Page - 295 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

295The Punitive Impact of Physical Distancing Laws on Homeless People prohibit homeless people’s most rudimentary human acts: sheltering themselves, sleeping in public parks or in subway stations, and public urination. Before COVID-19 became a new reality, cities were already selectively enforcing these ordinances against homeless people. The pandemic has significantly altered the climate in which the state deploys criminal laws and regulatory offences. Emergency contexts characteristically result in two consequences: individuals experience greater fear and the state restricts civil liberties.35 These consequences are aggravated when the scope of a crisis is unclear and crucial infor- mation is unavailable.36 As discussed below, this partly explains why homeless people’s rights may increasingly shrink as fears about their role in perpetuating COVID-19 grow. Indeed, law enforcement prac- tises show that the police perceive that some homeless people consti- tute a public health risk that can be coerced and punished out of the public sphere. In this sense, vagrancy laws’ historical underpinnings and justifications are at work here too. Although the state continues to direct everyone to stay at home, it continues to impose harsh fines that will prevent homeless people from securing access to housing. Problems and Pitfalls of Enforcing Physical Distancing Guidelines There are many reasons why punitive responses to COVID-19 impact homeless people in unique ways. First, since homeless people lack real private property rights, they are vulnerable to various forms of police coercion to which individuals with access to housing are not. Homeless people must spend a significant portion of their time in public spaces—the very places where quality-of-life offences and COVID-19-related laws apply and where police officers spend their time patrolling. Because homeless people lack real private property rights, they do not have legal protections against state power that a home affords. The police can easily surveil, coerce, and punish home- less people for violating physical distancing laws that characteristi- cally apply on public property because homeless people generally and What the Links between Them Reveal About the History of Fundamental Rights” (2010) 62:5 Stan L Rev 1361 at 1374. 35. See for example Eric Posner & Adrian Vermeule, “Accommodating Emergencies” (2003) 56:3 Stan L Rev 605. 36. Colleen M Flood, Bryan Thomas & Kumanan Wilson, this volume, Chapter C-1.