and relaxation.
Democratic ideals provide another rationale for public spaces. Mass
gatherings and mixings occur more frequently where there are numerous sites
that all can enter at no charge. To socialize its members, any society, and
especially one as diverse as the United States, requires venues where people
of all backgrounds can rub elbows. In Carol Rose's memorable phrase, there
must be sites for "the comedy of the commons. 32 For a romantic, the ideal
is to have some spaces that replicate the Hellenic agora or the Roman forum.
A liberal society that aspires to ensure equality of opportunity and universal
political participation must presumptively entitle every individual, even the
humblest, to enter all transportation corridors and open-access public spaces.33
30. John H. Niedercom & Edward FR. Hearle, Recent Land-Use Trends in Forty-Eight Large
American Cities, 40 LAND. ECON., at 105, 106 (1964); see also JACOBS, GREAT STREETS, supra note 27,
at 6 (in U.S. cities, public rights-of-way constitute 25% to 35% of developed land). Some government
lands, such as sewage treatment plants and school facilities, are limited-access.
31. Fora fuller discussion, see Robert C. Ellickson, Propertyin Land, 102 YALE L.J. 1315, 1381-87
(1993).
32. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public
Property, 53 U. CHI. L. REV. 711, 768-71, 774-81 (1986).
33. There inevitably are disputes over what spaces must be open to all. See, e.g., Evans v. Newton,
382 U.S. 296, 301-02 (1966) (Equal Protection Clause forbids racial discrimination by private trustees
whom Georgia court had appointed to operate park that served public functions).
A. The Tragedy of the Agora
A space that all can enter, however, is a space that each is tempted to
abuse. Societies therefore impose rules-of-the-road for public spaces. While
these rules are increasingly articulated in legal codes, most begin as informal
norms of public etiquette.
Rules of proper street behavior are not an impediment to freedom, but a
foundation of it. As Chief Justice Hughes put it, the regulation of public spaces
"has never been regarded as inconsistent with civil liberties but rather as one
of the means of safeguarding the good order upon which they ultimately
depend., 35 These rules are comparable to the use of Roberts' Rules of Order
in a meeting. As Alexander Meiklejohn and Harry Kalven, two First
Amendment stalwarts, have stressed, constraints such as Roberts' Rules
actually enhance the flow of speech by curbing disruptive tactics.36 Similarly,
to be truly public, a space must be orderly enough to invite the entry of a large
majority of those who come to it. 37 Just as disruptive forces at a town
meeting may lower citizen attendance, chronic panhandlers, bench squatters,
and other disorderly people may deter some citizens from gathering in the
agora.
William H. Whyte, one of the most creative observers of the urban scene,
convincingly asserts that the downtowns of many central cities have "[t]oo
much empty space and too few people. 38 In his pursuit of the commendable
goal of drawing more pedestrians back downtown, however, Whyte proceeds
to imply that cities should exert no controls on "undesirables," including
beggars and aggressive eccentrics.39 In his words:
The biggest single obstacle to the provision of better spaces is the

undesirables problem. They are themselves not too much of a
problem. It is the actions taken to combat them that is the problem.
34. On the sociology of sidewalks, see, e.g., Ralph B. Taylor et al., Block Crime and Fear: Defensible
Space, Local Social Ties, and TerritorialFunctioning, 21 J. RES. IN CRIME & DELINQ. 303 (1984).
35. Cox v. New Hampshire, 312 U.S. 569, 574 (1941).
36. See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 24-28 (1960); Harry Kalven, Jr., The Concept
of the Public Forum: Cox v. Louisiana, 1965 SuP. CT. REv. 1, 23-25 ("Speech has always been dependent
on some commitment to order and etiquette."). But see Hershkoff & Cohen, supra note 15, at 901-02
(arguing that presence of beggars on streets contributes to "town meeting" functions of public spaces).
37. The importance of participation in civic discourse is stressed in Frank Michelman, Law's Republic,
97 YALE L.J. 1493, 1495-96, 1505-06 (1988), and Cass R. Sunstein, Beyond the Republican Revival, 97
YALE L.J. 1539, 1555-56 (1988). For more venerable sources, including Aristotle and Hannah Arendt, see
Bowman, supranote 15, at 520-21 n.14.
N.J. CONsT. art. I, para. 18, reflects the same classical vision of the polis: "The people have the right
freely to assemble together, to consult for the common good, to make known their opinions to their
representatives, and to petition for redress of grievances." Remarkably, one judge construed this vision of
collective deliberation as a bar on a library's efforts to control a patron whose behavior and body odor were
driving away other users. See Kreimer v. Bureau of Police, 765 F. Supp. 181, 196-97 (D.N.J. 1991)
(Sarokin, J.), rev'd, 958 F.2d 1242 (3d Cir. 1992). For more on this litigation, see infra notes 367. 460.
38. WHYTE, supra note I, at 6.
39. See id. at 25, 55, 156-64.
Out of an almost obsessive fear of their presence, civic leaders worry

that if a place is made attractive to people it will be attractive to
undesirable people. So it is made defensive. There is to be no
loitering ... and ... no eating, no sleeping. So it is that benches are
made too short to sleep on, that spikes are put in ledges .... '4
Whyte's view of street life is overly romantic. He fails to discuss crime,

aggressive panhandling, squeegee men, graffiti, and the other forms of street
disorder that deeply concern most urbanites. In many public spaces, especially
ones less dense than midtown Manhattan (Whyte's main focus), the arrival of
true "undesirables" may trigger an exodus that results in a net loss of street
users overall. Because bringing back pedestrians is Whyte's main objective, he
should not ignore the difficult problem of identifying the sorts of
"undesirables"--surely muggers and armed robbers, for example-whose
presence would impair progress toward that objective.4' This Article seeks to
confront that issue not with the easy cases of muggers and robbers, but with
the hard ones of panhandlers and bench squatters.
B. The Concept of a Chronic Street Nuisance
What, if anything, should a society do when an individual perpetrates a

chronic street nuisance? This category, as I define it, refers to behavior that
(1) violates community norms governing proper conduct in a particular public
space (2) over a protracted period of time (3) to the minor annoyance of
passersby. Protracted, nonaggressive panhandling and bench squatting are
paradigm examples.
At first blush, a chronic street nuisance seems too minor a matter to be
worth anyone's attention, much less that of municipal authorities. An
individual victimized-even the word seems too strong-by this sort of
behavior experiences only a minor level of vexation, and usually only for an
instant. The encounter will generally not elicit comment, much less official
complaint, from a pedestrian. By contrast, an arrest for breach of the peace
typically involves behavior anomalous enough to provoke a buzz of
conversation among those who witnessed it.
40. Id. at 156.

41. Whyte is mystified that downtown civic leaders, businessmen, and retailers are preoccupied with
street misbehavior, and regards them as uninformed. See id. at 156-58. Because those individuals all have
a stake in revitalizing central cities, a more plausible interpretation is that they concur with more clear-eyed
observers, such as Jane Jacobs and Wesley Skogan, who recognize that disorder itself can cause a
streetscape to lose pedestrians. See supra text accompanying notes 21-23.
Allan Jacobs, another respected urbanologist, generally shares Whyte's obliviousness to the need for
social controls in public spaces. Jacobs's discussion of the decline of Market Street in San Francisco makes
no mention of the spiraling misbehavior along that street in the 1980s. See JACOBS, GREAT STREETS, supra
note 27, at 88-92.
Perhaps it is not surprising, then, that the crackdown ordinances of the

1990s generally have targeted, not chronic street nuisances, but single acts of
disorderly conduct, such as an aggressive solicitation, the act of lying down on
a busy sidewalk, or an instance of overnight sleeping in a park. Indeed, the
criminal justice system generally responds to troubling incidents,not to courses
of conduct over time (with some exceptions, such as racketeering). A number
of practical reasons explain this pattern. An incident is far more likely to
produce a complaining witness who will agitate for prosecution. Evidence is
easier to gather when the facts at issue involve behavior within a short time
frame.42 Furthermore, risks of discriminatory enforcement probably are higher
when police and prosecutors target chronic offenders.43
Because the criminal justice system now focuses primarily on troubling
incidents-on the spikes on the graph of street disorder-the ambient levels
of street disorder are likely higher than optimal. A few street people
disproportionately create an ambience of urban disorder: For example, a small
number of regulars account for both most panhandling" and most bench
squatting. 45 Although crackdown ordinances do not on their face address the
chronic behaviors that contribute to excessive ambient levels of disorder, it is
plausible that many pedestrians, who tolerate minor episodic street nuisances
as part of the hustle-and-bustle of the streets, would favor devising means for
42. For this reason, even if the residents of a city were mainly concerned about chronic street
nuisances, a city attorney might advise a city council only to target particular incidents.
43. One difficulty is providing a satisfactory legal definition of "chronic." This basically involves
choosing between a rule and a standard, a pervasive legal dilemma discussed infra text accompanying notes
460-61.
Some pertinent statutes employ a vague but flexible adjectival standard, such as "chronic," "repeated,"
or "inveterate." Cf. CAL. PENAL CODE § 647(2) (West 1872) (repealed 1961) (punishing as vagrant "every
beggar who solicits alms as a business"); id. § 647(11) (repealed 1961) (punishing as vagrant "every
common drunkard").
Judges might hold that due process requires that legal norms against chronic misconduct be articulated
more precisely as "rules," on the theory that a rule limits police discretion and provides better notice to
potential defendants. Such decisions might lead local legislators to approve ordinances that contain rather
arbitrary numerical breakpoints such as "three days in a row," or "an average of over ten hours a week for
a four-week period."
44. See Goldstein, Panhandlersat Yale, supra note 13, at 299, 314, 317 (in New Haven's York district
in 1991-1992, the dozen chronic panhandlers typically outnumltered transients by about four-to-one at any
point in time; nine of these regulars had worked that area for more than one year, and averaged four days
a week, five hours per day); Melinda Henneberger, On PatrolAgainst Subway's Panhandlers,N.Y. TIMES.
Jan. 16, 1994, at 23 (N.Y.C. transit police estimate that about 50 panhandlers regularly work subway trains;
while with journalist, patrol officers recognized all panhandlers they encountered).
Because the police tend to regard dealing with violent crime as their top priority, patrol officers
commonly are tougher on unfamiliar transients than on chronic street people whom they know to be
peaceable. See LEONARD BLUMBERG ET AL., SKID ROW AND ITS ALTERNATIVES 64 (1973) (discussing
Philadelphia); Goldstein, Panhandlers at Yale, supra note 13, at 345-46 (in New Haven, regular
panhandlers ally with police against transients).
45. In 1986, workers for an outreach program for the mentally ill in Central Park and the Upper West
Side tallied their monthly contacts with people who (as a journalist put it) "day after day, unless they
wander elsewhere for a time, are on a bench or sidewalk, or perched on a rock in the park." In an average
month, the staff was in contact with 479 regulars, but only 120 persons whom they saw just once. Daniel
Goleman, To Expert Eyes, City Streets Are Open Mental Wards, N.Y. TIMES. Nov. 4, 1986, at CI.
controlling chronic miscreants. The gravamen of the pedestrians' grievance is

the protractedness of the offense.46
1. Harms of Chronic Street Misconduct in General
For four interrelated reasons, the harms stemming from a chronic street
nuisance, trivial to any one pedestrian at any instant, can mount to severe
aggravation.47 First, because the annoying act occurs in a public place, it may
affect hundreds or thousands of people per hour. (Contrary to what some might
assert, views of offensive street conduct cannot be avoided simply by turning
one's eyes. 48) Second, as hours blend into days and weeks, the total
annoyance accumulates. Third, a prolonged street nuisance may trigger broken-
windows syndrome. 49 As time passes, unchecked street misconduct, like
unerased graffiti and unremoved litter, signals a lack of social control. This
encourages other users of the same space to misbehave, creates a general
apprehension in pedestrians, and prompts defensive measures that may
aggravate the appearance of disorder. For example, designers of a downtown
office building who anticipate bench squatting may place spikes in building
ledges. These spikes then serve as architectural embodiments of a social
46. The positive relationship between duration and severity of offensiveness is noted in RESTATEMENT
(SECOND) OF TORTS § 821B(2)(c) (1979) (on identification of public nuisance). See also 2 JOEL FEINBERG,
THE MORAL LIMITS OF THE CRIMINAL LAW: OFFENSE TO OTHERS 35 (1985) (severity of offense to others
turns in part on its duration).
47. There have been few academic studies about the sorts of street conduct that disturb, how much
they disturb, and how the level of harm varies with the passage of time. An exception is SKOGAN, supra
note 22, at 20-50 (report of results of field research in total of 10 neighborhoods in Chicago, Philadelphia,
and San Francisco).
48. This issue appears only to have been discussed in cases involving views of inanimate objects, as
opposed to persons. The Supreme Court has held that a city's interest in aesthetics may entitle it to control
the placement of billboards on private lands and of posters on public lands. See sources cited infra notes
385-86. These decisions recognize that it is often impossible for a pedestrian to turn away from a sight
either because he must maintain a particular line of vision to navigate, or because (as in the case of film
violence) the sight registers before he can avoid it. See Packer Corp. v. Utah, 285 U.S. 105, 110 (1932)
(Brandeis, J.) (."The radio can be turned off, but not so the billboard or street car placard."' (quoting State
v. Packer Corp., 297 P. 1013, 1019 (Utah 1931))). In the language of First Amendment doctrine, street
sights pose a mild form of the "captive viewer" problem. See Lehman v. City of Shaker Heights, 418 U.S.
298, 306-07 (1974) (Douglas, J., concurring). Justice Brennan had less sympathy for those seeking to
prevent expression offensive to passersby in public spaces; he believed viewers could simply look away.
Id. at 320 (Brennan, J., dissenting); see also Cohen v. California, 403 U.S. 15, 21 (1971) (Harlan, J.)
("Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities
simply by averting their eyes.").
Regulation of views of persons is more legally complex than regulation of views of objects such as
billboards. On the one hand, persons tend to be more intrusive presences because they can speak and move.
On the other hand, the regulation of personal appearance is potentially deeply threatening to individual
liberty, and may be a pretext for discrimination based on unalterable status. See infra text accompanying
notes 98-106. 329-451.
49. See supra text accompanying note 23. For evidence consistent with the broken-window theory,
see SKOGAN. supra note 22, at 65-75. Skogan contrasts that theory with Emil Durkheim's view that
deviancy enhances the solidarity of nondeviants. Id. at 66.
unravelling, accentuating the broken-windows signal." Fourth, some chronic

street offenders violate informal time limits. In open-access public spaces
suited to rapid turnover, norms require individual users to refrain from long-
term stays that prevent others from exercising their identical rights to the same
space. These norms support government time limits on the use of public
parking spaces and campsites. They also underlie informal cutoff points on the
use of, say, a drinking fountain on a hot day, a public telephone booth in a
crowded airport, or a playground basketball court." The longer an individual
panhandles or bench squats, the more likely pedestrians will sense that he is
disrespecting an informal time limit.5 2 Even street performers and solicitors
for charities, commonly well received when they first arrive at a public space,
may eventually wear out their welcomes.
In the case of a mild-mannered panhandler or bench squatter, the graph of
damage caused over time may be U-shaped. On first arrival, a new panhandler
or bench squatter in a downtown plaza may make the regular users of the
space apprehensive. After some time has passed, familiarity may allay these
users' worst apprehensions, and the regular users may adapt to some degree
to the newcomer's presence. Eventually, however, the marginal damage per
period of time may turn upward. Observers may be increasingly annoyed that
the street person is not only overusing scarce public space, but apparently has
not sought out employment, family assistance, or public aid.53 As columnist
Ellen Goodman has discerned, the phrase "compassion fatigue" expresses the
54
sentiment that "'enough's enough.'
50. See WHYTE, supra note 1,at 156. A proliferation of bench squatters similarly tends to lead to the
elimination of amply sized benches. See id. at 117; Alan Finder, Benches Removed from Subway Stations,
N.Y. TIMEs, Feb. 28, 1990, at BI; Goetz, supra note 3, at 545 (L.A. bus benches redesigned to prevent
them from being used for sleeping). The breakdown in social control is also causing developers to eliminate
ground-level public atriums and plazas from their designs. Joan Lebow, U.S. Cities' Physical StructureMay
Wane in Bid to Bar Vagrancy, Architect lVarns, WALL ST. J., May 26, 1989, at B3A. Zoning provisions
governing the Upper East Side of Manhattan used to encourage developers to provide open plazas; these
bonus provisions were then eliminated: "Planners want an uninterrupted wall of buildings because they say
public plazas have attracted drug users and crime." James C. McKinley, Jr., Zoning Changes Reduce Size
of East Side Projects, N.Y TIMES, Feb. 10, 1994, at B3.
51. Academic norms similarly constrain a student from talking at excessive length in class or
remaining for too many years in graduate study.
52. Cf.JACOBS, GREAT STREETs, supra note 27, at 300 (implying that police should enforce time
limits on bench squatters).
53. Cf.infra note 62 (Rousseau's loss of patience with boy beggar).
54. Ellen Goodman, Swarms of Beggars Cause "Compassion Fatigue," NEW HAVEN REG., Aug. 4,
1989, at A9.
2. Chronic Panhandling
The foregoing list of the harms of chronic street nuisances is general, and
ignores the benefits of these purposeful street activities. A more focused
look at panhandling and bench squatting can address these shortcomings.
a. Benefits of Panhandling
Panhandlers and at least some of their donors benefit from begging. 6 The
magnitude of these benefits depends on the opportunity costs incurred if the
panhandling were to cease and both panhandlers and donors had to resort to
their next best substitutes.
Consider the extent of a panhandler's loss from a prohibition on, say,
cadging in the subway. This loss would depend on the utility he could obtain
from, say, begging above ground, collecting cans and bottles, pursuing public
assistance, or landing a job. The costs of anti-begging measures in a well-
trafficked spot therefore fall particularly heavily on the most skillful
panhandlers, who can garner as much as twenty dollars per hour tax-free. 7
If he had employment options, an ordinary beggar, who takes in more in the
range of two dollars to ten dollars per hour,58 would likely lose less than
these professionals. 9
Some donors undoubtedly take affirmative pleasure in satisfying a request
for a handout.60 The magnitude of the losses sustained by almsgivers
55. Although cost-benefit analysis provides a fruitful perspective on issues of street disorder, it fails
to account for nonutilitarian considerations such as liberty, privacy, equality, and distributive justice. These
and other additional normative considerations are discussed infra text accompanying notes 96-127,
329-451.
56. Like any person who appears in public, an ordinary panhandler also conveys a number of
unintended political messages. Because these messages are unintended, First Amendment law rightly
accords them little weight. See infra text accompanying notes 354-60.
57. See WHYrE, supra note 1, at 49 (estimating that "professional blind beggars" on Fifth Avenue take
in at least an average of $100-$150 per day); Nicholas Dawidoff, The Business of Begging, N.Y. TiMEs,
Apr. 24, 1994, § 6 (Magazine), at 34, 40, 41 (describing two panhandlers who daily take in $200 each on
New York City subway and spend most of it on narcotics).
58. The fragmentary sources on panhandlers' receipts suggest that, in the early 1990s, most were
obtaining donations at roughly this rate. See O'FLAHERTY, supra note 1, at 82, 85-86 (stating that earnings
of most daytime street people, such as panhandlers and can collectors in Manhattan, amount to less than
minimum wage, and median panhandler in survey had reported income during prior week of $32.50 on best
day, and $2.50 on worst day); Goldstein, Panhandlersat Yale, supra note 13, at 314, 317 (estimating that
at Yale, middle range was $20 to $50 per five-hour day); Philip Hager, Weighing the Costs of Accosting,
CAL. LAW., Feb. 1994, at 35, 36 (citing 1992 Berkeley study finding that median panhandler took in $16
in eight-hour day). The panhandlers at Yale regarded their activity as far more remunerative than gathering
and returning cans, and also were generally "uninterested in working at the minimum wage." Goldstein,
Panhandlersat Yale, supra note 13. at 303: see also id. at 323 n.92. On the apparent decline in beggars'
receipts over the course of the first half of the 1990s, see infra note 300.
59. If a beggar were permanently disabled, his best use of time might be the pursuit of Supplemental
Security Income benefits. See infra note 122 and accompanying text.
60. In 1991-1992, panhandlers in the York district adjacent to Yale reported that 10%--20% of
pedestrians were inclined to give to them. Goldstein, Panhandlersat Yale, supra note 13, at 324. Yale
students were far more likely than others to give. Id. A 1994 survey of Yale Law students, with a response
frustrated by a ban on chronic panhandlers would turn on the quality of the

almsgivers' other alternatives for being charitable. In some cities, opponents
of panhandling have attempted to mitigate these losses by devising alternative
ways in which altruistic pedestrians can satisfy charitable impulses. 6'
The matter is complex, however, because many donors who give alms
report deep ambivalence about their gifts. Some regular donors even alter their
routes to avoid an encounter with a known beggar;62 these almsgivers would
be unlikely to complain if this opportunity to give vanished.
Some opponents of restrictions on begging assert that the most prevalent
religions in the United States unswervingly support the propriety of begging
and of giving to beggars. 63 This claim is at least misleading, if not untenable.
While leading religious texts do urge donors to initiate the giving of aid and
comfort to the poor, none of them encourages the needy to ask for alms by
64
begging. Islam, for example, urges donors to proffer alms to needy persons;
but it also exhorts the poor and hungry not to beg or otherwise publicize their
need.65 The Torah asks farmers to leave small amounts of grain and grapes
for the destitute to gather on their own, a policy that demands that a poor
person engage in self-help.66 Although the New Testament includes a number
of references to street beggars, none of its passages explicitly describes or
endorses a donor responding to an outstretched hand with the transfer of
material aid.67 Paul's Epistles, which stress the importance of self-support,68
rate of 31%, indicated that 57% sometimes gave either cash or vouchers to panhandlers. Robert M. Spector,
New Haven Cares: The Voucher Concept 84 & n.258, 108 (Dec. 31, 1994) (unpublished manuscript, on
file with author).
61. See No HOMELESS PEOPLE ALLOWED, supra note 6, at 100, 103 (on placement of "parking
meters" in downtown areas of Memphis and Nashville into which pedestrians can place coins as donations
to homeless-aid organizations); infra notes 168-69 and accompanying text. To provide a more satisfying
outlet for altristic pedestrians, O'Flaherty suggests that the government officials should consider
encouraging the Salvation Army to augment its street solicitations. See O'FLAHERTY, supra note 1, at
293-94 (arguing that result would be fewer street nuisances and perhaps more money for service programs).
62. Several law students who are consistently generous to panhandlers have informed me that they
occasionally cross a street to escape the moral dilemma that an encounter would pose for them. For a
poignant description of this feeling, see JEAN-JACQUES RoussEAu, REVERIES OF THE SOLITARY WALKER
93-94 (Peter France trans., Penguin Books 1979) (1782). After first taking pleasure in regularly giving to
a crippled boy who begged, Rousseau found these transfers "somehow transformed into a sort of duty
which [he] soon began to find irksome .... [I]n the end [he] unthinkingly adopted the habit of making
a detour when [he] approached this obstacle." Id.
63. See, e.g., Hershkoff & Cohen, supra note 15, at 899 n.17.
64. See, e.g., 3 Qur'an 17:27 (Surah AI-Fatihah & Surah AI-Baqara trans., 1988).
65. See, e.g., 1 id. 2:274. But cf. 1 id. 2:178. "The Holy Prophet [Muhammad] greatly disapproved
of begging and there are diverse sayings of his to that effect." I id. at 342 (commentary). See also the
commentary in 3 id. at 1428 ("Help may sometimes be denied to a seemingly needy person when it is
feared that the giving of it would have an adverse effect upon him; for instance, he may be a professional
beggar or may be addicted to some bad habit.").
66. See, e.g., Leviticus 19:9-10. For discussion, see Robert C. Ellickson & Charles DiA. Thorland,
Ancient Land Law: Mesopotamia, Egypt, Israel, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at
37-38, on file with author). While the Hebrew Bible contains many passages expressly sympathetic to the
poor, it makes no mention of street beggars.
67. The Synoptic Gospels of the New Testament strongly urge donors to initiate transfers of gifts and
services to the poor. See, e.g., Matthew 19:21, 25:35-43; Mark 10:21; Luke 14:13 (New Rev. Standard
Version). These passages support the operation of soup kitchens and shelters. See generally HARRY
speak explicitly to the contrary. Nor does any passage in the Bible excuse poor
persons from complying with the rules that generally govern behavior in public
spaces.
b. Harms of Panhandling
Most passersby regard even episodic panhandling as at least a minor

annoyance.6 9 Survey results indicate that many pedestrians react negatively to
panhandlers.7 0 Merchants, who have an incentive to accurately discern
customers' tastes, generally regard panhandling as bad for business. 71 When
being panhandled, a pedestrian of ordinary sensibility may feel some
combination of: aggravation that his privacy has been disturbed, resentment
that the panhandler's plea has a high probability of being fraudulent,7 2 and
fear.
In addition, panhandling may unintentionally worsen race relations in cities
where panhandlers are disproportionately black. The results of an experimental
study indicate that a black panhandler's actions tend to reinforce pedestrians'
negative stereotypes about blacks and to make them less supportive of causes
MURRAY, Do NOT NEGLECT HOSPITALITY: THE CATHOLIC VORKER AND THE HOMELESS (1990) (asserting
that giving shelter and food to homeless is ancient tradition that has recently been neglected).
Several New Testament passages also indicate the propriety of satisfying a request for a medical cure.
The Book of Mark and The Book of Luke report that when the blind beggar Bartimaeus, sitting by a
roadside, cried out to Jesus for mercy, Jesus asked, "What do you want me to do for you?" When
Bartimaeus answered, "let me see again," Jesus restored his sight. Mark 10:46-52; Luke 18:35-43; see also
John 9:1-11. It is not obvious what Jesus would have done had Bartimaeus asked for shekels. See Acts
3:1-10 (reporting how Peter cured beggar of lameness).
The account of Lazarus, the poor man "carried away by the angels" after death, conceivably supports
the legitimacy of begging. But while the King James translation identifies Lazarus as a "beggar," the most
widely accepted modem translation, the New Revised Standard Version, does not. CompareLuke 16:19-23
(King James) with Luke 16:19-23 (New Rev. Standard Version).
68. 1 Thessalonians5:14 (New Rev. Standard Version) ("[A]dmonish the idlers .... ); 2 id. 3:10-12
(New Rev. Standard Version) ("Anyone unwilling to work should not eat.").
69. The leading scholars of street disorder include panhandling among urban nuisances. See SKOGAN,
supra note 22, at 21 (panhandling is seen as "minor annoyance[]"); Wilson & Kelling, supra note 23, at
29-30 ("[W]e tend to overlook or forget another source of fear-the fear of being bothered by disorderly
people. Not violent people, nor, necessarily, criminals, but disreputable.., people: panhandlers, drunks,
addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed."). For an evocative discussion of the
psychological discomfort a panhandler may trigger in pedestrians, see Michael M. Bums, Fearing the
Mirror: Responding to Beggars in a 'Kinder and Gentler' America, 19 HASTINGS CONST. L.Q. 783,
797-802 (1992).
70. Young v. New York City Transit Auth., 903 F.2d 146, 149-50 (2d Cir.) (citing George Kelling
study of adverse reaction of subway riders to panhandlers), cert. denied, 498 U.S. 984 (1990); James N.
Baker, Don't Sleep in the Subway, NEWSWEEK, June 24, 1991, at 26 (referring to 1991 public opinion poll
commissioned by San Francisco Attorney's Office in which one-fourth of respondents stated that they
shopped less often in San Francisco because they had been "turned off by panhandlers").
7 1. DAvID A. SNOW & LEON ANDERSON, DOWN ON THEIR LUCK: A STUDY OF HOMELESS STREET
PEOPLE 161 (1993) (shop owners on drag adjacent to University of Texas campus in Austin "are convinced
that ... panhandlers scare off potential customers"); Goldstein, Panhandlersat Yale, supra note 13, at
331-33 (many Yale-area merchants regard panhandlers as bad for their businesses); see also infra text
accompanying notes 166-69 (on activities of merchants' associations).
72. See infra note 361.
that would benefit, blacks as a group. 73 This might be one reason why black
politicians in cities such as Atlanta and Washington, D.C., for example, have
supported anti-panhandling measures. 74
A pedestrian who encounters a familiar chronic panhandler is not likely to
be fearful because (by assumption) the beggar is someone known to be
unaggressive. In other respects, however, the encounter may be more annoying
than an encounter with an unfamiliar panhandler. A pedestrian who sees a
regular panhandler is likely to become increasingly irked that the supplicant
has not sought aid from charities and welfare agencies better able than
pedestrians to appraise desert.75
A chronic panhandler also annoys because he unintentionally signals social
breakdown on a number of fronts.76 First, a regular beggar is like an
unrepaired broken window-a sign of the absence of effective social-control
mechanisms in that public space. 77 Second, the activity of begging, unlike
many other forms of street nuisance behavior, is likely to signal erosion of the
work ethic. All human societies attempt, in various fashions, to induce their
members who are capable of work to pull an oar.78 Judged by Kant's
Categorical Imperative, begging is a morally dubious activity; if everyone were
to try to survive as an unproductive person living off the charity of others, all
would starve. A pedestrian who sees an apparently employable person begging
79
may sense the degeneration of one of the most fundamental social norms.
73. David Rosenfield et al., Effect of an Encounter with a Black Panhandleron Subsequent Helping
for Blacks: Tokenism or Confirming a Negative Stereotype?, 8 PERSONALITY & SOC. PSYCHOL. BULL. 664
(1982). "Research has shown that part of the whites' stereotype of blacks is that blacks are lazy and lacking
in ambition and industriousness." Id. at 669 (footnote omitted).
74. See infra text accompanying note 341.
75. See supra note 53 and accompanying text; see also Christopher Edley, Jr., Season's Seethings: I
Am Not a Pointof Light, LEGAL TIMES, Dec. 18, 1989, at 26 (referring to his own application of "bizarre
exhaustion-of-administrative-remedies principle").
Edley, a Harvard Law professor, regards the multitude of beggars in Harvard Square as indicative of
the inadequacies of government social-welfare programs. Id. More plausibly, it suggests the generosity of
local welfare efforts. In the 1990s, panhandling has been most common in Berkeley, New York, San
Francisco, Washington, D.C., and other cities that have relatively expansive social-welfare programs. It
appears that taxpayers willing to support relatively generous welfare programs are also relatively more
inclined to give to panhandlers. Panhandlers have no trouble recognizing these realities. The high incidence
of beggars in Harvard Square therefore says little or nothing about the relative destitution of the Cambridge
poor, but much about the relative generosity of Harvard pedestrians and voters. This point was well
understood in the late nineteenth century. "Beggars increase in number in proportion to the means provided
for their relief." C.G. Tiedeman, Police Control of Dangerous Classes, Other Than by Criminal
Prosecutions, 19 AM. L. REV. 547, 567 (1885).
76. For fuller discussion of the various inferences that pedestrians may draw, see infra text
accompanying notes 354-60.
77. "The unchecked panhandler is, in effect, the first broken window." Wilson & Kelling, supra note
23, at 34; see also supra text accompanying notes 22-23.
78. See Robert C. Ellickson, The Untenable Casefor an UnconditionalRight to Shelter, 15 HARV. J.L.
& PUB. POL'Y 17, 20-24, 32-34 (1992) [hereinafter Untenable Case].
79. For clues that the work ethic indeed is in decline, see CHRISTOPHER JENCKS, RETHINKING SOCIAL
POLICY: RACE, POVERTY, AND THE UNDERCLASS 150 (1992) [hereinafter JENCKS, RETHINKING] (reporting
that proportion of heads of poor households under age 65 who did not work all year and were not excused
from work by disability or enrollment in school rose from 12.3% in 1968 to 21.8% in 1987). This trend,
however, may also reflect a drop in demand for unskilled labor.
Doubtless this is why writers from Plato onwards have been particularly harsh
on beggars as opposed to, say, street drunks.80
3. Chronic Bench Squatting
For several reasons, pedestrians may regard chronic bench squatting as less
annoying than chronic panhandling. The chronic bench squatter is far more
likely to be genuinely mentally ill or disabled, and therefore deserving of
empathy. Unlike panhandling, the act of bench squatting also does not in itself
flagrantly affront the work ethic or involve an intrusion on privacy.
Like panhandling, bench squatting is an activity that involves benefits as
well as costs. How much benefit does a mentally ill bench squatter obtain from
an entitlement, say, to spend daylight hours sleeping on a bench in Lafayette
Park across from the White House? As in other contexts, the magnitude
depends on the quality of the bench squatter's next best alternatives. These
might include: squatting in another public locale better suited to long-term
stays; cycling among a number of public places (including Lafayette Park);
spending more daylight hours indoors (perhaps in a board-and-care facility, a
drop-in center, a rented apartment, or a relative's home); and voluntarily
initiating institutionalization. Because the first alternatives listed are close
substitutes, the benefits of an entitlement to bench squat in a particular location
such as Lafayette Park are apt to be small. Whether a prohibition on chronic
bench squatting in 95% of a downtown area would be highly burdensome
would depend on how satisfactory the sites in the remaining 5% would be."'
Because of the paucity of research on bench squatting, little is known
about pedestrians' reactions to the practice.8 ' The most flagrant examples
involve offenses to a number of the senses. A man who sits in a well-
trafficked space amid shopping carts full of junk, who stinks with body odor,
and who urinates publicly into plastic jugs, is likely to trigger frequent
complaints to the police.83 A woman who sleeps on a busy sidewalk, who
smells of feces, and who shouts obscenities 84 certainly engages in offensive
behavior, and may also engender fears of crime and communicable disease.
More commonly, the cues of disorderliness are primarily visual. Even a person
who squats for only one day may be resented for doing things, such as
sleeping for hours and storing personal effects, that are regarded as inherently

82. The chronicle of a particular bench squatter in the Lincoln Park neighborhood of Chicago is
brilliantly and sympathetically recounted in Jeffrey Zaslow, Jim's Saga: Homeless Man Haunts a Gentrifted
Enclave, Baffling Its Residents, WALL ST. J., Dec. 1, 1986, at 1.
83. See id.
84. See Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d 71, 73-74 (App. Div. 1987).
85. See Zaslow, supra note 82, at I.
1184 The Yale Law Journal [Vol. 105:!1165
improper for the public space in question. Subways are not for prolonged
sleeping, and neither is Bryant Park in midtown Manhattan.
As this discussion suggests, the magnitude of pedestrians' harms from
bench squatting increases with the inelasticity of pedestrian demand for the
space in question. The spectacular and unrivaled views from Lafayette Park
and Palisades Park, for example, make them suitable for quick tourist stops and
brief romantic strolls. However decorous his behavior at any instant, a chronic
bench squatter in a congested space that is designed for rapid turnover may be
an egregious violator of an implicit time limit.8 6 A retired executive who
wishes to read the whole of Proust should not be permitted to sequester the
public bench with the best view of the White House.
C. A Recommended DoctrinalDefinition of a Chronic Street Nuisance
The varied enforcers of street norms, including nonstate entities, s7 can

benefit from having a test for identifying chronic street misconduct. Law,
particularly the traditional law of public nuisances, suggests some formulations
that any of these enforcers could use.88
1. A ProposedPrima Facie Case
Public-nuisance law, a stepchild of the far more analyzed private-nuisance

law, 89 deals in part with pervasive harms, usually minor at any instant, that
persist for a long duration to the injury of the general public. 90 Unless a
86. See supra text accompanying notes 51-54. Some judges appear oblivious to this point. See
Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1063-64 (S.D.N.Y. 1995) (holding
Amtrak abridged rights to travel of persons arrested for hanging out for too long in Penn Station).
88. The Coase Theorem offers the reminder that it conceivably would be possible for victims of a
nuisance to bribe the offender to cease. For example, a restaurateur might bribe a chronic panhandler to
move to another location. While the Coasian insight is invariably thought-provoking, a legal system has
two sound reasons for choosing to entitle the public to be free of, say, nuisance panhandling, rather than
to entitle panhandlers to ply their trade. First, as a matter of corrective justice, the violation of social norms
should not become an avenue for profit. Second, post-Coasian analysis requires attention to asymmetries
in transaction costs. When the vast majority of members of a community honor a norm prohibiting certain
behavior, it is administratively cheaper to punish the few violators of the norm than to reward the many
in compliance with it. More concretely, if a restaurateur had to buy off would-be panhandlers, many
destitute people might flock to the restaurant to negotiate a deal of this nature. An advantage of deterring
substandard behavior with penalties is that fewer transactions need be closed. See Robert C. Ellickson,
Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHi. L. REV.
681, 728-33 (1943) [hereinafter Alternatives to Zoning].
89. For examination of the kindred private-nuisance doctrines that apply to disputes among private
landowners, see, e.g., id. at 719-61; Richard A. Epstein, Nuisance Law: Corrective Justice and its
UtilitarianConstraints, 8 J. LEGAL STUD. 49 (1979).
90. See RESTATEMENT (SECOND) OF ToRs § 821B(l) (1979): "A public nuisance is an unreasonable
interference with a right common to the general public." According to the CaliforniaCivil Code, a nuisance
is "[a]nything which is ... offensive to the senses ... or unlawfully obstructs the free passage or use, in
the customary manner, of. . . any public park, square, street, or highway." CAL. CIV. CODE § 3479 (West
1970). According to the Code, a public nuisance "affects at the same time an entire community or
member of the public has suffered special injury, a public nuisance typically
is remediable solely by public officials, who may seek abatement orders or
imposition of (usually minor) criminal penalties. 9' Public-nuisance doctrine
properly pays heed to both the value of the annoying activity to its sponsor and
the magnitude of the harm to the public.92
a. The Proposal
The following test (for lawyers, prima facie case) can serve to identify the
gravamen of the offense: A person perpetratesa chronic street nuisance by
persistently acting in a public space in a manner that violates prevailing
community standards of behavior,to the significantcumulative annoyance of
persons of ordinary sensibility who use the same spaces. This is a strict-
liability test, like that for a public nuisance; there is no required element of
negligence or wrongful intent. 93 A strict-liability test is readily administrable,
a distinct advantage in light of the many actors who engage in social control
of street behavior. The proposed standard is also democratic, because virtually
everyone is a street user and helps shape street norms through highly diffuse
neighborhood, or any considerable number of persons." Id. § 3480.

The Model Penal Code attempts to shoehorn public-nuisance infractions into the crime of disorderly
conduct, which rarely shares the durational feature of a nuisance. See MODEL PENAL CODE § 250.2 cmt.
2 (1985). True to the temper of the 1970s, see infra text accompanying notes 236-46, the comments that
follow § 250.2 seem far more focused on the risk of police misconduct than on the risk of offensive street
behavior.
91. See RESTATEMENT (SECOND) OFTORTS § 821C(l) (1979) (on special injury); id. § 821C(2)(b) (on
actions by public officials to abate public nuisances); W. PAGE KEETON ET AL., PROSSER AND KEETON ON
THE LAW OF TORTS § 90 (5th ed. 1984) (describing how state can seek court order to abate or initiate
criminal prosecution).
92. See 2 FEINBERG, supra note 46, at 5-10, 25-49 (drawing on nuisance law to inform analysis of
problems of public offense). But see Harlon L. Dalton, "Disgust" and Punishment, 96 YALE LJ. 881,
901-09 (1987) (reviewing Feinberg) (arguing that reactions of disgust are culturally derived and therefore
should be beyond reach of criminal law).
93. See Robert Abrams & Val Washington, The Misunderstood Law of Public Nuisance: A
Comparison with Private Nuisance Twenty Years After Boomer, 54 ALB. L. REv. 359, 367-74 (1990)
(standard of liability in public-nuisance action is strict); see also RESTATEMENT (SECOND) OF TORTS §
821B cmts. c & e (1979) (advocating strict liability for activity declared to be public nuisance by statute).
Instead of being judged by a strict-liability test, individual patterns of street behavior might be
subjected to cost-benefit analysis, such as the Learned Hand formula for negligence articulated in United
States v. Carroll Towing Co., 159 F.2d 169, 173 (1947). See RICHARD A. POSNER, ECONOMIC ANALYSIS
OF LAW 163-67 (4th ed. 1992). If the street behavior were to cease, would pedestrians value their gains
more than the street person would disvalue having lost the opportunity to engage in it? A decisive
drawback of this negligence approach is that actual attempts to quantify costs and benefits tend to be either
fanciful, unacceptably costly to carry out, or both.
In economics, cost-benefit analysis involves application of the Kaldor-Hicks criteria. See id. at 13-15.
Especially because many panhandlers and bench squatters are destitute, the outcome of a Kaldor-Hicks
calculation may turn on how the entitlements are originally allocated. On the general point, see Richard
S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determinationof Legal Entitlements, 36
STAN. L. REv. 1169, 1188-98 (1984) (discussing indeterminacy in cost-benefit analysis).
and pluralistic social processes. 94 That there is little variation in the tastes for
street order between, for example, rich and poor, and black and white, should
help reassure those worried about possible biases in the approach. 95
b. The Inadequacy of an "Effect on the Street Headcount" Test
Alternatively, the test for the existence of a street nuisance might be

whether the conduct at issue results in a net decrease in the population in the
public space in question. Because the street person himself would be adding
one to the headcount, the question would be whether his behavior was
displacing more than one other person, on average.
Although this "headcount test" has some rough-and-ready appeal, it has
both practical and conceptual shortcomings. Except in extreme cases,
convincing proof of both trends in headcounts and the causes of those trends
would be impossible to acquire; in a bustling public space, far too much is
going on. In addition, the headcount test ignores the effects of chronic street
misconduct on the amount of inframarginal surplus that various users of public
spaces obtain. Pedestrians might continue to use a Lafayette Park because they
lack any good substitute for it, even though it has become far less pleasurable.
Panhandlers tend to locate themselves at spaces with few substitutes-at transit
stops, theater entrances, university bookstores-precisely to exploit this
"captive pedestrian" phenomenon. Finally, the headcount test does not take into
account how long the occupants of a particular space have been there. In
places such as Lafayette Park that are suited to rapid turnover, a short-term
user can be expected to gain more utility per minute than a long-term user
would, but the headcount test would treat the two different sorts of users
97
identically.
c. Only Acts, Not a Status, Can Create a Nuisance
The proposed legal definition of a chronic street nuisance requires a

voluntary course of action such as protracted panhandling or day-after-day
bench squatting. Both classical-liberal ideals and the Constitution demand that
the law of street nuisances regulate a person's choices, not some unalterable
94. Feinberg rightly warns against blanket imposition of the standards of the hypersensitive. 2
FEINBERG, supra note 46, at 33-34. But cf. infra text accompanying note 310 (provision of Green Zones
for the delicate).
96. Carl Goldfarb & Joseph Tanfani, Fight Rages Over Business Plans for Bayfront Land, MIAMI
HERALD, May 4, 1992, at IB (only homeless and police officers frequent Bicentennial Park in downtown
Miami); cf. supra note 3 (some residents of Santa Monica stopped picnicking in the city's Palisades Park
when bench squatters took over there).
97. See supra text accompanying notes 51-54.
status. 9 In particular, it is impermissible to criminalize either the status of

poverty or the status of homelessness (lack of regular access to a permanent
dwelling). To take advantage of this legal doctrine, some advocates for street
people have striven to characterize municipal crackdown ordinances that
purportedly target behavior as actually targeting status. 99
Many advocates sincerely believe that street people are so constrained by
economic and social circumstances that they lack real choices.' Most
(although not all) social-welfare professionals hold the view that poor people
always act under duress; according to this view, society should not "blame"
poor people or, under an extreme formulation, ask them to bear any
responsibilities.' 0 ' While no one's will is fully free, virtually all of us have
some capacity for self-control. Legal and ethical systems therefore properly
subscribe to the proposition-or salutary myth-that an individual is generally
responsible for his behavior. This policy, at the margin, helps foster civic
rectitude.
To treat the destitute as choiceless underestimates their capacities and, by
failing to regard them as ordinary people, risks denying them full humanity.
Street people daily face fundamental decisions about where to eat, sleep, and
pass time.10 2 More than persons living lives structured by families and
employers, a street person must individually craft a daily routine.
Begging, for example, is an option, not an inevitability. Only a small
percentage of disabled and destitute individuals engage in panhandling.' 0 3
Brandt Goldstein found that most panhandlers at Yale had consciously weighed
alternatives, including holding a low-status, minimum-wage job.' °4 There is
98. See MODEL PENAL CODE § 2.01 (1985) (stating that "voluntary act" typically is prerequisite for
criminal culpability); infra text accompanying notes 443-51 (on status crimes).
99. See, e.g., No HOMELESS PEOPLE ALLOVED, supra note 6, at 6 (construing municipal efforts to
control street misconduct as "impulse to criminalize poverty"). As the court noted in Streetwatch v.
National R.R. Passenger Corp., 875 F. Supp. 1055, 1066 (S.D.N.Y. 1995) (Motley, J.):
Defendants contend that the court should either concur in their labeling of the homeless as a
criminal class or give weight to a perceived public interest in avoiding the aesthetic discomfort
of being reminded on a daily basis that many of our fellow citizens are forced to live in abject
and degrading poverty. The court cannot endorse either of these proposals.
100. See, e.g., Donald E. Baker, Comment, "Anti-Homeless" Legislation: UnconstitutionalEfforts To
Punish the Homeless, 45 U. MIAMI L. REv. 417 (1990-91) (arguing that a number of defenses protect
homeless from criminal prosecution for sleeping in streets or parks); David M. Smith. Note, A Theoretical
and Legal Challenge to Homeless Criminalizationas Public Policy, 12 YALE L. & POL'Y REv. 487 (1994)
(arguing that status of being homeless should constitute duress defense in event of criminal prosecution for
"survival" activities); Letter from Maria Foscarinis to author (July 30, 1995) (on file with author)
(embracing view that legal system should first "correct the conditions which contribute to or require" street
misconduct before it seeks to correct misconduct itself).
101. See RICHARD W. WHITE, JR., RUDE AWAKENINGS: WHAT THE HOMELESS CRISIS TELLS US
169-88 (1992) (describing this ideology and demonstrating its pervasiveness).
102. On the resourcefulness and resilience of Austin street people, see SNow & ANDERSON, supranote
71, at 313-16.
103. See ROSSI. supra note 3, at 109 (20.6% of homeless in Chicago study had received income from
"handouts" during prior month); Spector, Vouchers for Panhandlers,supra note 5, at 20 (citing Santa
Barbara survey reporting that only 7% of users of city shelters panhandled).
104. See supra note 58.
abundant evidence that chronic beggars premeditate how to increase the alms
they receive.'0 5 Bench squatters also have many choices about where to
be, 0 6 and plenty of time to move from place to place. In sum, panhandling
and bench squatting are acts, not statuses.
2. Defenses Available to Those Who Cause Chronic Street Nuisances
Most commentators on street law stress the goal of limiting abuses not by
street people, but by police officers. 0 7 The appropriate goal is to minimize
the net costs of abuses by both. A variety of doctrines can safeguard street
people from police misconduct. An important one-the inclusion of an "act"
requirement in the prima facie case-has been mentioned. The recognition of
a variety of affirmative defenses is also appropriate.' Part VI, which
focuses on some constitutional dimensions of street law, identifies and
discusses the appropriate scope of several constitutionally grounded defenses.
The main ones are equal protection (to bar discrimination on the basis of race
or some other suspect classification), freedom of speech, and freedom of travel.
Because street people (and especially bench squatters) disproportionately
suffer from mental illness, the issue of the availability of an insanity defense
arises.' 0 9 Significant portions of premier urban places such as Lafayette Park,
Central Park, and Palisades Park in effect have been converted from spaces for
general public use into outdoor mental wards whose ambiences repel many
would-be entrants. While the disorderly mentally ill surely have a right to
chronically occupy some public spaces, it is absurd to allow them to
monopolize the best urban parks to the exclusion of so many other users."'
Several legal policies have combined to lead to the current impasse.
Traditionally, the insanity defense has been available in all criminal
proceedings. This implies that police officers cannot invoke the formal criminal
justice system to compel the disorderly mentally ill either to behave themselves
or to "move along" to other locations."' Beginning in the 1960s, the legal
system also made the involuntary civil commitment of the mentally ill
extremely difficult."' As a result, social workers also rarely are able to direct
mentally disabled bench squatters to relocate from the agora to a remoter
haven of less value to the ordinary pedestrian.
105. See sources cited supra notes 57-58.

106. See supra text accompanying note 81.
107. See sources cited supra note 19.
108. Cf. Alternatives to Zoning, supra note 88, at 748-61 (on defenses in private-nuisance cases).
109. On the general issue, see MODEL PENAL CODE §§ 4.01-.09 (1985).
110. See infra text accompanying notes 301-28 (on "zoning" of public spaces).
I11. The development of § 1983 law since the 1960s has likely made the police more respectful of
this constraint. See infra text accompanying notes 260-67.
112. See infra text accompanying notes 254-59. The exceptions involve extreme facts, such as those
in Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d 71 (App. Div. 1987). See supra note 14.
In short, the legal system formally permits only the most extreme
responses to a mentally ill person who misbehaves in public: either involuntary
civil commitment to an institution, or no constraints at all. Expanding the range
of permissible legal responses would spare all involved from the application
of one of these extremes. Institutionalization involves a drastic loss of
freedom." 3 At present, when a mentally ill woman chronically ruins the
peace of a busy Manhattan sidewalk," 4 officials cannot simply compel her
to relocate to another public space where she would cause far less harm. She
herself might prefer that outcome to bearing the risk of involuntary
commitment.
A legal rule that prohibited a person from raising the insanity defense
against a "move along" order or a prosecution for a minor criminal infraction
in a public space therefore might actually enhance the liberties of the mentally
ill, and also promote the freedom of ordinary pedestrians to use prime public
spaces. This doctrinal reform would probably only formalize what already
occurs. In practice, the insanity defense commonly is not available to those
cited for driving under the influence or violating traffic rules." 5 Similarly,
one doubts if mental illness actually operates to excuse persons prosecuted for
infractions such as aggressive panhandling or illegally sleeping overnight in a
public park. On this issue, the law in action may be both different and sounder
than the pure theory of criminal responsibility.
D. Distributive Justice and the Destitute
Most beggars and bench squatters are economically and socially

destitute." 6 For observers concerned primarily with distributive justice,
extreme poverty might furnish another defense against prosecution of chronic
street misbehavior-indeed a sufficient reason for siding with a disorderly
street person in any policy context." 7 This is an ill-considered position. To
13. For this reason, I generally applaud the deinstitutionalization movement. See Stephen J. Morse,
A Preference for Liberty: The Case Against Involuntary Commitment of the Mentally Disabled,76 CAL.
L. REV. 54 (1982).
114. See Boggs, 523 N.Y.S.2d 71.
115. State v. Ungerer, 621 N.E.2d 893 (Ohio Ct. App. 1993) (affirmative defense of not guilty by
reason of insanity is not available to defendant charged with violating traffic laws); State v. Maguire, 717
P.2d 226 (Or. Ct. App. 1986), aff'd by equally divided court, 736 P.2d 193 (Or. 1987) (driving while under
influence of intoxicants is strict-liability crime, and statutory defense of lack of capacity is not available).
But cf. State v. Olmstead, 800 P.2d 277 (Or. 1990) (amended Oregon statute makes insanity defense
available to defendant accused of driving while intoxicated and without license, even though both are strict-
liability offenses). A person found guilty except for insanity commonly is subject to a variety of
noncriminal sanctions. See, e.g., OR. REV. STAT. § 809.410(23) (1993) (person who, but for insanity
defense, would have been guilty of traffic offense shall have driving privileges immediately suspended).
116. See infra notes 190-98.
117. See supra text accompanying notes 15-16. Supporters of this view commonly invoke the
following quotation from Anatole France: "[The poor] must labour in the face of the majestic equality of
the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their
bread." ANATOLE FRANCE, THE RED LILY 91 (Winifred Stephens trans., Dodd, Mead & Co. 1927) (1894).
favor the poorest may disadvantage the poor, who are as unhappy with street
disorder as the rest of the population."18 Because residents of poor urban
neighborhoods tend to make especially heavy use of streets and sidewalks for
social interactions, "9 they have an unusually large stake in preventing
misconduct there.
Furthermore, even if the redistribution of wealth were the primary policy
objective, protecting perpetrators of street misconduct from legal regulation
might not be the best way of achieving it. Law-and-economics scholars have
reached a growing consensus that wealth redistribution is almost invariably
better accomplished through broad-based welfare and taxation programs than
through the fine-tuning of low-level legal rules. 20 Lawmakers would be
unwise to abandon otherwise appropriate rules-of-the-road simply to provide
aid to street people. If redistribution is to be carried out, families, charities, and
welfare agencies know far more than judges about who is deserving of aid.
Judges should rebuff advocates' efforts to sacrifice street law on the altar of
income redistribution.
For many observers, the increased outlays for welfare programs since the
1960s make this hardheaded conclusion easier to stomach. In the United States,
the percentage of GNP allocated to federal means-tested benefits roughly
tripled between 1965 and 1975 and remained at the higher level at least
This sentence appears in a novel, embedded in a lengthy monologue delivered by the character M.
Choulette, a 50-year-old Bohemian poet and drunkard whose "violent prose and savage mien were
affectations." Id. at 6, 27-29, 94.
Many legal rules in practice primarily affect a small portion of the population. For example, law in
its "majestic equality" also imposes estate taxes that only the very wealthy are compelled to pay, and
requires both urbanites and ruralites to comply with regulations on crop-dusting. It is instructive to treat
Choulette's lament as a pleading invoking the Equal Protection Clause. According to that body of doctrine,
proof of disproportionate impact on the poor (or any other group) is not sufficient to state a claim for relief;
Choulette would also have to show that the legislature was motivated by discriminatory intent, and that the
legitimate objectives the legislature was pursuing were not weighty enough to justify the disproportionate
impact on the complaining group. Attorneys for the homeless are highly unlikely to prevail on an equal
protection theory when challenging a restriction on outdoor sleeping or begging. See supra notes 13-14,
69-86 and accompanying text; infra notes 335-38. 395-401 and accompanying text. In general, a person
concerned with broad questions of distributive justice should consider the impact of the entire system of
laws, not narrow statutes in isolation.
118. See SKOGAN, supra note 22, at 56 (reporting +.88 correlation in assessments of street disorder
among higher- and lower-income respondents, and +.87 correlation between blacks and whites). Rawls's
Difference Principle accords particular concern to the "least advantaged members of society." JOHN RAWLS,
A THEORY OF JUSTICE 76-80 (1971). A devotee of this principle might be willing to sacrifice the welfare
of the many poor for the benefit of a few of the poorest (a category into which bench squatters are more
likely than panhandlers to fit).
119. See GERALD D. SutLES, THE SOCIAL ORDER OF THE SLUM 73-83 (1968) (describing Addams
area of Chicago).
120. See A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 119-27 (2d ed. 1989);
Louis Kaplow & Steven Shavell, Why the Legal System is Less Efficient than the Income Tax in
Redistributing Income, 23 J. LEGAL STUD. 667, 667-77 (1994). Although these authors focus on private
law rules, their conclusions can be extended to encompass criminal law rules as well. There are, to be sure,
dissenters. See, e.g., Guido Calabresi, The Pointlessnessof Pareto:Carrying Coase Further,100 YALE LJ.
1211, 1223-27 (1991) (distributional issues can never be avoided unless one is willing to make
interpersonal comparisons of utility); Eric A. Posner, ContractLaw in the Welfare State, 24 J. LEGAL STUD.
283 (1995) (defending restrictive contract law on ground that it helps deter excessive borrowing).
through the early 1990s. 12 1 Although many social-welfare programs are

aimed at families and the elderly, single street people may qualify under
several significant ones. For example, an impoverished schizophrenic bench
squatter or other totally disabled person is eligible for federal cash benefits
under either the SSDI or SSI programs. 122 In some states, even an
employable panhandler may qualify for General Assistance checks. 123 During
the 1980s in particular, governments and charities significantly increased in-
kind aid to the homeless. Between 1984 and 1988, the bed capacity of
emergency shelters nationwide is estimated to have jumped from 100,000 to
275,000.124 The Stewart B. McKinney Homeless Assistance Act of 198725
introduced new federal programs for street people and boosted funding for
soup kitchens and other services. Although the total number of people in the
various "homeless" categories 126 undoubtedly rose during the 1980s, levels
of aid apparently grew even faster. 27
E. Why "Homeless" Tends to Be a MisleadingLabel
The previous paragraph includes several references to the "homeless." This

term is commonly applied to all poor people-including those who reside in
121. Federal outlays under major means-tested programs (excluding veterans pensions) increased from
0.53% of GNP in 1965 to 1.67% in 1975. Between 1975 and 1989, the percentage fluctuated between a
low of 1.62% (1979) and a high of 1.86% (1983). A new peak of 1.95% was reached in 1990. GENE FALK
& RICHARD RIMKUNAS, 1992 BUDGET PERSPECTIVES: FEDERAL SPENDING FOR THE SOCIAL WELFARE
PROGRAMS tbl. 5.4 (Cong. Res. Serv. Rep. 91-280 EPW, Mar. 22, 1991).
122. These are the Social Security Disability Insurance program and the means-tested Supplemental
Security Income program. In 1992, 3.5 million disabled workers were receiving SSDI benefits, and another
5.6 million individuals were receiving SSI benefits. See BUREAU OF THE CENSUS, U.S. DEP'T OF
COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1994, at 373, 376 (1994) [hereinafter
STATISTICAL ABSTRACT 1994].
123. For a discussion of the Illinois program, see ROSSI, supra note 3, at 191-93 (stressing low level
of benefits). Seven of the twelve regular panhandlers at Yale received General Assistance benefits; three
of the seven also received food stamps. Goldstein, Panhandlersat Yale, supra note 13, at 309-10. In 1993,
80% of the residents at the Sunshine, the largest of the remaining Bowery lodging houses, were receiving
public assistance. Alexander Kadvan, The Bowery Lodging House: The Forgotten Housing of the Poor 40
(May 14, 1993) (unpublished manuscript, on file with author).
124. OFFICE OF POLICY DEV. & RESEARCH, U.S. DEP'T OF Hous. & URBAN DEV., A REPORT ON THE
1988 NATIONAL SURVEY OF SHELTERS FOR THE HOMELESS 2 (1989) [hereinafter NATIONAL SURVEY OF
SHELTERS].
125. Pub. L. No. 100-77, 101 Stat. 482 (1987). On the evolution of this legislation, see Maria
Foscarinis, Beyond Homelessness, 12 ST. LOUIS U. PUB. L. REV. 37 (1993). Because many McKinney Act
programs are highly particularized, they are ripe for being folded into block-grant programs.
127. Nationwide expenditures by shelter operators increased fivefold between 1984 and 1988. See
NATIONAL SURVEY OF SHELTERS, supra note 124, at 17. The homeless population grew at a slower rate.
Christopher Jencks estimates that the number of single adults sleeping in public places rose from 86,000
in March 1980 to 144,000 in March 1990. See JENCKS, HOMELESS, supra note 1, at 17. According to
Jencks, the number of single adults sleeping in shelters rose from 35,000 to 118,000 over the course of the
same decade. Id. For the hypothesis that the increased supply of relatively high-quality shelters during the
1980s itself caused much of the increase in the shelter population, see Robert C. Ellickson, The
Homelessness Muddle, PUB. INTEREST, Spring 1990, at 45, 45-46, 50-52 [hereinafter Homelessness
Muddle].
permanent dwellings-who chronically make heavy use of the streets. Because

the term often crops up in litigation and policy discussions, I conclude this part
with some linguistic housekeeping on the differences between the "homeless"
and "street people."
The nouns customarily used to describe down-and-out street people have
moved with the spirit of the times. Before the 1980s, street people were
usually saddled with a negative label, such as "vagrant," "derelict," "bum,"
"drifter," or "beggar."' 2 8 In the 1980s, activists encouraged journalists and
scholars to relabel street people as the "homeless,"'129 a term that had been 30
used with reference to street people only sparingly during prior decades.
In the mid-1980s, the universal adoption of the term "homeless"' 3' helped
engender more empathy for street people. Whenever possible in this Article,
however, I refer to "street people" (or "panhandlers" or "bench squatters"), not
to the "homeless." "Homeless" is an unduly ambiguous word and implies
policy solutions that are inapt.
Ordinary speakers tend to attach the "homeless" label to individuals whose
lives meet at least one of three quite different criteria: 32 persons who spend
the night in an emergency shelter; 33 persons who spend the night on the
"streets" (e.g., in vehicles, railroad stations, parks, and other spaces not
128. See, e.g., Foote, supra note 19, at 604 (article published in 1956 that refers to "bums").
129. See infra text accompanying notes 270-72. The history of Callahan v. Carey, the key test case
on the right to shelter in New York, suggests that Robert Hayes and his fellow advocates consciously
sought to bring about this linguistic change. The trial judge's opinion makes clear that the plaintiffs'
lawyers and experts had consistently employed the term "homeless" when referring to their clients.
Although Judge Tyler occasionally uses that term on his own initiative, he generally refers to the Bowery
men as "derelicts." Callahan v. Carey, No. 79-42582 (N.Y. Sup. Ct. Dec. 5, 1979), reprinted in N.Y. L.J.,
Dec. 11, 1979, at 10. By contrast, the 1981 consent decree that settled Callahan(by effectively requiring
New York City to provide shelter to destitute men on demand) consistently refers to the plaintiffs as
"homeless." Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct. Aug. 26, 1981) ("Final Judgment by
Consent"). On this consent decree, see Mark Malone, Note, Homelessness in a Modern Setting, 10
FORDHAM URB. L.J. 749, 769-73 (1982).
130. On the changing historical usage of the word "homelessness," see O'FLAHERTY, supra note I,
at 9-11 ("homelessness used to refer to a sociological status rather than a housing market condition").
131. A search of the DIALOG database revealed that the number of articles in the New York imes
containing the term "homeless" or "homelessness" increased tenfold during the 1980s, from 148 articles
in 1980; to 976 in 1985; to 1564 in 1990 (over four per day). The number dipped to 1376 in 1994.
132. Members of the first two groups lack regular access to a permanent dwelling and thus meet the
conventional scholarly definition of homelessness. According to the most careful estimates that apply the
scholarly definition, the number of homeless Americans at a given point in time ranged from roughly
250,000 to 400,000 during 1985-1990, a peak period. JENCKS, HOMELESS, supra note 1, at 16-17; Rossi,
supra note 3, at 81. During the Bush and Clinton administrations, officials of the Federal Department of
Housing and Urban Development commonly used a point-estimate of 600,000, a figure derived from
research by Martha Burt. See, e.g., Money to Aid Homeless, N.Y. TIMES, July 13, 1995, at B9 (reporting
statement by HUD Secretary Henry G. Cisneros). For criticism of this figure, see JENCKS, HOMELESS, supra
note I, at 146 n. 11. The Clinton administration also publicized flow estimates that count the number of
different persons who met the scholarly definition of homelessness at any point in time over a period of
years. See Jason DeParle, Report to Clinton Sees Vast Extent of Homelessness, N.Y. TIMES, Feb. 17, 1994,
at AI. These flow estimates, which are much larger, indicate that most individuals who have the experience
of lacking regular access to a permanent dwelling have it only fleetingly.
133. In March 1990, about 45% of homeless single adults, and 98% of members of homeless families
with children, were sleeping under roof in emergency shelters. JENCKS, HOMELESS, supra note I, at 17.
designed for residential use);' 34 and panhandlers, daytime bench squatters,

squeegee men, can collectors, and other active "street people." To be sure, the
members of all three groups share a number of attributes. They tend to be
destitute, socially isolated, and at most episodically employed. They also tend
to be heavy users of public spaces.
Nevertheless, the composition of these three groups overlaps far less than
is popularly thought. For example, although pedestrians may assume that a
panhandler sleeps in a shelter or on the streets, studies indicate that, in most
cities (but seemingly not in New York), a large majority of panhandlers have
"regular access to a permanent dwelling" and thus fail to meet the scholarly
definition of the homeless. 35 Conversely, only a small fraction of the street
36
and shelter homeless engage in panhandling.
The label "homeless" also has fostered misguided policies. The word
implies that the problems of the people so labeled can be solved with bricks-
and-mortar-with "housing, housing, housing," as Robert Hayes and other
advocates were still saying in the late 1980s. 137 By the early 1990s, there
was broad agreement that this policy response was largely off target, 38 and
the new mantra became "therapy, therapy, therapy." Brendan O'Flaherty
persuasively argues that the new policy fix is no better than the old. Singling
out persons labeled "homeless" for special benefits and burdens tends to entrap
them in a marginal status. O'Flaherty would treat them like everyone else, not
139
as members of a special class.
134. These "street homeless"-perhaps 100,000-150,000 persons nationwide at any point-are almost
exclusively single adults. They commonly sleep in relatively sheltered places, such as vehicles, bus stations,
all-night movie theaters, and abandoned buildings. Some street persons use outdoor sites under bridges and
in parks and entryways, more commonly in warm weather than in cold. See Ross[, supra note 3, at 63
(estimating that number of homeless "[o]n streets or in public places" in Chicago fell by roughly 62%
between early fall 1985 and mid-winter 1986).
135. See Goldstein, Panhandlers at Yale, supra note 13, at 308 (relating that 8 of 12 chronic
panhandlers regularly lived in conventional dwellings); Spector, Vouchers for Panhandlers,supra note 5,
at 59-60 (reporting that 12 of 14 Yale regulars resided in conventional housing); Jon Hilkevitch, Evanston
Fights Panhandlers-witha Smile, CHI. TRIB., May 27, 1994, at 1, 19 (informal survey by Evanston police
of Evanston panhandlers revealed that 29 of 36 had permanent addresses and were not homeless); see also
Cynthia R. Mabry, Brother Can You Spare Some Change?-And Your Privacy Too?: Avoiding a Fatal
Collision Between Public Interests and Beggars' FirstAmendment Rights, 28 U.S.F. L. REv. 309, 325
n. 110 (1994) (citing sources that identify beggars who were not homeless). But see O'FLAHERTY, supra
note 1, at 94 (measured by scholarly definition of homelessness, 81% of 74 panhandlers surveyed in
Manhattan had been homeless the night before). There is little published evidence about where daytime
bench squatters spend their nights or, for that matter, about street people in general. See id. at 81 ("Not
even the most basic facts are known .....
139. O'FLAHERTY, supra note 1, at 277-78, 297-98. In light of its shortcomings, the label homeless
may decline in use as the 1990s progress.
I][. THE MANY SOURCES OF STREET ORDER
If a perpetrator of a chronic street nuisance were deemed an appropriate

target for a sanction, who should apply the punishment? Although "legal
centralists"'' 40 think first of the state, another enforcer often would be
preferable. An individual's behavior toward another person can be constrained
by: first-party controls that the individual imposes on himself; second-party
controls that the other person applies; and third-party controls administered by
either (a) unofficial onlookers, (b) private organizations, or (c) the state. 4'
The suitability of the candidates varies with the information they possess about
street behavior, and with their incentives and capacities to act on that
information. When making street law, legislators and judges should be aware
of the full panoply of enforcers and be sensitive to the relative aptitude of
each.
A. InternalizedNorms of Street Etiquette
Much orderly behavior is self-generated. Parents, teachers, religious

leaders, and others strive to induce young people to internalize norms,
including informal rules of proper conduct in public places.' A person who
has internalized a norm will usually comply with it to avoid guilt feelings.
Most people avoid chronic panhandling and bench squatting because they
43
would feel ashamed of themselves for doing it.
In the United States, the socialization of the young is much more
haphazard than in, say, Japan. Researchers find that American street people
disproportionately have spent their childhoods with severe disadvantages,
including a lack of socialization to mainstream norms.14 These disadvantages
might include an absent father, an abusive and neglectful mother, stints in
foster homes, and residency in a neighborhood in the grip of an underclass
subculture. As adults, street people are disproportionately destabilized by
140. Having attributed authorship of this phrase to others, I use this opportunity to acknowledge that
John Griffiths coined "legal centralism" in an unpublished paper written in 1979. See Marc Galanter,
Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law, 19 J. LEGAL PLURALISM 1,I n. 1
(1981).
141. This taxonomy is derived from ROBERT C. ELLICKSON, ORDER WITHOUT LAW 123-36 (1991)
[hereinafter ORDER WITHOUT LAw].
142. On the importance of teaching children self-control, see James Q. Wilson, What to Do About
Crime, COMMENTARY, Sept. 1994, at 25, 32-33. But cf. JAMES Q. WILSON, THE MORAL SENSE 5-13
(1993) [hereinafter WILSON, MORAL SENSE] (contending that much of morality is innate).
143. See SNOW & ANDERSON, supra note 71, at 159-60 (some Austin street people were too prideful
to beg); id. at 341 n.16 (citing Tucson study in which panhandlers had repeatedly stated that practice was
"embarrassing"). While some of the street people at Yale felt that panhandling damaged their pride, a few
reported that they would regard a minimum-wage job in a fast-food restaurant as even more demeaning.
Goldstein, Panhandlersat Yale, supra note 13, at 304-05, 318-19.
mental illness, substance abuse, and stints in prison. 45 The life histories have
infinite variety and are never entirely bleak. 146 Indeed, most street people
have a sense of pride 147 and control themselves remarkably well, especially
given their disadvantaged backgrounds. Many, however, will not necessarily
comply with social norms of behavior without some form of external
constraint.
B. Pedestrians' Self-Help Defenses
A pedestrian bothered by a street nuisance may exercise self-help against

the perpetrator. While walking by an unaggressive chronic panhandler, for
example, a pedestrian at minimum could decline to give alms-a response that,
if universal, would discourage panhandling by making it fruitless. A
pedestrian's affirmative self-help reactions might conceivably include, in order
of escalating severity and controversy: avoiding eye contact after being
accosted; coldly staring back; frowning; speaking reprovingly; pushing the
extended palm away; spraying mace; and throwing a punch. 48 In many
social contexts, self-help, when rendered promptly and in proper amounts, is
4
one of the most indispensable and effective methods of social control. 4
When excessive, however, as surely any of the physical retaliations just
mentioned would be, an act of self-help can aggravate a dispute and even
trigger a continuing feud. 50
A chronic street nuisance is a nearly intractable social problem largely
because an affected pedestrian is highly unlikely to do anything in response to
it. The amount of damage from a single act of panhandling or bench squatting
is typically insignificant; for a given onlooker, the harm can become
substantial only after it has accumulated over time. 51' A pedestrian who
unilaterally attempts to enforce social norms during a particular encounter on
the street bears all the risks of a confrontation with the street person, but
ineluctably shares the prospective benefits of nuisance abatement with all other
users of the same public space. The private costs of pedestrian self-help far
exceed the private benefits. As economists would say, public order is a "public
52
good," and an almost pure one at that.
145. See infra text accompanying notes 211-16, 225-29.

146. See Rossi, supra note 3, at 1-8 (profiles of 10 homeless persons).
148. See Goldstein, Panhandlers at Yale, supra note 13, at 325-26 (pedestrians commonly ignore
panhandlers' entreaties, but only occasionally verbally chastise them).
149. ORDER WrrHouT LAW, supra note 141, at 143-44.
150. Id. at 211-29.
151. See supra notes 42-86.
152. For an introduction to this concept, see RICHARD A. MUSGRAVE & PEGGY B. MUSGRAVE, PUBLIC
FINANCE IN THEORY AND PRACTICE 49-55 (5th ed. 1989).
C. Third Parties That Police the Streets
Jane Jacobs wisely recognizes that the legal-centralist perspective fails to

capture the primary sources of street order:
The first thing to understand is that the public peace-the sidewalk

and street peace--of cities is not kept primarily by the police,
necessary as police are. It is kept primarily by an intricate, almost
unconscious, network of voluntary controls and standards among the
people themselves, and enforced by the people themselves .... No
amount of police can enforce civilization where the normal, casual
enforcement of it has broken down.'53
This "intricate network" involves the wide variety of third parties identified
below.'54
1. Individual Champions of the Public
It is possible for a bystander to intervene to prevent a street person from

annoying another sidewalk user.
a. Pedestrians
For a number of related reasons, a casual sidewalk user is unlikely to

interpose himself to protect others from chronic street misbehavior. The central
point, again, is that street order is a public good. Unless a spontaneous helper
were to be rewarded with honor and self-pride, for example, a citizen
benefactor would bear burdens far in excess of the benefits he would
personally garner by enforcing street norms.
Various features of chronic street nuisances also contribute to bystander
inaction. First, the instantaneous harm is slight: While the sight of an
aggressive panhandler grabbing at an elderly person might trigger a heroic
rescue, the familiar sight of a panhandler extending a cup simply is not an
adequate stimulus. Second, psychologists have found that intervention is more
likely to be forthcoming from a solitary onlooker than from a person who
knows that many others are simultaneously observing the scene. 5 Third, all
153. JACOBS, DEATH AND LIFE, supra note 22, at 31-32.

154. For a sophisticated discussion of how merchants, police, pedestrians, and panhandlers informally
regulate panhandling, see Goldstein, Panhandlersat Yale, supra note 13, at 326-51.
155. See, e.g., Axel Fransen, Group Size and One-Shot Collective Action, 7 RATIONALITY & SOC'Y
183 (1995); B. Latane & S. Nida, Ten Years of Group Size and Helping, 89 PSYCHOL. BULL. 308 (1981);
Wilson & Kelling, supra note 23, at 38. This is sometimes referred to as the "Kitty Genovese" effect, after
an incident involving 38 bystanders who did nothing to stop a murder. See WILSON, MORAL SENSE, supra
note 142, at 36. It is conceivable, of course, that even though the probability of any particular onlooker
else equal, an onlooker is more likely to protect an acquaintance than an

unknown person. For all these reasons, a pedestrian in a public space bustling
with strangers will usually not intervene spontaneously to abate a minor
nuisance. 156 How often has a New York commuter countered a subway
panhandler's monologue by, for example, starting a chant of "Just say 'no"'?
Nonetheless, Jane Jacobs properly emphasizes the influence of informal
social controls on street behavior. 57 It is noteworthy that an orderly user of
a public space routinely evaluates not only disorderly people but also other
orderly people who could enforce norms there. Someone reluctant to chastise
a panhandler may be willing to frown at an almsgiver. A pedestrian reluctant
to monitor the streets may be willing to praise those who do. As a more
extended example, suppose a chronic panhandler accosts three college
sophomores entering a restaurant together. One of the three gives him a dollar,
the second does nothing, and the third mutters, "Get a job." The trio's ensuing
conversation inside the restaurant might well affect what each of them would
do when next encountering a panhandler. The tenor of these sorts of
conversations eventually affects responses to street nuisances and ultimately
158
the amount of disorder in public places.
b. Owners and Occupiers of Abutting Land
Many private third parties have stronger incentives to monitor public

spaces than ordinary pedestrians do. Landlords and tenants of street-level
properties tend to be especially attentive because the external benefits of
greater street civility are capitalized into the value of their assets. For example,
a restaurateur with a multi-year lease would want to shoo away sidewalk
panhandlers who had chronically annoyed his patrons. His landlord would
share this interest. Commercial leases commonly entitle the landlord to a
percentage of the tenant's gross income, and, in any event, the landlord would
be concerned about rent levels in postlease years. Small wonder that streetfront
taking action would decline with group size, the probability of someone acting would increase. See, e.g.,
Fransen, supra, at 198 (reporting experimental results of this sort).
156. Architectural and social variables may affect the amount of informal monitoring. See OSCAR
NEWMAN, DEFENSIBLE SPACE: CRIME PREVENTION THROUGH URBAN DESIGN 51-117 (1972) (how
designers can extend informal private realms into public spaces); Ralph B. Taylor et al., Attachment to
Place: Discriminant Validity, and Impacts of Disorder and Diversity, 13 AM. J. COMMUNITY PSYCHOL.
525, 539-40 (1985) (social diversity is correlated with both weaker neighborhood attachments and
perceptions of greater disorder).
158. On diffuse social enforcement of norms, see ORDER WITHOUT LAW, supra note 141, at 236-39.
merchants earned Jane Jacobs's glowing admiration as "eyes upon the

street." 159
2. OrganizationsThat Enforce Street Decorum
Various associations other than the police may have an interest in

enforcing street norms. An urban university has a strong stake in social control
within its entire neighborhood. The University of Chicago's efforts in Hyde
Park are a notable example in this vein. 160 Managers of governmental
proprietary agencies, if motivated to increase revenues and enhance consumer
satisfaction, are likely to fight disorder within their open-access facilities. For
example, after a long period of inaction, the New York City Transit Authority
began policing against panhandling in its subways and also placed a poster in
161
each subway car urging commuters not to give.
Local religious institutions and nonprofit community groups may also
intervene. The Salvation Army and rescue missions-central institutions in
Skid Rows before the 1980s-sought to reform "sinners" through temperance
and religious conversion. 62 In several cities where begging has been
prevalent, community groups have organized programs that enable almsgivers
to offer panhandlers vouchers instead of cash. 63 The Guardian Angels (Red
Berets) envision themselves as a force of citizen benefactors who patrol public
spaces. Enforcement of street norms can also occur through organized private
159. JACOBS, DEATH AND LIFE, supra note 22, at 35-37. One study found that owner-operators of
stores are more vigilant than the employees of absentee owners. See Goldstein, Panhandlersat Yale, supra
note 13, at 331-35.
Relatedly, persons who regularly use a particular sidewalk have a greater interest in enforcing order
than occasional users do. Indeed, unaggressive chronic panhandlers may aid in police efforts to curb
boisterous transients. Id. at 345-46. Most chronic panhandling, however, occurs in well-trafficked locations,
where there are likely to be numerous other eyes upon the street. A chronic panhandler is therefore unlikely
to make a net contribution to street order.
160. See SKOGAN, supra note 22, at 173 (University's role in achieving "high levels of order" in Hyde
Park).
161. See Young v. New York City Transit Auth., 903 F.2d 146 (2d Cir.), cert. denied, 49S U.S. 984
(1990); Dawidoff, supra note 57, at 36 (reproduction of that which urged, in part, "Give to the charity of
your choice, but not on the subway"); Finder, Panhandlingis Down, supra note 5, at 46.
162. See EDWARD H. MCKINLEY, MARCHING TO GLORY: THE HISTORY OF THE SALVATION ARMY
IN THE UNITED STATES (1980); WILLIAM MCSHEEHY, SKID Row 17-33 (1979) (discussing rescue
missions). But cf.Reginald W. Bibby & Armand L. Mauss, Skidders and Their Servants: Variable Goals
and Functions of the Skid Row Rescue Mission, 13 J. SCI. STUDY RELIGION 421, 430-31 (1974) (noting
that majority of mission patrons regard most "converters" as frauds and most mission leaders as
predominantly interested in making money). On the fate of the missions, see infra text accompanying notes
273-75.
163. In 1994, voucher programs were underway in Berkeley, Los Angeles, New Haven, Portland
(Oregon), and a handful of other cities. See Spector, Vouchers for Panhandlers,supra note 5, at 27-48.
Typically, a panhandler can redeem vouchers with a participating local merchant in return for food and
other selected commodities. When initiated, voucher programs tend to be supported by unlikely allies: those
who hope to increase total transfers to panhandlers, and those who want to quell panhandling. Id. at 8-9.
violence of an undesirable sort. For instance, some gangs of teenagers get their
kicks by rolling drunks, mugging panhandlers, and setting fire to the street
homeless.' 64
Most pertinently, residents of a neighborhood may form organizations for
the specific purpose of governing public spaces. Familiar examples are
165
residential block associations and groups such as "Friends of the Park.'
In commercial districts, where panhandlers most commonly congregate,
merchants' associations are key players. A voluntary merchants' association,
such as a Chamber of Commerce chapter, may face a free-rider problem and
consequently be ineffective at providing public goods. One solution to the free-
riding problem is formation of a Business Improvement District (BID), a
government-approved organization empowered to levy assessments on all
landowners within district boundaries. 166 Although BIDs also engage in
sanitation and business promotion, the control of disorderly street people has
emerged as one of their central functions.' 67 Some have hired outreach
workers to offer social services to the chronically homeless. Harking back to
a late-nineteenth-century tradition, 168 an increasing number of merchants'
164. See Clifford Krauss, Five Youths Are Held in the Fiery Death of a Homeless Man, N.Y. TIMES,
Aug. 4, 1995, at Al (describing gang whose youthful members hurt homeless people to relieve boredom);
Richard Pdrez-Pefia, Youths Injure Two Sleeping Homeless Men, N.Y. TIMES, Dec. 4, 1993, at 25 (most
assaults on homeless are thought to be committed by persons under age 20). Half of the panhandlers
Goldstein interviewed had been mugged during the previous year; one sometimes took a taxicab home at
night to avoid attack. Goldstein, Panhandlersat Yale, supra note 13, at 306, 316.
165. See SKOGAN, supra note 22, at 125-57 (discussing role of community organizations in stemming
disorder); George W. Liebman, Devolution of Power to Community and Block Associations,25 URB. LAW.
335, 357-62 (1993) (discussing role of community associations in law enforcement). For an introduction
to the literature on block organizations, see generally Donald G. Unger & Abraham Wandersman,
Neighboringand Its Role in Block Organizations:An Exploratory Report, 11 AM. J. COMMUNITY PSYCHOL.
291 (1983).
166. See Lawrence 0. Houstoun, Jr., Betting on BIDs, URB. LAND, June 1994, at 13, 16 (estimating
number of BIDs in U.S. and Canada at 1000); Thomas J. Lueck, Business Districts Grow at Price of
Accountability, N.Y. TIMEs, Nov. 20, 1994, at Al (New York City alone has 33 BIDs, with 30 more in
the works). BIDs are descendants of the venerable special-assessment district.
167. See, e.g., John King, Businesses Go on the Offensive-Reclaiming the City's Streets, S.F. CHRON.,
Dec. 28, 1993, at Al, A4 (describing BID that paid for uniformed, nonpolice patrols near Union Square).
The typical BID spends about 20% of its budget on security operations, which may include a force of
uniformed patrol officers. Houstoun, supra note 166, at 13, 17. For statutory authorization of these
activities, see, e.g., CAL. STS. & HIGH. CODE § 36613 (Vest Supp. 1995) (listing "security" as a BID
activity); N.Y. GEN. MUN. LAw § 980-c(c)(5) (McKinney Supp. 1995) (similar).
One of the best-known BIDs is the Grand Central Partnership in Midtown Manhattan, described in
Alan S. Oser, Spreading the Gospel of Improvement Districts,N.Y. TIMES, Oct. 31, 1993, § 10, at 8. The
Partnership became embroiled in controversy when the Coalition for the Homeless put forward several
former Partnership workers, themselves homeless persons, who alleged that they had been organized into
"goon squads" to intimidate and beat street people whom the Partnership wished to relocate. The
Partnership's leader among its outreach workers denied these charges. In a report commissioned by the
Partnership, Robert Hayes, a founder of the Coalition for the Homeless, called the goon squad charges
"fanciful"and "reek[ing] of demagoguery." See James Traub, Street Fight, NEw YORKER, Sept. 4, 1995,
at 36, 40. The Partnership, however, subsequently instituted a number of reforms. See Bruce Lambert,
Grand CentralPartnershipLimits Help for Homeless, N.Y. TIMES, Nov. 6, 1995, at B3.
168. See Amy Dru Stanley, Beggars Can't Be Choosers: Compulsion and Contract in Postbellum
America, J. AM. HIsT. 1265, 1293 (1992) (nineteenth-century reformers distributed cards exhorting
pedestrians not to give to beggars).
associations appeal to pedestrians to refrain from giving cash to panhandlers

(a strategy that First Amendment scholars would refer to as "more
1 69
speech").
3. The Police
Members of close-knit social communities commonly are able to dispense

with government peacekeepers. Indeed, police departments were unknown in
the United States prior to the mid-nineteenth century. 170 Today, because large
cities are far from close-knit, even Jane Jacobs would acknowledge that police
officers play an essential role in monitoring downtown spaces. 171 Inthese
social environments, other types of enforcers 172
simply are unable to provide
enough of the public good of street order.
In the latter half of the nineteenth century, urban police forces concentrated
much of their effort on controlling street misconduct, which in that era was
associated with "the dangerous class." Beginning around the turn of the
century, however, police officers and prosecutors began to regard fighting 73
violent crime as more important than dealing with disorderly behavior.
Particularly in the years after 1965-1975, a decade that witnessed both a jump
in violent crime and a legal revolution that eviscerated street law, police
officers' concern with minor misbehavior in public spaces plunged. 174 The
1990s backlash may signal the end of this period of relative inattention. 175
A conscientious foot-patrol officer strives to develop relationships with
street people, partly to protect them from crime. 76 To control someone
169. See Timothy Egan, In Three Progressive Cities, Stern Homeless Policies, N.Y. TIMEs, Dec. 12,
1993, at 26 (on Portland (Oregon) BID's employment of "guides" who encourage pedestrians to give
vouchers, not cash, to panhandlers); Patt Morrison, Uneasy Street, L.A. TIMES MAG., Jan. 2, 1994, at 6
(trailers shown in Los Angeles movie houses encourage viewers to make donations to charities that aid
homeless, but not to homeless themselves); Robert L. Rose, Evanston Decides How to Handle Its
Panhandlers:With Kid Gloves, WALL ST. J., Aug. 1, 1994, at BI [hereinafter Rose, Evanston Decides]
(City of Evanston's paid "interveners" urge persons whom they observe contributing to beggars to give
instead to social-service providers listed in brochure); cf.RIGHT TO REMAIN NOWHERE, supra note 4, at
68 (on "Cincinnati Cares" program that asks merchants to display canisters into which passersby can drop
coins in lieu of giving to panhandlers). See generally Spector, Vouchers for Panhandlers,supra note 5, at
10-27.
170. See ERIC H. MONKKONEN, POLICE IN URBAN AMERICA 1860-1920, at 24 (1981).
172. But cf Bruce L. Benson, Are Public Goods Really Common Pools? Considerations of the
Evolution of Policing and Highways in England, 32 ECON. INQUIRY 249 (1994) (historical examples of
private production of public order).
173. See MONKKONEN, supra note 170, at 129-47.
174. See SKOGAN, supra note 22, at 85-89; Dawidoff, supra note 57, at 40 (many New York transit
police are unenthusiastic about arresting panhandlers in subway cars); see also Goldstein, Panhandlersat
Yale, supra note 13, at 339-40, 349 (finding that New Haven police in 1990s regard violence and drugs
as more attention-worthy than panhandling, but occasionally do make arrests for disorderly conduct).
176. Egon Bittner, The Police on Skid-Row: A Study of Peace Keeping, 32 AM. SOC. REv. 699,
708-09 (1967); see also Goldstein, Panhandlersat Yale, supra note 13, at 346-47.
creating a temporary disturbance in a public space, an officer is apt first to try

informal methods, and to use arrest for public nuisance only as a last resort.
Unlike a disturber of the peace, the perpetrator of a chronic street nuisance 1is77
highly unlikely to provoke any onlooker into making a report to the police.
Because patrol officers are habitual street users, however, they themselves
witness continuing violations of street norms and can keep mental records on
the protractedness of offenses.
If armed with a traditional public-nuisance statute or a more particularized
statute or ordinance aimed at chronic street misconduct, in practice a police
officer would be inclined to invoke this statutory authority, not as a ground for
making an arrest, but as the basis for a verbal warning or request to move
along. 78 Nothing more should be necessary in the overwhelming majority of
cases. If a street person were to ignore this warning, the next step might be a
citation. Recidivists eventually would risk a few nights in jail. 179 A city
attorney might even seek an injunction that ordered an inveterate offender not
to resume the chronic pattern of begging, bench squatting, or other
offense.'80
In some contexts, police officers are less suited than others to enforce
street decorum. Given central-city pay scales, patrol officers tend to be
relatively costly "eyes on the street" compared to eyes in the informal sector.
Many police forces also have officers who are corrupt, capricious, and sadistic.
As the next parts demonstrate, the risk of police misconduct led to several
decades of judicial hostility to the enforcement of vagrancy laws, to the eclipse
of informally policed Skid Rows, and, in some cities, to the creation of
officially designated safe zones for disorderly people.

178. See Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1057 (S.D.N.Y. 1995)
(describing Amtrak's rules for police enforcement in Penn Station, which require warning followed by five-
minute cooling-off period prior to arrest or ejection); cf. Daniel L. Koffsky, Note, Orders to Move On and
the Prevention of Crime, 87 YALE LJ. 603 (1978) (focusing on suspicious conduct that portends more
serious crime).
179. The New York City Transit Authority police generally follow this sequence when dealing with
subway panhandlers. See Finder, Panhandling is Down, supra note 5, at 46; see also Wilson & Kelling,
supra note 23, at 35 (function of old vagrancy law was to enable police officer to remove disorderly person
after informal methods had failed).
180. For authorization of this remedy, see SANTA MONICA, CAL., MUN. CODE § 4.08.093 (1995)
(authorizing issuance of "stay away" orders to repeat violators of park-closing ordinance). Cf. People ex
rel. Gallo v. Acuna, 40 Cal. Rptr. 2d 589 (Ct. App.), review granted, 899 P.2d 66 (Cal. 1995) (partially
sustaining preliminary injunction against public-nuisance activities in four-block neighborhood by gang
members). These orders might be enforced by means of criminal contempt proceedings. For a good
introduction to the many constitutional issues that this remedial approach poses, see Christopher S. Yoo,
Comment, The Constitutionalityof Enjoining CriminalStreet Gangs as Public Nuisances, 89 Nw. U. L.
REv. 213 (1994).
IV. A BRIEF HISTORY OF STREET DISORDER AND SKID Rows
Although historical sources on everyday street life are fragmentary at best,

it appears that an urban society invariably has an underclass whose members
disproportionately misbehave in public places. 181 Plato urged the banishment
of beggars; 182 John Locke favored whipping panhandlers under age fourteen
and sentencing older ones to hard labor; 183 Karl Marx was famously scornful
of the lumpenproletariat.'84 One of the most comprehensive studies of
begging, a portion of Henry Mayhew's four-volume London Labour and the
London Poor,appeared in 1862; in it Mayhew painstakingly categorized alms-
85
seekers and deplored the indolence of "those who will not work."'
Although there is less historical material about sleeping in public places than
about begging, it is highly probable that a destitute urban American of the
nineteenth century "slept rough" more frequently than did his counterpart in
86
the late twentieth century.
Ever since the great cities of the United States sprouted in the mid-
nineteenth century, levels of street misconduct have waxed and waned. For
example, after experiencing rampant disorder in the aftermath of the Civil War,
city governments responded in the 1870s by beefing up police forces and
social welfare programs. 187 The turbulent Great Depression years eventually
ebbed into the unusually orderly 1950s. 8 ' If the crackdowns of the 1990s
continue, the late 1980s are likely to be seen in retrospect as another peak in
disorder.
181. See Teir, supra note 21, at 292-301 (reviewing several millennia of history of regulation of
begging). The ancient Greeks debated the definition of unacceptable public behavior and the problems
associated with the suppression of offensive speech or conduct. See Loper v. New York City Police Dep't,
802 F. Supp. 1029, 1030-31 (S.D.N.Y. 1992), aff'd, 999 F.2d 699 (2d Cir. 1993). On the history of anti-
begging legislation in the United States, see sources cited infra notes 240-387.
182. 2 PLATO, LAWS bk. XI, at 465 (E. Capps et al. eds. & R.G. Bury trans., G.P. Putnam's Sons
1926) ("There shall be no beggar in our State; ...he shall be driven across the border by the country-
stewards, to the end that the land may be wholly purged of such a creature.").
183. See MAURICE CRANSTON, JOHN LOCKE: A BIOGRAPHY 424-25 (1957).
184. The "dangerous class," the social scum, that passively rotting mass thrown off by
the lowest layers of old society, may, here and there, be swept into the movement
by a proletarian revolution; its conditions of life, however, prepare it far more for
the part of a bribed tool of reactionary intrigue.
Karl Marx & Friedrich Engels, The Communist Manifesto (1848), in KARL MARX: SELECTED WRITINGS
221, 229 (David McLellan ed., 1977).
185. 4 HENRY MAYHEW, LONDON LABOUR AND THE LONDON POOR 23-27 (Dover Publications 1968)
(1861-62).
186. This statement is based on the rising incomes of poor persons over the course of the past century.
For data on the trend since 1960, see sources cited infra note 196.
187. See MONKKONEN, supra note 170, at 80-81. 84-85 (arrests for violent crime and vagrancy-type
offenses peaked around 1870); SKOGAN, supra note 22, at 6 ("marked decline" in drunkenness and
vagrancy beginning after 1870). But cf. Stanley, supra note 168, at 1269, 1273-74 (high incidence of
begging in U.S. cities in 1870s prompted reformers to adopt variety of measures against it).
188. See JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE
OF FORCE 218 (1993) (1940s and 1950s were period of "unparalleled public safety. Social disorder was
minimal.").
Two variables primarily determine the level of street misbehavior at a

given time: the relative size of the noninstitutionalized underclass (whose
members are largely responsible for street nuisances); and the strictness of the
system of social controls that governs public spaces.
A. Trends in the Size of the Urban Underclass
Some scholars object to the term underclass;a larger number debate how
to define it.' 89 As used here, the term denotes persons afflicted with both
extreme economic poverty and extreme social poverty.
The potential relationship between economic poverty and chronic street
nuisances is straightforward. Only a destitute person is likely to risk being
stigmatized as a beggar or to use a site as unsatisfying as a plaza bench for
napping and storage.' 90 Measured by the most accurate price deflator (CPI-
Xl), the percentage of the U.S. population below the official poverty line
varied little between 1968 and 1991, standing at 12.2% in 1970, 11.5% in
1980, and 12.1% in 1990.'9' The trend in official poverty, however, is not
necessarily indicative of the trend among the poorest 1%of the population, an
income bracket in which street people are disproportionately located. Little can
be said with confidence about trends in the economic status of the most
destitute people during the latter half of the twentieth century. 192 The
increase in the proportion of men aged twenty-five to fifty-four who are both
poor and jobless for an entire year sounds a discouraging note. 193 On the
other hand, means-tested spending for the disabled and homeless has risen
significantly since 1970,194 and the underground economy has also grown,
189. Michael H. Schill, Race, the Underclass, and Public Policy, 19 LAW & SOC. INQUIRY 433,
433-37, 438 n.6 (1994) (book review), provides a succinct introduction to these debates. See also Ronald
B. Mincy, The Underclass: Concept, Controversy, and Evidence, in CONFRONTING POVERTY 109, 122-32
(Sheldon H. Danziger et al. eds., 1994) [hereinafter CONFRONTING POVERTY] (discussing various
approaches to defining underclass).
190. See Rossi, supra note 3, at 104-16 (reporting extreme poverty of Chicago homeless); Goldstein,
Panhandlers at Yale, supra note 13, at 300-05 (on joblessness and poverty of panhandlers). But cf.
O'FLAHERTY, supra note I, at 132-35, 149-54, 209 (doubting link between prevalence of poverty and
prevalence of street and shelter homelessness).
191. Sheldon H. Danziger & Daniel H. Weinberg, The HistoricalRecord: Trends in Family Income,
Inequality and Poverty, in CONFRONTING POVERTY, supra note 189, at 18, 26-27 col. 3.
Nevertheless, scholars across a broad ideological spectrum agree that the incidence of "latent" or
"pretransfer" poverty rose somewhat after 1970. See, e.g., CHARLES MURRAY, LOSING GROUND 64-65
(1984); Danziger & Weinberg, supra, at 26-27 col. 5. Murray believes that the welfare state's perversities
are largely responsible for this backsliding. Others stress that job markets have increasingly disadvantaged
those with few skills. See Mincy, supra note 189, at 117; Kevin M. Murphy & Finis Welch, Industrial
Change and the Rising Importance of Skill, in UNEVEN TIDES: RISING INEQUALITY IN AMERICA 101,
130-32 (Sheldon Danziger & Peter Gottschalk eds.. 1993).
192. All commentators agree that inequality between rich and poor has increased in the United States
since the early 1970s. The issue at hand, however, is not the trend in inequality, but in the absolute
(inflation-adjusted) incomes of the poorest Americans.
193. JENCKS, RETHINKING, supra note 79, at 154-55 (between 1963 and 1987, proportion of whites
in this situation increased from about 1%to about 2%, and of blacks, from just under 4% to about 7%).
which means that the officially reported incomes of the poor are increasingly
understated.' 95 Consumption-based measures of welfare, which take all these
missing factors into account, suggest, if anything, a steady lessening in extreme
economic poverty since 1960.196
Trends in social poverty are another story. As used here, social poverty
denotes a person's comparative lack of supportive family and friends.' 97 A
child born into a one-parent household in an anomic neighborhood starts life
in social poverty. A child raised in such an atmosphere-say, by an unmarried,
crack-addicted mother in a neighborhood where "street values"
predominate-faces a higher risk of homelessness and is unlikely to internalize
norms against being a nuisance on the streets. 98 In addition, an adult who
succumbs to severe substance abuse may alienate those who were previously
close. A socially impoverished adult, who has few intimates to fall back on
when tough economic or emotional times arrive, becomes a prime candidate
to become a panhandler or bench squatter. 99
Social poverty in the United States has been worsening apace.200 As in
many other nations, the number of poor children growing up in one-parent
households has ballooned.2"' "In 1960, 20 percent of all black children were
195. See Rudy Fichtenbaum, The Productivity Slowdown and the UndergroundEconomy, 28 Q.J. Bus.
& ECON., Summer 1989, at 78, 78. But cf Morton Paglin, The UndergroundEconomy: New Estimatesfrom
Household Income and Expenditure Surveys, 103 YALE L.J. 2239. 2249 (1994) (estimating that
underground economy fell from 10.2% of Gross Domestic Product in 1984 to 8.1% in 1992).
196. Daniel T. Slesnick, Gaining Ground: Poverty in the Postwar United States, 101 J.POL. ECON.
1, 27-34 (1993). Some of the most interesting data can be found in Susan E. Mayer & Christopher Jencks,
Recent Trends in Economic Inequality in the United States: Income Versus Expenditures Versus Material
Well-being, in POVERTY AND PROSPERITY IN THE USA IN THE LATE TWENTIETH CENTURY 121, 149-77
(Dimitri B. Papadimitriou & Edward N. Wolff eds., 1993). Regrettably, Mayer and Jencks's data end in
the early 1980s. They report trends in the material well-being of households in the poorest decile of the
population (not among the poorest 1% of individuals). By all measures, households in that decile gained
in material wherewithal from 1960 to 1983. For example, the proportion residing in housing with full bath
facilities increased from 54% in 1960 to 80% in 1970, to 92% in 1980, and to 94% in 1983. Id. at 156-57,
162.
O'Flaherty notes that the decline in the number of low-quality lodging houses in cities such as
Chicago, Newark, and New York during 1970-1990 suggests a drop in the number of destitute individuals.
O'FLAHERTY, supra note I, at 138-47.
197. For a more expansive set of criteria and a more varied set of trends, see JENCKS, RETHINKING,
supra note 79, at 143-203.
198. See Robert T. Zozus & Melvin Zax, Perceptions of Childhood: Exploring Possible Etiological
Factors in Homelessness, 42 HOSP. & COMMUNITY PSYCHIATRY 535 (1991) (children growing up in
emotionally impoverished households are predisposed to later homelessness). On the handicaps of growing
up in an underclass neighborhood, see Schill, supra note 189, at 439-40; Elijah Anderson. The Code of the
Streets, ATLANTIC MONTHLY, May 1994, at 81.
199. On social poverty among the homeless, see Rossi, supra note 3, at 165-77 (detailing fragility
of ties to family and friends); SNOW & ANDERSON, supra note 71, at 259-65 (noting that Austin street
people were conspicuously lacking in family support). On the poverty and social isolation of shopping bag
women, a group analogous to bench squatters, see ANNE-MARIE ROUSSEAU, SHOPPING BAG LADIES:
HOMELESS WOMEN SPEAK ABOUT THEIR LIVES (1981).
200. See, e.g., WHITE, supra note 101, at 88-92, 245-64.
201. The number of related children living in poor, female-headed family households rose from 4.7
million in 1970 to 8.0 million in 1992. Compare BUREAU OF THE CENSUS. U.S. DEP'T OF COMMERCE,
STATISTICAL ABSTRACT OF THE UNITED STATES 1977. at 454 (1977) with STATISTICAL ABSTRACT 1994,
supra note 122, at 478.
living in fatherless families. By 1985, the figure was 51 percent., 20 2 All else
equal, a child who grows up in a mother-only household is more likely to drop
out of high school and the workforce, have a child while a teenager, and give
birth out of wedlock. 0 3 Of the nine panhandlers whom Brandt Goldstein
interviewed on streets near Yale, none reported having lived with a father
during childhood. 204 Perhaps more alarming than the single-parent statistics
is the fact that about two million children are now being raised in "zero-parent
households" headed by nonparental relatives, foster parents, or others. 20 5
Because illegitimacy tends to recur in succeeding generations, a rise in out-
of-wedlock births tends to exacerbate social poverty as time passes. If there
have been two consecutive generations of absent fathers, a child at most can
know one grandparent, the maternal grandmother. If this traditional mainstay
of the poor household were to fall ill, move away, or otherwise be unable to
act as a caretaker, the grandchild's upbringing would be especially
20 6
perilous.
As a consequence of this explosion in social poverty, the population of the
underclass in the United States grew significantly after 1970.207 John
Kasarda, one of the first scholars to publish an analysis of relevant 1990
census data, has defined a "distressed" city neighborhood as one characterized
by high levels of poverty, unemployment, female-headed households, and
public assistance beneficiaries. 20 8 He found that the population of these sorts
of neighborhoods increased from roughly 1.0 million in 1970, to 4.9 million
in 1980, and to 5.7 million in 1990.209
In and around the 1980s, two apparently ephemeral social trends helped
boost the size of the underclass in the age groups primarily responsible for
202. JENCKS, RETHINKING, supra note 79, at 130 (citing figures from BUREAU OF THE CENSUS, Marital
Status and Living Arrangements, March 1985, in CURRENT POPULATION REPORTS, Series P-20, No. 410,
at 71 (Government Printing Office, 1986)). The proportion of white children living in fatherless households
rose from 9% in 1970 to 18% in 1990. Calculated from BUREAU OF THE CENSUS, U.S. DEP'T OF
COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1992, at 55 (1992) [hereinafter STATISTICAL
ABSTRACT 1992]; see also Irwin Garfinkel & Sara McLanahan, Single-Mother Families, Economic
Insecurity and Government Policy, in CONFRONTING POVERTY, supra note 189, at 205, 210 (of all families
with children, the proportion headed by single mothers rose from 8% in 1960 to almost 25% in 1990). The
percentages of children born out of wedlock are higher still. For those trends, see JENCKS, RETHINKING,
supra note 79, at 192-94.
203. Garfinkel & McLanahan, supra note 202, at 207.
204. Seven said that no father had been present; two refused to discuss their families. Goldstein,
Panhandlersat Yale, supra note 13, at 300.
205. See STATISTICAL ABSTRACT 1994, supra note 122, at 66 (in both 1970 and 1993 about 3% of
children under 18 years old were living with neither parent); see also Irving Piliavin et al., Tracking the
Homeless, FOCUS, Winter 1987-88, at 20, 22 (38% of homeless in Minneapolis sample had experienced
some form of out-of-home care as children, about 10 times the rate to be expected from a representative
U.S. sample).
206. For a gripping narrative that illustrates this risk, see William Finnegan, Out There (pts. I & 2),
NEW YORKER, Sept. 10, 1990, at 51; Sept. 17, 1990. at 60.
207. See sources cited in Mincy, supra note 189, at 128 (discussing 1970-1980 trends).
208. John D. Kasarda, Inner-City ConcentratedPoverty and Neighborhood Distress: 1970 to 1990.
4 HOUSING POL'Y DEBATE 253. 256 (1993).
209. Id. at 263.
chronic street misconduct. First, street people fall disproportionately within the
twenty-five-to-forty-four age group. 2'0 The huge Baby-Boom generation
began to mature into this age group around 1975-1985, roughly when
pedestrians were beginning to notice more disorderly people.
Second, the trend toward greater drug abuse, particularly the crack
epidemic that began in the mid-1980s, 21' also adversely affected street order.
In 1990, about half of all persons arrested in large U.S. cities tested positive
for cocaine.212 Substance abusers disproportionately seek to raise cash by
drug dealing, prostitution, and begging. 213 Christopher Jencks estimates that
214
about one-third of homeless single adults use crack fairly regularly.
Between 50% and 75% of homeless persons have at least one alcohol, drug,
or mental disorder.1 5 For many street people, a drug addiction may
2 16
aggravate a preexisting mental illness.
There are two additional indications of steadily worsening social poverty
among adult males, who constitute a large majority of the street
population.2 17 Most street males of the 1980s were born in and around the
1950s, before the sharp increase in the incidence of fatherless households. For
many of them, the key social change was thus not the decreased likelihood of
fatherly guidance, but rather the declining probability of having the stabilizing
influence of a marriage. The rate of street homelessness among single men is
at least twenty times, and perhaps as much as sixty times, the rate among
married men. 218 In 1970, only 11.3% of men aged thirty to forty-four were
210. In Chicago, 56.6% of the street homeless were found to be between 25 and 44 years of age; by
comparison, 37.7% of Chicago's entire adult population fell within this age bracket. ROSSi, supra note 3,
at 121.
211. See ALICE S. BAUM & DONALD NV. BURNES, A NATION IN DENIAL: THE TRUTH ABOUT
HOMELESSNESS 20-23 (1993); JENCKS, HOMELESS, supra note 1, at 41-48. But see O'FLAHERTY, supra
note I, at 248-62 (effect of crack on incidence of homelessness was small at most). Alcohol abuse appears
not to have risen in the United States during recent decades. See JENCKS, HOMELESS, supra note 1, at 41.
212. JENCKS, HOMELESS, supra note 1, at 43.
213. See Dawidoff, supra note 57, at 52 (many, perhaps most, panhandlers in New York City subway
system are substance abusers); Goldstein, Panhandlers at Yale, supra note 13, at 305 (majority of
panhandlers interviewed had chemical dependencies); Rose, Evanston Decides, supra note 169 (most
Evanston panhandlers are drug or alcohol addicts).
214. JENCKS, HOMELESS, supra note 1, at 43; see also Kaufman, supra note 2, at 34 (latest Bowery
arrivals are younger male crack addicts, who "appear to have lived their whole lives on the margins,
without much memory of family or friendship").
215. See Pamela J. Fischer & William R. Breakey, The Epidemiology of Alcohol, Drug, and Mental
DisordersAmong Homeless Persons,46 AM. PSYCHOLOGIST 1115 (1991) (comprehensive review of scores
of studies). Up to 25% suffer from both alcohol and mental disorders. Id. at 1116. "Men are more likely
to be singly diagnosed alcoholics, whereas women are more likely to have a sole mental disorder ......
Id. Little is known about how the population of panhandlers and bench squatters differs in these respects
from the larger homeless population.
216. The most alarming data come from a California study finding that a majority of homeless
substance abusers were addicted to both drugs and alcohol, and that three-quarters of those with serious
mental disorders abused substances as well. See GEORGES VERNEZ ET AL., REVIEv OF CALIFORNIA'S
PROGRAM FOR THE HOMELESS MENTALLY DISABLED 18 (1938).
217. See ROSSI, supra note 3, at 117-18 (81.8% of persons in Chicago street sample were male).
218. Rossi's sources suggest that on the order of 90% of homeless adults are not currently married.
Id. at 129-31. Of his Chicago street sample, 96.6% were not currently married. Id. at 129. About 70% of
not currently married. 2 9 By 1991, this percentage had almost tripled to

29.5%.220 This sharp trend away from marriage combined with the
maturation of the Baby Boomers to produce a staggering increase in the
absolute size of the reserve army of potential street males. In 1970, there were
1.9 million unmarried males aged thirty to forty-four. 22' By 1980, the number
had more than doubled to 3.9 million.222 By 1991, it had more than doubled
again to 8.8 million.' The erosion of the institution of marriage between
1970 and 1991, a topic little discussed in the pertinent literature, helps explain
the concomitant rise of homelessness and street disorder.224
Finally, in step with the increase in the population of unmarried males, the
number of federal and state prisoners ballooned from 196,000 in 1970, to
316,000 in 1980, and to 740,000 in 1990.2' This trend may have reduced
violent street crime by incapacitating more offenders. On the other hand, it also
may have increased the number of street people. State-prison inmates have a
median age of about 30.226 The median age of homeless persons is higher,
in the late 30S. 227 The increase in incarceration brought in its wake a jump
in the number of prisoners being released at an age when they were ripe for
becoming homeless. 228 On release, these individuals, handicapped by low job
skills, adverse prison influences, and likely employer discrimination, become
prime candidates for the street.229 By getting tough on violent crime and drug
offenses in the 1970s, the United States may have increased levels of minor
street misconduct in the 1980s and 1990s.
B. Fluctuationsin the Strength of Social Controls
At the same time that the underclass was burgeoning, many social controls
were being relaxed. Those who carried out this liberalization intended to
the adult males in the most relevant age group are married. The disproportionately high rate of
homelessness among unmarried men can be calculated from these figures.
219. Calculated from BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT
OF THE UNITED STATES 1971, at 32 (1971) [hereinafter STATISTICAL ABSTRACT 1971].
220. Calculated from STATISTICAL ABSTRACT 1992, supra note 202, at 43.
221. Calculated from STATISTICAL ABSTRACT 1971, supra note 219, at 32.
222. Calculated from BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT
OF THE UNITED STATES 1981, at 38 (1981).
223. See STATISTICAL ABSTRACT 1992, supra note 202, at 43.
224. Jencks examined trends in marriage rates from 1969 to 1989 among men aged 21-64 and asserts
that the rate fell sharply only arnong affluent men. See JENCKS, HOMELESS, supra note 1, at 51-55. But
see JENCKS, RETHINKING, supra note 79, at 133 (proportion of black men aged 30-44 living with a wife
fell from 77% in 1960 to 64% in 1980).
225. STATISTICAL ABSTRACT 1994, supra note 122, at 215.
226. Id.
227. ROSSI. supra note 3, at 121.
228. For trends in prison releases, see O'FLAHERTY, supra note 1. at 265 tbl. 14-2.
229. See id. at 265-66. Slightly over 40% of the homeless report having spent time in either jail or
prison. ROSSI, supra note 3, at 165. How the street population differs in this respect is not known.
reform the less forgiving social-control regime then in place, two centerpieces
of which were state mental institutions and, more to the point, Skid Rows.
1. The 1950s: Informally Policed Skid Rows
First appearing in latter half of the nineteenth century, Skid Row

neighborhoods were characterized by a concentration of single-room-occupancy
apartment buildings, cubicle hotels, and other cheap lodging houses that
catered mostly to single men. These residences were interspersed with
enterprises-such as taverns, pawnshops, and rescue missions-that served the
destitute and disaffiliated. Skid Rows typically arose in decaying areas near
downtown transportation nodes, locations that helped employable residents find
work as day laborers. Skid Row neighborhoods peaked in population and
vitality around 1880-1920, when they served as temporary homes for "tramps"
and "hobos"--itinerant workingmen mostly in the twenty-to-forty age
group.230 As the demand for casual laborers slackened after 1920, the
populations of Skid Rows started to tumble, a trend that has continued since.
By the 1950s, Skid Rows were no longer important employment centers, and
functioned more as long-term enclaves for aging (mostly white) alcoholics and
others at the social margin."
Scholars of Skid Row have paid only passing attention to the institution's
place in the system of urban street order. These neighborhoods, along with
closely related Red Light Districts, were areas where a city relaxed its ordinary
standards of street civility. In Skid Row, for example, moderate public
drunkenness was likely to be tolerated, not only by the other down-and-out
residents, but also by the police. 32 By contrast, the same level of inebriation
elsewhere downtown was much more likely to get an alcoholic in trouble. In
the 1950s, a cop on the beat might unhesitatingly tell a "bum" panhandling or
bench squatting in the central business district to "move along. '' 23 3 A bum
on a Skid Row sidewalk would never hear this message because he was
230. For a careful and colorful depiction of the Omaha Skid Row during this period, see John C.
Schneider, Skid Row as an Urban Neighborhood, 1880-1960, 9 URBANISM PAST & PRESENT 10, 11-13
(1984).
231. For more expansive discussions, see BAHR, supra note 2; CHARLES HOCH & ROBERT A.
SLAYTON, NEW HOMELESS AND OLD (1989); Rossi, supra note 3, at 17-33.
232. This is not to say that the police never made arrests for public disorder in Skid Row. They
frequently did, partly to protect the arrested persons from predation and exposure to the elements. See
Bittner, supra note 176, at 711-12. Even as late as the 1970s, many police departments were still sweeping
Skid Rows of street drunks. See infra note 451 (on Los Angeles practices). The essential point is that the
police's informal rules for street behavior were much more permissive in Skid Row than in the central
business district.
233. One can only conjecture how often nightsticks were used to enforce these orders. One source,
citing no authority, associates police violence on behalf of public order with the period before, not after,
World War II. See Wilson & Kelling, supra note 23, at 33.
exactly where the cop wanted him.2M In this way, the 1950s police officer
helped to informally zone street disorder into particular districts.235
2. 1965-1975: A ConstitutionalRevolution
Especially in the period between 1965 and 1975, judges, including the
Justices of the Supreme Court, made dozens of constitutional rulings that swept
away the preexisting legal code of the streets. z 6 The judicial decisions
eviscerated state and local regulations governing mild forms of public
disorderliness. The criminal prohibitions at issue, many of which had
descended from centuries-old English statutes, had provided grounds for over
half the arrests in large cities at least as far back as the Civil War.237
Although legislators were also involved in street-law reforms between 1965
and 1975, more often than not they were reacting to judicial initiatives.
The courts' nationalization and liberalization of street law received little
criticism at the time. The statutes and ordinances that the judges were
annulling had long been disproportionately enforced against poor people and
members of racial minorities. In the mid-1960s, many police departments were
lily-white and heavily staffed with officers who were insensitive, and
sometimes brutal, in handling vagrants and nonwhite arrestees. At the time,
234. See O'FLAHERTY, supra note 1, at 270-72 (in 1950s and 1960s, New York police gave street
people much leeway to beg in Bowery because "'if you were a bum, it was your place"' (quoting Richard
Kopperdahl)); JAMES Q. WILSON, VARIETIES OF POLICE BEHAVIOR 147 (1968) ("When the famous [Albany,
N.Y.] 'Gut' was flourishing, a large number of arrests for intoxication were required to maintain some
semblance of order and, more important, keep the carousers from leaving the area to annoy the 'decent
people' elsewhere in the city."). Foote quotes a magistrate's statement to a Philadelphia vagrancy defendant:
"'What are you doing in this part of town? You stay where you belong; we've got enough bums down here
without you."' Foote, supra note 19, at 606; see also Bittner, supra note 176, at 704 (police had implicit
duty to contain Skid Row); Foote, supra note 19, at 604-05, 631-32 (describing periodic campaigns during
1950s to clear vagrants and habitual drunkards from Philadelphia's city center); Schneider, supra note 230,
at 17 ("The police were clearly more tolerant of certain behavior on skid row than they were
elsewhere .... ). As late as 1991, the Los Angeles police were reported still to have an affirmative policy
of attempting to contain the down-and-out to the Skid Row area east of Spring Street. See Goetz, supra
note 3, at 545.
235. American history is replete with analogous efforts to sequester the mentally ill in confined
locales: workhouses, poorhouses, and jails in Colonial times; large rural asylums during the nineteenth
century. See LELAND V. BELL, TREATING THE MENTALLY ILL: FROM COLONIAL TIMES TO THE PRESENT
(1980); ALBERT DEUTSCH, THE MENTALLY ILL INAMERICA (1949).
236. Some state supreme courts were at the leading edge of the reform movement. See, e.g., Parker
v. Municipal Judge, 427 P.2d 642 (Nev. 1967) (Las Vegas vagrancy ordinance denied due process because
it criminalized status of poverty); Fenster v. Leary, 229 N.E.2d 426 (N.Y. 1967) (New York vagrancy
statute violated Due Process Clause).
237. See MONKKONEN, supra note 170, at 103 (in 1880, 62.5% of arrests in 18 large cities were for
"drunkenness, drunk and disorderly, suspicion, vagrancy, or corner lounging"); SKOGAN, supra note 22,
at 89 (in 1960, 52% of all nontraffic arrests in U.S. were for drunkenness, disorderly conduct, vagrancy,
and suspicion; by 1985, this percentage had fallen to 16%).
In 1884-1885 in Boston, drunkenness alone was the basis for over half the total of 28,932 arrests.
The figures in other selected arrest categories were: common beggars (7), disorderly (514), idle and
disorderly (214), insane (275), and vagrancy (250). ROGER LANE, POLICING THE CITY: BOSTON 1882-1885,
at 232-34 (1967). One source reports that New York City recorded over a million arrests for vagrancy in
1877, a suspiciously high figure. See Stanley, supra note 168, at 1280.
opinion leaders were more willing to give wide discretion to a Justice

interpreting the United States Constitution than to a patrol officer making a
street arrest. 238 In addition, a judicial decision that stressed the interests of
the disadvantaged reflected the temper of the time, an era when Congress was
passing major civil rights laws and tripling the percentage of GNP spent on
federal aid to low-income persons.239
a. Vagrancy
English vagrancy statutes, initially enacted in the fourteenth century to

control wages and prevent idleness, had evolved by the time of the American
Revolution into a hodge-podge of controls on minor public offenses, including
begging and sleeping in the open.24 ° In the 1950s, every state had some sort
of vagrancy law.24 ' These laws were left in constitutional tatters after 1972,
when the Supreme Court decided Papachristouv. City of Jacksonville. 242 The
case involved the Jacksonville police's arrest of Papachristou, a white female

riding in an automobile with black males, for violating the city's remarkably
overbroad vagrancy ordinance. Justice Douglas, writing for a unanimous Court,
held that the ordinance violated the Due Process Clause because it had been
too vague to apprise citizens of what was forbidden and had conferred too
much discretion on police officers.
Instead of explaining why Jacksonville should not have been able to obtain
a conviction on the particular facts of Papachristouitself (seemingly not a
difficult task), Justice Douglas devoted much of his opinion to a general
critique of street controls. Exalting "lives of high spirits," he quoted the titles
of Walt Whitman's Song of the Open Road and Vachel Lindsay's I Want to
Go Wandering.243 Douglas's ideal, it appeared, was a world full of rights.
Responsibilities, a 1990s notion, 2" were not on his radar screen. Although
the Jacksonville ordinance had targeted "habitual loafers" among other
innocents, it had also aimed at "thieves," "pickpockets," "drunkards," and
238. This may no longer be true. A Gallup Organization survey conducted in March 1994 asked
respondents whether they had a "great deal/quite a lot" of confidence in certain institutions. Some 55% of
the people polled accorded the police this level of trust. The Supreme Court attracted this degree of support
from 42%. The bottom-ranked institution was the "criminal justice system," which tallied 15%.
InternationalComparisons,AM. ENTERPRISE, SeptJOct. 1994, at 92.
240. See MODEL PENAL CODE § 250.6 cmt. 1, at 383-86 (1980); see also sources cited infra note 387.
Jeffrey S. Adler, A HistoricalAnalysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989), provides an
extensive bibliography.
241. See Foote, supra note 19, at 609.
242. 405 U.S. 156 (1972). Two preceding decisions from the state courts are cited supra note 236.
243. Papachristou,405 U.S. at 164. Douglas's opinion echoes many of the themes he sounded a dozen
years before in Douglas, supra note 19. Perhaps because he himself "rode 'the rods' in his youth, id. at
4, his article praises "men of the open road.., the heroes of much of our great literature," id. at 2. In
Douglas's eyes, the archetypal street person was an adventurous and casually employed hobo, not a chronic
panhandler or bench squatter.
244. See supra note 26 and accompanying text.
"beggars." Justice Douglas nonetheless assumed the police would apply the
ordinance improperly: "Those generally implicated by the imprecise terms of
the ordinance-poor people, non-conformists, dissenters, idlers-may be
required to comport themselves according to the life-style deemed appropriate
by the Jacksonville police and the courts." 245 The message was clear: What
the police might intend as the maintenance of basic civility in public spaces,
many Justices would interpret as the suppression of high spirits in favor of
246
drab conformity.
b. Public Drunkenness
Public inebriation was a crime in England as early as 1606,247 and during

the century prior to 1965 it was one of the most common grounds for arrest
in American cities. 248 In the mid-1960s, attorneys began to argue that the
conviction of a chronic alcoholic for being drunk in public would constitute a
status crime in violation of the Cruel and Unusual Punishment Clause of the
Eighth Amendment.249 In 1966, two federal appeals courts agreed. 250 Two
years later, in Powell v. Texas,25t the Supreme Court came within one vote
of affirming this broad doctrine. The splintered Powell majority implied, more
narrowly, that at least a homeless person could invoke the Eighth Amendment
defense because he lacked a private place to drink. 252 These judicial
decisions helped prompt legislatures to decriminalize public3 inebriation and to
increase funding for medical and detoxification services?2
c. Disorderly Conduct Stemming from Mental Illness
The federal courts were also key players in the movement to

deinstitutionalize the mentally ill. In 1971, the seminal lower-court decision in
245. Papachristou,405 U.S. at 170.

246. See Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CAL. L.
REV. 491, 496-98 (1994) [hereinafter Post, Reconceptualizing Vagueness] (interpreting Papachristouas
holding that Jacksonville police could not constitutionally seek to enforce "middle-class virtues" on streets).
247. David Whitford, Despite DecriminalizationDrunks Still Clog Our Nation's Jails, CORRECTIONS
MAG., Apr. 1983, at 31, 31.
249. On this doctrine, see infra text accompanying notes 443-51.
250. Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966); Driver v. Hinnant, 356 F.2d 761
(4th Cir. 1966).
251. 392 U.S. 514 (1968).
253. See, e.g., CAL. PENAL CODE § 647(ff) (West Supp. 1995) (added 1971) (providing for protective
custody, not criminal prosecution, of persons found drunk in public); CONN. GEN. STAT. § 19a-126c (1995)
(enacted 1974) (similar). In New Haven in the early 1990s, indigent inebriates discovered on the street were
not arrested but rather transported by ambulance to a hospital emergency room. The Yale-New Haven
Hospital took in about 2800 drunks in 1993, at a total public cost of $900,000. Abram Katz, Indigent
Drunks Tax Hospitals,NEW HAVEN REG., Jan. 23, 1994, at Al. WHITE, supra note 101, at 57-83. provides
an inside look at detoxification programs for alcohol and drug abusers.
Lessard v. Schmidt 3 54 held that

a person faced with involuntary commitment
is constitutionally entitled to all of the rights of a criminal defendant, including
a timely hearing, counsel (for the indigent, at state expense), trial by jury, and
an evidentiary standard of proof beyond a reasonable doubt. In 1975, the
Supreme Court held in O'Connor v. Donaldson2 5 that an involuntarily
institutionalized mental patient who was a danger neither to himself nor others
had a prima facie claim for damages against a superintendent who had failed
to release him. Partly as a result of this line of decisions, involuntary civil
commitment, even of mentally ill persons with a history of violence, became
rare in the United States. 2 6
Between 1955 and 1990, the rate of mental hospitalization per 100,000
adults in the United States plummeted by 90%.257 Much of the drop occurred
during the latter portion of this period, when more troubled patients began
avoiding institutional confinement. For example, the number of in-house
patients under the age of sixty-five in New York state psychiatric centers fell
from 24,800 in 1973, to 13,700 in 1980, to 11,300 in 1990.2 8 In theory, the
new outpatients were to be stabilized with psychotropic medications. In
practice, some of the most severely ill ended up bench squatting amid
shopping bags and shopping carts. 259
d. Liability of Officials and Governments for

ConstitutionalViolations
O'Connor illustrates why police officers and hospital staff increasingly

paid attention to constitutional rulings. Although 42 U.S.C. § 1983, originally
part of the Civil Rights Act of 1871, had long provided for legal remedies
against persons who violated federal constitutional rights under color of state
law, § 1983 actions did not flower until the 1960s.26 ° In a watershed decision
254. 349 F. Supp. 1078 (E.D. Wis. 1972), vacated, 414 U.S. 473, on remand, 379 F. Supp. 1376 (E.D.
Wis. 1974), vacated, 421 U.S. 957 (1975), on remand, 413 F. Supp. 1318 (E.D. Wis. 1976).
255. 422 U.S. 563 (1975).
256. See JENCKS, HOMELESS, supra note 1, at 31-32.
257. Id. at 138. An overview of the deinstitutionalization movement may be found in id. at 21-40.
258. O'FLAHERTY, supra note 1, at 230 tbl. 12-1 (numbers rounded off). Interpretation of these data
is tricky because during the same time period there was a sharp rise in the populations of prisons, nursing
homes, and other institutions that house some mentally ill persons. Stressing these substitutions, O'Flaherty
argues that the effects of deinstitutionalization have been much exaggerated. Id. at 226-47.
259. It is estimated that over 40% of the homeless in the New York City subway system, an analogous
landing spot, are mentally ill. See George L. Kelling & Catherine M. Coles, Disorder and the Court, PUB.
INTEREST, Summer 1994, at 57, 60. Most surveys find that at least 20% to 30% of homeless individuals
are afflicted in this way. See Fischer & Breakey, supra note 215, at 1122.
260. PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 47-51
(1983) (on evolution of § 1983). Because federal statisticians lump all civil rights suits in a single category,
scholars have had difficulty pinpointing trends in the number of § 1983 actions. None would dispute,
however, that the number has increased manyfold since 1960. See id. at 199-201; cf. Theodore Eisenberg
& Stewart Schwab, The Reality of ConstitutionalTort Litigation,72 CORNELL L. REV. 641. 665-66 (1987)
(finding increase, but not explosion, in numbers of constitutional tort actions from 1975 to 1984).
in 1961, Monroe v. Pape,26' the Supreme Court held that § 1983 afforded
relief to the victim of a government official even when the official had been
acting without government authorization.262 Subsequent Court decisions
entitled plaintiffs to ground damage actions directly on the Federal
Constitution 263 and severely restricted municipal immunities from liability for
§ 1983 damages.2 After the legal revolution was over, an officer enforcing
an ordinance against begging or sleeping in public faced a real prospect of
being personally sued for damages.265 Although cities generally indemnified
officers, especially ones who had acted in good faith,266 such cases still
posed a major aggravation for the defending officers. The enhanced risk of
government tort liability also provided heads of municipal police departments
and state mental-health agencies with a handy excuse for being lenient with
persons prone to chronic street misconduct.2 67
e. The Revolution in Retrospect
Much of what the courts accomplished between 1965 and 1975 is laudable.
An institutionalized individual should be entitled to pursue a procedure for
release, and the police should not harass a person in a downtown location
simply because he is shabbily dressed. Nevertheless, like Justice Douglas,
many judges at the time seemed blind to fact that their constitutional rulings
might adversely affect the quality of urban life and the viability of city
centers. 261 It is one thing to protect unpopular persons from wrongful
confinement; it is another to imply that these persons have no duty to behave
themselves in public places. In addition, federal constitutional rulings are one
of the most centralized and inflexible forms of lawmaking. In a diverse and
dynamic nation committed to separation of powers and federalism, there is
261. 365 U.S. 167 (1961).

262. Id. at 172.
263. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
264. Monell v. Department of Social Servs., 436 U.S. 658 (1978).
265. See, e.g, Blair v. Shanahan, 795 F. Supp. 309 (N.D. Cal. 1992), aff'd, 38 F.3d 1514 (9th Cir.
1994) (former panhandler's § 1983 claims against five officials and city for unconstitutional arrest settled
by city for $4000); RIGHT TO REMAIN NOWHERE, supra note 4, at 55-56, 58 (64 campers wrongfully
arrested at Santa Ana civic center settled with city for about $400,000); infra note 367. Some 200 to 300
§ 1983 damage actions are filed each year against the City of Los Angeles Police Department, mostly
without success. SKOLNIK & FYFE, supra note 188, at 200-04 (claiming developments in § 1983 law have
significantly reduced police violence).
266. See generally SCHUCK, supra note 260, at 85-88 (discussing wide variety of state and local
indemnification policies); Project, Suing the Police in Federal Court, 88 YALE L.J. 781, 810-12 (1979)
(discussing municipal insurance and indemnification policies).
267. See, e.g., supra note 256 and accompanying text (on deinstitutionalization of violent mental
patients).
268. There is disagreement about how much effect these sorts of rulings ultimately had on police
behavior. Many are skeptical of the influence of formal law. See. e.g., OFtLAHERTY, supra note 1, at
267-74, Goldstein, Panhandlersat Yale, supra note 13, at 351-55. But cf. SKOLNIK & FYFE, supra note
188, at 200-05 (Supreme Court decisions probably reduced police violence significantly).
much to be said for giving state and local legislative bodies substantial leeway
to tailor street codes to city conditions, and for giving state judges ample scope
to interpret the relevant provisions of state constitutions. During the period
from 1965 to 1975, too many federal judges were disinclined to leave much
decisionmaking to others.
3. The 1980s: PopularEmbrace of the Homeless
The relaxation of legal controls between 1965 and 1975 became far more
momentous when, especially in the 1980s, pedestrians eased the informal
standards of behavior they applied to other street users. 269 This shift in
attitudes toward street people was an aspect-indeed the culmination-of a
larger ideological shift. During the period from 1960 to 1990, the American
zeitgeist strongly supported bringing previously marginalized groups into the
social mainstream. After the stunning success of the original civil rights
movement, which had addressed the exclusion of racial minorities, the nation
moved on to address the situation of women, homosexuals, and the disabled.
By around 1980, the tide favoring social inclusion had reached one of the
most traditionally ostracized groups, the "derelicts" and "bums" who had
previously been concentrated within Skid Rows and who were becoming more
visible on downtown streets. As early as the late 1970s, articulate advocates
such as Robert Hayes and Mitch Snyder were beginning to persuade judges,
journalists, and other commentators to apply an alternative label-the
"homeless"-to these individuals. 270 The new label stuck, and it began to
influence how pedestrians reacted to the beggars and bench squatters they
encountered. The term "homeless" tended to transform a person previously
scorned as a "bum" into a blameless victim worthy of alms. By the mid- and
late 1980s, public expressions of empathy for down-and-out Americans
blossomed as never before.
Conventional party politics also helped fuel the homelessness issue during
the 1980s. Critics of the Republican President, Ronald Reagan, sought to
demonstrate that his administration had been cruelly cutting back on welfare
benefits. 27' Popularizing a label that characterized street people as victims
helped foster the perception that they were casualties of Reaganite policies.
269. Equating this historical period with the 1980s is a convenient, if rough, simplification.
270. See supra notes 128-31 and accompanying text. These events and the history of the cause are
recounted in WHITE, supra note 101, at 221-42.
271. See, e.g., FRED BLOCK ET AL., THE MEAN SEASON: THE ATTACK ON THE WELFARE STATE 24
n.20 (1987) (Reagan administration's "cuts forced hundreds of thousands deeper into poverty"). On the
inaccuracy of this cutback charge in the context of federal housing assistance, see infra note 295 and
accompanying text.
Countless Hollywood celebrities

272
and journalists in the national media took up
the homelessness cause.
The zeitgeist of inclusion also influenced leaders of religious bodies,
merchants' associations, universities, and other organizations involved in street
order. During the 1950s, Protestant fundamentalist rescue missions were key
institutions on Skid Rows. Managers of these missions attempted, not very
effectively, to convert "sinners" from antisocial lifestyles. During the mid-
1980s, many of these missions were squeezed oue 73 as numerous moderate,
middle-class congregations became involved in operating soup kitchens and
shelters for the homeless. 274 Parishioners of these middle-class churches
commonly viewed their guests not as sinners to be reformed, but as victims of
the structural forces of American society.
These new churchly initiatives helped move street people out of Skid Row
and into other downtown areas. While the fundamentalist rescue missions had
been located in Skid Row, the middle-class churches were typically situated
elsewhere. Members of some charities also appear to have sought to draw
street people to locations that would make extreme poverty more
conspicuous.275 In San Francisco and Santa Monica, for example, social
activists chose the grounds of the municipal civic center as a main site for
distributing free meals.2 6
272. See WHtTE, supra note 101, at 221-42 (on journalistic bias and the anti-Reagan impetus); S.
Robert Lichter, Media's Typical Homeless Are Anything But, WALL ST. J., Dec. 14, 1989, at A22 (reporting
study that found advocacy bias in coverage of homelessness by television and weekly news magazines
between 1986 and 1989).
273. In Manhattan, the number of residents living in traditional missions is estimated to have declined
by about 90% between 1949 and 1990. O'FLAHERTY, supra note 1, at 47 tbl. 4-1.
274. Between 1984 and 1988, the nation's total number of shelters for the homeless increased from
1900 to 5400. NATIONAL SURVEY OF SHELTERS, supra note 124, at 2. In 1988, religious groups were
operating about one-third of the private shelters. Id. at 18.
275. This predilection has helped increase the number of street people at the epicenters of universities.
For example, in 1977, a Yale Divinity School student spearheaded the opening of the oldest and largest
of the existing soup kitchens in downtown New Haven; in 1979, this soup kitchen moved to Christ Church,
across the street from the Yale Co-op, the university's main bookstore. Joan E. Neal, New Haven Soup
Kitchens 5, 11 (May 15, 1989) (unpublished manuscript, on file with author). In 1982, Stewart Guernsey,
a Harvard Divinity seminarian, helped open the first of the existing soup kitchens near Harvard; it was
located at Christ Church Episcopal, a hundred yards west, and within eyesight, of Harvard Yard. Telephone
Interview with James Stewart, Director of First Church Shelter (Dec. 11, 1995).
276. See No HOMELESS PEOPLE ALLOWED, supra note 6, at 32 (on City of San Francisco's arrest, over
course of 13 months, of over 350 individuals associated with organization Food Not Bombs for distributing
food at Civic Center Plaza); Nancy Hill-Holtzman, Santa Monica Enforces a New Policy Toward Homeless
People, L.A. TIMES, June 19, 1992, at B9 (from 1989 to 1992. FAITH, a private charity, provided as many
as 300 free meals every weekday on lawn of Santa Monica City Hall). The direction of causation is of
interest in these situations. Do the patrons follow the food providers, or vice versa? In downtown New
Haven in the early 1990s, at least six different religious institutions provided evening soup-kitchen services
each week on a rotating basis, with the expectation that hungry patrons would learn where to go on a
particular evening for a free meal. See Downtown Evening Soup Kitchen, Fact Sheet (Aug. 1994)
(unpublished, on file with author). The success of this format indicates that a food provider has
considerable power to draw the destitute to a location of the provider's choice.
A charity that uses food to draw the hungry to the steps of city hall is engaging in symbolic political
speech (although the diners themselves typically are not). Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293-99 (1984), grants a government authority to restrict symbolic political speech that
In sum, as the homelessness cause crested during the 1980s, both

pedestrians and intermediary organizations significantly relaxed their informal
policing of street misconduct. For the Skid Rows in many cities, this was a
finishing blow. Skid Rows had been losing population since the 1920s. 77
During the 1970s, more relaxed police practices, greater federal disability
benefits, fear of younger and violence-prone newcomers, 278 and, in some
instances, urban renewal projects2 79 had contributed to the continuing exodus
from these neighborhoods. As concern for the homeless prompted pedestrians
and organizations to be more tolerant of disorderly behavior in the city center
during the 1980s, the last significant strand in the noose snapped. Street people
who previously had been informally confined to Skid Row were now able to
make chronic use of the busiest downtown areas. Many of them did. By 1990,
in New York, Chicago, and many other large cities, the legal and social
revolutions of the previous decades had so completely burst the bounds of Skid
Row that only traces of it remained.280
A decline in racial prejudice also contributed to the increase in street
people in downtown locations, but from a source other than Skid Row. A large
majority of the residents of the 1950s Skid Rows were whites, most of whom
were virulently prejudiced against blacks. 28' Aware of the hostility of these
whites, and'of the risk of encountering racist police officers, during the 1950s
many destitute blacks understandably were chary of spending much time in
public places outside black neighborhoods. The softening of white hostility
toward blacks during and after the civil rights movement of the 1960s seems
to have allayed the reservations many underclass blacks had previously
harbored about becoming chronic users of downtown spaces. 2 2 In any event,
the panhandlers and street homeless who began appearing in American
downtowns after 1980 were disproportionately black.283 No fact better
displants other users from a prime civic location as long as the government provides ample alternative
channels for that speech. See also McHenry v. Agnos, No. 92-15123, 1993 WL 8728 (9th Cir. Jan. 19,
1993) (rebuffing First Amendment arguments advanced on behalf of Food Not Bombs program); infra note
415 and accompanying text.
277. See supra notes 230-31 and accompanying text.
278. Racial animus also may have been involved. The young arrivals tended to be black, the older
residents, white. See Barrett A. Lee, The Disappearanceof Skid Row, 16 URB. AFF. Q. 81, 97-98 (1980);
David Levinson, Skid Row in Transition, 3 URB. ANTHROPOLOGY 79, 86 (1974) (older white Bowery
residents feared young black newcomers would "jackroll" (rob) them).
279. CompareHOCH & SLAYTON, supra note 23 1, at 114-23, 172-98 (stressing role of urban renewal)
with JENCKS, HOMELESS, supra note I, at 61-74 (skeptical assessment of link between loss of SRO units
and rise of homelessness).
280. See supra text accompanying notes 2-3. The last of Chicago's cubicle hotels were demolished
in 1980. See Rossi, supra note 3, at 182 n.3.
281. See DANIEL B. BOGUE, SKID ROW INAMERICAN CITIES 269 (1963) (reporting on Chicago),
HOCH & SLAYTON, supra note 231, at 97-98.
282. In contrast to the 1950s, by 1984 most SRO hotels in Chicago were racially integrated, except
those on the mostly black South Side. See HOCH & SLAYTON, supra note 231, at 260.
283. Goldstein, Panhandlers at Yale, supra note 13, at 300 (most Yale-area panhandlers are black
males between ages of 25 and 45); Dawidoff, supra note 57, at 34-35 (photographs of 30 New York
subway panhandlers indicate that close to two-thirds are nonwhite). These proportions are generally in line
demonstrates the success of the post-1960 inclusionary zeitgeist. Brendan

O'Flaherty states the point this way:
In 1940 or 1960, a black man would have been risking serious bodily
harm or even death if he tried to sleep all night in Grand Central
Terminal or on Park Avenue. That hundreds of African-Americans
were doing so in 1990 is something of a tribute to the NYPD.2 4
4. The 1990s: Backlash
The easing of social controls during the 1980s occurred at the same time
that deinstitutionalization of the mentally ill, family breakdown, the crack
epidemic, and other forces were contributing to the steady growth of the urban
underclass. 5 The streets of U.S. cities, hit with this forceful combination of
punches, became more unruly than at any time since the Great Depression.
By about 1990, many city dwellers had concluded that things had gone too
far.28 6 The nation in effect had run an experiment that had elevated the
liberties of misbehaving street people over the rights of conventional users of
public spaces. By the early 1990s, it had become plain that the experiment had
failed. Like the dangers of cocaine, the importance of preventing street disorder
had been learned the hard way-through experience. In the 1990s, the abiding
concern with controlling street misconduct-a concern that prevails among
members of all racial and income groups 28 7-resurfaced with a vengeance.
The advocates' shortsighted political strategy (what Richard White would
288 ) added to the intensity of the backlash. 289
later call "lying for justice
Throughout most of the 1980s, Hayes, Snyder, and others had succeeded in
persuading many members of the press to portray the homeless as "just like
you and me," as if most Americans were only a paycheck away from the
streets. This portrayal was recklessly false. 290 Homeless people suffer from
an exceptionally high incidence of mental illness and substance abuse, 29' and
tend to have far less social capital, not to mention economic capital, to fall
back on when misfortune strikes.292 In addition, the advocates impaired their
with the racial composition of the urban underclass. In 1990, "distressed" urban neighborhoods in the 100
largest central cities--that is, neighborhoods categorized by severe economic and social poverty-contained
populations that were 67.7% non-Hispanic black and 19.6% Hispanic. Kasarda, supra note 208, at 263.
284. O'FLAHERTY, supra note 1,at 274. O'Flaherty also laments that so many black people have to
exercise this newfound "right." See id.
285. See supra notes 181-229.
286. See Isabel Wilkerson, Shift in Feelings on the Homeless: Empathy Turns into Frustration,N.Y.
TMIES, Sept. 2, 1991, at Al, AIO.
288. WHITE,supra note 101, at xii, 3-20.
289. See Homelessness Muddle, supra note 127, at 45.
290. See BAUM & BURNES, supra note 211, at 15-16; WHITE,supra note 101, at 9-16.
292. See supra notes 190 & 199 and accompanying text.
credibility when they exaggerated the number of homeless persons as much as

tenfold,293 implausibly claimed homelessness was almost entirely due to an
inadequate supply of low-rent housing,294 and inaccurately implied that
spending on housing subsidies for the poor had been slashed during the
29 5
1980S.
In the late 1980s, journalists began publishing more accurate accounts of
the homelessness problem.296 In 1989, in a column entitled Swarms of
Beggars Cause "Compassion Fatigue," Ellen Goodman concluded, "Today at
least, this tourist, walking from one block to another, one cup to another, one
city to another wants to join in a citizens' chorus: 'Enough's enough.' ' 297 By
the 1990s, New York magazines were running stories deeply hostile to
panhandlers.298 By that time, most Hollywood celebrities had dropped
homelessness as yesterday's issue and moved on to other causes.
Politicians were quick to discern the electorate's refound willingness to
hold an individual responsible for his behavior in public. In the early 1990s,
mayoral candidates who had campaigned partly on a platform of street
order-Frank Jordan in San Francisco and Rudolph Giuliani in New
York-won elections in two of the nation's most liberal cities. Former havens
for street people, such as Washington, D.C., Santa Monica, San Francisco, and
even far-left Berkeley and Santa Cruz, all joined the crackdown movement by
passing anti-panhandling measures.299
293. See, e.g., Robert Hayes, Litigating on Behalf of Shelterforthe Poor,22 HARV. C.R.-C.L. L. REV.
79, 82 (1987) (asserting existence of two or three million homeless Americans). Compare id. with sources
cited supra note 132 (scholarly studies estimating existence of 250,000 to 600,000 homeless Americans).
294. See, e.g., Hayes, supra note 293, at 83-86. Hayes has repeatedly asserted that the solution to the
problems of the homeless can be summed up in three words: 'housing, housing, housing."' Celia W.
Dugger, Gambling on Honesty on the Homeless, N.Y. TIMES, Feb. 17, 1992, at B I.
295. On actual trends in federal funding of housing subsidies, see JENCKS, HOMELESS, supra note I,
at 94-98 (criticizing misleading statements of Center for Budget and Policy Priorities and Low Income
Housing Information Service).
Some influential refutations of various of the advocates' positions mentioned in this paragraph are
BAUM & BURNES, supra note 211; JENCKS, HOMELESS, supra note I; Rossi, supra note 3; and WHITE,
supra note 101. But cf. Brendan O'Flaherty, An Economic Theory of Homelessness and Housing, 4 J.
HOUSING EcON. 13 (1995) (arguing that reduction in population of middle-class households in central cities
affected housing markets in manner that contributed to homelessness of 1980s).
296. Examples of this franker journalism include Barry Bearak, Waiting to Die at the AIDS Hotel, L.A.
TIMES, July 25, 1992, at Al; Jay Mathews, Rethinking Homeless Myths, NEWSWEEK, Apr. 6, 1992, at 29;
David Whitman, Shattering Myths About the Homeless, U.S. NEWS & WORLD REP., Mar. 20, 1989, at 26;
and Celia Dugger's many articles for the New York Times.
297. Goodman, supra note 54, at A9.
298. See, e.g., Dawidoff, supra note 57; Pete Hamill, How to Save the Underclass-andOurselves,
NEW YORK, Sept. 20, 1993, at 34.
299. Developments in these and other cities are conveniently summarized in RIGHT TO REMAIN
NOWHERE, supra note 4, and No HOMELESS PEOPLE ALLOWED, supra note 6. Of the 16 cities tallied in
RIGHT TO REMAIN NOWHERE, supra note 4, at xi tbl. II, 12 had taken some action in 1993 to control
begging; 12 had carried out "sweeps" of public places; 10 had imposed restrictions on sleeping; and 4 had
attempted to control sitting. Id. No HOMELESS PEOPLE ALLOWED, supra note 6, at vii tbl. I, identifies "anti-
homeless" policies adopted in 1994 by 39 cities and counties, more than double the number identified the
previous year 26 of these localities had approved anti-panhandling ordinances.
Finally, just as the election of Ronald Reagan had helped boost the
homelessness issue into prominence, Bill Clinton's election in 1992 contributed
to its fall from favor. With a Democrat in the White House, partisans of that
party got less mileage out of portraying street people as helpless victims of
insensitive government policies.
The 1990s backlash may lead to the resurrection of many of the informal
street norms suspended during the 1980s. If so, pedestrians will increasingly
ignore and rebuff panhandlers, and in so doing reduce the incidence of
cadging. 300 Business Improvement Districts will step up security efforts and
campaigns against giving to panhandlers. Religious congregations will notice
a decline in the number of volunteers for programs for the homeless.
Most significantly, cities can be expected to continue to adopt ordinances
that authorize their police forces to curb street misconduct. Many of these
ordinances are likely to impose rules-of-the-road that vary from public space
to public space. The balance of this Article develops its chief normative thesis:
Judges should generally refrain from construing federal constitutional clauses
to deny cities the capacity to spatially differentiate their street policies.
V. THE INFORMAL AND FORMAL ZONING OF PUBLIC SPACES
Some scholars,30 ' judges, 0 2 and advocates apparently believe that

provisions of the Federal Constitution tightly and uniformly constrain city
policies in all open-access public spaces. This monolithic conception is
reflected in Justice Roberts's famous dictum in Hague v. CIO:
Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use
300. The few available scraps of evidence indicate that the hourly incomes of panhandlers fell between
1990 and 1995 as the backlash deepened. See Finder, Panhandling is Down, supra note 5, at 46 (one
subway panhandler's report that his former income of $100 a day had been roughly halved); Douglas
Martin, FreeSpeech, but They'd Preferthe 2 Cents, N.Y. TIMEs, Oct. 4, 1992, at 39 (anecdotal reports that
Manhattan beggars took in significantly less in 1992 than in 1991); News From the Underground, CITY
J., Spring 1994, at 9 (one N.Y. beggar's report that people were giving less than before).
301. See Kalven, supra note 36. After eloquently showing that in some circumstances constraints on
expression actually serve the cause of free speech, Kalven proceeds to overlook that truth and criticizes the
Court for sympathizing with police efforts to control a crowd of 2000 parading in front of a courthouse.
He moves too readily from the unimpeachable premise that Louisiana should have had to permit the parade
to occur somewhere, to the conclusion that it had to allow the parade in one of the few locations where
it might lead to perceptions of mob justice.
Jeremy Waldron also succumbs to the notion that all open-access spaces have to be governed by an
identical regulatory regime. Waldron analyzes bans on sleeping as if they invariably apply citywide. See
Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295 (1991).
302. Justice Brennan was one of the staunchest proponents of the monolithic view. See, e.g., United
States v. Kokinda, 497 U.S. 720, 742-43 (1990) (Brennan, J., dissenting) (unqualified statement that public
parks, streets, and sidewalks are suited for use as central gathering places). But cf. infra note 378.
of the streets and public places has, from ancient times, been30 a3 part
of the privileges, immunities, rights, and liberties of citizens.
Justice Roberts's sweeping characterization of the uses of streets and public

places is descriptively false. For example, most cities treat street pavements
primarily as transportation corridors, and thus give transportation functions
priority over citizens' efforts to use those pavements for parades, gatherings,
solicitations of drivers, and other speech activities that interfere with traffic
flows. Justice Roberts's broad dictum is also suspect as a statement of
constitutional doctrine; the municipal priorities just mentioned have long been
held not to violate the First Amendment. 3 4
Charles Tiebout has indicated the theoretical advantages of enabling people
of disparate tastes to "vote with their feet" among local governments that offer
distinct packages of public goods and taxation policies.0 5 Consumer
sovereignty is also served by the provision of an array of physical and social
environments within a single political unit. Manhattan is interesting partly
because of the striking variations among its neighborhoods-Wall Street,
Greenwich Village, Chinatown, the Theater District, Harlem, and so on. This
part contrasts informal and formal methods of "zoning" public spaces to add
to the richness and diversity of urban life.
A. A Hypothetical Division of City Public Spaces into Red, Yellow,

and Green Zones
As a mental experiment, imagine that it would be desirable for a city to

have three codes, of varying stringency, governing street behavior. Borrowing
from the system of traffic signals, let's call these codes Red, Yellow, and
Green. Each of the city's public spaces would be assigned to a zone paired
with just one of these colors. (Who is to do this zoning will be addressed
shortly.) As with a traffic signal, Red would signal extreme caution to the
ordinary pedestrian; Yellow, some caution; and Green, a promise of relative
303. 307 U.S. 496, 515 (1939). At a relatively early point in his judicial career, Justice Holmes
declared, quite discordantly with Hague and contemporary First Amendment law, that a government has
complete discretion in controlling its public spaces and can "forbid public speaking in a highway or public
park." Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895).
304. See, e.g., Cox v. New Hampshire, 312 U.S. 569, 575-76 (1941) (permit requirement for street
parade is valid time, place, and manner restriction); ACORN v. St. Louis County, 930 F.2d 591, 595-97
(8th Cir. 1991) (traffic ordinance that barred persons standing in roadway from soliciting charitable
contributions from vehicle occupants did not violate First Amendment); Xiloj-Itzep v. City of Agoura Hills,
29 Cal. Rptr. 2d 879, 879-89 (Ct. App. 1994) (city may prohibit day laborers from soliciting work from
those driving by).
305. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956)
(foundational analysis of economic justifications for spatial diversity in local government policies). The
post-Tiebout literature is reviewed in WILLIAM A. FISCHEL, REGULATORY TAKINGS 255-69 (1995).
safety.3" 6 It must be stressed that these color codes are chosen with an eye
to pedestrians of ordinary tastes, not to those inclined to engage in nuisance
behavior. This usage is consistent with the phrase "Red Light District," which
connotes disorderliness to an ordinary citizen, but not necessarily to a brothel
patron.
In Red Zones (say, 5% of a city's downtown area), normal standards for
conduct in public spaces would be significantly relaxed. 30 7 The rule would
hardly be "anything goes," of course; even in these places, violence to person
or property, for example, would be subject to sanction. But many sidewalk
behaviors that would be considered disorderly in the rest of the city would not
violate Red-Zone rules-of-the-road. In these relatively rowdy areas, a city
might decide to tolerate more noise, public drunkenness, soliciting by
prostitutes, and so forth. More pertinently for the topic at hand, chronic
panhandling and bench squatting would be permitted in a Red Zone. Red
Zones, in short, would be designed as safe harbors for people prone to engage
in disorderly conduct.
Yellow Zones would comprehend, say, 90% of a city's downtown public
spaces. The city's civic center, plazas, central business district, and other
principal agoras would be placed under this large umbrella. The applicable
code of conduct would aim to make a Yellow-Zone space serve as a lively
mixing bowl. As mentioned, 308 a city would have to walk a fine line to
achieve this objective. On the one hand, the city could not control its Yellow-
Zone spaces so tightly that the flamboyant and eccentric would be kept out; on
the other hand, it would have to curb street misbehavior enough to make the
great majority of citizens willing to enter these spaces without hesitation. A
Yellow Zone's rules of public decorum therefore would be stricter than a Red
Zone's rules. There would be constraints on excessive noise, drunkenness, and
other disorderly conduct. For present purposes,0 9 let's assume that chronic
(but not episodic) panhandling and bench squatting-permitted in a city's Red
Zones-would be prohibited in its Yellow Zones.
Green connotes unusually pleasant environmental conditions. In Green
Zones, the remaining 5% of downtown, social controls would be tailored to
create places of refuge for the unusually sensitive: the frail elderly, parents
306. These designations assume that social order is a unidimensional condition. Anyone bothered by
this simplification should imagine a more elaborate zoning system.
307. It would also be possible to vary regulations according to time of day. For instance, a
neighborhood commercial strip might be governed by "Yellow" rules during daylight hours, but by "Green"
rules after dark, when even episodic panhandling may put off pedestrians.
309. Different cities could make different determinations. For example, while a Las Vegas might
choose to allow episodic panhandling in its Yellow Zones, a St. Petersburg, Florida, might choose to ban
that activity in those locations (constitutional doctrine permitting). The basic idea is that even in a St.
Petersburg, a Yellow Zone would require a pedestrian to use a degree of street smarts.
with toddlers, unaccompanied grade-school children, bench sitters reading

poetry. To accomplish this goal, the Green-Zone code would be relatively strict
in its regulation of mildly disruptive activities such as radio playing, walking
a dog, leafleting, and street performances.31 Let's also suppose that even
episodic panhandling and bench squatting would be banned in these locations.
A large Green Zone would offer real respite from the ordinary hurly-burly of
the streets. A city might also create scattered pockets of refuge, perhaps around
all bus stops.
To summarize: Under the hypothetical regime, chronic panhandling and
bench squatting would be permitted only in 5% of downtown public spaces
(the Red Zones), but episodic panhandling and bench squatting would be
permitted in 95% of downtown public spaces (all but the Green Zones).
B. Alternative Zoners of Public Spaces
A city government could zone its public spaces top-down in the manner
that it zones private spaces: by means of an official map that designates zones
and an ordinance text that articulates the rules-of-the-road that apply in the
various districts. The Skid Rows of the 1950s are a reminder, however, that the
zoning of public spaces can also occur bottom-up.
1. Informal Zoning
Members of a close-knit group who repeatedly make use of an open-access

public space often are able to control misconduct there without direct help
from the state. 31 ' They do this by developing and enforcing social norms to
deter an entrant into a space from using it in a way that would unduly interfere
with the opportunities of other members. City dwellers, recognizing the crazy-
quilt physical character of urban spaces and the myriad demands of
pedestrians, tend to vary their informal norms from public place to public
place. Profanity may be improper on the shuffleboard court, but not on the
handball court. Panhandling may be seen as wrong on sidewalks near school
grounds, but not on Skid Row. In a large urban park, specialized subgroups
may sort themselves out spontaneously-kite flyers on the hill, soccer players
on the open field, parents with toddlers near the sandbox-and enforce varying
310. Cf. Davenport v. City of Alexandria, 710 F.2d 148, 149-50 (4th Cir. 1983) (en banc) (involving
city ordinance that banned street performances (such as plaintiff's bagpipes playing) on sidewalks of central
business district, but not in other public spaces).
311. On the possibilities and limitations of spontaneous order, see generally ORDER WITHOUT LAW,
supra note 141, and sources cited therein.
rules of conduct for each of these subspaces.? 12 In the same way, the
residents of an urban neighborhood may be able to apply different informal
rules of civility to different sidewalks.
In open-access spaces thronged with strangers, however, free-riding is apt
to afflict the informal sector.3 13 When this occurs, a hybrid social-control
system may develop, under which police officers, without any legislative
authorization, enforce informal neighborhood rules of conduct.31 4 Police
officers help create informal Green Zones, for example, when they are tougher
on street nuisances in public spaces near elementary schools. Conversely,
casual police practices can help turn Skid Rows into unofficial Red Zones.3 15
For example, as early as 1868, the New York police informally exempted the
Bowery from a citywide Sunday-closing law; in the 1920s, they exempted it
from the full rigors of Prohibition. 16
2. Municipal Zoning
At first blush, the formal zoning of public spaces may seem an offbeat,
even bizarre, idea. However, cities routinely differentiate their application of
rules-of-the-road in this fashion. Consider the municipal laws that govern
conduct on street pavements. In a large city, these pavements range from
narrow local streets to major arteries. City officials, recognizing the differences
among these public spaces, vary the applicable speed limits and parking
regulations. A narrow cul-de-sac becomes, so to speak, a Green Zone usually
safe for tricycle riders, while an interstate highway functions as a Red Zone
where motorists can expect to encounter disorderly eighteen-wheelers. These
spatial variations in traffic rules are wholly uncontroversial. It is manifest that
a circulation system functions better if traffic rules are not monolithic but
rather tailored to different sites.
The administrators of public parks commonly use a similar approach. They
design and control special subzones for use as tot-lots, picnic areas, playing
fields, and so on.317 In effect, New York City has set aside the Sheep
312. On the spontaneous spatial sorting of people with different tastes, see THOMAS C. SCHELLING,
MICROMOTIVES AND MACROBEHAVIOR 137-55 (1978).
314. See SKOGAN, supra note 22, at 166-67.
316. Kenneth T. Jackson, The Bowery: From Residential Street to Skid Row, in ON BEING HOMELESS:
HISTORICAL PERSPECTIVES 69, 75 (Rick Beard ed., 1987).
317. See, e.g., ALBERT J. RUTLEDGE, A VISUAL APPROACH TO PARK DESIGN 82-84 (1981) (example
of how landscape architect might anticipate user preferences when designing park containing bocci green,
basketball court, and children's playground).
Meadow in Central Park as a Green Zone.318 Signs posted within that fenced
area read in their entirety:
Sheep Meadow
Open April-October. Closed when wet.
This area is reserved for quiet enjoyment. The following are not
allowed:
Team sports. Ball playing. Bike riding.
Skates. Glass bottles. Dogs.319
A few cities have experimented with officially designating Red Zone parks as
safe harbors for unusually disorderly activity. Zurich's failed experiment with
Needle Park, where the enforcement of drug laws was relaxed, is an
example. 320 Dallas, Jacksonville, and Orlando have designated specific
sections of certain public parks as safe zones where the street homeless can
321
bed down outdoors without fear of arrest.
City zoning of sidewalks also has ample precedent. Governments create
Green Sidewalks when they impose especially stringent noise and activity
restrictions on sidewalks near schools, hospitals, courthouses, and other
facilities that house individuals of delicate sensibility. 322 Some crackdown
ordinances have established small patches of Green Sidewalk by prohibiting
begging within a few yards of, say, an automated teller machine or mass
transit stop.323 In 1989, Atlanta seriously considered designating much of its
downtown business district a "Hospitality Zone" (roughly, a Yellow Zone) in
order to attract tourists and conventioneers.324
Some sidewalk zoning is only quasi-official. For instance, Santa Monica
has prominently posted along its Third Street Promenade, a hugely successful
318. Frederick Law Olmsted and Albert Vaux, the original designers of Central Park, contemplated
that it would have specialized physical spaces---"Playground," "Arboretum," "Flower Garden," and so on.
Perhaps because police forces were then in their infancy, these designers make no mention of issues of
social control in describing their vision of the Park. See LANDSCAPE INTO CITYSCAPE: FREDERICK LAW
OLMSTED'S PLANS FOR A GREATER NEW YORK CITY 74-88 (Albert Fein ed., 1968) (reproducing 1858
document by Olmsted and Vaux). D
319. Sign observed by author, Nov. 5, 1994. Litigation involving the Sheep Meadow is cited infra note
466.
320. See Robert Guskind, Needle Park's Gone, Addicts Aren't, 24 NAT'L J. 2315 (on Zurich's decision
to end experiment with tolerating drug use in particular park). On the eclipse of a similar, but de facto, drug
haven, see De Groot, supra note 25, at 62 (describing reactions to University of California's construction
in 1992 of volleyball courts in People's Park in Berkeley).
321. Orlando has erected a minimalist pavilion with a heated floor and a capacity of up to 700. RIGHT
TO REMAIN NOWHERE, supra note 4, at 85; see also id. at 72-73 (Dallas open-air shelter with heated
floors); id. at 76 (Jacksonville's plans for pavilion); cf. NO HOMELESS PEOPLE ALLOWED, supra note 6,
at 45-46 (Fort Lauderdale's approval of "tent city" safe zone in downtown parking lot).
323. See, e.g., Panhandling Control Act of 1993, D.C. Act 10-98, §§ 3(b)-(c), cited in RIGHT TO
REMAIN NOWHERE, supra note 4, at 117 (ban on begging within 10 feet of ATM and at mass transit stops);
SAN FRANCISCO, CAL., MUNICIPAL CODE, pt. II, ch. 8, § 121, cited in No HOMELESS PEOPLE ALLOWED,
supra note 6, at 33 & n.126 (prohibition of loitering within 30 feet of ATM).
324. RIGHT TO REMAIN NOWHERE, supra note 4, at 28-29.
pedestrian mall, signs that list the street misconduct that the municipal code
bans in all public spaces: "abusive solicitation," "solicitation in outdoor dining
areas, public parking structures, and near Automated Teller Machines,"
"leaving property on sidewalk in excess of ten minutes," and so on. 325 While
these rules were not specifically tailored to the location, the postings signal
that Santa Monica's enforcement would likely be unusually assiduous at the
Promenade-effectively transforming it into a Yellow Zone. Quasi-official Red
Sidewalks have existed in cities such as Amsterdam, Hamburg, and (at one
time) Boston. These cities each affirmatively designated a specific district as
a center for adult entertainment, with the implication that police officers were
to relax some ordinary rules of public decorum there.326
A city might move beyond these patchwork measures to a comprehensive
system of Red, Yellow, and Green Zones.3 27 Signs listing the applicable rules
of conduct could be posted to educate the public about what was permitted
where. After the citizenry had come to understand these differences, a city
could use simple color codes to inform users how a particular space had been
designated.328
325. Sign observed by author, July 7, 1995.

326. Many European cities have official Red-Light Districts: the walletfes of the Netherlands,
Hamburg's Reeperbahn, and Zurich's Niederdorf-Bellevue. On Boston's failed experiment with a "combat
zone" in the 1970s, see 2 FEINBERG, supra note 46, at 43; Norman Marcus, Zoning Obscenity: Or the
Moral Politicsof Porn, 27 BUFF. L. REV. 1, 2-4 (1978).
327. I am a skeptic of the wisdom of zoning private lands, partly because many municipalities employ
conventional zoning to segregate households by economic class. See Alternatives to Zoning, supra note 88,
at 703-05. One might ask how I could possibly contemplate the zoning of public spaces, even if only as
a second-best measure. See infra text accompanying notes 462-66.
One distinction is that private land-use disputes tend to arise in more intimate social environments,
where alternatives to municipal zoning are feasible. Conventional zoning ordinances govern many private
land-use decisions, such as sideyard setbacks, that have highly localized effects. When externalities are so
localized, the handful of long-term neighbors involved in the dispute are apt to be able to work out their
own resolution of it without the aid of public regulators. Urban open-access spaces, by contrast, are used
by large numbers of strangers. In addition, in some contexts developers can impose covenants to regulate
uses on private lands. When public spaces need governance, this alternative source of control is not
available. Indeed, a government that zones its public spaces is in many ways analogous to a developer
imposing covenants on a subdivision. Ideally, both are seeking to make their lands more valuable.
Another distinction is that many provisions of conventional zoning ordinances prohibit landowners
from mimicking land uses that are normal in the municipality. For example, suburbanites living on quarter-
acre lots may impose a five-acre minimum lot-size requirement on undeveloped land. Conventional zoning
therefore tends to be horizontally inequitable. See Robert C. Ellickson, Suburban Growth Controls: An
Economic and Legal Analysis, 86 YALE LJ. 385, 419-24 (1977). By contrast, municipal regulation that
restricts subnormal street behavior is fully consistent with horizontal equity. Cf. Alternatives to Zoning,
supra note 88, at 729-30 (asserting that land uses should be deemed common law nuisances only if they
are unusually deleterious to neighbors).
328. How, if at all, might the location of these public-space zones be coordinated with conventional
municipal zoning decisions? At one extreme, the two systems could be entirely integrated; for example,
all sidewalks adjacent to lands in industrial zones might be automatically designated "Red." Conversely,
the public-space zones could be designated on an independent overlay map. Partly because police officers
and citizens are unlikely to be aware of the boundaries of conventional zones, the overlay approach, which
is far more flexible, seems generally superior.
Once the Red, Yellow, and Green Zones had been established, individual
citizens might spontaneously enforce the varying rules of decorum. A
pedestrian in a Yellow Park might be more likely to tell a chronic panhandler
to desist. Or, to revert to a prior example, if three sophomores were to have
been panhandled as a group in a Green Zone, the fact they had been in that
zone might affect how each reacted to the others' responses to the alms seeker.
VI. THE FEDERAL CONSTITUTIONAL RIGHTS OF INDIVIDUALS WHO

CHRONICALLY MISBEHAVE IN PUBLIC SPACES
Both informal and formal systems for zoning public spaces pose significant
federal constitutional issues, although of somewhat different sorts.
Papachristouhighlights the significant due process dimensions of the informal
zoning approach. 329 However, advocates for street people usually challenge
explicit ordinances, not informal practices. An extraordinary number of legal
authorities bear on the legality of official public-space zoning. Because public
order is the stuff of mayoral campaigns, one might suppose that judicial review
of municipal decisions would mainly involve application of local or state legal
norms-for example, provisions in municipal charters, state statutes, or state
constitutions. As in so many other fields of law, however, advocates have
made the heavy artillery of the Federal Constitution their primary mode of
attack, and most judges have acquiesced in this nationalization of the issues.
Each term, the Supreme Court typically renders several decisions that
touch on the balance between individual and majority rights in the use of
public streets, sidewalks, and parks. These precedents enable attorneys who
challenge municipal restrictions on street behavior to invoke a wide array of
federal constitutional clauses. For example, in a leading case, Pottingerv. City
of Miami,330 a class action brought on behalf of Miami's street people, the
plaintiffs' complaint invoked four different amendments to the United States
Constitution, as well as the unenumerated federal constitutional rights of
privacy and travel.
Ordinary pedestrians are not parties in these cases, and they are also
unlikely to appear as witnesses. Typical is Pottinger,which pitted street people
against city officials. Despite the best efforts of city attorneys, this lineup of
parties creates a risk that a judge assigned to a street-law case will have a one-
sided impression of the liberty issues at stake. For example, panhandlers who
make a downtown space uninviting conceivably may infringe on other
329. See supra text at notes 240-46; infra note 459. The due process issues are particularly salient
when police officers enforce informal neighborhood rules of conduct. See supra text accompanying notes
313-16.
330. 810 F. Supp. 1551 (S.D. Fla. 1992), remanded for limited purposes, 40 F.3d 1155 (11th Cir.
1994).
pedestrians' privacy,33" ' right of travel, "right to be left alone, ' 332 and
ability "peaceably to assemble ' 333 in an agora. The characterization of

pedestrian interests in the prior sentence is not meant to imply a
recommendation that a judge hold that a pedestrian has a federal constitutional
right to inviting public spaces. The point, rather, is that the rules of street law
affect the liberty interests of all who are mobile, many of whom may not be
before the court.3 4
This part focuses on three federal constitutional issues that public-space
zoning against chronic street misconduct would raise most sharply:
panhandlers' freedom of speech; and bench squatters' right of travel and
immunity from prosecution for status. In general, the emerging case law on
these three issues is encouraging cities to engage in the official zoning of
public space.
Another important constitutional issue warrants attention at the outset.
Government efforts to treat persons by category may run afoul of the Equal
Protection Clause. Because neither poverty nor homelessness is a "suspect
classification," 335 the principal legal question would be de facto
discrimination by race. Between 1970 and 1990, the population of street people
in many downtowns went from disproportionately white to disproportionately
black.336 A crackdown ordinance, even if racially neutral on its face, would
be vulnerable to an equal protection challenge if city legislators had harbored
racial animus when adopting the ordinance or if officials had administered it
in a racially discriminatory fashion.337
This issue is strikingly absent in street-law litigation. Although racial
tensions unquestionably pervade American life, the Pottinger advocates and
331. See Loper v. New York City Police Dep't, 802 F. Supp. 1029, 1042-45 (S.D.N.Y. 1992), aff'd,
999 F.2d 699 (2d Cir. 1993); see also 2 FEINBERG, supra note 46, at 22-24.
332. See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (objecting to
introduction of evidence officials had obtained by wire-tapping telephone conversations); see also FCC v.
Pacifica Found., 438 U.S. 726, 748 (1978) (stressing right to be left alone in one's home); cf. Pro-Choice
Network v. Schenck, 67 F.3d 377, 394 (2d Cir. 1995) (en banc) (Winter, J., concurring) (propounding
principle that "the First Amendment does not, in any context, protect coercive or obstructionist conduct that
intimidates or physically prevents individuals from going about ordinary affairs").
333. U.S. CONST. amend. I.
334. Cf. Richard A. Posner, Free Speech in an Economic Perspective, 20 SUFFOLK U. L. REV. I
(1986) (suggesting how free speech doctrine might be attuned to both harms and benefits of speech);
Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REv. 1321 (1992) (focusing on who should
have to "pay" for rights to free speech).
335. See, e.g., Harris v. McRae, 448 U.S. 297, 323 (1980) (poverty is not suspect classification);
Dandridge v. Williams, 397 U.S. 471, 485 (1970) (judging statute that affected class of AFDC recipients
according to "reasonable basis" standard); Johnson v. City of Dallas, 860 F. Supp. 344, 355-57 (N.D. Tex.
1994) (homeless do not constitute suspect or quasi-suspect class for equal protection purposes), rev'd on
other grounds, 61 F.3d 442 (5th Cir. 1995); City of Seattle v. Webster, 802 P.2d 1333, 1340-41 (Wash.
1990) (rejecting assertion that Seattle "pedestrian interference ordinance" violated equal protection rights
of class of homeless persons), cert. denied, 500 U.S. 908 (1991).
337. See Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v.
Davis, 426 U.S. 229 (1976).
1228 The Yale Law -Journal [Vol. 105: 1165
other attorneys for street people, who typically show no hesitation in making
a scattershot constitutional attack, rarely plead that a crackdown policy is
racially discriminatory.338 For a variety of reasons, in most cities this charge
would be difficult to prove. Partly because the effects of alcoholism, drug
addiction, and mental illness are colorblind, even in the 1980s and early 1990s,
whites constituted a significant fraction of panhandlers, bench squatters, and
other downtown street people.339 The timing of the crackdowns also does not
suggest a racial motive; while black street people had begun to increase in
number in the early 1980s, many cities did not start their crackdowns until a
decade later. More probative still, many of the cities that implemented street-
control programs in the early 1990s could not plausibly be regarded as hotbeds
of anti-black animus. 4 ° In Atlanta and Washington, D.C., for example,
blacks dominate local politics. 34' The likes of Berkeley, Evanston, and
Seattle are hardly known for racist virulence. 342 In general, white prejudice
against blacks has been in decline since 1960;343 indeed, it was this decline
that enabled more street blacks to go downtown in the 1970s and 1980s. 3"
Pedestrians' concerns about street disorder span all centuries, social classes,
and races.345 While advocates and judges must be alert to evidence of racial
discrimination, they should also recognize that a city can have entirely
legitimate reasons for attempting to stem misconduct in public spaces.
A. Panhandlers' Freedom of Speech
Controls on panhandling raise numerous subissues in the increasingly

baroque architecture of First Amendment doctrine. 6 Indeed, in the first half
338. In Tobe v. City of Santa Ana, 892 P.2d 1145, 1150 n.1 (Cal. 1995), the plaintiffs eventually
abandoned their only equal protection argument, which was that Santa Ana had discriminated against the
homeless as a class. But cf. Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055, 1066-67
(S.D.N.Y. 1995) (plaintiffs had not proved allegation that Amtrak had enforced anti-loitering policies in
Penn Station in racially discriminatory fashion).
339. See JENCKS, HOMELESS, supra note 1, at 22 (stating that surveys find somewhat less than half
of all homeless adults are black); Rossi, supra note 3, at 123 (stating that 28.9% of members of Chicago
street sample self-reported as white, and 55.6% as black).
340. Cf. Marlise Simons, In France'sFabled South, a Plagueof Panhandlers,N.Y. TIMES, Aug. 22,
1995, at A4 (describing how twelve cities in southern France have instituted bans on panhandling after
experiencing influxes of (presumably white) panhandlers from northern and eastern Europe).
341. On street-control initiatives in these cities, see NO HOMELESS PEOPLE ALLOWED, supra note 6,
at 40-43, 55-57; RIGHT TO REMAIN NOWHERE, supra note 4, at 27-34, 116-26.
342. Developments in these localities are described supra note 25 (Berkeley); supra note 169
(Evanston); and in RIGHT TO REMAIN NOWHERE, supra note 4, at 107-15 (Seattle).
343. See, e.g., HOWARD SCHUMAN ET AL., RACIAL ATTITUDES IN AMERICA: TRENDS AND
INTERPRETATIONS 71-138 (1985) (reporting time trends in white responses to survey questions).
345. See supra text accompanying notes 118, 181-88.
346. There are numerous law review articles on this issue. Some observers are inclined to decide all
speech issues in favor of panhandlers. See, e.g., Hershkoff & Cohen, supra note 15; Nancy A. Millich,
Compassion Fatigue and the First Amendment: Are the Homeless Constitutional Castaways?, 27 U.C.
DAVIS L. REv. 255 (1994). Commentators who stress the community interest in public control of
misconduct tend to argue that begging is not protected speech under the First Amendment. See sources cited
of the 1990s, various lower courts effectively prevented enforcement of

Berkeley, San Francisco, and New York City anti-panhandling ordinances on
the basis of freedom of speech. 347 Although the Supreme Court has yet to
decide a begging case, it has held that the First Amendment covers a charity's
efforts to solicit contributions. 348 The Court therefore is likely to agree with
the judges who have held that an individual's solicitation of alms falls within
the ambit of the First Amendment. 349 Although there are credible arguments
to the contrary, 350 the following discussion assumes, for purposes of analysis,
that ordinary panhandling does involve enough35 "speech" or "expressive
conduct" to bring the First Amendment into play. '
1. Commercialor Political Speech?
The Supreme Court's precedents safeguard political speech the most and
pornography the least. Commercial speech has received only slightly more
protection than pornography.352 There are reasons to suppose that the Court,
were it ever to review a begging case, would categorize begging as commercial
speech. Ordinarily, a panhandler's intended message is wholly transactional,
namely, "I would like you to give me money." A beggar essentially invites a
pedestrian to enter into an exchange. If the exchange were to be completed, the
beggar would receive alms, and the donor would receive the feeling of
satisfaction that commonly follows an act of generosity.
Advocates for street people have attempted to elevate panhandling to the
status of political speech. They assert that a destitute beggar's pleas, even if
infra note 350. Cynthia Mabry stands out for her serious regard for the interests of both street people and
ordinary pedestrians. See Mabry, supra note 135. However, although she rightly distinguishes the legal
regimes appropriate for street pavements, sidewalks, parks, and other areas, she somewhat underestimates
the utility of further legal distinctions within each of these categories. See id. at 330-36.
347. Berkeley Community Health Project v. City of Berkeley, No. C 95-0665 CW, 1995 WL 293899,
at *4-7 (N.D. Cal. May 5, 1995) (granting preliminary injunction against enforcement of Berkeley's anti-
solicitation ordinance, primarily on basis of Liberty of Speech Clause of California Constitution); Blair v.
Shanahan, 775 F. Supp. 1315, 1322-25 (N.D. Cal. 1991) (declaring California statute prohibiting accosting
for purpose of begging to violate First Amendment, thereby deterring San Francisco from enforcing statute),
rev'd & remanded,38 F3d 1514 (9th Cir. 1994), cert. denied, 115 S. Ct. 1698 (1995); Loper v. New York
City Police Dep't, 999 F.2d 699 (2d Cir. 1993) (enjoining city's enforcement of state anti-begging statute).
348. See Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 633 (1980), followed
in, e.g., International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 677 (1992).
349. See, e.g., Blair, 775 F. Supp. at 1324. Even one of the most skeptical judicial opinions, Young
v. New York City Transit Authority, 903 F.2d 146, 153-157 (2d Cir.), cert. denied, 498 U.S. 984 (1990),
ends up assuming arguendo that begging involves "expressive conduct." But see Ulmer v. Municipal Court,
127 Cal. Rptr. 445, 447 (Ct. App. 1976) (holding that First Amendment does not cover accosting to solicit
money).
350. See Fay Leoussis, The New ConstitutionalRight to Beg-Is Begging Really Protected Speech?,
14 ST. LOUIS U. PUB. L. REV. 529 (1995); Jonathan Mallamud, Begging and the FirstAmendment, 46 S.C.
L. REV. 215, 216, 230-35 (1995); Teir, supra note 21, at 321-24.
351. I also assume that ordinary bench squatting is not expressive conduct. See infra note 420 and
accompanying text.
352. A leading case on the protected, but secondary, status of commercial speech is Central Hudson
Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 562-63 (1980).
entirely self-centered, unintentionally convey additional information about

social and economic conditions, namely the existence of extreme economic and
33
social poverty.
It is true that someone who encounters an ordinary panhandler may be
spurred to political thoughts that the panhandler had no intent to provoke.
Advocates for street people might imagine that panhandling will cause
passersby to reflect on (1) the inadequacies of welfare benefits; or (2) the evils
of capitalism. This would be wishful thinking on their part. The two leading
field studies on the subject suggest that panhandlers' most powerful unintended
messages are hardly left-liberal ones. Rather, these studies show that passersby
are provoked into thinking (3) that poverty is caused by individual
irresponsibility, not structural forces; 354 and, when the panhandler is black,
(4) that the stereotype that blacks are lazy is true. 5 Perhaps a panhandler's
most emphatic unintended messages are (5) that "broken windows" are not
being repaired at the locale in question,356 and (6) that the work ethic is in
decline.357 The essential point is that the ordinary panhandler does not intend
to communicate on any of these six political topics, but simply to close a
commercial transaction.
Judges should reject the advocates' position that ordinary panhandling is
political speech. To trivialize the First Amendment in this way risks
undermining its legitimacy.35 8 If the advocates' theory were accepted, the
most activist portions of First Amendment law would bear on the niceties of
municipal street codes. If neutrally applied, the theory would promote all
commercial sidewalk speech to political speech. Every solicitor who hails a
passerby imparts information about social conditions. A pedestrian learns
something about the drug problem when a dealer whispers an offer. An
octogenarian wearing a sandwich board advertising a restaurant conveys a bit
of information about the financial resources of the elderly. The experience of
buying an ice-cream cone from an immigrant street vendor may influence a
purchaser's views on immigration policy. A teenager who tucks handbills for
tanning salons under the windshield wipers of parked cars can be seen as
publicizing the virtues (or vices) of a market economy.
As these examples imply, only a sidewalk speaker who consciously intends
to communicate a message on a political topic should be regarded as a political
353. See, e.g., Hershkoff & Cohen, supra note 15, at 898-901.
354. "[T]he more respondents are panhandled, the more likely they are to regard poverty as a function
of personal choice," and therefore to lessen their sympathy toward the poor. Wilson, Exposure to
Panhandling,supra note 15, at 16.
356. See supra notes 23, 49-50, 77 and accompanying text.
358. The immediate push for a Flag Desecration Amendment after the Court's decision in Texas v.
Johnson, 491 U.S. 397 (1989), shows that this is not a fanciful concern.
speaker.35 9 For example, a beggar whose verbal pitch regularly includes a

lament about the stinginess of a city's General Assistance policies warrants the
most robust First Amendment protection. 360 The ordinary panhandler does
not.
In addition, panhandlers are notoriously prone to engage in fraud 36 ' and
duress. 362 As the Court has noted in a related context, hurrying pedestrians
victimized by these sorts of solicitors' practices are unlikely to stop to
complain to authorities.363 The Court's decisional law on commercial speech
has stressed the legitimacy of the state's interest in regulating the exchange
process to prevent a party from engaging in misconduct that would reduce the
likelihood that the other party would gain from the proposed trade. The Court's
classification of ordinary begging as commercial speech would have the merit
of bringing these subdoctrines into play.364 If panhandling were so classified,
for example, the prevalence of fraud and duress would more easily justify the
imposition of some sort of permit system for panhandlers.365
359. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (protecting unconventional flag display
on account of "intent to convey a particularized [political] message"); White House Vigil for the ERA
Comm. v. Clark, 746 F.2d 1518, 1539-40 (D.C. Cir. 1984) (act of leaving package on sidewalk, not
intended as form of communication, is not expressive conduct); Peter Meijes Tiersma, Nonverbal
Communication and the Freedom of "Speech," 1993 Wis. L. REv. 1525, 1552-62 (differentiating
communication-by-conduct from inference-from-conduct and concluding communicative conduct must have
meaning and intent). Tiersma applies his analytic approach to the homeless in id. at 1576.
360. On whether the level of First Amendment protection is to be elevated when commercial speech
is intertwined with fully protected speech, see, e.g., Board of Trustees v. Fox, 492 U.S. 469,474-75 (1989)
(holding that Tupperware parties are commercial speech despite some teaching of home economics); Bolger
v. Youngs Drug Prods. Corp., 463 U.S. 60, 67-68 (1983) (classifying pamphlets advertising contraceptive
devices as commercial speech).
361. On beggars' time-honored resort to fraud (and, in extreme instances, self-maiming), see 4
MAYHEW, supra note 185, at 401-31 (fraud), 431-33 (self-maiming) (London in 1860s); Kenneth L.
Kusmer, The Underclassin HistoricalPerspective: Tramps and Vagrants in Urban America, 1870-1930,
in ON BEING HOMELESS: HISTORICAL PERSPECTIVES 21, 28-30 (Rick Beard ed., 1987); Stanley, supra note
168, at 1270-71 (reporting assessments of observers in late-nineteenth-century United States); Dawidoff,
supra note 57, at 36, 41, 52 (noting that many New York subway panhandlers of 1990s had told author
"monstrous lies"). In a speech in 1877, Francis Wayland included a poem on the subject:
He tells you of his starving wife,
His children to be fed,
Poor little, lovely innocents,
All clamorous for bread-
And so you kindly help to put
A bachelor to bed.
Stanley, supra note 168, at 1270. Wayland was then serving as the Dean of the Yale Law School. Id.
362. The problem of duress is addressed in the proliferating municipal ordinances that criminalize
aggressive panhandling.
363. International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 684 (1992) (discussing
solicitation within airport terminal buildings).
364. See, e.g., Ibanez v. Florida Dep't of Business & Professional Regulation, 114 S. Ct. 2084, 2088
(1994) (false, deceptive, or misleading commercial speech may be banned altogether); Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 (1980) (protection for commercial speech is
dependent on informational value of such speech).
365. See C.C.B. v. State, 458 So. 2d 47, 50 (Fla. Dist. Ct. App. 1984) (dictum) (while city may not
ban begging entirely, it may regulate beggar's freedom of speech by means of "narrowly drawn permit
system"). Wilmington, Delaware, has adopted an ordinance that requires panhandlers who wish to ply their
trade for more than five days a year to apply for a permit, which is granted without fee. Begging in
123"2 The Yale Law Journal [Vol. 105: 1165
2. Permissible Regulation of Time, Place, and Manner
The Supreme Court's First Amendment doctrine, to the dismay of many

critics, 366 currently involves an elaborate taxonomy of public places. The
Court confers the greatest protections on speech in a "traditional public
forum. 367 Perhaps influenced by Justice Roberts's overly broad dictum in
Hague, Justices commonly assert in the broadest terms that streets, sidewalks,
and parks-presumably all of them-fit into this classification.3 68 Taken
literally, this approach would turn the First Amendment into a battering ram
that would require a typical city to apply a single, monolithic set of rules to
the close to 45% of its area devoted to open-access public uses.369
Examined more closely, however, Supreme Court precedents give a city
considerable scope to differentiate controls on speech through "time, place, and
manner" regulations. According to a leading case, Perry Education Ass'n v.
Perry Local Educators' Ass'n, time, place, and manner regulation of speech
in a traditional public forum must be content neutral and "narrowly tailored to
serve a significant government interest, and leave open ample alternative
channels of communication."37 How would the hypothetical official Red-
Yellow-Green zoning of panhandling 37' fare under Perry?
a. Alternative Channels of Communication
The hypothetical ordinance would impose its greatest "place" restrictions

on speech in Green Zones, where it would prohibit even single instances of
Wilmington Now Is by Permit Only, NEW HAVEN REG., Feb. 23, 1995, at A2; cf Friedrich v. City of
Chicago, 619 F. Supp. 1129 (N.D. II1. 1985) (on Chicago's permit system for street performers). See
generally Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (on permit systems and fees for
speaking in public places).
366. See United States v. Kokinda, 497 U.S. 720,741-42 & n.l (1990) (Brennan, J., dissenting) (citing
academic critics of Court's public forum doctrine).
367. One of the most publicized cases on public civility, Kreimer v. Bureau of Police, 958 F.2d 1242
(3d Cir. 1992), involved a library's efforts to control a malodorous and obnoxious patron. Reversing the
trial judge, the appellate court held that the interior of a public library was a "designated," as opposed to
a traditional, public forum, and that the library's rules governing noise and body odor were reasonable time,
place, and manner restrictions. Prior to losing this action for declaratory relief, Kreimer had settled his
damages claim against the library for $80,000. See Robert Hanley, Library Wins in Homeless-Man Case,
N.Y. TIMES, Mar. 25, 1992, at B8.
368. See, e.g., United States v. Grace, 461 U.S. 171, 177 (1983); Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983) ("streets and parks" are "quintessential" traditional public
forums).
369. Compare Grace, 461 U.S. at 179 (presuming that all sidewalks in Washington, D.C., warrant
same regulatory regime) with Burson v. Freeman, 504 U.S. 191, 215-16 (1992) (Scalia, J., concurring)
(some streets and sidewalks have not traditionally been used as public forums) andRobert C. Post, Between
Governance and Management: The History and Theory of the PublicForum, 34 UCLA L. REV. 1713. 1793
n.294 (1987) (arguing that contrary to Court's broad characterization, some parks, such as federal
wilderness preserves, are not traditionally used as public forums).
370. 460 U.S. at 45. As mentioned, infra text accompanying notes 402-03, the goals of content
neutrality and narrow tailoring are inherently in tension.
panhandling. Would leaving 95% of the public spaces in a downtown area

open to episodic panhandlers provide them with ample alternative channels?
In practice, most Justices, thankfully, have recognized that public spaces are
too diverse to be treated with Hague-like uniformity. In a scattering of
decisions seldom analyzed as a group, the Supreme Court has allowed
exceptionally strict controls, even on political speech, in narrowly selected
public spaces where peacefulness is essential. These decisions sustained special
speech restrictions on public sidewalks adjacent to delicate land uses37 2 such
37 3
as schools, courthouses, 374 embassies, 375 polling places, 376 medical
facilities,377
and private homes.378
Banning episodic panhandling in Green
Zones should similarly survive First Amendment challenge.
Yellow-Zone restrictions, which would result in the prohibition of chronic
panhandling in 95% of downtown, would have a far greater impact on total
begging activity. Chronic practitioners account for most panhandling. 379 Alms
are undoubtedly easier to solicit in a highly trafficked and relatively safe
central business district than in an unruly Red Zone. 380 Nevertheless, that
public-space zoning would significantly reduce the total incidence of begging
is not necessarily constitutionally fatal 38' (assuming that begging even counts
as speech). Over First Amendment objections, courts have allowed cities to
limit speech, especially less-protected categories of speech, to a subset of
372. It is inconceivable that the Court would uphold especially stringent speech restrictions on
sidewalks near prime mixing-bowl spaces such as sports stadiums and convention centers. Cf. Carreras v.
City of Anaheim, 768 F.2d 1039 (9th Cir. 1985) (Free Speech Clause of California Constitution protects
charitable solicitations at these spots).
373. See Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining First Amendment challenge
to ordinance aimed at limiting noise near schools).
374. See Cox v. Louisiana, 379 U.S. 559 (1965) (statute barring picketing with intent to interfere with
administration of justice near state courthouse is valid on its face). But cf. United States v. Grace, 461 U.S.
171 (1983) (holding that First Amendment entitled solitary protesters to leaflet and hold signs on sidewalk
immediately in front of Supreme Court).
375. Boos v. Barry, 485 U.S. 312 (1988) (sustaining ban on congregation of three or more people on
sidewalks within 500 feet of embassy of foreign government).
376. Burson v. Freeman, 504 U.S. 191 (1992) (5-3 decision) (upholding statutory restriction on
political campaigning within 100 feet of entrance to polling place).
377. Madsen v. Women's Health Ctr., Inc., 114 S. Ct. 2516 (1994) (6-3 decision) (affirming injunction
creating 36-foot no-protest zone on public lands around abortion clinic).
378. Frisby v. Schultz, 487 U.S. 474 (1988) (6-3 decision) (affirming suburb's restrictions on picketing
by anti-abortion protestors outside of doctor's house).
It is worth noting that Justice Brennan dissented in most of the decisions cited in this sentence that
were decided during his tenure. Yet even this staunchest of proponents of a monolithic law of public spaces
has occasionally suggested the permissibility of spatial differentiation in controls. See Members of the City
Council v. Taxpayers for Vincent, 466 U.S. 789, 830 (1984) (Brennan, J., dissenting) ("I have no doubt
that signs posted on public property in certain areas ... could contribute to the type of eyesore that a city
would genuinely have a substantial interest in eliminating.").
380. See Goldstein, Panhandlersat Yale, supra note 13, at 315-16 (panhandlers seek out locations
where most pedestrians will feel safe).
381. For example, a ban on picketing in front of an abortionist's home, sustained in Frisby,487 U.S.
474, reduces the amount of speech that right-to-life advocates can address to physicians who perform
abortions. Without expressly acknowledging this effect, the Frisby majority found that "the ordinance
preserves ample alternative channels of communication .... Id. at 482-84.
locations-for example, symbolic camping to designated sites, 382 picketing

to nonresidential areas,383 nude bathing to specific beaches, 38 commercial
billboards and adult uses to commercial and industrial zones, 385 and posting
of signs to private lands.386
The outcomes of two highly publicized cases in New York City largely
turned on the issue of alternative venues for panhandling. Although anti-
begging statutes date back to the eighteenth century387 and are in force in
numerous states and cities,3 8 they have only recently been subjected to First
Amendment challenge. In Young v. New York City Transit Authority,3S 9 a
panel of the Second Circuit, stressing that beggars had alternative venues
above ground, reversed the district court and sustained a blanket prohibition
on begging in the New York City subway system.390 In Loper v. New York
City Police Department,39' however, a different panel of the Second Circuit
enjoined the city's enforcement of a New York state penal statute3 92 that
criminalized remaining or wandering about in a public place for the purpose
of begging. Interpreting the statute as a ban on begging (presumably even
episodic begging) throughout the city, the Loper court held that it violated the
First Amendment because it left no channels open for panhandling.393
The hypothetical public-space zoning ordinance is, of course, much less
stringent than the anti-begging statute struck down in Loper. The Red-Yellow-
Green ordinance would leave open 5% of city spaces for unlimited
panhandling, and allow any particular individual to occasionally panhandle in
an additional 90%. Many face-to-face channels for expressing the message, "I
would like you to give me money," would be preserved. In addition, even in
the restricted zones, a destitute person could deliver this message in numerous
382. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
383. Frisby, 487 U.S. 474.
384. Cf. Craft v. Hodel, 683 F. Supp. 289, 291 (D. Mass. 1988) (mem.) (First Amendment does not
shield politically motivated nude bathing at Cape Cod Seashore National Park).
385. See, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53 (1986) (allowing city to limit
adult theatres to zones comprising about five percent of city's land area); Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 503-12 (1981) (plurality opinion) (while ban on purely commercial billboards in
noncommercial zones does not violate First Amendment, general ban on billboards is unconstitutional).
386. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984).
387. See Loper v. New York City Police Dep't, 802 F. Supp. 1029, 1032 (S.D.N.Y. 1992) (tracing
New York's anti-begging statute back to 1788), aff'd, 999 F.2d 699 (2d Cir. 1993); Leoussis, supra note
350, at 543 (describing anti-begging laws of late eighteenth century). On the fresh batch of anti-begging
statutes that Northern states enacted in 1866-1885, see Stanley, supra note 168, at 1273-80.
388. See Hershkoff & Cohen, supra note 15, at 896 n.5; Millich, supra note 346, at 333-36.
389. 903 F.2d 146, 160 (2d Cir.), cert. denied, 498 U.S. 984 (1990).
390. See also People v. Schrader, 617 N.Y.S.2d 429 (Crim. Ct. 1994) (holding this ban on subway
begging did not abridge freedom of speech provisions of New York Constitution).
391. 999 F.2d 699 (2d Cir. 1993).
392. N.Y. PENAL LAW § 240.35(1) (McKinney 1989).
393. Loper, 999 F.2d at 705; see C.C.B. v. State, 458 So. 2d 47, 50 (Fla. Dist. Ct. App. 1984)
(invalidating Jacksonville's total ban on begging as violation of First Amendment and state constitutional
provision); see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 75-77 (1981) (striking down
ordinance prohibiting live entertainment throughout borough).
other ways, for example, by applying in person to the many charities and
public-welfare agencies that consider appeals for financial aid, posting written
pleas for aid on public bulletin boards, or perhaps by incorporating a face-to-
face plea for alms into an explicitly political message.394
b. The Significance of the Government Interest
Part II reviewed in some detail the many reasons why a city might wish
to control chronic street nuisances in general, and panhandling in
particular. 395 Cities must mend "broken windows ' 396 or risk losing
residents, workers, and shoppers to the suburbs. City attorneys should stress
that harms from chronic panhandling not only accumulate as time passes, but
tend to become more aggravated over time, as pedestrians sense that the
protractedness of the behavior itself indicates a breakdown in the system of
social control.
The Supreme Court itself has adverted to the legitimacy of several specific
governmental interests in controlling panhandling. First, recognizing that even
nonaggressive face-to-face solicitation is intrusive, the Court has held that a
city has greater room to regulate solicitation in public forums than to regulate
other manners of speech. 97 Compared to, say, leafleting, solicitation is seen
as more disruptive of traffic flows because pedestrians must halt to consider
and complete transactions.39 In addition, to quote Justice O'Connor, "[a]s
residents of metropolitan areas know from daily experience, confrontation by
a person asking for money ... is more intrusive and intimidating than an
encounter with a person giving out information. 399 Unlike the offer of a
handbill, a spoken plea carries an implicit request for eye contact and an oral
response. This intrudes more on a pedestrian's privacy and, because the act is
more aggressive, creates a more plausible fear of physical danger.400 Among
its many other interests, in short, a city has a legitimate concern in protecting
the rights of its pedestrians to be left alone.40 '

396. See supra text accompanying notes 23, 49-50, 70-72, 77.
397. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 684-85 (1992)
(First Amendment protects leafleting, but not solicitations, within airport terminal buildings).
398. See Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 665 (1981)
(Blackmun, J., concurring and dissenting).
399. United States v. Kokinda, 497 U.S. 720, 734 (1990) (plurality opinion).
400. On the weight of these governmental interests, compare the views of Judge Orrick in Blair v.
Shanahan, 775 F. Supp. 1315, 1324-25 (N.D. Cal. 1991) (public interest in avoiding "annoyance"
insufficient to justify regulation of accosting by beggars), rev'd and remanded on other grounds, 38 F.3d
1514 (9th Cir 1994), cert. denied, 115 S. Ct. 1698 (1995), with People v. Zimmerman, 19 Cal. Rptr. 2d
486, 488-89 (App. Dep't Super. Ct. 1993) (declining to follow Orrick's holdings in Blair).
c. Narrow Tailoring: Of Street Performers and

Solicitorsfor Charities
Like the maxims of equity, basic First Amendment doctrines tend to run
in contradictory pairs. Perry, for example, requires that speech restrictions be
40 2
narrowly tailored to avoid the vice of "overbreadth., At the same time,
another First Amendment doctrine insists that speech regulation be content
neutral, which often forces a government to regulate speech in larger swaths
than it would otherwise prefer.0 3 With this pair of doctrines at his disposal,
Justice Brennan could readily conclude that virtually any municipal speech
regulation that came before him violated the First Amendment.
One of the liveliest issues in panhandling law is whether the First
Amendment permits a municipality to prohibit panhandling while allowing
other forms of cash solicitation. In Young v. New York City TransitAuthority,
for example, both the district court judge and Judge Meskill of the Second
Circuit, who concurred in part and dissented in part, concluded that New
York's subway-system regulations, which banned begging but permitted
solicitations by charitable organizations and artistic performers, in effect
involved illegal content discrimination. 4 4 Federal district judges have found
the Berkeley and San Francisco anti-panhandling programs to be
unconstitutional for analogous reasons.4 °5
The basic issue in these cases is whether the First Amendment prevents a
city from permitting commercial speech (or expressive conduct) that has
neutral or good side effects while simultaneously barring commercial speech
that has bad side effects. Street performers who please the multitudes tend to
attract more pedestrians to public spaces.40 6 No wonder William H. Whyte
loves them. By contrast, panhandlers and other chronic street miscreants tend
402. For example, a blanket ban on begging might be challenged as an overly broad method of
preventing fraud and duress by alms-seekers. Cf supra text accompanying notes 361-65. A classically
overbroad ordinance was involved in Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569,
570, 577 (1987) (unanimous decision striking down regulation banning all "First Amendment activities"
at airport).
403. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (invalidating ordinance aimed at
aggressors acting on one or more of narrow set of discriminatory motivations).
404. See 903 F.2d 146, 168 (2d Cir. 1990) (Meskill, J., concurring in part and dissenting in part); 729
F. Supp. 341,352-59 (S.D.N.Y. 1990) (Sand, J.). The circuit court majority, however, rejected this position.
See 903 F.2d at 154-57, 160-62.
405. See Berkeley Community Health Project v. City of Berkeley, 1995 WL 293899, at *6 (N.D. Cal.
May 5, 1995) (California Constitution's Liberty of Speech Clause bars city from prohibiting solicitations
for cash while permitting other speech); Blair v. Shanahan, 775 F. Supp. 1315, 1325-26 (N.D. Cal. 1991),
aff'd in part,dismissed in part and remanded, 38 F.3d 1514 (9th Cir. 1994), cert. denied, 115 S.Ct. 1698
(1995).
406. A city may have legitimate reasons for regulating aspects of street performances that disrupt
traffic or annoy ordinary pedestrians and neighbors. See Davenport v. City of Alexandria, 748 F.2d 208.
209-10 (4th Cir. 1984) (holding that city's total ban on street performances on downtown sidewalks
violated First Amendment, even though city allowed performances in eight downtown parks and plazas by
permit); Friedrich v. City of Chicago, 619 F Supp. 1129, 1147-48 (N.D. III. 1985) (some aspects of permit
system for street performers were too restrictive).
unintentionally to reduce pedestrian traffic.4 07 Similarly, while both street

performers and solicitors for charities personify the work ethic, panhandlers
personify the erosion of that ethic.40 ' At least when speech and religion are
not at issue, constitutional doctrine generally allows a city to use its police
powers to encourage good activities 4°9 and to discourage bad ones.410
Indeed, a hallmark of good government is the capacity to make this distinction.
First Amendment jurisprudence, on the other hand, properly focuses on
protecting minorities from majoritarian oppression.4 ' Compared to political,
artistic, and religious expression, however, panhandling involves an extremely
low grade of speech (if it involves speech at all). Apart from the gains from
trade that it brings, does ordinary panhandling ever contribute to an
individual's self-expression and self-realization? 4 12 Or help propagate a
3
message that tends to be undersupplied?4
As argued above, ordinary panhandling at most is a form of commercial
speech.414 Supreme Court precedents provide cities wide scope to distinguish
among different categories of low-value speech. Renton v. Playtime Theaters,
Inc. sustained an ordinance that involved content discrimination (in that
instance, against adult films) on account of the adverse neighborhood effects
of theaters that show such films. 415 The Court has permitted Puerto Rico to
allow some of the island's noncasino gambling operations to engage in on-
island advertising, but to deny that right to casino owners, whose activities the
Commonwealth saw as less connected to the island's roots.416

409. See, e.g., Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (sustaining city's
landmarks preservation law against federal takings challenge).
410. See, e.g., cases cited supra notes 382-86.
411. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (First Amendment protects politically motivated
flag desecration); Cohen v. California, 403 U.S. 15 (1971) (First Amendment protects political vulgarity
on jacket); cf. Goldstein v. Town of Nantucket, 477 F. Supp. 606 (D. Mass. 1979) (town cannot let
merchants' opinions control who can obtain permit to sing in streets).
412. This conception of the purpose of the First Amendment is featured in, e.g., MARTIN H. REDISH,
FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 9-40 (1984) (First Amendment serves value of
"individual self realization"); STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE
140-69 (1990) (advocating celebration of dissent and "romantic" view of First Amendment goals).
413. This basic understanding of the First Amendment is advanced in Daniel A. Farber, Free Speech
117thout Romance: Public Choice and the FirstAmendment, 105 HARV. L. REV. 554 (1991). Farber asserts
that commercial speech, unlike political speech, tends not to be undersupplied, because it is less of a
"public good" in the economist's sense. Id. at 562-68. By this reasoning, there is no First Amendment basis
for protecting a beggar's communication of "I would like you to give me money," as opposed to "Look
what the American system has made me do." But cf. id. at 567 (charitable solicitation on behalf of
homeless is public good that tends to be undersupplied).
415. 475 U.S. 41, 47-49 (1986). This precedent, which stresses the disposition of patrons to
misbehave, would tend to support a city's efforts to regulate where charities distribute free meals. See also
supranotes 275-76 and accompanying text.
416. See Posados de Puerto Rico Ass'n v. Tourism Co., 478 U.S. 328, 342-43 (1986); see also R.A.V.
v. City of St. Paul, 505 U.S. 377, 420-22 (1992) (Stevens, J., concurring) (reviewing Court precedents that
sustain various forms of content discrimination); Penn Advertising v. Mayor of Baltimore, 63 F.3d 1318,
1325-26 (4th Cir. 1995) (upholding, against First Amendment challenge, ordinance prohibiting use of
These sorts of precedents free a federal judge from engaging in exacting

review of many of the minor categorical distinctions that are inevitably found
in municipal street codes. Many different sorts of commercial
solicitors-vendors, performers, charities, panhandlers-may wish to use the
streets. Each group affects the quality of street life in different ways. It is hard
to fathom why courts should construe the First Amendment to bar city
regulators from distinguishing among these broad commercial groups according
to the nature of the side effects of their presence. Another basic constitutional
value is federalism, which is hardly promoted when federal judges actively
second-guess the contents of state and local street codes.417
B. Bench Squatters' ConstitutionalRights
In the early 1990s, advocates initiated lawsuits to establish the rights of the
street homeless to camp overnight in certain public spaces in downtown areas
of large cities. The trial judge in Pottinger v. City of Miami418 and the
intermediate appellate court in Tobe v. City of Santa Ana 419 (the two leading
cases) ruled that the U.S. Constitution indeed requires a city to allow a bench
squatter to sojourn in some public place. First Amendment issues were not
central in either Pottinger or Tobe because bench squatting typically is too
passive to constitute "expressive conduct."4 "0 Rather, the advocates' early
successes in both cases mainly turned on the right of travel and the right to be
free from prosecution for a status crime.
billboards in certain locations to advertise cigarettes). But cf Edenfield v. Fane, 113 S. Ct. 1792, 1796
(1993) (striking down restriction on CPAs' solicitation of new business); City of Cincinnati v. Discovery
Network, Inc., 113 S. Ct. 1505, 1514-15 (1993) (holding that because all newsracks are "equally
unattractive," city's interest in aesthetics did not justify regulation that permitted dispensing of conventional
newspapers, but not commercial handbills, from newsracks situated on public property).
417. See infra text accompanying notes 470-73; cf Posner, supra note 334, at 10-11, 19 (arguing that
municipal restrictions on speech are less worrisome than state or federal restrictions).
418. 810 F Supp. 1551 (S.D. Fla. 1992) (Atkins, J.), remandedfor limited purposes, 40 F.3d 1155
(11th Cir. 1994).
419. 27 Cal. Rptr. 2d 386 (Ct. App. 1994), rev'd, 892 P.2d 1145 (Cal. 1995).
420. A leading case on expressive conduct is United States v. O'Brien, 391 U.S. 367 (1968)
(sustaining government prohibition on draftcard burning, conduct that Court regarded as mixing "speech"
and "non-speech" elements). Significantly, draftcard burning is an intentional act of symbolic speech, while
bench squatting typically is not. See Whiting v. Town of Westerly, 942 F.2d 18, 21-22 (1st Cir. 1991)
(routine overnight sleeping in vehicle does not involve expressive conduct). Someone who sleeps repeatedly
on a bench with the conscious intent of conveying a political message might conceivably obtain First
Amendment protection. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293
(1984) (assuming without deciding that politically motivated sleeping is expressive conduct for purposes
of First Amendment); Whiting, 942 F.2d at 21-22 (similar); United States v. Gilbert, 920 F.2d 878, 883-85
(11th Cir. 1991) (similar).
1. Freedom of Travel
In the abstract, the federal constitutional right of travel 42' might entitle
a destitute person to sojourn in: (1) all city spaces; (2) most city spaces
(perhaps all except those in Green Zones); (3) a few city spaces (say, just
those in Red Zones); or (4) none at all.
While advocates for street people can be expected to press for (1) or (2),
most judges wisely have concluded that (3) and (4) are the only conceivable
constitutional mandates.422 A city has a number of legitimate reasons for
regulating chronic squatting in a well-trafficked space.423 A street person in
New York City surely should not have the privilege of bedding down in the
Children's Zoo in Central Park or on every street or sidewalk. 424 A public
space is no longer openly accessible when one individual is using it all the
time. An unfettered right to squat almost anywhere, with priority given to
those arriving first in time, would create a land rush on a city's choicest spots.
At the very most, the federal constitutional right of travel requires a city
to permit a destitute individual to enter all open-access public spaces when
alert,425 and camp and bench squat at a few public locations that the city has
plausibly selected for that use.426 This outcome would permit a city to keep
most of its public spaces inviting for ordinary pedestrians, while providing the
421. For a discussion of the right to travel and its application to the street homeless, see Paul Ades,
The Unconstitutionalityof "Antihomeless" Laws: OrdinancesProhibitingSleeping in OutdoorPublicAreas
as a Violation of the Right to Travel, 77 CAL. L. REv. 595, 605-23 (1989). Freedom of travel can be
invoked either as an implicit constitutional right or as a fundamental interest that triggers strict scrutiny
under the Equal Protection Clause. While the Supreme Court has never ruled that a municipal measure that
burdens intrastatemovement can impinge on the federal right of travel, several lower federal courts have
so held. See Lutz v. City of York, 899 F.2d 255, 267-68 (3d Cir. 1990) (ruling that Due Process Clause
of Fourteenth Amendment protects right to travel through city's public spaces); King v. New Rochelle Mun.
Hous, Auth., 442 F.2d 646, 647--48 (2d Cir.), cert. denied, 404 U.S. 863 (1971) (holding that Equal
Protection Clause forbids city from imposing five-year residency requirement for eligibility for public
housing).
422. Even some of the staunchest advocates for the rights of the homeless might settle for outcome
(3). Harry Simon, for example, writes:
Whether or not arrests of the homeless for sleeping in public penalize exercise of the right to
freedom of movement depends on the breadth of official restrictions .... [W]hen a city
announces ... that homeless individuals may not lodge on public land anywhere within the city,
the effect ... may be exceptionally severe.
Harry Simon, Towns Without Pity: A Constitutionaland HistoricalAnalysis of Official Efforts To Drive
Homeless Personsfrom American Cities, 66 TJL. L. REV. 631, 654 (1992).
423. See supra text accompanying notes 47-54, 81-86.
424. New York City, had it wanted to, should have been entitled to prohibit the chronic squatting on
the busy Manhattan sidewalk described in Boggs v. New York City Health & Hosp. Corp., 523 N.Y.S.2d
71, 72-73 (App. Div. 1987), appeal dismissed, 520 N.E.2d 515 (N.Y. 1988).
425. A right to enter does not necessarily imply a right to sit, even for only a short period. See
Roulette v. City of Seattle, 850 F. Supp. 1442, 1447-48 (W.D. Wash. 1994) (holding that Seattle ordinance
regulating sitting on public sidewalks did not abridge federal constitutional right to travel).
426. Influenced by Tobe v. City of Santa Ana, 27 Cal. Rptr. 2d 386 (Ct. App. 1994), rev'd, 892 P.2d
1145 (Cal. 1995), the City Attorney of Santa Monica advised the city to open a new 100-person shelter
before evicting transients camping in city parks. See Homeless Shelter Okd as Step Toward ClearingParks,
L.A. TwMEs, Mar. 30, 1994, at B2.
destitute with ample channels for sojourning.4 27 The leading decisions all
indicate that no more is required of a city. In Clark v. Communityfor Creative
Non-Violence,425 for example, the Supreme Court sustained a National Park
Service restriction on the establishment of campsites along the Mall and in
Lafayette Park.429 As mentioned, these Washington venues are prime national
gathering places. The Court's decision enabled park administrators to ensure
that many different groups could rotate rapidly through the spaces without
having to deal with entrenched squatters. The Clark majority noted that the
National Park Service had provided ample camping sites at other downtown
locations.430
Pottinger,43' a high-water mark in the advocates' campaign to plead the
right of travel, was a class action brought to prevent the Miami police from
arresting and ousting homeless individuals squatting in Lummus and
Bicentennial Parks and under 1-395 overpasses. Judge Atkins, the federal
district judge, held in part that Miami's practice infringed upon the plaintiffs'
fundamental rights of travel.432 "The evidence overwhelmingly shows that
plaintiffs have no place where they can be without facing the threat of
arrest., 433 Judge Atkins, however, provided only a spatially limited remedy.
He ordered the parties to agree on at least two public areas, located near
service centers that cater to the homeless, that could function as "safe zones"
for them.4 4 In effect, Pottinger held that the federal right to travel required
Miami officially to designate several public-space Skid Rows-if you will, Red
Zones.
In Tobe, however, the California Supreme Court held otherwise. There,
advocates were challenging the anti-sleeping and anti-camping policies of
Santa Ana, a city of about 300,000 in Orange County.435 At one point, 275
427. This outcome would satisfy the concern that a person be legally able to exist somewhere. See,
e.g., Waldron, supra note 301.
428. 468 U.S. 288 (1984).
429. Id. at 299.
430. Id. at 295. Laurence Tribe has argued that the judges deciding Clark should have delved deeply
into fundamental questions of the distribution of wealth and power. See Laurence H. Tribe, Constitutional
Calculus: Equal Justice or Economic Efficiency?, 98 HARv. L. Rgv. 592, 600-01 (1985). Frank
Easterbrook responded by questioning whether the conferral of sleeping rights in parks is the right way to
accomplish redistribution. See Frank H. Easterbrook, Method, Result, and Authority: A Reply, 98 HARV.
L. REv. 622, 626 (1985); see also supra text accompanying notes 116-27 (supporting Easterbrook's
skepticism).
431. Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), remandedfor limited purposes,
40 F.3d 1155 (1lth Cir. 1994).
432. Id. at 1578-81.
433. Id. at 1580.
434. Id. at 1584. Two years later, the "safe zones" were still not operational. See Pottinger,40 F.3d
at 1157. This stalemate was an upshot of Judge Atkins's granting the plaintiffs veto power over the City
of Miami's selection of these locations. Given the enormously diverse demands on city public spaces, a
judge who orders the creation of safe zones should give city officials ample discretion over where to locate
them.
435. Tobe v. City of Santa Ana, 892 P.2d 1145. 1165 (Cal. 1995). Judge Atkins's constitutional
reasoning in Pottingeralso was rejected, across the board, in Joyce v. City & County of S.F., 846 F. Supp.
persons had been sleeping in tents at the city's Civic Center.436 The
plaintiffs' attorneys pointed to internal memoranda that evidenced an explicit
municipal policy of driving homeless people out of Santa Ana. Reversing the
trial court, the California Court of Appeal struck down the city's anti-camping
ordinance for abridging, among other constitutional rights, the right of travel.
According to the intermediate court, Santa Ana "might ban 'camping' in select
locations with a properly drafted ordinance, but it may not preclude people
who have no place to go from simply living in Santa Ana. And that is what
' 437
this ordinance is about.
On appeal, the Supreme Court of California reversed the appeals court
decision in Tobe and dealt the freedom-of-travel theory the heaviest possible
blow. It declined even to entitle the campers to Pottinger-style Red Zones,
which Santa Ana presumably would have sought to locate on sites other than
its Civic Center. Instead, the court stated flatly that "[t]here is no...
constitutional mandate that sites on public property be made available for
camping to facilitate a homeless person's right to travel, just as there is no
right to use public property for camping or storing personal belongings. 435
In sum, while Pottinger provided interpretation (3), Tobe rendered
interpretation (4).
The California Supreme Court's decision in Tobe should not, however, be
read as a prod to cities to restrict street people's rights to the federal
constitutional limit. Even in the absence of federal constitutional compulsion,
most counties439 and large cities," 0 especially, can be expected to provide
some public spaces for indigent campers and bench squatters. Rather, the
California Supreme Court's implicit and invaluable message in Tobe-one that
the court of the nation's most populous state was magnificently situated to
deliver-was that the time had come to largely defederalize constitutional
litigation over the particulars of municipal street law.
The Pottinger litigation illustrates the wisdom of this message. Even
though Pottingerstops far short of establishing an unrestricted right to camp,
843, 864 (N.D. Cal. 1994) (denying preliminary injunction to halt San Francisco's Matrix Program, which
restricted camping, inebriation, and aggressive panhandling in public places, and allegedly thereby
jeopardized street people's life-sustaining activities).
436. Alicia Di Rado, SantaAna Oks Law BarringHomelessfrom Setting Up House at Civic Center,
L.A. TIMES, Dec. 21, 1993, at B9.
437. Tobe v. City of Santa Ana, 27 Cal. Rptr. 2d 386, 395 (Ct. App. 1994), rev'd, 892 P.2d 1145 (Cal.
1995). The challenged ordinance had barred camping in all the city's "streets," "parking lots," and "public
areas." Id. at 389-90 n.3.
438. Tobe, 892 P.2d at 1165.
439. The California Supreme Court observed in Tobe that a California statute affirmatively requires
counties to provide aid to the indigent. Id. at 1165-66 n.18.
440. Even a judge who had ruled that a large city had a duty to create safe zones for indigent campers
might exempt small suburbs and towns from that constitutional obligation. The division of duties among
central cities and suburbs poses a "fair share" issue similar to the one encountered in exclusionary zoning
law. At times, New Jersey law has exempted certain localities from fair-share zoning duties or enabled
them to satisfy some of their obligations through payments to central cities. For an introduction to the fair-
share debate, see JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 1105-30 (3d ed. 1993).
even its recognition of a right to sleep in a few city-approved places threatens

to embroil judges in policy details that are beyond their institutional
competence. Because a squatter in a public space makes heavier demands on
public land resources than does the ordinary citizen, a right to sojourn at no
charge is a species of welfare right. Both the U.S. Supreme Court and the state
supreme courts have rightly been chary of constitutionalizing the fiercely
controverted field of welfare law.44 ' A city's public-campsite policies entail
decisions on, among other matters: (1) locations; (2) the quantity and quality
of facilities and services; (3) admissions policies; (4) length-of-stay policies;
and (5) whether an individual's continued stay is to be conditioned on
compliance with work assignments or deportment rules. 442 After Pottinger,
Miami's decisions on all these fronts had federal constitutional dimensions.
While these cases involved overnight camping, a judicial decision recognizing
a federal constitutional right to bench squat would be a tar baby of comparable
proportions.
2. The Eighth Amendment Ban on CriminalizingStatus
Advocates for homeless street people have had some success with a
closely related constitutional theory. The Supreme Court has held that the
Eighth Amendment's prohibition on cruel and unusual punishment bars
prosecution for a mere status, for example, being a drug addict.443 The
normative basis for this doctrine is that having a condition one cannot alter
should not by itself make one guilty of a crime. Advocates argue that destitute
individuals have no control over their homelessness, extreme poverty, mental
illness, or whatever, and therefore must be immune from punishment on
account of an unalterable status. 44 They therefore might argue that the
Eighth Amendment would bar a city from arresting a bench squatter who had
chronically occupied a plaza bench. 445
Like the freedom-of-travel precedents, however, the status-crime decisions
at most confer a federal constitutional entitlement to access to spatially limited
safe havens. True, lower court opinions in Pottinger and Tobe (both later
reversed) did invalidate the Miami and Santa Ana ordinances for criminalizing
the status of homelessness; but even those opinions stressed that the defendant
cities had provided no public place where a homeless person could bed down
441. See, e.g., Dandridge v. Williams, 397 U.S. 471 (1970) (applying deferential standard of review
to federal AFDC program); Moore v. Ganim, 660 A.2d 742 (Conn. 1995) (declining to construe provisions
of state constitution as establishing right to minimum subsistence).
442. Untenable Case, supra note 78, provides an introduction to the welfare rights debate and defends
the conditioning of welfare benefits to promote work incentives.
443. Robinson v. California, 370 U.S. 660, 666-67 (1962).
445. Some advocates for street people appear to agree that it takes a citywide ban to create a status
crime. See supra note 422.
without fear of arrest. 44 6 Similarly, in Powell v. Texas,447 by a 5-4 margin

the Supreme Court declined to reverse the conviction of a chronic alcoholic
whom the Austin police had arrested for violating a statute against being found
drunk "in any public place." 448 The majority held that this was not a status
crime because Mr. Powell had committed "acts" by drinking and then taking
himself into a public area.449 In other words, Austin, Texas, did not have to
permit Mr. Powell to wander at will throughout its downtown in an inebriated
condition. Justice White's concurring opinion in Powell states that a city is
constitutionally obliged to provide a compulsive alcoholic with some site where
he would be safe from criminal prosecution. 450 Presumably, a Skid-Row Red
Zone in Austin where public drunkenness was permitted would be enough. 45'
VII. THE RELATIVE MERITS OF INFORMAL AND MUNICIPAL ZONING OF

PUBLIC SPACES
This review demonstrates that federal constitutional law is indirectly

encouraging cities to bring back Skid Rows, but in a form far more official
than the 1950s version. By designating particular districts where minor street
misconduct would be decriminalized, a city would be providing "alternative
channels" for First Amendment expression. 2 If the right of travel or the
Eighth Amendment requires a large city to provide indigent individuals with
safe havens for camping, drinking, and bench squatting, these zones would
satisfy that obligation. No doubt partly on the advice of city attorneys,
Orlando, Dallas, Jacksonville, and other cities have begun to set up official
Red Zones for the destitute.453
The constitutional revolution in street law that occurred between
1965-1975 was aimed largely at limiting police discretion. While police
misconduct is unquestionably a serious and legitimate concern, it is worth
considering whether informal zoning is in some respects superior to the formal
zoning approach that the courts currently seem to be forcing on cities.
446. Potringer,810 F. Supp. at 1561-65; Tobe, 27 Cal. Rptr. 2d at 393-94; see also Johnson v. City
of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995).
447. 392 U.S. 514 (1968).
448. Id. at 517.
449. Id. at 533-37.
450. Id. at 551-52.
451. In practice, Skid Rows are not entirely safe harbors for alcoholics. Sundance v. Municipal Court,
729 P.2d 80 (Cal. 1986) (per curiam), rebuffed a shotgun constitutional attack on the Los Angeles Police
Department's practice of making sweeps to arrest drunks in the Los Angeles Skid Row. The statute at issue
did not criminalize simply being drunk in public, however, but rather the acts of endangering the safety
of oneself or others or of interfering with a public way. Id. at 83 n.4.
452. Cf.Norman Siegel, Homelessness: Its Origins,Civil Liberties Problems and Possible Solutions,
36 VILL. L. REv. 1063, 1081 (1991) (describing New York Civil Liberties Union position favoring city
designation of specific park areas as sleeping sites for homeless).
Questions of comparative institutional competence can be investigated

through conventional tools of policy analysis. The Skid Row system was a
hybrid that entailed unofficial police enforcement of informal norms that varied
from neighborhood to neighborhood. Formal city zoning of public spaces is
more thoroughly governmental because it directs the police to adhere to
detailed municipal directives. Neither of these two systems is obviously
454
superior to the other.
One yardstick for an institution's performance is its capacity to make
optimal rules-in this context, the various street codes and boundary lines for
zones. For example, is "city hall" or "civil society" better at locating a Skid
Row and deciding what can go on there? In a city that formally zoned public
spaces, politicians would have to draw numerous boundary lines, some at the
subblock level. Experience with conventional municipal zoning of private lands
indicates that this might prove to be a capricious process, dominated by
warring special interests.455 Politicians might distribute Green Zones as pork-
barrel. Neighborhood groups could be expected to fight against Red-Zone
designations nearby.456 If a poor minority neighborhood were targeted with
more than its share of these unruly places, its residents understandably might
perceive environmental racism at work. Official safe zones also tend to
stigmatize the destitute users who go there and may conceivably violate
constitutional rights of other citizens.457
On the other hand, loosely knit social groups such as downtown
pedestrians and merchants are often ineffectual norm makers and, when they
do overcome their free-rider problems, may treat minorities and outsiders more
viciously than a city would. Informal rulemakers also cannot produce a code
as detailed as a government's. Normmakers, for example, are likely to be
incapable of establishing specific hours and time limits for activities in public
spaces.
Another yardstick of institutional competence is administrative efficiency.
The Skid Row system granted patrol officers great discretion to divine
neighborhood norms and to administer casual sanctions to enforce them. Until
recent decades, in doing this, the police took advantage of the plasticity of
"public nuisance," "disorderly conduct," and other broad legal definitions of
obnoxious street behavior.5 This was a flexible and cheap system. It was
454. On the comparative advantages of formal and informal police practices, see JEROME H.
SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY (3d ed. 1994). On the
relative competencies of governments, informal social forces, and hybrids of the two, see generally ORDER
WITHOUT LAW, supra note 141, at 249-58.
455. See Alternatives to Zoning, supra note 88, at 701-05.
456. Anticipating this, Jencks has proposed that the new cubicle hotels he favors be located in
nonresidential areas of downtowns. JENCKS, HOMELESS, supra note 1, at 116-17.
457. For example: Grievants may allege that due process was not observed when the boundaries were
drawn; landowners adjacent to Red-Zone spaces may assert that their property has been "taken"; nonwhites
may claim the influence of racial motives in violation of the Equal Protection Clause.
458. See MODEL PENAL CODE § 250.2 cmt. 1 (1980).
also vague and discretionary, shortcomings that led the Supreme Court to try
to shut it down.459
The efficient pursuit of street decorum is inherently in tension with
protecting unpopular people from arbitrary police actions. Street law presents
the familiar dilemma of choosing between standards and rules. 60 Compared
to standards, rules promise to limit discretion and provide better notice of what
is illegal. But rules commonly involve higher administrative costs than
standards, are less flexible, may in fact lead to individually unjust results, and
tend to be manipulated or even ignored in application.46'
In light of the wide diversity of public places and pedestrian behaviors,
there is much to be said for standards in street law. Indeed, if it could be
achieved, the first-best solution to the problem of street misconduct would be
the maintenance of a trustworthy police department, whose patrol officers
would be given significant discretion in enforcing general standards against
disorderly conduct and public nuisances. 62 Certain administrative reforms
could contribute to this end. Selection, training, and supervision methods can
be shaped to help make police officers more trustworthy agents of
constitutional values.463 The continuing racial integration of police forces
should tend to cure some of the racist aspects of the Skid Row system of the
1950s. In some contexts, community-based policing, which assigns a particular
officer to a particular neighborhood, might make a beat-patrol officer more
averse to gaining a reputation for capriciousness and excessive violence.
459. See supra text accompanying notes 236-46. After Papachristou, drafters of anti-panhandling
ordinances have had to be careful to adopt language that limits an enforcing officer's discretion and
apprises street people of the behaviors that are barred. For examples of drafters' efforts to avoid this
constitutional pitfall and others, see Mabry, supra note 135, at 338 n.202 (excerpts from District of
Columbia Panhandling Control Act of 1993); Teir, supra note 21, at 333-37 (model panhandling-control
ordinance). Crackdown measures have mostly survived attacks mounted on grounds of vagueness. See, e.g.,
Kreimer v. Bureau of Police, 958 F.2d 1242, 1266-68 (3d Cir. 1992); City of Seattle v. Webster, 802 P.2d
1333, 1338-39 (Wash. 1990) (en banc), cert. denied, 500 U.S. 908 (1991). But see Ledford v. State, 652
So. 2d 1254, 1256-57 (Fla. Dist. Ct. App. 1995); cf Streetwatch v. National R.R. Passenger Corp., 875
F. Supp. 1055, 1059, 1062-63 (S.D.N.Y. 1995) (holding, for purposes of granting a preliminary injunction,
Amtrak's anti-loitering rules for Penn Station to be unconstitutionally vague). For appraisals of the concerns
that underlie the vagueness doctrine, see John C. Jeffries, Jr., Legality, Vagueness, and the Construction
of Penal Statutes, 71 VA. L. REV. 189 (1985); Post, Reconceptualizing Vagueness, supra note 246.
460. On the general issue, see Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal
Rulemaking, 3 J. LEGAL STUD. 257 (1974); Duncan Kennedy, Form and Substance in Private Law
Adjudication, 89 HARV. L. REv. 1685, 1687-89 (1976); Symposium: Voidfor Vagueness, 82 CAL. L. REV.
487-554 (1994). On this conundrum in the context of public order, see Kreimer, 958 F.2d at 1268 (holding
that library rules barring "offensive" and "nuisance" activity were not too vague to comport with due
process); Kelling & Coles, supra note 259, at 69-71.
461. See Goldstein, Panhandlersat Yale, supra note 13, at 355-58 (arguing that regardless of formal
legal regime, police officers' customs primarily determine street people's rights in practice).
462. The degree of discretion to afford individual police officers is, of course, one of the abiding
issues in criminal law. The vices of discretion are stressed in, for example, Joseph Goldstein, Police
Discretion Not to Invoke the Criminal Process, 69 YALE L.J. 543, 586 (1960) (concluding that police
officer should not have discretion not to enforce law).
463. See Wilson & Kelling, supra note 23, at 35.
Many observers understandably regard a street regime premised on

trustworthy police officers as unrealistic. In some cities, it unquestionably
is.4 64 In these locales especially, the official zoning of public spaces-which
elsewhere would be a second-best approach-may be the best that lawmakers
can do.
Having pushed cities in the direction of formal public-space zoning, judges
should not strictly scrutinize the policies of municipalities that have accepted
this invitation. Courts generally yield to municipal decisions that regulate
private land uses.465 If federal judges would be deferential toward the City
of Berkeley's decisions over where private landowners can operate, say, book
stores, churches, and copycenters, should they not also be deferential to
Berkeley's decisions about where people can chronically beg and squat on the
466
public sidewalk?
VIII. CONCLUSION
Unchecked street misconduct creates an ambience of unease, and for some,

of menace. Pedestrians can sense that even minor disorder in public spaces
tends to encourage more severe crime. City dwellers who perceive that their
streets are out of control are apt to take defensive measures. They may use
sidewalks and parks less, or favor architectural designs that discourage
leisurely stays in public spaces. In particular, they may relocate to more
inviting locales. 467 As modes of travel and communication improve,
individuals have ever greater choices.465 Shoppers can switch to enclosed
malls, employers can move to suburban industrial parks, and universities can
shift activities to satellite branches.
464. See SKOLNIK & FYFE, supra note 188. Judges should not premise their street-law decisions,
however, on the assumption that all police officers are like those in the nation's most venal departments.
Why should a Minneapolis be denied discretion because the force in New Orleans is untrustworthy?
465. See, e.g., cases cited supra note 385.
466. But see Berkeley Community Health Project v. City of Berkeley, No. C 95-0665 CW, 1995 WL
293899 (N.D. Cal. May 5, 1995) (enjoining enforcement of anti-solicitation ordinance and much of anti-
sitting ordinance).
In practice, the Supreme Court has itself tended to be deferential to government administrators' zoning
of public spaces. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989), an unsuccessful First
Amendment challenge to New York City's efforts to create specialized areas within Central Park. To
protect the Sheep Meadow, which in the Court's words the city had designated as "a quiet area for passive
recreations like reclining, walking, and reading," id. at 784, the Court held that the city was entitled to
regulate the sound equipment and staffing at its nearby bandshell. See also Heffron v. International Society
for Krishna Consciousness, Inc., 452 U.S. 640 (1981), in which the Court spumed a First Amendment
challenge to a Minnesota rule confining the distribution of printed matter and the solicitation of funds to
certain areas within the state fairgrounds.
467. Cf. Bowman, supra note 15, at 520, 539, 541-42 (arguing that street harassment of women limits
their willingness to use streets).
468. The innovations in telecommunications that enable people to use electronic devices to shop, send
documents, and hold conferences increasingly threaten the traditional role of the central business district.
19961 Misconduct in Public Spaces 1247
Since about 1965, federal constitutional decisions have limited the power
of cities to control panhandling, bench squatting, public drunkenness, and other
minor street nuisances. By allowing the denizens of Skid Rows to spend more
time in the central business district, these decisions contributed to the demise
of Skid Rows. These constitutional rulings, in combination with the attenuation
of informal social controls and the increase in the size of the urban underclass,
also made American downtowns much more disorderly.
The future of downtowns will turn significantly on the interaction of two
social trends. The continuing rise of social poverty-for example, the
escalating numbers of one-parent households, unmarried adult males, and
convicted felons released from confinement without marketable skills-may
portend more disorderly streets. The 1990s backlash, on the other hand, signals
that cities, merchants, and pedestrians will increasingly reassert traditional
norms of street civility. It would be rash to predict which of these opposing
forces will prove to be stronger.469
The uncertain evolution of the constitutional law of the streets also clouds
the future. In a handful of cases in the first half of the 1990s, federal district
judges struck down ordinances and statutes that cities such as Berkeley, New
York, and San Francisco used to police street misconduct. 470 That courts are
aggressively second-guessing the policies of cities as historically tolerant as
these three demonstrates that federal constitutional doctrine has become far too
restrictive.
Disorderly people are not the only citizens with liberty interests at stake
in these instances. Street law must also attend to the privacy and mobility
interests of pedestrians of ordinary sensibility, not to mention the rights of the
unusually delicate. Because demands on public spaces are highly diverse, city
dwellers have historically tended to differentiate their rules of conduct for
specific sidewalks, parks, and plazas. Some neighborhoods, like traditional
Skid Rows, have been set aside as safe harbors for disorderly people. Other
sites, like tot-lots, have been allocated as refuges for persons of delicate
sensibility. A constitutional doctrine that compels a monolithic law of public
spaces is as silly as one that would compel a monolithic speed limit for all
streets.
The reconciliation of individual rights and community values on the streets
is a profoundly difficult problem. For a problem so intractable, a pluralistic
legal approach is advisable. Judges should refrain from using the generally
469. There is reason to suppose, however, that the strength of social controls is a more significant
variable than the incidence of economic and social poverty. The relatively prosperous Mid-Atlantic and
Pacific regions, with a total of only 30.9% of the low-income men in the United States in 1989, had 68.8%
of the Census Bureau's S-Night tally of the street population. O'FLAHERTY, supra note 1, at 154 tbl. 7-9.
What distinguished New York, San Francisco, and the other panhandling meccas of the 1980s was not the
depth of their economic and social poverty, but rather the weakness of their social-control systems. See also
supra note 75.
worded clauses of the United States Constitution to create a national code that
denies cities sufficient room to experiment with how to grapple with street
disorder.4 7' The California Supreme Court's decision in Tobe is a refreshing
sign that judges increasingly are recognizing this truth.472
Justice Hugo Black, concurring in the Court's refusal to hold the hoary
crime of public drunkenness to be a violation of the Eighth Amendment, stated
it well:
It is always time to say that this Nation is too large, too complex and
composed of too great a diversity of peoples for any one of us to have
the wisdom to establish the rules by which local Americans must
govern their local affairs. The constitutional rule we are urged to
adopt is not merely revolutionary-it departs from the ancient faith
based on the premise that experience in making local laws by local
people 47themselves
3
is by far the safest guide for a nation like ours to
follow.
Judges should not prevent the residents of America's cities from preserving the
vitality of their downtowns.
471. Municipal experiments might also include fostering the creation of BIDs, see supra notes 166-69,
encouraging pedestrians not to give to panhandlers, see supra notes 161, 169, and improving outreach
services to street people. The basic point is that a city might rationally choose to include the imposition
of criminal sanctions for street misconduct as part of its policy mix. See supra text accompanying notes
170-80.
473. Powell v. Texas, 392 U.S. 514, 547-48 (1968).

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Bluebook 21st ed.

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Controlling Chronic Misconduct in City Spaces:

I. INTRODUCTION .................................... 1167

II. CHRONIC NUISANCES IN PUBLIC SPACES .................. 1173

2. Defenses Available to Those Who Cause Chronic

III. THE MANY SOURCES OF STREET ORDER ................... 1194

V. THE INFORMAL AND FORMAL ZONING OF PUBLIC SPACES ...... 1219

VI. THE FEDERAL CONSTITUTIONAL RIGHTS OF INDIVIDUALS

VII. THE RELATIVE MERITS OF INFORMAL AND MUNICIPAL

VIn. CONCLUSION .................................. 1246

To the bewilderment of pedestrians in the 1980s, panhandlers, aimless

shootings. This Article focuses on problems that by comparison seem trivial:

have focused more on deterring police misconduct than on controlling

to park, from sidewalk to sidewalk. Just as some system of "zoning" may be

rules of public conduct. Part VI analyzes the principal federal constitutional

II. CHRONIC NUISANCES IN PUBLIC SPACES

In large cities in the United States, governments own as much as 45% of

A. The Tragedy of the Agora

The biggest single obstacle to the provision of better spaces is the

Out of an almost obsessive fear of their presence, civic leaders worry

Whyte's view of street life is overly romantic. He fails to discuss crime,

B. The Concept of a Chronic Street Nuisance

What, if anything, should a society do when an individual perpetrates a

40. Id. at 156.

Perhaps it is not surprising, then, that the crackdown ordinances of the

controlling chronic miscreants. The gravamen of the pedestrians' grievance is

1. Harms of Chronic Street Misconduct in General

unravelling, accentuating the broken-windows signal." Fourth, some chronic

frustrated by a ban on chronic panhandlers would turn on the quality of the

Most passersby regard even episodic panhandling as at least a minor

3. Chronic Bench Squatting

80. See infra text accompanying notes 182-85.

C. A Recommended DoctrinalDefinition of a Chronic Street Nuisance

The varied enforcers of street norms, including nonstate entities, s7 can

1. A ProposedPrima Facie Case

Public-nuisance law, a stepchild of the far more analyzed private-nuisance

neighborhood, or any considerable number of persons." Id. § 3480.

b. The Inadequacy of an "Effect on the Street Headcount" Test

Alternatively, the test for the existence of a street nuisance might be

c. Only Acts, Not a Status, Can Create a Nuisance

The proposed legal definition of a chronic street nuisance requires a

status. 9 In particular, it is impermissible to criminalize either the status of

2. Defenses Available to Those Who Cause Chronic Street Nuisances

105. See sources cited supra notes 57-58.

D. Distributive Justice and the Destitute

Most beggars and bench squatters are economically and socially

through the early 1990s. 12 1 Although many social-welfare programs are

E. Why "Homeless" Tends to Be a MisleadingLabel

The previous paragraph includes several references to the "homeless." This

permanent dwellings-who chronically make heavy use of the streets. Because