The Boise case proves that pro bono litigation is not always “for the public good.”
*This editorial originally was published at theamericanconservative.com. Republished here with permission from the author.
By Mark Pulliam –
Cities in the western United States—Seattle, Portland, San Francisco, San Jose, Los Angeles, Venice Beach, San Diego, Phoenix—host some of the nation’s largest populations of bums, vagrants, drunks, drug addicts, and the non-institutionalized mentally ill. These categories of people are typically lumped together under the catchall label “homeless,” a modern euphemism rapidly giving way to the even more exculpatory moniker “unhoused.” It is precisely the failure to talk plainly about the objective reality of urban blight that has made the situation worse than it was when I started writing about this problem three decades ago.
According to HUD estimates, nearly one-third of America’s total homeless population (580,466) lives in just three states—California, Oregon, and Washington. Leading the nation with 161,548, California has almost three times as many bums and vagrants as the second-place state, New York. The Golden State’s expenditure of billions of dollars to house transients has only increased its number of homeless. Even bums respond to economic incentives, gravitating to places where they are tolerated, fed, funded, and enabled. Some misguided cities even furnish addicts with fresh needles and “safe injection” sites. Concierge service for drug abusers!
Things are only going to get worse in the nine western states under the jurisdiction of the notoriously liberal Ninth Circuit Court of Appeals, thanks to a rogue 2018 ruling in Martin v. Boise that declared unconstitutional—as “cruel and unusual punishment,” of all things—any city ordinances that prohibit homeless people from sleeping or camping overnight on public property (such as parks, sidewalks, and, in California, beaches) unless the jurisdiction provides enough shelter beds to house every single “person experiencing homelessness,” a burden no city will ever be able to meet.
The court’s unprecedented reasoning, in a decision written by Clinton appointee Marsha Berzon, held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Because sleeping on the streets is an “unavoidable consequence” of being homeless, punishing it amounts to criminalizing status, as opposed to conduct. Accordingly, “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”
With a wave of the activist wand, the Ninth Circuit relieved vagrants of any responsibility to provide their own shelter. Society has this duty, and it must accept the consequences of its failure to provide cradle-to-grave care, no matter how improvident the lifestyle decisions of individual actors. In one fell swoop, in the absence of any relevant Supreme Court precedent, three unelected judges on the Ninth Circuit rendered more than 1,600 municipalities within the court’s jurisdiction powerless to curb urban homeless encampments. Unfortunately, in 2019, the Supreme Court inexplicably failed to grant discretionary review. Thus, the panel decision stands as the law of the land in the Ninth Circuit.
Until Martin v. Boise is overturned, bums and vagrants in the nation’s largest federal appellate jurisdiction have a constitutional right to “camp”—and to perform the attendant bodily functions—wherever they want. No more furtive naps on a piece of cardboard. No more enforced sobriety at the local Salvation Army shelter. No more citations or overnight stays in the local jail. Filthy, disease-ridden tent cities in the middle of downtown are now a matter of right.
How did this atrocity of a judicial decision occur? The evolution of the case law is a long and sordid tale, but the immediate cause is easier to recite. As Tucker Carlson explained in a stunning segment in January, the litigation in Martin v. Boise was undertaken, not by the ACLU or local Boise legal aid do-gooders, but by tony lawyers based thousands of miles away in Washington, D.C., at one of the world’s biggest law firms, as a “pro bono” (pro bono publico, meaning “for the public good”) project. For over a decade, Latham & Watkins, a prestigious mega-firm that boasts annual revenues exceeding $4 billion and profits per equity partner averaging $4.5 million, contributed over 7,000 hours of attorney time to defeat Boise’s attempt to maintain order, safety, and sanitation in its public spaces.
Latham (where, I must disclose, I practiced for 30 years in California before retiring in 2010) publicly bragged about its “major Ninth Circuit victory” and was honored for it by the Legal Services Corporation’s Board of Directors with a Pro Bono Service Award.
Not content to strip Boise and other cities of their municipal sovereignty, Latham’s crack legal team, playing the role of the Harlem Globetrotters running up the score against the hapless Washington Generals, coerced the city of Boise into what the firm gloated was a “momentous settlement” in which Boise agreed to spend $1.3 million for additional shelter spaces, pay $435,000 for the plaintiffs’ attorneys’ fees, and train its police not to arrest individuals or issue citations when no shelter space is available.
The “unavailability” of shelter space, a central theme in the litigation and the crux of the Ninth Circuit’s flimsy decision, was always a red herring. When the lawsuit began in 2009, Boise had several homeless shelters run by private Christian-based non-profit groups, two of which never turned away anyone for lack of space. The named plaintiffs, who had been fined between $25 and $75 for “camping” in public overnight, either objected to the religious nature of the relief services, violated the shelter’s rules, or refused to comply with the shelter’s requirement that participants abstain from alcohol. In other words, the plaintiffs chose to leave a shelter that was available to them. Like the overwhelming majority of “homeless” people in America, they preferred an untamed lifestyle that eschewed individual responsibility and prioritized immediate gratification. They elected to sleep outdoors because it suited them.
For nearly a decade, the city of Boise gamely defended its ordinance, despite the mismatch of resources. At the trial-court level, the city twice won a summary judgment in its favor, first in 2011 and again in 2015, only to see those decisions overturned on appeal. In 2019, six judges on the Ninth Circuit dissented from the denial of en banc review, with this dramatic statement:
In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit… The panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination. Perhaps most unfortunately, the panel’s opinion shackles the hands of public officials trying to redress the serious societal concern of homelessness.
Fancy law firms celebrate “victories” like Martin v. Boise because virtue-signaling is prized in woke legal circles. Law firms are pyramidal organizations, with many freshly indoctrinated young lawyers performing soul-killing but highly lucrative drudgery at the bottom and a relative handful of wealthy, status-conscious partners at the top. As long as the distraction of fashionable pro bono programs keeps the youngsters’ noses to the corporate grindstone during their brief law-firm careers (harrowing attrition requires constant recruiting and replenishment of the pyramid base), and the fat-cat partners are comfortably isolated from the consequences of the activist pro bono legal mischief, law firms can compete for awards like beauty contestants posing in high heels and swimsuits.
Firms use industry awards, especially for pro bono work, to recruit fresh fodder for the corporate-law pyramid. Today’s woke law students practically demand activist pro bono opportunities, and large law firms eagerly provide them. The destruction of downtown Boise and other cities in the fly-over portions of the Ninth Circuit is mere collateral damage. Big Law partners avoid these places in favor of their gated communities and vacation homes in Jackson Hole, Aspen, Bozeman, the Hamptons, or Martha’s Vineyard.
Much has changed since Tom Wolfe lampooned Manhattan high society’s embrace of leftist politics in his 1970 New York magazine article “Radical Chic: That Party at Lenny’s,” an inside look at a swank fundraiser hosted by conductor Leonard Bernstein and his wife at their Park Avenue penthouse duplex for 21 Black Panthers arrested for planning attacks on New York police stations. The unctuous sanctimony of the ruling class in the succeeding 50 years has only gotten worse. In Wolfe’s day, liberal celebrities were at least willing to consort with radicals in person, to go elbow-to-elbow with Black Panthers while sipping cocktails and nibbling hors d’oeuvres. Now, elite law firms establish their solidarity impersonally, by filing lawsuits, writing appellate briefs, and pushing paper.
The elites’ disdain for ordinary Americans and their bourgeois desire for order, safety, cleanliness, and sobriety in public spaces did not begin with Martin v. Boise. It began during the era of Warren Court activism in the 1960s, when law enforcement was hamstrung in a variety of ways, criminal suspects were given heretofore unrecognized procedural rights, and capital punishment was circumscribed and briefly banned altogether.
In Robinson v. California (1962), the Supreme Court held that narcotics addiction is an “illness” that cannot, by itself, be the subject of criminal penalties. The mere status of drug addiction, the Court held, cannot be criminalized, even if the use or possession of drugs can be. (Robinson v. California formed part of the Ninth Circuit’s rationale in Martin v. Boise.) In Powell v. Texas (1968), the Supreme Court came close to extending the same reasoning to absolve a chronic alcoholic from culpability for public drunkenness.
Public-order laws came under attack in Papachristou v. City of Jacksonville (1972), a decision penned by the infamous arch-liberal Justice William O. Douglas (who in another case coined the unforgettable phrase “penumbras, formed by emanations,” as a basis for inventing constitutional rights), celebrating vagrants and loiterers as “nonconformists” and “carefree types of fellows” with lyrical references to Walt Whitman and Henry David Thoreau. The Court in Papachristou held that municipal ordinances prohibiting vagrancy, loitering, habitual loafing, begging, disorderly conduct, and the like are unconstitutionally “vague” and “overbroad,” because they give the police too much discretion, “making easy the roundup of so-called undesirables.” Such laws became unenforceable.
Even before the advent of Soros-funded prosecutors in particular jurisdictions refusing to enforce certain categories of laws, liberal activist courts had severely limited the ability of police anywhere to regulate urban spaces to prevent aggressive panhandling, intoxication, drug use, indecent exposure, urinating and defecating in public, and similar conduct. Begging was deemed to be “free speech.” Some liberal judges even prevented public libraries from banning urine-soaked bums whose lack of personal hygiene and offensive body odor was repellant to other library patrons, on the ground that an “offensiveness” standard was too vague. The rights of malodorous bums trump those of the taxpaying public. Subways, too, have become dangerous places largely unmonitored by law enforcement.
The deinstitutionalization of the mentally ill greatly contributes to the problem of chaos and disorder in America’s cities, and is often achieved through pro bono litigation. It is driven by the same misguided motives that animate other utopian policies favored by progressives.
The ruling class does not spend much time on subways, in public libraries, downtown parks, or public areas in general. They tend to live in exclusive enclaves or high-rise condos with doormen, socialize at private clubs, and can afford to send their children to private schools and use non-public transportation. Therefore, the elite’s advocacy of chaos-producing policies, while greatly affecting the lives of ordinary Americans, is of little or no consequence to them.
In fairness to Latham, its pro bono work in Martin v. Boise is hardly unique. Virtually every large law firm in America has an extensive pro bono program, representing in the aggregate five million hours of cause-oriented legal work annually, the full-time equivalent of a 2,500-lawyer law firm’s work in an entire year. The orientation of this pro bono work is overwhelmingly to the left and often the far left, sometimes partnering with radical groups such as the Center for Constitutional Rights and the Southern Poverty Law Center. Pro bono litigation receives very little attention outside of legal-industry publications, in which it is heralded as an unalloyed good.
When I covered the topic a few years ago in an article titled “White Shoe Social Justice Warriors: The Pro Bono Racket,” my research found that “pro bono” litigation, conducted on a massive scale by law firms serving corporate clients, generally tends to undermine the common good by advocating the interests of illegal immigrants, death row inmates, transgender prisoners, bums and vagrants, LGBTQ activists, and abortion-rights proponents. The pro bono causes taken up by these firms included hot-button issues often associated with the ACLU or the National Lawyers Guild, like supporting penalties for religious objectors to same-sex marriage, fighting to preserve sanctuary cities, seeking the closure of New York’s Rikers Island and other jail facilities, removing religious symbols from the public square, and seeking to restore voting rights for convicted felons.
The well-funded National Homelessness Law Center, which partnered with Latham in the Martin v. Boise case, organizes pro bono litigation all across the country with the assistance of many of America’s largest, most prestigious, and richest law firms. The legal crusade against the city of Boise was just a small part of the center’s impact litigation portfolio. Its ultimate goal is boldly stated: “A home for every family and individual will be a right and not a privilege.” The Center regards Martin v. Boise as a landmark victory for its target clientele, bums and vagrants, proudly describing the result as“a major victory” and claiming that in the wake of the case “dozens of cities have already repealed or stopped enforcing their anti-camping laws.”
Elite lawyers can channel their inner William Kunstler from their posh corner offices, but they are kidding themselves if they think that their efforts are “for the public good.” Cases like Martin v. Boise are not legitimate “civil rights” missions; they are misguided vanity projects with destructive consequences. Who, if anyone, really benefits from homeless encampments in countless blighted cities? Certainly not the cities’ residents, and arguably not even the troubled, dysfunctional people now permitted to live in dangerous, squalid, disease-ridden, open-air drug dens.
Pro bono work has strayed far from its intended mission of helping poor people with routine legal problems. It has become corporate-subsidized political advocacy on a vast scale. If law firms wish to help those less well-off, they should give money—out of their own coffers, as some currently do—to legal-aid organizations that are both designed and equipped to serve the populations needing assistance, with appropriate supervision and case selection, and a greater emphasis on client satisfaction.
Of course, law firms are free to volunteer their time to prosecute activist-impact lawsuits, but they shouldn’t fool themselves—or the affected public—by calling their efforts “pro bono.” Nor should they delude themselves with the conceit that undermining public order promotes the common good. It doesn’t.
About the Author: Mark Pulliam writes from East Tennessee and is a contributing editor at Law & Liberty and blogs at Misrule of Law. A Big Law veteran, he retired as a partner in a large law firm after practicing for 30 years. He considers himself a fully-recovered lawyer.