2008 March « Homeless Law Blog

Archive for March, 2008

Is the City allowed to throw away possessions that you leave temporarily in public places?

March 31, 2008 at 8:39 pm · Filed under police, possessions ·Tagged homeless law blog

**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

This question considers situations much different from what was covered in the post about the possibility that the police or other government employees might find possessions and assume that they are garbage or have been abandoned. Here, we will look at what happens when the government purposely empties out places where homeless people live.

Many cities in the United States have launched clean-up efforts around holidays and major sports events to rid urban areas of the homeless. Some cities have undertaken these “homeless sweeps” not in connection with big events, but instead on the grounds that general city sanitation and beautification require it.

They say that some people are intimidated by the homeless or else don’t want to do business in a place that looks unpleasant and that homeless people and their possessions look bad. Sometimes they say the homeless cause health hazards. They take away homeless people’s possessions to prevent the homeless from staying where they have been.

Clearly, when government workers are required to separate homeless people from what they own there is no credible way for police or sanitation workers to claim that they merely mistook the stuff to be garbage. So a legal claim against a homeless sweep is not so much a matter of demonstrating what the public employees should have known, as in the situations when police or park employees simply found possessions and thought they were abandoned or garbage. Instead, this kind of dispute will emphasize what the government did know about who owned the stuff and why it was outside and how the government exploited that information to victimize citizens.

ACLU offices, homeless advocacy services, and other legal support agencies have fought against these homeless sweeps with a variety of Constitutional arguments.[i] Even though the U.S. Constitution does not specifically say that the government can’t take homeless people’s things, it has broad civil rights declarations that can be understood to mean that taking away the possessions of homeless people is unjust.

Some have argued that the Eighth Amendment prohibition against cruel and unusual punishment was violated. Others have asserted that the Fifth Amendment right to compensation for government takings of property (also known as “eminent domain”) applied to the situation. Many groups have successfully used the same law that was discussed in the Lost and Found part of this chapter, the Fourth Amendment to the United States Constitution which prohibits unjust searches and seizures.

Always, these arguments are accompanied by the Fourteenth Amendment. That amendment is useful for two reasons:
1. it makes these other Amendments apply to acts done by local and state governments because on their own those Bill of Rights protections in the Fourth, Fifth, and Eighth Amendments only apply to the Federal government and
2. The Fourteenth Amendment affords the victims due process in their dealings with the government.

The cruel and unusual punishment arguments have not been successful. Courts tend to hold that cruel and unusual punishment can only be a component of criminal punishment.[ii] Still, there is a strategic reason for putting it into claims; it reminds the court to think about how mean, how downright insensitive, it is to take away the last few things that people own.

The Fifth Amendment claim about compensation for property taken by the government tends to work well combined with a due process claim raised under the Fourteenth Amendment. The Fifth Amendment authorizes the government to take over private property when necessary for some government purpose. It is easy to see why a local or county government could believe that encouraging tourism or alleviating public health problems would be the kinds of government purposes that might necessitate getting street dwellers out of a particular area. However, that same constitutional amendment “prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken.”[iii]

The due process claims assert that the people whose things were taken are entitled to be alerted about sweeps in advance so they can move away voluntarily instead of losing their stuff. The due process claims also demand that people get the opportunity to reclaim their things. Combined, the Fifth Amendment claim about compensation for taken property and the due process claim for communication and cooperation say, “You took my things and so now I am entitled to have an opportunity to either get them back or be paid for them.”

Cases proving that the Fourth Amendment is violated by intentional removal of homeless people’s possessions have emphasized that even if they don’t live within walls people are entitled to have a reasonable expectation of privacy in their belongings.[iv] To reach that conclusion, the courts do acknowledge that the things picked up in the sweep were simply on the ground outside in public places. But they recognize that “the interior of the bedrolls and bags or boxes of personal effects belonging to homeless individuals … is perhaps the last trace of privacy they have.” [v] By demonstrating that the homeless sweep caused “some meaningful interference with an individual’s possessory interests in that property,”[vi] lawyers for the homeless have convinced courts that taking away the stuff belonging to homeless people was against the Fourth Amendment’s protection from unreasonable seizures.

Making assertions about what makes something private or who owned the items in the first place, etc… is really only one part of succeeding in a case against a homeless sweep. Besides establishing those kinds of points that connect to the Constitution, it is necessary to prove that government seizure of possessions is more harmful to the homeless owners of those possessions than the sanitation problems (or other underlying reasons for enacting the sweeps) are to the cities.

This comparison, weighing the extent of the harm caused by the government’s action against the government’s need to take that particular action to solve a problem, is the formula for proving any claim that constitutional rights have been violated. When police or other government officials plan to roust the homeless by gathering up all of their possessions, they are acting with legal authority. Either an ordinance has been passed or a special order has been issued or some other legal action has authorized taking those possessions. So, whether the legal claim against a “homeless sweep” is about due process, government taking, search and seizure, or any other Constitutional right, it has to show that the law authorizing the sweep was itself illegal.

When they have been successful in these cases, lawsuits have usually not been able to stop the city from conducting sweeps, but they have managed to arrange for the protections identified above: advance warnings to give the homeless an opportunity to move their things away from the area to be “cleaned up” and, sometimes, safe storage of the possessions as well as a claims process for returning possessions belonging to the homeless.[vii]

[i] Kevin Bundy, Officer, Where’s My Stuff? The Constitutional Implications of a De Facto Property Disability for Homeless People, 1 Hastings Race and Poverty Law Journal 57 (Fall 2003). One of the exemplary homeless sweep cases was argued by the Pittsburgh ACLU. It is described and accompanied by copies of the legal pleadings and the settlement agreement at http://www.aclu.org/rightsofthepoor/gen/13454prs20030513.html.[ii] Johnson v. City of Dallas, 860 F.Supp. 344, 355 (N.D.Tex. Aug 18, 1994). In 2009 the National Law Center on Homelessness and Poverty put forth a model order for police departments to implement as a foundation for police interactions with homeless people. That order, which is only valid in cities that adopt it, declares that police cannot damage or destroy homeless people’s possessions unless they are known to be health hazards and that in arrest situations the police have to handle homeless people’s possessions in the same way that they would handle any other arrestee’s possessions (which typically means that they are listed on an inventory, stored by the police, and returned to the arrestee upon release). That model order is online at http://www.nlchp.org/content/pubs/ModelPoliceOrder.pdf Note that because this post is about property rights, the arrests that might go along with this kind of sweep are not addressed here. See the posts about involvement with the police and courts to read about arrests.

[iii] Black’s Law Dictionary 6^th Ed., “eminent domain”

[iv] Pottinger v. City of Miami, 810 F. Supp. 1551, 1572 (S.D. Fla. 1992).

[v] Id. at 1572.

[vi] United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

[vii] Kincaid v. Fresno No. 1:06-cv-1445 (E.D. Cal. 2006); Justin v. Los Angeles No. CV 0012352 (C.D. Cal. 2000); Love v. Chicago 96-C-0396 (N.D. Ill. 1996); Sager v. Pittsburgh CA-03-0635 (W.D. Pa 2003)–settlement agreement available at http://www.aclu.org/FilesPDFs/sager.pdf. Annual “Illegal to be Homeless” reports from the National Coalition for the Homeless http://www.nationalhomeless.org/publications/index.html#reports summarize effective advocacy work such as arranging for advance notice of homeless sweeps.

Permalink Leave a Comment

If the police or other government workers find your possessions in a place that doesn’t belong to you, what are your legal rights?

March 31, 2008 at 8:31 pm · Filed under police, possessions ·Tagged homeless law blog

Because the finding has been done by a government employee, the law that applies is the Constitution rather than theft laws. If a police officer, park gardener or other public worker comes upon bags full of objects, bedding, cooking supplies, or anything else, looks through those possessions, and then takes them away, it might be an illegal search and seizure under the Fourth Amendment of the U.S. Constitution.[i]

The Fourth Amendment declares that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”[ii]

Because it goes on to state that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” this clause has long been understood to mean that when they are investigating a crime, the police have to obtain a warrant from a judge before searching through people’s property and seizing any of it to use as evidence in a criminal trial. But it also applies when police are not investigating crimes. As the U.S. Supreme Court said in the case of U.S. v. Jacobsen

“[t]his text protects two types of expectations, one involving ’searches,’ the other ’seizures.’ A ’search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ’seizure’ of property occurs where there is some meaningful interference with an individual’s possessory interests in that property.”[iii]

Homeless people, living outside, are likely to have their possessions searched and seized for reasons other than crime investigations. Maybe a public maintenance worker comes across the stuff and looks through it to see if it’s garbage. Perhaps a police officer goes through it or destroys it because he thinks it might be dangerous. Possibly, the mayor’s office has ordered crews to clean-up the streets.

If the public worker did think the found stuff was garbage, the first thing a court will consider in the search and seizure case is whether the owner expected that his stuff was in a private place. Usually, when police have searched through garbage left for municipal collection at a curb, in an outside garbage can (even up against a house or in a permanent location somewhere),[iv] or in a shared trash receptacle for a business or apartment,[v] the courts believe that the person who put out that garbage would not have had a reasonable expectation of privacy in it.

So, when people probably don’t expect that their things were in a private place, searching those things does not violate the Constitution. An owner must show that he did expect that those possessions were private if he is going to prove that the search and seizure were illegal.[vi]

Even though the stuff might have been stored outside or inside a property where the owner of the stuff does not even rent space, there are ways to demonstrate an expectation of privacy. That expectation of privacy must be considered in light of what the police have to prove for their defense; in court the police perspective will be heard right alongside the perspective of the person whose things the police went through or took away.

The police have to show that what they found was equivalent to garbage. In order to successfully prove that the things found outside were like garbage, the police or other government employees have to show that they believed those things to have been unwanted like garbage. The legal term for that status is “abandoned”.[vii] Proving that property was abandoned means showing that the owner relinquished control over it.

The owner of the possessions, trying to show that he or she did not abandon those possessions, is likely to explain the situation that led to leaving those items in that place. That explanation might say that effort was made to hide the stuff or that it was arranged to clearly serve as a sleeping area or that it was located in an area well-known to be inhabited by homeless people, etc…

If that explanation is sufficiently detailed and sensible, the court is more likely to find that the owner truly did have an expectation of privacy regarding those possessions. That court decision would mean that the search and seizure of those possessions was in violation of the federal Constitution’s Fourth Amendment or the comparable state constitutional provision.[viii]

This may raise another question, what if some ordinary citizen who is not a police officer takes something that has been left out for garbage collection? Does that result in an illegal possession? The argument that applies to the police also applies to everyone else: anything that is put out for garbage collection is presumed to be abandoned by its previous owner.

Taking it away is not stealing it. The Model Penal Code (Section 223.5) definition of larceny relating to found items even says that the finder has to know that the item was “lost, mislaid, or mistakenly delivered” in order to be guilty of theft. Even when things have not been properly put in trash receptacles, a person who takes a found item honestly believing that it was discarded has a good argument against a theft charge.[ix]

[i] U.S. Const. amend. IV.[ii] Id.[iii] U.S. v. Jacobsen, 466 U.S. 109, 113 (1984).

[iv] California v. Greenwood, 486 U.S. 35, 37 (1988).

[v] U.S. v. Michaels, 726 F.2d 1307, 1312 (8th Cir. 1984).

[vi] Commonwealth v. Krisco Corp., 653 N.E. 2d 579, 582-583 (Mass. 1995).

[vii] 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property§ 3 (2006).

[viii] Since the first ten amendments to the Constitution were written to control the behavior of the federal government, a Fourth Amendment claim cannot be used alone to charge that local, county, or state police have searched and seized illegally. It is necessary to also identify the Fourteenth Amendment which makes the provisions in the Bill of Rights applicable to state governments. The state constitutions also have search and seizure clauses enabling someone to bring the same kind of case in state court instead of federal court. The great value of bringing it in federal court is that, if necessary, it can be appealed all the way to the U.S. Supreme Court.

[ix] Courts are not all consistent about this.

Permalink Leave a Comment

What if you find something that is not labeled with the owner’s name, the way shopping carts are? Does that count as theft? Suppose you find something that seems impossible to trace, is it still illegal to have that item?

March 31, 2008 at 8:19 pm · Filed under possessions ·Tagged homeless law blog

Having possession of lost property can count as theft. The basic definition of theft has three components:
1. possessing something that belongs to someone else
2. without the owner’s permission and
3. intending to deprive the owner of it.[i]

If police believe that these three components are true, they can charge theft. Most state codes have a broad theft statute like this [ii] as well as specialized varieties of theft such as burglary, robbery, and grand theft auto. In some states, the basic theft law might have an additional component: taking the item. This does not have to mean that someone took an item away from the owner while the owner was actually holding it; it can mean that he took it away from where he found it.[iii] (Note that state codes might use the words “larceny” or “theft” instead of “stealing”.)

Alternatively, under the right circumstances, police can charge a finder of lost goods with possessing or receiving stolen property. The basic components of those crimes are: 1. that the accused knew the item was stolen, 2. that the accused had control over the item, 3. that the accused intended to keep the item from the owner and, 4. that the item really was stolen.[iv]

The Model Penal Code, a set of criminal law examples that most states have incorporated or adapted for their own criminal codes, has category of larceny specifically about keeping lost property. It has three components:
1. the finder knows that the item was mistakenly dropped or left behind
2. the finder has the opportunity to return the item, but does not return it and
3. the finder intends to deprive the owner of it.v

Some of the states that have codified this law are New York [vi], Montana [vii], Idaho [viii], and Oregon [ix] There are hundreds of cases, from all over the country, analyzing the circumstances under which keeping found property can count as theft. To find these cases in case indexes published by West, look under the topic of Larceny key 10.

Some states, rather than punishing finders of lost items, have laws establishing incentives for returning found property. In Iowa, a long-time law requires that people whose lost property is returned pay ten percent of its value as a reward to the finder.[x] In Alabama and California, a finder is entitled to be repaid for money spent to protect or return lost property.[xi]In Illinois and New Jersey, a finder is entitled to keep the lost property if the person who lost it has not claimed it within six months.[xii] In Wisconsin, the wait is only ninety days.[xiii] In Massachusetts, Iowa, and New York, it is a full year.[xiv] In Oregon, a finder only has to report the finding to authorities if it is worth more than $100 and then wait three months to be named the legitimate owner.[xv] Iowa has even taken the step of legislating that finders are not financially responsible for accidental damage done to found goods.[xvi]

After the police charge someone with a crime, a court determines whether the accused defendant is guilty of the crime. As you can see from the previous paragraphs, all of the possible theft charges against finders of lost property included two hard-to-prove facts: what the finder knew and what he intended.

Failure to return found property requires proof that the finder knew that the item was lost while theft requires proof that he knew the item still belonged to another person and receiving stolen property requires that he knew that the item was stolen. Intent is the same in all three charges; he intended to deprive the owner of the item. Since knowledge and intent both happen inside the head, a finder can defend himself by disproving the accusations about what he knew or intended when he found the item.

Here is an example to consider:
Suppose a homeless person finds a coat on a bench in the park where he sleeps and, because the evening is getting cold, he puts the coat on and plans to keep it for the winter. A month later, the police catch him with the coat and arrest him.

To show that he did not know the coat was lost or stolen when he found it, he can say and demonstrate that he believed the coat was abandoned or even donated. He might cross examine a police officer to get testimony about the known presence of homeless people in the park. He might bring other homeless people as witnesses to testify that people bring clothing and food donations to them in the park. He might be able to prove that there was often garbage near this bench which led him to believe that this coat may also have been tossed there as garbage.

To show that he did not intend to deprive the owner of the coat, he might ask witnesses to testify that they continued to see him residing in the park after finding the coat which was a way of making the coat visible to the owner if he came back looking for it. He might say that he wore the coat intending to protect it from being blown away or discarded before the owner came back for it.

There are many ways of defending against a charge that by keeping a found item someone has broken the law. But if a found item seems valuable or can be traced to an owner, a finder should know that the item was lost or stolen and a prosecutor will likely accuse him of knowing that if he is caught with the item. Finders can avoid criminal charges by taking valuables and labeled items to the police before assuming that they can keep them.

[i] Black’s Law Dictionary 1516 (8th ed. 1999).[ii] 50 Am. Jur. 2d. Larceny § 2 (2006).[iii] 50 Am. Jur. 2d. Larceny § 14 (2006).[iv] Model Penal Code §223.6 (1962). See also, Wayne R. LaFave, Criminal Law §20.2 (4^th Ed. 2003); Carroll J. Miller, What Constitutes “Constructive” Possession of Stolen Property to Establish the Requisite Element of Possession Supporting an Offense of Receiving Stolen Property” 30 A.L.R. 4^th 488 (1984).[v] Model Penal Code §223.5 declares that “A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the amount of the property or the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.” Model Penal Code § 2235 (1962).

[vi] N.Y. Penal Law § 155.05 (McKinney 2007); N.Y. Penal Law § 165.40 (McKinney 2007).

[vii] Mont. Code Ann. § 45-6-302 (2005).

[viii] Idaho Code §18-2403(2)(c) (Michie 2007).

[ix] OR. REV. STAT. § 164.065 (2006).

[x] Iowa Code § 556F.13 (2004); Flood v. City Nat’l. Bank, 253 N.W. 509 (Iowa 1934); State v. Couch, 92 N.W. 2d 580, 582 (Iowa 1958).

[xi] Auto. Ins. Co. v. Kirby, 144 So. 123 (Ala. Ct. App. 1932); Cal. Civ. Code § 2080 (West 2007).

[xii] 765 Ill. Comp. Stat. Ann. 1020/28 (West 2006); N.J. Stat. Ann. § 40A:14-157 (West 2007).

[xiii] Wis. Stat. § 170.10 (2006).

[xiv] Mass. Gen. Laws Ann. ch. 134, § 4 (West 2007); Iowa Code § 556F.11 (2005); N.Y. Pers. Prop. § 257 (McKinney 2007).

[xv] Or. Rev. Stat. § 98.005 (2006).

[xvi] Iowa Code § 556F.16 (2005).

Permalink Leave a Comment

Do you have to submit to sexual overtures if you generally sleep outdoors?

March 28, 2008 at 1:25 pm · Filed under safety ·Tagged homeless law blog

Rape is rape, whether it is indoors or outdoors, whether it is done by a stranger or someone who knows the victim, and whether or not the victim has a home. It can be loosely defined as non-consensual sexual intercourse. Criminal law statutes against rape,[i] and the cases interpreting those, are consistent about the illegality of unwanted sexual contact, but have variations in every state. They define sexual contact in different ways and have diverse standards for how victims have to have conveyed their lack of consent.[ii]

Hospitals and police have cooperative systems for proving that the contact occurred. In every state, there are two problems in successfully prosecuting somebody for rape: identifying the attacker and proving that the contact was unwanted. Clearly, even having one of those problems out of the way still leaves a very hard case to prove. If the victim has never seen and doesn’t know the attacker, it is hard to find the right perpetrator. Once that person is found, it is relatively easy to prove that the victim did not consent to having sex with the stranger.

In the opposite situation, when the identity of the attacker is known, the hard part is proving that the contact was unwanted. Particularly hard to prosecute is the situation in which one homeless person has been raped by another homeless person who resides in the same shelter or outdoor area. The defendant’s attorney could ask the victim where he or she generally sleeps and then follow-up by asking something like, “then isn’t it true that you and the accused had essentially been sleeping together prior to the events of the alleged attack?”

Even when the attacker was unknown and not necessarily homeless, it is conceivable that a defense attorney might lead the jury to believe that a homeless rape accuser made him or herself available by sleeping outside or in a group setting. The prosecutors in those situations will look for guidance in the cases involving acquaintance rape, where courts have examined the concept of consent.

In cases of acquaintance rape, courts are in the odd position of analyzing social interaction[iii] in order to figure out whether the crime occurred. To determine whether the victim consented to intercourse, they look at things like whether the victim and defendant were voluntary social companions,[iv] and whether the accuser consented to some degree of affection, but not necessarily intercourse.[v]

A homeless victim who does not have a private space where he or she can go to avoid unwanted attention might also be burdened by jury presumptions that misinterpret those social considerations. They might think, for example, that the homeless are mentally ill and get hysterical after ordinary sex or that the homeless will do anything for money and might claim rape if they don’t get paid after sex.
A homeless victim of rape, or that victim’s friends and advocates, can help the case by educating the prosecutor about the victim’s daily life and the culture and routines in that homeless community. Those details can illustrate the homeless victim’s particular risks and limitations in trying to get away from attackers. It is not the kind of information that proves whether the crime occurred, but it will convey what kinds of protection and communication methods were available to the victim. It gives the prosecutor context for demonstrating to the jury how this particular sexual encounter was victimization and not consensual.

[i] State criminal codes are available at http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code. Within a state’s code look under “sexual assault” or “sex crimes” if there isn’t a listing for “rape.” [ii] In public libraries, look for Frances P. Reddington and Betsy Wright Kreisel, SEXUAL ASSAULT: THE VICTIMS, THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM (Carolina Academic Press, 2005). In law libraries, look for Wayne R. LaFave, CRIMINAL LAW Chapter 17 (West, 2003).

[iii] See generally, Note, Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, 117 Harv. L. Rev. 2341 (2004).

[iv] “Rape is a felony of the second degree unless … the victim was not a voluntary social companion of the actor upon the occasion of the crime … .” Model Penal Code § 213.1(1) (1985). However, neither current state laws nor recent appellate cases name voluntary social companionship as a consideration in date rape cases, probably because contemporary social standards recognize that even if someone has willingly participated in sex with this attacker before, it does not mean that the sex was consensual this time. Nevertheless, because it is still in the Model Penal Code and traditional cases include it, there is a chance that a victim might have to explain how he or she communicated differently with the defendant when the sex was consensual compared to when it wasn’t acceptable to the victim.

[v] Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, supra at 2346.

Permalink Comments (1)

If you remove soap or paper towels from a restroom in a public facility is it necessarily stealing?

March 28, 2008 at 1:14 pm · Filed under bathing, police ·Tagged homless law blog, public bathrooms, public restrooms

The laws involving public restrooms tend to be in the health code, not in the crimes code. They generally require that any place making toilets available must also have sinks, that sufficient facilities are available for both genders, and that restaurants have to include public restrooms. The lack of a specific law about taking supplies from restrooms does not mean that behavior is legal.

The general definition of theft is an act “done with intent to deprive the owner permanently of the possession, use, or benefit of his property.”[i] So, removing paper products and soap that are provided only to enable you to fully use the public restroom can be seen as stealing (probably “theft of public property”) because doing so deprives the owner, be it a business or a government building with a public restroom, of those resources which the health code requires them to have available to other customers.[ii]

Since it would be a theft of inexpensive goods, a facility might be more likely to confiscate stolen soap and paper that they find in someone’s possession instead of calling the police and pressing charges. They might also ban a thief from future admission.

Obtaining an employee’s permission to remove supplies from the restroom will probably prevent it from being an act of theft. Employees are considered to legitimately express the authority of the establishment, so if one of them allows a person to remove supplies then legal analysis would reason that the owner was not being deprived of the stuff because he, through the employee, gave it away.

[i] Black’s Law Dictionary 1516 (8th ed. 2004).[ii] Be aware that health codes are in the local and states’ regulations, not in the local and states’ ordinances or statutes, because the Health Departments, not the legislatures, make the health rules. Examples of state regulations requiring sinks, soap, towels, etc… are: Ind. Code § 16-42-5-14 (2007); Minn R. 4626.1095 5-204.11 (2006); 25 Tex. Admin. Code §229.167(e) (2007); Okla. Admin. Code § 310:285-3-6 (2005); 15A N.C. Admin.Code 18A.2409 (2007); 6 Colo. Code Regs. § 1010-10-2.7 (2007); Ala. Admin. Code r. 420-5-17 (2006).

Permalink Leave a Comment

Can you open fire hydrants to get water for bathing?

March 28, 2008 at 1:12 pm · Filed under bathing, health ·Tagged homeless law blog

Only fire departments, and occasionally other units of local governments, are allowed to open fire hydrants. Because of the significant public safety risk of having inadequate water pressure with which to fight fires, punishment for illegally opening a fire hydrant tends to be severe.

There is a Uniform Fire Code in the United States that sets forth model laws about firefighting and fire protection systems for states to implement. In sections 1001.6.2 of that code, it says: “Fire hydrants and fire appliances required by this code to be installed and maintained shall not be removed, tampered with or otherwise disturbed except for the purpose of extinguishing fire, training, recharging or making necessary repairs, or when allowed by the fire department.”

More generally, the section just before that, 1001.6.1 declares that “[a]pparatus, equipment and appurtenances belonging to or under the supervision and control of the fire department shall not be molested, tampered with, damaged or otherwise disturbed unless authorized by the chief.”[i] This uniform law might be incorporated into state statutes, but is more likely to be in the municipal or county code[ii] because fire departments, even when operated by volunteers, are authorized by those governments. Because opening a fire hydrant, outside of municipal authority, is an offense against the government, doing so is a crime. Therefore, punishment for violating a fire hydrant law involves at least a ticket and at most a jail term.

[i] Unif. Fire Code §1001.6.1, 2 (1997).[ii] Local codes are available through http://www.spl.org/default.asp?pageID=collection_municodes.

Permalink Leave a Comment

In what sources of fresh water can you legally bathe or wash laundry? If waterways are polluted and you get sick from washing in them, does the law entitle you to anything? Can your bathing or washing laundry in rivers or lakes, etc… count as pollution?

March 28, 2008 at 1:04 pm · Filed under bathing, health ·Tagged bathing, homeless law, homeless law blog, privacy, washing, water pollution

You can usually expect that it is probably legal to bathe in naturally existing bodies of water such as lakes, creeks, rivers, and oceans which do not have to be entered through private property and do not have fences or signs declaring them to be off limits.

Use of these natural bodies of water is, however, subject to rules involving the land connected to them. If there is a lake in the middle of a city park that closes at 9:00 p.m., then using that lake for a bath after the park closed at 9:00 p.m. is also illegal. While laws regarding the use of public lands and waterways are often posted on signs, it is also possible that they are simply recorded in the law books, especially when they apply to an entire park system or collection of beaches.[i]

Public fountains are not naturally existing bodies of water. They, and other man-made water-involving exhibits are usually created for the purpose of commemoration or beautification and the government has no obligation to allow people to use them for other purposes like washing. There do not have to be specifically written laws declaring that the public is only allowed to gaze upon the municipal reflecting pond or water display in order for misusing them to be illegal. The police have an array of general misconduct charges that can be legitimately applied against public behavior. See the posts about police and courts for more details about those.

If waterways are polluted and you get sick from washing in them, does the law entitle you to anything? Can your bathing or washing laundry in rivers or lakes, etc… count as pollution?

There is a federal law, called the Clean Water Act, which defines water pollution and explains exactly when it is illegal to discharge anything into waterways. Made by Congress, that law “is intended to protect the quality of lakes, streams, and other waters for recreational use, for maintenance of aquatic life, and for drinking water sources.”[iii] The federal Environmental Protection Agency and state environmental departments have regulations that detail how that federal law is to be carried out.[iv]

The Clean Water Act makes it illegal for any person to put pollutants including solid waste, garbage, chemical waste, industrial waste, biological residue, etc…[v] into the waterways. Even though the law says “any person” can be guilty of a violation, the Clean Water Act is ordinarily used against businesses that dump or drain out dirty water and against local governments whose waste treatments plants aren’t sufficient to treat raw sewage or who fail to prevent excessive debris and biological overflowing when storms wash things into pubic waterways.

This Act, and the various regulations that go with it, are all full of measurements because it simply isn’t possible to prevent every bit of pollution from going into public waterways. The laws detail under what circumstances particular quantities of various pollutants can go into waterways.

The small amount of soap or grime that a person bathing or washing clothes might put into the water would be very far below the level of water contamination that would count as pollution, although it can be considered a violation of the local litter ordinance. Typical state and local litter laws have very broad declarations that dumping human waste, garbage, paper, detrimental substances, or other things into rivers or waterways is littering.[vi]

Industries and waste treatment plants have to obtain permits to dump in waterways. To get a permit, it is necessary to identify one’s industry and the pollutants that are going to be discharged. The permit process is mainly a way of letting the government know that this company will be submitting regular reports to prove that they are cooperating with the pollution limits in the federal and state regulations.

If a company or municipality allows more pollutants into a waterway than they are supposed to, they will be fined by the EPA or the state environmental agency and, if necessary, sued by the EPA. Private citizens and groups of citizens can also file lawsuits against companies or governments for violating the Clean Water Act,[vii] but because this law is intended to keep waterways clean, the remedy that comes from this kind of lawsuit emphasizes reducing pollution in the water source, not directly aiding individuals who have gotten sick from the water.

Nevertheless, violations of the Clean Water Act are important sources of proof in cases that are about injuries and sickness caused by polluted water. In other words, if a community of homeless people become sick from bathing in polluted water and the EPA or the state environmental agency has documented who caused the pollution, then the homeless people can use those documents as proof of how they got sick and who caused their sickness.

Cases that emphasize the harm done to humans are grouped in a category called “personal injury law.” The formal legal term for this category is “torts.” Within torts are two general ways that people get injured: intentionally and by negligence. When people get sick or injured by water pollution, the lawsuit is filed on the basis of negligence.

In order to succeed in a negligence case, it is necessary to prove that the defendant owed a duty to the injured plaintiff. The plaintiff also has to prove that the defendant breached that duty, that he (the plaintiff) is suffering harm, and that this harm has been caused by the defendant’s breach of his duty. The Clean Water Act and the federal EPA and state regulations that go with the Act all establish the duty that is owed in a negligence case about water pollution.[viii]

A successful Clean Water Act lawsuit, which could have been brought by the EPA or an environmental group or anybody not necessarily the plaintiff in the negligence case, can serve as proof that the duty was breached. So, all that is left for the plaintiff in the negligence case to prove is the extent of his injuries or sickness and the connection between his problems and the polluted water.

A book titled A Civil Action[ix] details the work involved in making a negligence case on behalf of leukemia victims against a company that polluted a local water source. That case was a class action lawsuit on behalf of several families which went through years of expensive preliminary court procedures. It depicts, with great pain, the work and costs involved in collecting evidence and simply trying to ascertain who was truly responsible for contaminating the water. There is also a related book titled A Documentary Companion to A Civil Action[x] which contains many of the actual court papers that were filed in the case. Both of those books would be helpful to somebody thinking about suing for injuries or sickness caused by water pollution. There are also some law library reference books that have practical guidance for working on this kind of lawsuit. One of these, a set called “Am Jur Proof of Facts” has a very detailed article describing how to prepare a case about dioxin poisoning in a water source. It lists the evidence that should be presented, gives checklists of questions to ask experts, includes sample interrogatories identifying the documents to obtain, and generally conveys what information is necessary to prove and present a water pollution case.[xi] Another helpful article from that set is specifically about the role expert witnesses play in proving “toxic torts,” personal injuries caused by poisons and pollution. It has sample forms, clear explanations of how experts show that an accused defendant did or did not pollute water, and descriptions of the legal standards used to assess expert opinions.[xii]

[i] To find regulations, hours, and other information about lakes, ponds, and rivers under state control, look in the state’s park authority site http://www.statelocalgov.net/50states-parks.htm and the state’s environmental agency site http://www.epa.gov/epahome/state.htm. To find rules pertaining to a local body of water, locate the city ordinances using the Seattle Public Library’s list of municipal code publishers. Link to each publisher until you find the municipality you need. http://www.spl.org/default.asp?pageID=collection_municodes. [ii] The law is summarized and explained on the EPA’s Web site at http://www.epa.gov/region5/water/cwa.htm.

[iii] Joel M. Gross & Lynn Dodge, Clean Water Act 1 (Basic Practice Series) (2005).

[iv] Federal Environmental regulations are available at http://www.epa.gov/epahome/lawregs.htm. State environmental regulations are available through state environmental agencies http://www.epa.gov/epahome/state.htm or in state administrative codes http://www.nass.org/acr/html/links.html.

[v] 33 U.S.C.S. §1362(6) (2007).

[vi] See, e.g., Denver, CO., Municipal Code § 2.39.29 (2007); Fla. Stat. § 29.403.413 (2007); 18 Pa. Cons. Stat. § 6501 (2007). The Litterbutt Web site http://litterbutt.com/v2/Misc/LitterLawsByState.asp publishes state litter laws, but might not keep them up to date. After reading a state’s law on that site, use the citation to look for the law in a current version of the state’s code to get the latest version. State codes are at http://www.law.cornell.edu/statutes.html#state.

[vii] A prominent example of a Clean Water Act lawsuit brought by a group of citizens is Friends of the Earth Inc. et al. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000).

[viii] This is not the only way to establish that the water polluter owed a duty to the plaintiff or the public at large, but it is the strongest proof of an obligation to have kept the water cleaner. It is certainly possible for someone to have gotten sick or hurt from polluted water that was within EPA and state guidelines for cleanliness. In that kind of situation, the injured person can still establish that the polluter owed him some sort of duty: a duty to warn about what kinds of chemicals were going into the water, a duty to dump at a different time, or some other duty that becomes evident from the facts of the case.

[ix] Jonathan Harr, A Civil Action (Vintage Books) (1996).

[x] Lewis A. Grossman and Robert G. Vaughn, A Documentary Companion to A Civil Action: With Notes, Comments, and Questions (Revised Ed., Foundation Press) (2002).

[xi] Ray Vaughan, Liability for Dioxin Contamination, 25 Am. Jur. Proof of Facts 3d 473 (1994).

[xii] Ray Vaughan, Proof of Contamination in Toxic Tort Cases Through Expert Testimony, 39 Am. Jur. Proof of Facts 3d 539 (1996).

Permalink Leave a Comment

Are there any legal limitations on what hygiene functions you can perform in a public restroom?

March 27, 2008 at 5:09 pm · Filed under bathing, health, privacy ·Tagged behavior, homeless law blog, library, police, privacy, public places, restrooms

Public restrooms are made available in buildings as a courtesy to enable the public a convenience while they make use of the primary facility for its intended purpose. One of the famous public library cases involving patron behavior makes it very clear that a public facility only has to allow people to use the place for its stated public function, not for any other tangential uses that one might make of it.[i] Another court has specifically said of public restrooms that, “[t]he public’s right to expect privacy in such locations is reasonably limited to the performance of excretionary and ablutional acts indigenous to a restroom, never for sexual acts of any nature.”[ii]

If restrooms are made available so that people can conveniently relieve themselves and wash their hands while making use of a facility, shaving or brushing teeth would be unusual, but probably not terribly disturbing there; bathing one’s entire body would seem to go far beyond the intended use of the place. Someone doing that might simply be asked by an employee to leave or might be apprehended by police.

Case law has generally demonstrated that people are entitled to privacy when doing activities involving their own body or health in the stalls of public restrooms.[iii] But because our legal codes do not list every single thing that a person has a right to do and employees can call the police at any time that they feel the need for support, it is impossible to list which actions might be grounds for calling the police on someone in a public restroom.

When police are called, they have to investigate whether an illegal act has occurred; that is how they determine whether to charge someone with a crime. The sad fact is that someone doing something perfectly legitimate, especially someone who looks homeless, could arouse staff suspicion and have to answer police questions about what he was doing in the restroom.[iv]

The legal principle that behavior has to be consistent with the purpose of the facility comes from court cases interpreting the U.S. Constitution’s free speech rights. Constitutional issues involve actions taken by government entities. So, government facilities, not businesses, have the constitutional right to assert that certain behavior is prohibited because it exceeds the place’s intended use. Businesses and other privately-owned facilities can also assert that certain behavior is prohibited, but they do it under different authority-the basic right to have control over their domain.

Whether this right to limit behavior comes from the Constitution or a place’s own management policies, police involvement always counts as government action. So, once the police arrive, the restroom user’s constitutional rights to privacy, freedom from illegal search and seizure, etc… are legally protected. As indicated throughout the posts about police and courts, there might be an assortment of charges that the police could apply when faced with behavior that is not precisely described in the crimes code. Washing one’s entire body in a public restroom might be disorderly conduct, public nudity, criminal trespass, public indecency, indecent exposure, or any number of other criminal law violations.[v]

If police charge a restroom user with a crime, he might be able to use constitutional defenses for his behavior in addition to trying to disprove the prosecution’s evidence against him with basic criminal law defenses. Criminal law defenses might come from analyzing the text of the criminal charges or comparing his acts to previous cases. When a defendant makes a constitutional law claim about how the police handled the situation, it is not a defense that excuses or validates the defendant’s own behavior in the public restroom. It is an accusation that the police did something wrong and that, therefore, the prosecution against this defendant is illegitimate.

Often, defendants in public restroom misbehavior cases, which tend to involve people who have been charged for masturbating, drug transactions, and homosexual behavior, assert that the police violated their Fourteenth Amendment due process right to privacy or their Fourth Amendment privacy rights regarding searches and seizures. These privacy rights are not explicit in the words of the Fourth and Fourteenth Amendments themselves.[vi]

As is explained in the posts about finding lost property and municipal sweeps of homeless encampments, privacy rights have arisen from cases interpreting the Constitution. The Fourth Amendment search and seizure privacy cases generally ask whether the defendant had a reasonable expectation of privacy in what he was doing. If the court agrees that the expectation of privacy was reasonable under the circumstances and the police actions invaded the scope of that privacy expectation, then the search and seizure will be deemed illegal and the evidence gleaned cannot be used against the defendant.

The Fourteenth Amendment due process form of privacy is sometimes known as “the right to be left alone.”[vii] Cases analyzing privacy according to that amendment consider privacy to be a type of liberty interest under the due process clause. When doing this analysis, the courts ask whether the government is invading personal rights or actions (like birth control, marriage between people of different races, abortion, assisted suicide) that are “fundamental” or “implicit in the concept of ordered liberty.”[viii]

If the court does find that fundamental rights have been invaded, the government actors have to stop that invasion of privacy. So, if a government entity, for example a post office, had a sign in its restroom saying “no bathing allowed” and a court declared that private decisions about how and where to bathe are a fundamental right which this rule violated, then the rule would have to be eliminated and after that people would be allowed to bathe in that restroom.[ix]

Prosecutions for dealing drugs and masturbating in public restrooms have been ruled invalid when defendants were caught by police who peeked on them in private stalls.[x] But, as was shown above, the constitutional violations were connected to search and seizure privacy rather than due process privacy even though, similar to the due process cases involving birth control, abortion, and assisted suicide (none of which had any connection to public restrooms), they clearly involve people’s own use of their bodies.

Drug dealing and masturbating (probably charged as “public lewdness”) are more clearly defined and more harshly punished under crimes codes than bathing in a public restroom. But any lack of clarity about whether particular actions are illegal in public restrooms is really more relevant to the defense against the criminal charges than to a claim about constitutional rights. This is why people charged with misbehavior in public restrooms try to use a combination of constitutional defenses and criminal defenses. The criminal law defenses try to show that behavior wasn’t wrong and the constitutional law defenses try to show that no matter what the behavior was, the defendant did it with an expectation of privacy in the most private component of a public place.

[i] Kreimer v. Morristown, 958 F.2d 1242, 1262 (3d Cir. 1992) (“[A]s a limited public forum, the Library is obligated only to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government’s intent in designating the Library as a pubic forum. Other activities need not be tolerated.”).

[ii] People v. Anonymous, 415 N.Y.S.2d 921 (N.Y. Misc. 2d 1979).

[iii] Courts have come to recognize that a right to privacy exists for occupants of public bathroom stalls. This recognition has resulted in cases reversing convictions based on evidence obtained through observation in a public restroom because the evidence was gained in violation of these defendants’ reasonable expectation of privacy. See, e.g., People v. Dezek, 308 N.W.2d 652 (Mich. Ct. App. 1981) (reversing defendant’s conviction of “gross indecency” after he was found with another man in the bathroom); State v. Biggar, 716 P.2d 493 (Haw. 1986) (reversing a drug conviction initiated by an officer peering over the partition in the public bathroom to observe the defendant’s activities); State v. Casconi, 766 P.2d 397 (Or. Ct. App. 1988) (reversing conviction for public masturbation observed in a public bathroom); State v. Brown, 929 S.W.2d 588 (Tex. App. 1996) (reversing conviction for public masturbation observed in a public bathroom).

[iv] See the posts about interacting with the police for more information about police questioning and one’s legal rights.

[v] See the posts on courts for more of an explanation about bringing and proving criminal charges.

[vi] The Fourteenth Amendment’s Due Process Clause says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law… .” U.S. Const. amend. XIV, § 1. The Fourth Amendment states: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … .” U.S. Const. amend. IV.

[vii] See, Olmsted v. U.S., 277 U.S. 438, 4788 (1928) (“[The drafters of our Constitution] conferred as against the Government, the right to be let alone, the most comprehensive of rights and the right most valued by civilized men.”); Publ Util. Comm. v. Pollak, 343 U.S. 451, 467 (1952)(Douglas, William O., dissenting) (“The right to be let alone is indeed the beginning of all freedom.”). See generally, Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890) (“[T]he right to life has come to mean the right to enjoy life, the right to be let alone; the right to liberty secures the exercise of extensive civil privileges.”).

[viii] Palko v. Connecticut, 302 U.S. 319, 325 (1937).

[ix] In addition to bringing constitutional claims for civil rights issues, most people also claim that Title 42, section 1983 of the United States Code was violated. That is the law which entitles people to financial awards in court cases proving that their constitutional rights have been violated.

[x] See generally, Michael R. Flaherty, Annotation, Search and Seizure: Reasonable Expectations of Privacy in Public Restroom, 74 A.L.R. 4th 508 (1989).

Permalink Leave a Comment

Is naked always obscene? What is illegal about being naked when changing clothes or bathing in outdoor public spaces?

March 27, 2008 at 5:00 pm · Filed under health, police, privacy ·Tagged court, police, privacy

The words obscene and obscenity generally refer to printed or electronically published materials, rather than a person’s actions. Exposure of private body parts in person is more likely to be called “public nudity” or “open lewdness” in the law.[i] No matter what it is called, being naked, or at least having genitalia uncovered, is almost always illegal when you are in a place where people would not expect to come upon the sight of someone’s private parts.[ii] This is why people wearing skimpy bathing suits on the beach don’t get in trouble, but people bathing in a park or changing clothes in an alleyway do.

Often, it is a combination of unexpected exposure along with the possibility of offending or exciting an onlooker’s sexual sensibilities that makes public nudity illegal. Indiana courts have declared for decades that their anti-nudity statute was written for the purpose of “protecting the unsuspecting and non-consenting viewer from another’s exposure.”[iii] The Michigan Court of Appeals recently stated that “the purposes of the indecent exposure statute are best fulfilled by focusing on the impact that offensive conduct might have.”[iv]

Statutes, themselves, do not always convey that onlookers have to be surprised or offended and they don’t necessarily tell what degree of nudity is illegal. Some locales have highly specific anti-nudity statutes telling exactly how much exposure is too much and others have broad statutes, leaving more interpretation up to police discretion.

Sample laws: In Cotati, California, the municipal code says that “It is unlawful for any person over the age of ten years to willfully expose his person…in such a manner that the genitals, vulva, pubis, pubic symphysis, public hair, buttocks, natal cleft, perineum, anus, anal region or pubic hair region is exposed to public view.”[v]

In Independence, Missouri, the indecent exposure ordinance considers it a criminal act when anyone, “knowingly exposes his/her genitals or buttocks or a female exposes her breasts or is clothed in such a manner under circumstances in which he/she knows he/she will reasonably cause alarm or embarrassment to other persons.”[vi]

The Code in Grand Rapids, Minnesota simply says, “No person shall appear in any street, park or public place of the city in a state of nudity, in any indecent or lewd dress, or make any indecent or lewd exposure of his person.”[vii]

Charleston, South Carolina has a similarly broad standard, “No person shall appear in any public place or on property open to the public in a state of nudity or otherwise make any indecent exposure of his or her person.”[viii]

The Code of Federal Regulations, regulating behavior in national parks, is more general in its description of what it calls disorderly conduct: “A person commits disorderly conduct when, with intent to cause public alarm, nuisance…knowingly or recklessly creating a risk thereof…engages in a display or act that is obscene.”[ix]

Defendants charged with violating the federal regulation at least have the opportunity to assert that they didn’t intend to cause a public alarm or didn’t know they were creating a risk of alarm or nuisance. And, since the federal regulation does not specify whether nudity alone or behavior combined with nudity might be an obscene “display or act,” there is also flexibility in defending the exposure itself.

The more specific local ordinances are harder to fight in court than the general language of the federal regulation, but those local ordinances come with less of a penalty, usually a ticket.[x] In other words, if the law says, “you can’t expose this part of your body” and a police officer has seen you expose it, then there just is not much flexible interpretation available for a defense.

Sometimes, when the police realize that they are dealing with somebody who cannot pay the fine and does not have a place to get cleaned up, they will transport the accused person to a shelter or some other place where the function that was being done in public can be done in private. That way, the people complaining to the police about having encountered someone naked or partly undressed will see that the police are responding to them and the homeless person gets to do what he needs to do without having court interaction.

This type of police action might not be specified in any legal codes, but that does not make it illegal. Law enforcement officers have broad duties to protect the public and maintain peace and order. So, transporting folks to places where they can wash or get changed or sleep is something that police can do, even though it is neither something they are prohibited from doing nor something that they are required to do.

[i] When researching case law about public nudity in any books by the Thomson West publishing company, which publishes the majority of case reporters, you will find it categorized as “obscenity key 3″ and “obscenity key 5″.

[ii] 67 C.J.S. Obscenity § 9 (2005).

[iii] Townsend v. State, 750 N.E.2d 416 (Ind. Ct. App. 2001).

[iv] People v. Huffman, 702 N.W.2d 621 (Mich. Ct. App. 2005).

[v] Cotai, CA., Municipal Code § 9.33.020 (2005).

[vi] Independence, MN., Code of Ordinances § 12.06.006 (2005).

[vii] Grand Rapids, MN., City Code § 42.102 (2005).

[viii] Charleston, SC., City Code § 21.166 (2005).

[ix] 36 C.F.R. § 2.34(a)(2) (2007).

[x] See the blog posts about dealing with police and the courts to find out about responding to tickets when you cannot pay the fines.

Permalink Leave a Comment

Are you entitled to privacy when you carry out private acts in public places?

March 27, 2008 at 4:56 pm · Filed under health, privacy ·Tagged bathing, homeless, privacy

Because of their built-in requirements that people have to avoid being seen naked in public, the various lewdness, public nudity, indecent exposure, pubic urination, and obscenity statutes seem to create a guarantee of privacy for people conducting private acts in public spaces.

If people spy on someone washing himself or take pictures of somebody scratching, dressing, cuddling, etc… in a place where he expects that nobody will see him, then the surprise and offense, crucial elements of those indecent exposure laws, are now against the person performing these private functions rather than the onlooker. Just as the law protects the unsuspecting viewing public by criminalizing genital exposure, the law protects the unsuspecting naked public by criminalizing peeping toms.

Unfortunately, there is a significant limitation in most laws about peeping toms; the person being spied on has to have been inside of a building in order for the peeping tom to be criminally charged. For years legal scholars have called for new and revised privacy protections for people who are out of doors. Some have pointed out that since the body itself, not a building in which the body might be located, is in need of privacy protection, the peeping tom laws should not be limited to window peeping or building invasions of any kind.[i]

An interesting legal phenomenon has resulted with the invention of smaller and less obvious photographic equipment that makes surreptitious observation of other people’s bodies quieter, more convenient, and generally sneakier. The peeping tom laws, which are often local ordinances punishable only by fines or community service, have been supported by new state laws about voyeurism which emphasize the medium used for spying rather than the place where spying occurred as the basis for guilt. This change in statutes began in response to cases in which courts sought to punish people using up-skirt cameras to photograph under women’s skirts in malls, sports arenas, and other busy places.[ii]

California, Kansas, Louisiana, South Dakota, and other states have enacted laws in the last several years to criminalize secretly spying and recording people with cameras or video cameras in ways that are done for sexual pleasure.[iii]

Connecticut’s video voyeur law is particularly simple and, in its simplicity, offers decent protection for homeless people doing private things outside: “A person is guilty of voyeurism when, with malice or intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (1) without the knowledge and consent of such other person, (2) while such other person is not in plain view, and (3) under circumstances where such other person has a reasonable expectation of privacy.”[iv]

Even with this development regarding video voyeurism, municipalities and states attempting to revise their general criminal voyeurism codes so that they will apply out-of-doors run into difficulty delineating logical boundaries: Will people be at risk of criminal charges every time they look at anyone else? Will they only be charged if they look for a certain amount of time or from a particular distance?

If someone was just looking at the sunset and a person nearby takes off his clothes, might the first person be found guilty of a crime? If somebody is lost in the woods and accidentally comes upon a couple having sex, can the couple call the police? These are the kinds of questions lawmakers think of as they try to construct statutes that will protect people from being spied on in public places, but also prevent innocent folks from getting in trouble just for looking around.

Criminal harassment laws which punish “alarming conduct serving no legitimate purpose”[v] are certainly available for homeless people to assert when they complain to police about people spying on them. But, unless there has been a pattern of harassment, i.e., stalking, to the extent that the victim can accurately describe the perpetrator and give the police a prediction about when and where he will act next, there simply won’t be adequate proof to even find someone who spied on a homeless person, let alone prosecute him. So, despite the existence of harassment statutes and the video voyeurism laws, there is still a gap in legal sanctioning against people who spy on the homeless doing private functions outside.

[i] See, Andrew Jay McClurg, Bringing Privacy Law out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C.L. Rev. 989 (1995); Lance E. Rothenberg, Comment, Re-Thinking Privacy: Peeping Toms, Video Voyeurs, and Failure of the Criminal Law to Recognize a Reasonable Expectation of Privacy in the Public Space, 49 Am. U.L. Rev. 1127 (2000).

[ii] See, e.g., State v. Glas, 54 P.3d 147 (Wash. 2002). See generally, Maria Pope, Comment, Technology Arms Peeping Toms with a New and Dangerous Arsenal: A Compelling Need for States to Adopt New Legislation, 17 J. Marshall J. Computer & Info. L. 1167 (1999).

[iii] Kan. Stat. Ann. § 21-4001 (2006); Cal. Pen. Code § 647(k)(2), (k)(3)(A) (2007); S.D. Codified Laws § 22-21-4 (2007); Del. Code Ann. tit. 11, § 1335 (2007); Fla. Stat. ch. 810.14 (2007); Ga. Code Ann. § 16-11-62(2) (2007); Wash. Rev. Code § 9A.44.115 (2007).

[iv] Conn. Gen. Stat. § 53a-189a (2004).

[v] Model Penal Code § 250.4. Not every sate has adopted this part of the Model Penal Code, and those that have adopted it may have changed the wording, but it does represent the legal standard for harassment.

Permalink Leave a Comment

What kinds of information can you get when you do legal research?

March 26, 2008 at 4:54 pm · Filed under court ·Tagged homeless, legal research

Every branch of the government makes law.

1. Statutes are written by the legislative branch of government.
2. Cases are decided by the judiciary branch of government.
3. Regulations are made by the executive branch of government.

The notes at the end of each of these blog posts show examples of all of these kinds of law. Statutes, cases, and regulations are known as “primary law” because they are written by the government. There are also good “secondary” sources that are clearer to read and easier to navigate than the primary sources. It is usually a good idea to begin a legal research project by hunting through the secondary sources and, from those, getting leads for what to seek in the primary law.

Secondary sources include legal encyclopedias such as American Jurisprudence (called “Am Jur”) and Corpus Juris Secundum (known as CJS) which are both organized in alphabetical order by topic, just like most encyclopedias. At the end of each set is an index where researchers can look for a particular word or issue to find out where it fits within the main alphabetical topics of the set. Some states have their own legal encyclopedias. Other commonly used secondary sources are law journals which publish long detailed descriptive articles and have lots of footnotes leading to additional information. At public libraries, law journals might be available in social sciences databases for convenient searching.

It is almost always possible to identify at least one entire book about any legal subject. The public library might not have the particular books you need, but the county law library might have them. If you cannot get to the county law library, as if your public library can borrow it from another library which does have it. This procedure is called interlibrary loan. It is a service that public libraries typically provide to patrons with a library card. A homeless patron who, because of the lack of an address, does not have a library card can sometimes arrange an alternative method of obtaining interlibrary loan books though he won’t be able to remove them from the library.

The internet, as is obvious from this blog’s footnotes, has a wealth of freely available legal information. Nearly every state and federal agency, legislature, and court has its own Web site with its laws or case opinions.[i] Law libraries publish helpful online research guides with links to reliable Web sources.[ii] Bar associations and law firms publish authoritative introductions to legal issues.[iii] These types of entities are good sources of legal information.
——————————————————————————–

[i] Cornell Legal Information Institute http://www.law.cornell.edu/ and WashLaw Web from Washburn law school http://www.washlaw.edu/ and Justia http://www.justia.com/ are all reliable sources of state and federal law.

[ii] The law librarians’ resource exchange has a good collection of research guides http://llrx.com/. NYU’s research guides are at http://www.law.nyu.edu/library/research_guides.html. The Washington State Library has research guides at http://www.courts.wa.gov/library/index.cfm. A terrific non-library site, the University of Pittsburgh’s JURIST has extensive scholarly legal information links organized by topic http://www.jurist.law.pitt.edu/subj_gd.htm.

[iii] The Texas Bar Association provides free pamphlets on a variety of legal issues at http://www.texasbar.com/template.cfm?section=pamphlets. The Michigan Bar’s Online Legal Help Center http://www.michbar.org/generalinfo/libraries/selfhelp.cfm “was created to help Michigan citizens find legal information to help them work better with their attorney, and to represent themselves in some instances.” The Illinois Bar has a Web site called “The Law and You in Illinois” http://www.illinoislawyerfinder.com/publicinfo/home.html which links to useful summaries about all kinds of legal transactions. The Oregon State Bar has explanatory guides at http://www.osbar.org/public/legallinks.html. The State Bar of Nevada has law topic brochures at http://www.nvbar.org/publications/pamphlets.htm. All of the states’ bar associations are accessible by clicking on a state name in Washlaw http://www.washlaw.edu/.

Permalink Leave a Comment

What kinds of legal research sources are jails and prisons required to provide?

March 26, 2008 at 4:37 pm · Filed under court ·Tagged court, homeless, jail, law, legal research

The U.S. Constitution has been understood to say that because people are entitled to represent themselves in criminal court[i] and to have due process in their interactions with the government[ii] they are entitled to legal information sources with which to represent themselves when they are incarcerated.[iii] The cases explaining why inmates should have access to legal resources do not specify exactly what kinds of resources have to be available. They say that inmates should have “tools” that enable them “to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.”[iv]

While law library access is one helpful tool, the courts more broadly require that somehow the prisons and jails confer “the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.”[v] When inmates who could not read and did not know English sued a prison for not providing them with this capability, the U.S. Supreme Court recognized that a library full of standard English language law books would not make them capable of fighting their convictions or anything about their incarceration.[vi]

[i] Cases have stated that the Sixth Amendment, providing for a right to counsel, also provides criminal defendants with the choice of representing themselves. Faretta v. California, 422 U.S. 806 95 S.Ct 2525 (1975). An article showing how this principle has been followed throughout the country is John Herbrand, Accused’s Right to Represent Himself in State Criminal Proceedings, 98 ALR 3d. 13 (1980- updated through 2006).

[ii] Cruz v. Beto 405 U.S. 319 (1972) (about prisoners’ rights to file grievances about prohibitions against their religious practices in prison); Johnson v. Avery 393 U.S. 483 (1969) (about prisoners’ rights to get assistance with legal document preparation from other inmates); Buchalter v. NY, 319 U.S. 427 (1943). (“action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as the ‘law of the land.’ Where this requirement has been disregarded in a criminal trial in a state court this court has not hesitated to exercise its jurisdiction to enforce the constitutional guarantee.”)

[iii] Cases declaring that jailed criminal defendants have access to law libraries in jail include Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977) and Lewis v. Casey, 518 U.S. 343, 116 S.Ct 2174 (1996). See also William Lindsley, Penal and Correctional Institutions, 60 Am. Jur. 2d §68 (updated through 2007). Section 68 is about “inmates’ access to courts, legal assistance, and materials.”

[iv] Lewis v. Casey at 518 U.S. 355 and 116 S.Ct. 2182.

[v] Id. at 356, 2182.

[vi] Id.

Permalink Leave a Comment

Where can you go to conduct legal research?

March 26, 2008 at 4:33 pm · Filed under court ·Tagged court, homeless, law, legal research

The general answer to this question is, go to the nearest law library. The most likely law library to be accessible to the public is a county law library, but those are usually only located in the county seat. Some law schools allow the public to use their libraries for independent legal research. But because their purpose is to assist faculty and students with serious scholarly research, rather than to help the public with practical case research, they do not always have the kinds of resources that public patrons would want.

Public libraries often have basic state laws as well as small collections of books that are written for non-lawyers to use in handling legal transactions and court cases. If going to the library is impossible, inquire about getting internet access at community centers or social service agencies. We have leads many good internet sources throughout this blog because we anticipate that accessing those is likely to be more convenient than getting access to a thorough collection of law books.

Permalink Leave a Comment

If you can’t get out on bail and are later proved innocent, can you get paid back for the time you spent in jail?

March 26, 2008 at 4:30 pm · Filed under court ·Tagged bail, court, homeless

When a judge makes a bail decision, he is obligated only to use his best discretion in deciding whether the defendant should be released. He has to rely on the prosecutor and defense attorney to be thorough and accurate. It is very hard for individuals representing themselves to collect proof of tasks that the judge and lawyers might have failed to do. Still, there is research material that a person who was wrongly jailed and wrongly denied bail might want to investigate.

Clearly, a person in jail awaiting trial can suffer losses of money and experience. He might lose pay for missing work or he might lose the job altogether. If he lived in a public place or even in a shelter, he might have lost all of his possessions during the time that he was in jail and unavailable to watch his stuff. If he missed making payments on something because of being in jail, the item might have been repossessed.

He could miss a job interview or someone’s birthday or some other important event. He might have gotten housing if he’d been at a meeting that he couldn’t attend because he was held in jail, waiting for a trial. These losses might not have as much significance if that person is found guilty at his trial and has to spend a long time in prison anyway. But, if the person is found to be innocent, then the justice system has cost him truly unnecessary losses.

Only after the trial is that person in a position to have full proof of his losses because only then, when a court of law has held that he was innocent of the crime he was charged with, can he definitely state that had it not been for the bail denial, he would have been able to continue that job, get into that housing, save his possessions, etc… So, it is in an entirely separate case from his criminal trial that he would seek to make a claim for financial damages.[i] And, like all claims for money damages, the case would be in civil court, rather than criminal court.

There is not a body of legal literature about cases in which innocent people who were denied bail successfully sued the court for damages. This does not mean that there have never been any successful claims like this, but closest body of law is about cases in which people were wrongly convicted and later found innocent.[ii] Nevertheless, here is how a claim might play out:

Being a civil case involving an individual against a government entity, i.e. the court that denied bail, this claim for damages arising from unnecessary jailing would be based on constitutional rights. Likely claims would be violations of Fifth and Fourteenth Amendment rights to life, liberty, and due process.[iii] It has been said that, “In convicting an individual of a crime, the government reaches out to deprive him of life, liberty, or property by execution, jail, or fine.”[iv]

Years ago, a Lawyer-in-Chief of the Office of Professional Responsibility at the U.S. Dep’t. of Justice declared that “There is no other department [of government] that is viewed with comparable terror or fear, because there is no other department that by itself can put you in jail or take your life, liberty or property away from you.”[v] And, a court deciding a case in which a lawyer did not seek pretrial release for two indigent clients firmly stated that, “Any form of pretrial incarceration infringes on an accused’s liberty interest in a powerful and obvious manner.”[vi]

Some people present their due process claim along with a claim that the court violated rules about bail or release on recognizance.[vii] For this research, the innocent person, denied bail, would find the state or local rule of criminal procedure delineating how bail decisions are to be made and would show how that procedure was not properly applied in his case. Then, this unnecessarily jailed claimant would read Title 42 of the U.S. Code §1983 [viii] which is about money damages for civil rights violations, and decide whether to include that kind of claim in the case.

[i] Notice that this question and answer are only about financial damages. It is definitely possible to appeal a bail decision in the criminal court system. The procedure for appealing a bail decision is established in criminal court rules. Those rules, and possibly forms to use for the appeal, are likely to be published in the local and state statutes, in individual books titled “(Name of State) Rules of Court”, and in attorney practice manuals for that jurisdiction. The clerk of the criminal court might even have an appeal packet available upon request.

[ii] For a comparison of cases from throughout the country, See Annotation, Application of State Statute Providing Compensation for Wrongful Conviction and Incarceration, 34 ALR 4^th 648 (1984 updated through 2006). In addition to “wrongful conviction,” a related research term for locating law on this topic is “false imprisonment.”

[iii] U.S. CONST. Amend. V, XIV. “No person shall ….be deprived of life, liberty, or property, without due process of law.”

[iv] David. P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L.Rev. 864, 874 (1986).

[v] Elkin Abramowitz and Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Wrongful Prosecution, 22 Champion 22 (1998). Available at http://www.nacdl.org/CHAMPION/ARTICLES/98mar04.htm quoting from the book MAIN JUSTICE by Jim McGee and Brian Duffy.

[vi] Matter of Rosen, 470 A.2d. 292 (D.C. 1983).

[vii] The Federal Rules of Criminal Procedure are at http://www.law.cornell.edu/rules/frcrmp/. State Rules of Criminal Procedure are at http://www.law.cornell.edu/topics/state_statutes2.html#criminal_procedure. Note, however, that a criminal statute might say that bail or other pre-trial release is impossible in connection with a particular crime.

[viii] 42. U.S.C. §1983.

Permalink Leave a Comment

Is it possible to get out on bail if you have no money?

March 26, 2008 at 4:25 pm · Filed under court, police ·Tagged court, crime, homeless, jail, police

The purpose of bail is to assure that defendants will return to court for trial after having been formally accused of a crime at a preliminary hearing. The bail agreement between a court and a defendant establishes a defendant’s promise to pay the court a high amount of money which will then be returned to the defendant when he returns for the hearing.

A better assurance that the defendant will be present for trial is to simply keep him in jail, but that contradicts the notion that a defendant is innocent until proven guilty.[i] In many states, money does not have to be posted; defendants can be released until trial “on their own recognizance.”[ii] Even in those jurisdictions though, if the court believes either that the defendant is likely to not return for trial or to pose a threat to the public, bail may be imposed to remind the defendant to behave and return for trial or else risk staying in jail until the trial.[iii]

For a homeless person, the issues that might be raised to deny him bail, such as: no money to put down as a guarantee, no community roots like a job or house, and no way to track him down are the same issues that can be argued in favor of releasing him on his own recognizance. The fact that a homeless defendant has no money with which to post bail also means that the defendant does not have money to pay for transportation out of the jurisdiction. Not having the responsibilities of a job or house would seem to leave a defendant flexible enough to abscond, but if the defendant has already been living in the jurisdiction without those roots, there is reason to believe that he has no place else to go. Similarly, the lack of an address and the defendant’s status as homeless provide even more routes by which to track him down than anyone who does have a permanent address because the homeless tend to be out in public areas and to repeatedly access particular social services sites.

[i] The presumption of innocence is described and analyzed very thoroughly in 1 Wayne R. LeFave, et al., Criminal Procedure, §1.4 part (d) “Accusatorial Burdens” (2d. Ed. Current through 2006 update.) In support of their analysis, the authors of that authoritative treatise cite to the following U.S. Supreme Court cases: Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 1341-2 (1958); Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930 (1978); Bell v. Wofish, 441 U.S. 20, 533, 99 S.Ct 1861, 1871 (1979), and Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350 (1949). For a detailed explanation of the constitutional right to be released on bail, see 8 CJS Bail §20. (CJS is Corpus Juris Secundum, a legal encyclopedia.)

[ii] Lynn C. Cobb, Annotation, Application of State Statutes Establishing Pretrial Release of Accused on Personal Recognizance as Presumptive Form of Release, 78 A.L.R.3d 780 (1977).

[iii] 1 Wayne R. LeFave, et al., Criminal Procedure, §1.4 Part (f) “Minimizing the Burdens of Accusation and Litigation” (2d. Ed. Current through 2006 update.); Lynn C. Cobb, Annotation, Application of State Statutes Establishing Pretrial Release of Accused on Personal Recognizance as Presumptive Form of Release, 78 A.L.R.3d 780, § 2(a) (1977).

Permalink Leave a Comment

What are some of the criminal charges commonly used against the homeless?

March 26, 2008 at 4:23 pm · Filed under police ·Tagged crimes, disorderly conduct, homeless, jail, lewdness, loitering, police

The criminal charges most commonly used against the homeless, in connection with their homelessness, have all been mentioned elsewhere in this blog, but we present them here for quick reference. These are merely summaries; each state or municipality will have its own precise definitions of crimes. Locate your state and local codes through http://www.justia.com/us-states/. If your local code is not at that site, try this one http://www.spl.org/default.asp?pageID=collection_municodes.

Note that these are all minor charges, typically punished with citations rather than jail time. Since defendants only get a full trial if their crime can be punished with jail time, there is hardly any opportunity to defend against these kinds of charges.

Disorderly conduct – Fighting, making noise, or “creating a hazardous or physically offensive condition”[i] without any legitimate reason and simply for the purpose of creating trouble.

Loitering – Lingering in a place or in a way “not usual for law abiding individuals”[ii] and which creates discomfort among other people nearby.

Obstructing traffic[iii] – Blocking a public path so that vehicles or pedestrians either cannot pass or can only pass in an inconvenient way.

Open lewdness[iv] – Exposing private parts of one’s own body when it is expected that others will see and possibly be alarmed or offended.

Panhandling[v] – Asking people in a public place to give money to you personally without promising to do anything in return. Sometimes called “begging.”

Public nuisance[vi] – Unreasonably interfering with a right common to the general public.

Trespassing[vii] – Entering private property without the owner’s permission.

Vagrancy – This is an archaic term. There was a time when being someone who wandered aimlessly could get someone charged with vagrancy. Now, vagrancy has the same meaning as loitering.

[i] Model Penal Code §250.2

[ii] Model Penal Code §250.6.

[iii] Model Penal Code §250.7

[iv] Model Penal Code §251.1

[v] Barrett A. Lee and Chad R. Farrell, Buddy, Can You Spare a Dime: Homelessness, Panhandling, and the Public, 38 URBAN AFFAIRS REV., 299 (2003).

[vi] Black’s Law Dictionary 1095 (7^th Ed. 1999).

[vii] Model Penal Code §221.2

Permalink Leave a Comment

Under what circumstances might your conversations with police count as criminal confessions?

March 26, 2008 at 4:21 pm · Filed under police ·Tagged arrest, homeless, homeless law, police

Any time someone voluntarily tells the police about his own involvement in an illegal act, it is a confession that can be used against him.[i] Telling police about tagging along with other people and watching while they committed a crime can be a confession to conspiracy. Casually talking to police can count as a confession even if the police are not asking questions about any particular crime. Admitting a crime to an officer in an undercover disguise can be a confession as well.

Notice that any of these examples could take place before or after being arrested and inside jail or out of police custody altogether. This is because the communications can be regarded as confessions whether or not police custody or arrest is involved.[ii] At least if they do take place while the confessor is under police control, there are some constitutional protections that might keep the confession from being used in a prosecution.

Almost everyone is familiar with the promise that police make on television, “you have the right to remain silent; anything you say can be used against you in a court of law. You have a right to an attorney; if you cannot afford an attorney, one will be appointed for you.” These promises are used in real life as well. They developed from the Supreme Court case of Miranda v. Arizona[iii] as ways of warning defendants of two constitutional rights: 1. the Fifth Amendment right not to incriminate ones self[iv] and 2. The Sixth Amendment right to have assistance of counsel while defending ones self in a criminal case.[v]

Although they are stated as soon as anyone is arrested on TV, these rights have to be stated in real life only before an interrogation begins or before the police establish a situation which they know is “reasonably likely to elicit an incriminating response.”[vi] Since several decades before these warnings were required, the Due Process clause of the Fourteenth Amendment[vii] has been used to protect criminal defendants whose confessions were forced by torment, teasing, or lying; those confessions cannot be considered believable because of the way they were coerced.[viii] Confessions obtained through fair and proper (due) processes are believable.

Comforting though it may be to know that three constitutional amendments are available for analyzing confessions, criminal defendants cannot forget the timing of when these amendments are useful. First, they exist as protections before a defendant confesses. A defendant who is able to remember that he does not have to be a witness against himself, that a confession cannot be forced from him, and that he has a right to have a lawyer with him during police questioning can avoid confessing altogether.

The second time when these amendments are helpful is long after a confession has taken place. It is past when the police have stopped investigating and have turned the case over to the prosecutor, after the charges have been filed, and when the criminal trial is about to begin. It is then that the defendant’s attorney argues that information gleaned from a forced confession should not be used as evidence against the defendant.[ix] By then, the confession may have been reported in the news and influenced potential jurors. Even if it hasn’t made the news, an illegally obtained confession is inadmissible evidence.[x]

[i] Rhode Island v. Innis, 446 U.S. 291,300, 100 S.Ct. 1682, 1689 (1980); Hoffa v. U.S. 385 U.S. 293, 87 S.Ct. 408 (1966); Dickerson v. U.S., 530 U.S. 428, 120 S.Ct. 2326 (2000).

[ii] William E. Ringel, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS, (West, 2007) Chapter 27 “‘Custodial Interrogation’” Requirement of Miranda.” See also Chapter 25 “Voluntariness of Confessions and Admissions.”

[iii] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

[iv] U.S. Constitution Amendment V, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself…”

[v] U.S. Constitution Amendment VI, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

[vi] Rhode Island v. Innis, 446 U.S. 291, 292, 100 S.Ct. 1682, 1685 (1980).

[vii] U.S. CONST. Amend. XIV “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.”

[viii] Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461 (1936); Ashcraft. V. Tennessee, 322 U.S. 143, 64 S.Ct. 921 (1944).

[ix] A practical demonstration of how to make a case to keep a forced confession from being used as evidence is in 5 Am. Jur. Trials 331(1)(B), Excluding Illegally Obtained Evidence.(updated through February 2007). This source has sample questions to ask of witnesses, samples of documents to file in court, and demonstrations of how to prove various possible claims.

[x] Excluding forced confessions from evidence developed through a series of cases interpreting the Fifth Amendment’s protection against self incrimination. Here is a summary of that evolution http://supreme.lp.findlaw.com/constitution/amendment05/09.html.

Permalink Leave a Comment

Do you always have to leave a place simply because a police officer tells you to move on?

March 26, 2008 at 4:10 pm · Filed under police ·Tagged harassment, homeless, police

When the police tell homeless people to move away from where they are, it is usually an unspoken warning that if they do not move, they will be charged with a crime, perhaps the crime of trespassing if they are on private property, maybe loitering or disorderly conduct if they are on public property.

Everyone, even people who are not homeless, can get charged if they fail to move away from an area when the police tell them to disperse. In 2009, the National Law Center for Homelessness and Poverty put forth a model order for police departments to implement as a way of instructing police about interacting with homeless people. That model order includes guidance about when homeless people can be made to “move on”.

This is not a legal issue that is unique to the homeless experience, but it impacts the homeless more than others simply because of where they spend their time. A 1983 Supreme Court case[i] ruled that statutes authorizing police to move people have to specify some sort of illegal action so that “ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”[ii]

The typical disorderly conduct law includes a line stating that when groups of three or more people block a sidewalk or cause some other disturbance, the police can require them to disperse. The exemplary language in the Model Penal Code says, “Where [three] or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse.”[iii]

Loitering is the “move along” charge more likely to apply to individuals or pairs. The Model Penal Code version of it says: ”A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct.”[iv]

An authority on municipal law, writing about police regulation of sidewalks and streets, says that “the gravamen of the offense is the doing of the prohibited act, and not disobedience to the order of the officer; hence the offense does not depend upon the whim or caprice of the officer.”[v] He may be correct that the charges sound like they can only be applied based on a defendant’s conduct, but in practice it is nearly impossible to dispute a loitering or disorderly conduct charge without sounding argumentative in a way that will convince the judge that you must also have been argumentative with the officer. Being argumentative with a police officer is enough of an action to create cause for alarm, a component of both disorderly conduct and loitering.[vi]

Defending against one of these charges typically requires proof that you were not about to cause a problem. In loitering cases, there are not likely to be any witnesses available to validate a defendant’s claim about why he was there at that time and whether he seemed threatening. In disorderly conduct cases, whether the defendant’s actions were likely to cause harm, inconvenience, or annoyance is determined by the officer’s own perception. So the way to avoid trouble in the short-term is to move whenever the police say so, no matter how uncomfortable or inconvenient it is.

In the long-term, it can be legally helpful to keep track of patterns of when police give these move-along orders and which officers tend to give them. If it becomes clear that police simply do not want the homeless in a certain area on Friday and Saturday nights, then avoiding trouble is easy. If it becomes obvious that police are timing their move along orders to interrupt sleep or eating, then the homeless people being disrupted might be able to make a claim of police harassment.

The National Coalition for the homeless maintains a website about “Criminalization of the Homeless” with summaries of court cases in which vagrancy, curfew and loitering laws have been contested. Anyone planning to argue that those kinds of laws are unjustly written or unfairly applied would be wise to read these case summaries and then look for the full case opinions and cases that reference these cases. http://www.nationalhomeless.org/publications/crimreport/casesummaries_3.html

[i] Kolender v. Lawson, 461 U.S. 352; 103 S.Ct. 1855 (1983).

[ii] Id. at 357; 1858.

[iii] Model Penal Code §250.1

[iv] Model Penal Code §250.6

[v] MCQUILLIN, EUGENE, A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 3d Ed., §24.596 (updated through July 2006)

[vi] This point is explained in the post about having to identify one’s self to police.

Permalink Leave a Comment

When police commit you to the mental hospital, are they entitled to information that you give to the hospital?

March 26, 2008 at 3:43 pm · Filed under health, police ·Tagged homeless, mental health, police, privacy

There is not an automatic assumption that the police are entitled to your mental health records simply because it was they who got you to the hospital. Mental health records, like all medical records, are private[i] and are only supposed to be used as evidence in a court case with the patient’s express permission. However, the USA PATRIOT Act and The Health Insurance Portability and Accountability Act (HIPAA) both provide legal ways for law enforcement agencies to obtain people’s medical records.

HIPAA is the law that protects the content of medical records from being used for anything other than the patient’s medical care. However that law does allow medical offices to give private medical records to courts “in response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or (ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal.”[ii]

This second section, about subpoenas, specifically allows courts to get medical records directly from health providers without the patient’s permission when the subpoena has been sent to the patient’s last known address.[iii] Obviously, this means that homeless people who do not have a current address on file with their doctor’s office can find that their medical records were admitted into court without their knowledge. HIPAA also allows law enforcement officers (police and the FBI) to get medical records without a patient’s permission when investigating: the identity of a dead body that might be the patient, the identity of a fugitive, or a crime against the patient.[iv]

The USA PATRIOT Act allows the FBI to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities…”[v]

Medical records are specifically mentioned in a later section specifying that only the Director or Deputy Director of the FBI or the Executive Assistant Director of National Security can use this law to request a warrant for medical records.[vi]

Even though this question is about how police and prosecutors might obtain medical records to use in bringing criminal charges or proving someone’s guilt in a crime, this is a good place to mention how and when medical records might be used in a civil case in which a homeless person might be suing for a breach of contract or some consumer right. There is no need to worry about the possibility that a civil court opponent will be able to claim “he didn’t pay the rent because he’s crazy” “he’s accusing me of negligence because he’s depressed” or anything like that. There are two protections that keep that kind of remark from getting into court documents or testimony.

First of all, the evidence rules require that only relevant information be presented in a case.[vii] Medical records are relevant in disability claims and medical malpractice claims. In those cases, the medical records are offered as evidence by the patient not the opponent in the case. They are not used to support an accusation against a sick person; they are presented as proof of the patient’s own claim for his rights. In cases about not paying debts or not fulfilling a duty, the health of neither the debtor nor the creditor has anything to do with whether a legal right was violated. The medical records would be irrelevant in relation to those types of legal controversies.

Privacy is the second legal protection against having medical records used as evidence. The medical community has a serious professional obligation to keep those records secret. The few court-related exceptions to that obligation involve limited police investigations, as described in the previous section. As a professional obligation, the rule about privacy in patient records comes not only from the law,[viii] but also from the canons of professional ethics for medical professionals. A doctor or nurse or other licensed medical professional who releases patient information despite the ethics rules can lose his license to practice in that profession.[ix] If you believe this has happened to you, contact your state’s professional licensure office for a complaint form.[x]

[i] On its Web site http://www.hhs.gov/ocr/hipaa/, the U.S. Department of Health and Human Services provides thorough and clear information about the legal obligation to keep medical records private. That site has the full-text of the HIPAA statute enacted by Congress as well as the Health and Human Services regulations detailing how that statute is to be carried out. The site also has questions and answers in plain English and a complaint form that patients can file with the Department if HHS if a doctor’s office releases medical records in violation of the law.

[ii] 45 C.F.R. §164.512(e)(updated through August 2006).

[iii] Id. at § 164.512(e)(iii)(1)(a).

[iv] 45 CFR §164.512(f) (updated through August 2006). This can be a way of assuring that scientific evidence is collected and preserved for trial. A comparable situation has been in state laws for many years allowing hospital emergency rooms to collect hair and fluid samples from rape victims and give them immediately and directly to police investigating the rape.

[v] 50 USC § 1861(a)(1) (as of August 2006).

[vi] Id. at § 1861(a)(3).

[vii] Rule 402 of the Federal Rules of Evidence states that, “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.” State court systems have their own rules of evidence; all of them model their rule about relevance closely to the federal rule.

[viii] As noted several footnotes ago, the HIPAA statute written by Congress and the regulations written by the Department of Health and Human Services about keeping medical records private are all available for free on the Internet at http://www.hhs.gov/ocr/hipaa/ along with frequently asked questions, clear fact sheets, and a complaint form to file with HHS if a doctor’s office improperly reveals medical record content.

[ix] The American Medical Association has the Principles of Medical Ethics online at http://www.ama-assn.org/ama/pub/category/2498.html. Principle IV is about patient privacy. The American Nursing Association has the nurses’ Code of Ethics at http://www.nursingworld.org/ethics/ecode.htm. A particular hospital’s code of ethics will usually be available from its patient relations or quality control office. The American Hospital Association has explanatory issues pages, including HIPAA as an issue, at http://www.aha.org/aha/issues/index.html.

[x] Professional licenses might be granted by any number of agencies or departments in each state. Look for “medical licensing” in your state government’s home page http://www.state.al.us/ (substitute your state’s two initials for AL) or ask a librarian how to file a licensure complaint against a particular type of professional in your state.

Permalink Leave a Comment

Is it true that the police can have you committed to a mental hospital against your will?

March 26, 2008 at 3:36 pm · Filed under health, police ·Tagged homeless, hospital, mental health, police

When the police believe that someone is on the verge of harming another person, they can charge him with making threats, attempted assault, attempted murder, or other crimes that represent movement towards violence. When it appears to the police that the suspect’s mental health is causing ominous behavior, even if the potential violence would be against the suspect himself, they have the authority to take the suspect to a mental hospital.

That authority comes not from state crimes codes, but from each state’s mental health laws, which are part of the civil code. For that reason, being taken to a mental hospital is sometimes referred to as “civil commitment.” It is also known as “involuntary commitment.” In every state there are different standards for the behavior that warrants commitment and also regarding who can commit another person and how the committed person has to be treated.[i]

Typically, the mental health codes authorize only health professionals and peace officers (police) to involuntarily commit somebody to a mental hospital. Those laws also indicate what kinds of behavior those police or health professionals have to witness in order to make the commitment and what can be done with a patient who is admitted that way. Often, the laws will have measurable ways of deciding whether to commit someone, for example: threatening suicide within the past twenty-four hours or being delusional to the point of not being able to respond to the officers in a normal way.[ii]

Laws about the hospital’s obligations for handling someone who has been involuntarily committed tend to declare how soon and how thoroughly the patient has to be evaluated by a psychiatrist. The state mental health laws also dictate how an involuntarily committed mental patient can argue against the commitment.

Those sections of law usually require that a legal hearing be convened. At the hearing, the goal is to ascertain if the legal problem, i.e. the risk of harm to self or others, will still exist if the involuntarily committed person is released from the hospital. Because this is a legal proceeding involving interpretation of statutes, state laws require that indigent mental health patients be represented by a court-appointed attorney or public defender at the commitment hearing.

Despite the existence of legal procedures intended to protect the rights of people involuntarily committed to mental institutions, The Bazelon Center for Mental Health Law strongly opposes those commitments.[iii] The Center’s years of legal work on behalf of the mentally ill and their observation of involuntary commitments has convinced them that the practice is only acceptable in the case of a true emergency. Recognizing that “outpatient commitment” is ordered as the result of many of those hearings that the law requires with involuntary commitments, the Bazelon Center has a long list of reasons that they oppose involuntary outpatient commitments as well.[iv]

[i] A summary of thirty-eight states’ involuntary outpatient commitment laws and definitions of the common terms used in those laws are available from the Judge David L. Bazelon Center for Mental Health Law at http://www.bazelon.org/issues/commitment/ioc/iocchart.html. The states’ basic standards for behavior that will lead to involuntary commitments are also included in that chart. To find a state’s mental health laws on your own, the best strategy is to look in the index to the state’s statutory code for topics that come under the heading of “mental health” or “health and welfare-mental” or “health and human services-mental.”

[ii] See, Linda A. Teplin, Police Discretion and Mentally Ill Persons, National Institute of Justice Journal, July 2000, pp.9-15. This article carefully explains how and when police decide whether to commit a suspect to a mental institution rather than arresting him. At the end are footnotes referencing government reports as well as other journal articles from the fields of psychology and sociology all of which involve issues connected with police handling of mental health patients in crisis.

[iii] The Bazelon Center’s position statement is available at http://www.bazelon.org/issues/commitment/positionstatement.html . The Bazelon Center’s Web site also has summaries of court cases about involuntary commitments and overviews of major scholarly research studies about outpatient mental health commitments.

[iv] Id.

Permalink Comments (1)

Do you have to answer questions from the police if they are not accusing you of wrongdoing?

March 26, 2008 at 3:32 pm · Filed under police ·Tagged homeless, police, privacy

A previous post conveys that the police are required to give citizens the benefit of the doubt in potential loitering situations by asking them about their identity and purpose. Clearly, police have legal authority and legitimate public safety reasons for asking questions of people on the streets. Simply asking about someone to tell his name or show proof of identity is a perfectly legal thing for law enforcement officers to do.[i]

Some states have a specific statute requiring members of the public to identify themselves to the police.[ii] The Supreme Court has held that police can arrest anyone who does not identify himself when asked to by police.[iii] In that Supreme Court case, police were following up on a report about an assault. When the officer arrived at the scene and came upon a drunken man, he asked the man, multiple times, to identify himself but was refused every time which not only kept him from fully investigating that potential suspect, but also delayed him in pursuing other possible suspects.

The officer arrested the intoxicated man in accordance with the state’s “stop and identify” statute. The arrested man later sued the police claiming that his Constitutional rights of freedom from unwarranted search and seizure and his right not to incriminate himself had been violated. But the Supreme Court declared that stating one’s name does not convey enough information to be incriminating and that asking about identity is reasonably related to investigating a crime scene, and is not an unreasonable search.

Usually, when the police ask for people’s identification information they are seeking information not only about the names of these folks in the area but also about crimes that have been reported in the neighborhood. Collecting information by stopping people and questioning them is a basic investigative technique.

When they suspect that the person they have stopped is connected with a crime, patting him down to search for weapons is a legally permissible action for police to take. This practice was questioned and approved long ago in a Supreme Court case called Terry v. Ohio.[iv] If the pat-down search yields evidence connecting the suspect to the crime, that evidence can be used in the criminal trial against that suspect even though the police conducted the search without getting a warrant.

Routine police questioning happens when the police have set-up a system of questioning and are following that system. They could, for example, question everybody who matches the description of a suspect or everyone who might have been in that same vicinity when a crime occurred. Routinely stopping the same innocent person for questioning unrelated to an investigation would be abnormal police practice. It might even be harassment. It might be worth reporting to the police department’s disciplinary office, the American Civil Liberties Union,[v] or any local homeless advocacy service for investigation.[vi]

There is quite a body of law about what happens when people get in altercations with the police.[vii] Generally, the law concludes that the police are allowed to restrain or detain people who give them a hard time because there is a risk that the scene will arouse trouble involving other people present in the area. Some have argued that if they cannot use “offensive, derisive or annoying words”[viii] against the police, their free speech has been compromised. But, the Supreme Court says that kind of communication could “incite an immediate breach of the peace”[ix] and is therefore in the category of hate speech, not protected under the First Amendment’s free speech clause.

People who do not carry identification documents, even those who used to carry identification until it was confiscated or not returned in a previous police encounter, need to remember the legal rationale for why the police ask for identification before getting mad at the officers. This is yet another legal situation in which knowledge of the law might not help someone once he gets in trouble, but can help someone to avoid getting into trouble.

Certainly, homeless people have historical and legitimate reasons to believe that if they identify themselves to police, the officers will check for any outstanding arrest warrants against them. Realizing, though, that the police are likely to be asking about identity as a way of investigating a particular person or crime or else trying to ascertain whether someone is drunk, drugged, or dangerous might lead a person to put effort into assuring the police that he is none of those and that he might even be helpful to the officers.

If the officer simply wants information and he is given that information when he asks for it, then the transaction is over. The officer has done his investigative task and now has other things to do. If the person who has been asked for the information is not or was not committing a crime, does not give the officer a reason to suspect him of existing or potential wrongdoing, and does not distract the officer from his investigative task by acting surly, there is no reason for that officer arrest or cite him.

On the other hand, there are plenty of legal records showing that police can be abusive.[x] Some courts have held that police officers are entitled to a certain amount of lenience in controlling their tempers and actions because their work is unusually stressful and they are at constant risk of facing dangerous and uncontrolled people.[xi] The obvious counter argument has also been made; the police have more training and experience than anyone to deal with emergencies, danger, and the wide array of public behavior and therefore the public should be able to expect police to control themselves under pressure.[xii]

No matter which of these opposing perspectives a court has, it will still acknowledge that police officers are allowed to use their own discretion in judging how necessary it might be to handcuff and arrest someone who does not answer their questions while they are trying to investigate and control a situation.[xiii] Knowing that the legal system entitles police officers to use that discretion, an individual can try to get the officers’ discretion in his favor by acknowledging the broad legal context of being questioned, rather than responding as if he is being accused or criticized.

[i] Internal Revenue Service v. Delgado, 466 U.S. 210, 2116 (1984).

[ii] Find “stop and identify” statutes by looking for phrases like “interference with police” “obstructing police” “obstruction of justice” and “resisting arrest” in the state crimes code; a law against failing to identify yourself to police is likely to be included as a component of one of those crimes. Articles commenting on “stop and identify” laws include: Shelli Calland, Stop and identify statutes do not violate the Fourth or Fifth Amendments, 40 HARV. C.R.-C.L. L. REV., 251 (2005); James G. Warner, Dudley Do Wrong: Analysis of a Stop and Identify Statute, 39 AKRON L. Rev. 245 (2006). See also: What Constitutes Offense of Obstructing or Resisting Officer, 48 ALR 746 (1929-updated through 2006).

[iii] Hiibel v. Sixth Judicial District Court of Nevada, Humboldt City, 542 U.S. 177, 124 S. Ct. 2451 (2004).

[iv] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868. (1968).

[v] The chapters and affiliate offices of the ACLU are listed at http://www.aclu.org/affiliates/index.html

[vi] The National Coalition for the Homeless maintains a list of organizations doing homelessness advocacy http://www.nationalhomeless.org/resources/state/index.html.

[vii] Michael G. Walsh, Annotation, Insulting Words Addressed Directly to Police Officer as Breach of Peace or Disorderly Conduct, 14 ALR4th 1252 (1982). This is an article summarizing scores of cases from all over the country.

[viii] Chaplinsky v. New Hampshire, 315 U.S. 568 at 573; 62 S. Ct. 766, at 770 (1942).

[ix] Id. at 572 and 769.

[x] The American Civil Liberties Union (ACLU) has a collection of legal information about police misconduct including news reports, legal documents from court cases, legislative resources, and fact sheets available for anyone to download. http://www.aclu.org/police/abuse/index.html

[xi] There is a detailed discussion of this perspective in Pavish v. Meyers, 225 P.633 (Wash. 1924). Duncan v. U.S., 219 A2d. 110 (D.C. App., 1966) remanded on other grounds 379 F.2d. 148; City of St. Petersburg v. Calbeck, 121 So.2d 814 (Fla. App. 1960); St. Paul v. Morris, 104 N.W. 2d. 902 (Minn. 1960) cert. denied 365 U.S. 815. State v. McKenna, 415 A.2d. 729 (RI., 1980) “We believe the officers justifiably reacted in anger as any group of persons of average sensibilities would have.”; Com. v. Hock, 696 A.2d 225 (Pa. Super., 1997) “we agree with the majority of states which “can conceive of no reason why a police officer, or other public official responsible for maintaining law and order, should have to be the object of obscenities and vulgarities of the type which, if addressed to a layman, would have a direct tendency to incite him to acts of violence.” [Citing Bale v. Ryder, 290 A.2d 359 (Me. 1972)].

[xii] Chicago v. Blakemore, 305 NE2d 687 (Ill. App, 1973); People v. Slaton, 322 N.E.2d 533 (Ill. App. 1974); Swann v. Huntsville, 455 So.2d 944 (Ala. Crim. App. 1984).

[xiii] See MCQUILLIN, EUGENE, A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 3d Ed., §45.18 (updated through July 2006) for a thorough explanation of police duties and arrest powers. Footnotes following that explanation lead to cases and statutes across the country. Note, however that the U.S. Supreme Court struck down a local ordinance that made it “unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.” The Court held that the statute was so broad and vague that it violated the First Amendment right to free speech because almost anything that anyone might ever say to a police officer could be construed as an interruption. Houston v. Hill, 482 U.S. 41, 107 S.Ct. 2501 (1987).

Permalink Leave a Comment

Do homeless employees have any legal right to get out of doing the dangerous day labor jobs?

March 25, 2008 at 4:57 pm · Filed under employment, safety ·Tagged day labor, safety, work

If day laborers see that working conditions look too dangerous or difficult for them, they can opt out of doing the work. They are not necessarily entitled to be assigned to different work, but opting out of something dangerous is the best way to avoid getting sick or injured.[i]

If an employee starts the work and then quits when he discovers that it is risky, he is still entitled to get the minimum wage for the time he worked, whether or not he finished the assigned task. This is basic contract law. The worker agrees to work and the employer agrees to pay for the work. If the worker does part of the job, he is entitled to part of the pay.[ii]
Many workers guess that construction companies, landscapers, and other contractors bring in day laborers for work that involves heavy lifting, harsh chemicals, and other things that are hard on the body because they don’t want to risk injuring the full-time employees who are covered by workers’ compensation insurance.Some employers may also think that temporary or day laborers don’t have any way to make a legal claim for workers’ compensation benefits. But, in fact, even day laborers are entitled to have their work-related medical expenses covered by the employers’ workers’ compensation insurance.[iii]

Workers’ compensation programs exist to efficiently resolve workplace injury claims so that workers and employers do not have to go through the expense and long processes involved with a negligence case in court.[iv] The Occupational Safety and Health Administration (OSHA)[v] regulates workplace safety. That organization advises employees at unsafe or unhealthy worksites to take steps to avoid danger:

1. Ask the employer to fix the hazard.
2. Ask the employer to assign you to different work.
3. Inform the employer that you will not do the hazardous work.
4. Stay at the worksite until the employer requires you to leave.[vi]

These steps seem more applicable to permanent workers than temporary workers, but they are still a logical progression. If taking those steps does not result in your getting safer work, you can file a complaint with OSHA.[vii] Your state might also have an occupational safety and health plan under OSHA’s approval.[viii] If you have stayed at the job and become injured or sick due to unsafe or unhealthy conditions there, you should file a worker’s compensation claim and also make sure that OSHA knows how you got hurt or sick.
For either or both of these claims, seek help from the nearest legal aid office or homeless advocacy group.[ix] They will help you collect the medical records necessary to document your suffering. These claims processes involve a lot of data collection and many formal procedures.
Once you have filed your claim form, either through OSHA or the state’s workers’ compensation office, you should expect to have meetings with investigators. The investigators will want to know everything about the job site, the other workers, the supervisors, the weather, the tools, the pace, your health going into the job, and many other details.

Unless you have filed an anonymous OSHA complaint, you will probably have to participate in an initial hearing to personally explain and answer questions about your injury or sickness in connection with the job. (If the job accepts responsibility for your injury or sickness, you won’t have to go through this hearing process; the workers’ compensation insurance will cover your medical costs as long as you follow the instructions they give you.)

If you do not prove your claim at that hearing, you can appeal the decision at another hearing through the workers’ compensation office. If that hearing is not successful, you can sue the workers’ compensation office and the employer in court for failing to properly follow the state workers’ compensation law.

[i] If the employer transported the employee to a far away work site and the employee opted out of the work as soon as he got there, he should not expect payment or a ride back, at least until the employer takes the other workers back. The contract was an exchange of work for pay. By backing out of the job before it started, the worker breached the contract. He can’t expect the former employer to spend money on him. Maybe the police can help. Phone calls to 911 are free. Explain your emergency as being removed from home and ask them to get you assistance from homeless advocates or any other nearby social services agency.[ii] Two sources that clearly explain basic employment law are: Merrick T. Rossein, Ed. THE EMPLOYMENT LAW DESKBOOK FOR HUMAN RESOURCES PROFESSIONALS (West, 2001) (See Section 4.) and Barbara Kate Repa, YOUR RIGHTS IN THE WORKPLACE (Nolo, 2005).

[iii] Locate your state Workers’ Compensation office through the blue pages of the phone book or on the Web at http://www.dol.gov/esa/regs/compliance/owcp/wc.htm. You will see that “employee” is defined to include any person who is supervised and paid by an employer.

[iv] It is not impossible for an injured employee or a deceased employee’s survivors to bring a negligence case against an employer. If the hazardous conditions were concealed or the law exempts the particular work arrangement from the workers’ compensation program, such a case is possible. A detailed demonstration of how to prove that kind of case is in Christopher M. Mislow, Cause of Action Notwithstanding Workers’ Compensation Statute Against Employer or Fellow Employee for Injury to or Death of Employee, 11 COA 717 (updated through 2006).

[v] The OSHA Web site is at http://www.osha.gov/.

[vi] OSHA’s instructions for dealing with a dangerous worksite are at http://www.osha.gov/as/opa/worker/refuse.html.

[vii] OSHA’s complaint Web site says that any employee can file a complaint about employment safety without giving his or her own name. The site includes an online complaint form and all of the necessary information about filing a complaint. http://www.osha.gov/as/opa/worker/complain.html

[viii] OSHA approved state occupational safety and health plans can be reached via http://www.osha.gov/dcsp/osp/index.html or your state’s department of labor and employment. http://www.dol.gov/esa/contacts/state_of.htm

[ix] Find legal aid offices through LawHelp at http://www.lawhelp.org/ and homeless advocates through the National Coalition for the Homeless at http://www.nationalhomeless.org/resources/local/local.html.

Permalink Comments (1)

If you work at day labor or another occasional part-time work that pays you in hand and does not ask about your address, do you have to accept any amount of pay they give you?

March 25, 2008 at 4:48 pm · Filed under addresses, employment ·Tagged money, pay, work

The Migrant and Seasonal Agricultural Workers Protection Act [i] does allow for the possibility that temporary and transient agricultural workers can be paid “by the piece” (more likely by the bushel or section of a field), but generally the answer to this question is no, you do not have to accept any amount of pay an employer gives you.

The federal Fair Labor Standards Act (FLSA)[ii] requires that every worker be paid at least a certain hourly rate known as “the minimum wage.” Even the piecework rates in temporary agricultural jobs have to pay at least as much as workers would get at the hourly minimum wage rate. The minimum wage rate is set by the Wage and Hours division of the U.S. Department of Labor. You have to get at least the minimum wage for working up to forty hours in a single week. Your state might have an even higher minimum wage than the federal rate.[iii]

If you work for the same employer for more than forty hours in one week, you are supposed to get paid fifty percent more than the rate you earned for the first forty hours. Even if you are paid in cash and the employer does not know your last name, let alone where you sleep at night, you are entitled to earn these rates of pay. Whether you have an address also has nothing to do with your right to be properly credited for the full number of hours you have worked.[iv] Even though the IRS and the Social Security Administration don’t require temporary and day labor employers to report workers’ addresses to them (because those employers do not have to withhold income tax or FICA payments), they still have to follow the FLSA and the regulations that go with it.

The Department of Wages and Hours has a “Fact Sheet on the Construction Industry”http://www.dol.gov/esa/regs/compliance/whd/whdfs1.htm listing some of the common ways employers in that industry, which frequently employs homeless temporary workers, try to avoid giving full credit for work time: failing to record time, claiming work over forty hours counts only as comp time instead of paying the 150% wage rate, requiring overtime hours to be held aside in a time bank, not paying for travel time to job sites, etc… All of those actions are illegal.

The Wage and Hours Division advises workers to contact the nearest DOL office [v] if work hours have not been properly credited or if they have not been paid the minimum wage. The office that you contact will investigate your situation and enforce the Fair Labor Standards Act.It would also be wise to contact an attorney for representation. Private law firms can sometimes donate their services to help homeless people get their proper pay.[vi] If none are available, contact the nearest legal aid office.[vii]

Whether your legal help comes from only the DOL office or that office along with your lawyer, you should have a log of your hours and names of witnesses who worked with you. You should also be prepared to tell every possible detail about how and where you were recruited and to name and the individuals who supervised you. Those kinds of proof are necessary to demonstrate that you truly did work at that job for the claimed amount of time.

[i] The Migrant and Seasonal Agricultural Workers Act is at 29 U.S.C. 1801 and the sections following 1801. An entire Web site about that law and the regulations that go with it. http://www.dol.gov/esa/whd/mspa/index.htm

[ii] The Fair Labor Standards Act is at 29USC 201. The Dept. of Labor regulations that go with it are at 29 CFR §510-794. Those laws and plain English fact sheets and other explanations about the FLSA are online at http://www.dol.gov/compliance/laws/comp-flsa.htm.

[iii] State minimum wage rates are published online at http://www.dol.gov/esa/minwage/america.htm. If that site is unavailable contact your state department of labor or navigate through its Web site. http://www.dol.gov/esa/contacts/state_of.htm

[iv] A Dept. of Labor Fact Sheet explaining how employers are supposed to count workers’ time as work time (i.e., how to know when you should be paid for breaks, waiting periods, etc…) is at http://www.dol.gov/esa/regs/compliance/whd/whdfs22.htm.

[v] The Dept. of Labor offices are listed at http://www.dol.gov/esa/contacts/whd/america2.htm and in the blue pages of the phone book.

[vi] Example: The Washington (D.C.) Lawyers’ Committee for Civil Rights and Urban Affairs matches private law firms with indigent clients whose civil rights have been violated. Summaries of some of their employment cases, along with the complaints they filed in court, are at http://www.washlaw.org/news/n_case_decision.htm.

[vii] Legal Aid Offices are listed at http://www.lawhelp.org/. You can also get contact information for local legal aid offices from the public library. A recent class action case was brought by day laborers who weren’t paid fairly after being transported from Maryland to Mississippi to clean up debris from a hurricane. Marroquin v. Canales, 236 F.R.D. 257 (D.Md. 2006). Find other cases by looking in any books published by Thomson West Publishing using the topic “labor and employment” and key numbers 2210 and up.

Permalink Leave a Comment

Can government services force you to seek housing as a condition of getting benefits and services?

March 25, 2008 at 4:43 pm · Filed under addresses, mail, public services ·Tagged address, mail, public services

The legal qualifications for public assistance benefits are based upon financial assets and health, not on housing. The regulations do not authorize government agencies to withhold benefits from the homeless or to make them contingent upon somebody’s becoming un-homeless. Nevertheless, staff might encourage homeless clients to participate in programs to get them into government subsidized apartments or other housing.

A homeless applicant, knowing that the law does not require him to give up being homeless in order to get federal disability benefits, medical assistance, or food stamps, must also realize that the law does not forbid government agencies from informing clients about housing programs. There is no law preventing them from even requiring someone to listen to a long housing presentation when applying for disability, food stamps, or medical assistance. This knowledge, that only information-not housing can be forced upon him, should prevent a homeless person from feeling pressured to conform or feeling frustrated that he might not get the benefits.

This is another situation in which being familiar with the law does not necessarily give someone grounds to sue. Instead, it helps assure more balanced communication in which the client need not feel like a victim and the service provider need not feel like an enemy. Sometimes, agencies tell clients about other programs for which they are eligible only to be sure that the client knows about that eligibility. Sometimes, they tell because getting into the other program might lead to the client’s no longer needing government assistance.

There is nothing illegal about either of those motives. Anyone who takes offense at them is choosing not to appreciate that they are offerings of help, offers that can certainly be declined without fear of punishment. Clients always have the right to say something like, “I’m aware that the food stamp regulations do not require me to participate in the housing program or to have my own permanent address, but thank you for offering me that information.”

Links to government support programs:

Permalink Leave a Comment

Can you have different addresses at which you get mail for different purposes?

March 25, 2008 at 4:34 pm · Filed under addresses, mail, public services ·Tagged address, mail, public services

The phrase “legal address” is used to indicate the place where someone makes his or her home. If you do not have a home and you get mail delivered to places that gave you permission to do so, it is legal to use those addresses. In other words, the phrase “illegal address” would not describe that arrangement.

The law does not prevent homeless people from having their mail delivered to multiple places. If you want your Social Security mail delivered to your case worker’s office and your medical mail delivered to your brother’s house you only have to know about the policies of the people or offices sending the mail and the willingness of the places receiving the mail. (See the other posts about mail for more ideas about researching mail-related rights.)

Of course, you also have to worry about confusing an agency’s record keeping system. As long as it is necessary to complete separate applications for separate services, there is probably no reason to assume that a single address has to be used on all of them. However, if all of the services are administered under one agency, such as the state department of health and human services, there’s a likelihood that all client data goes into a single database where the most recently entered street address applies to everything involving a client.

Permalink Leave a Comment

Do you need an address to get access to government services such as Welfare, Food Stamps, Medicaid, and Social Security Disability?

March 25, 2008 at 3:17 pm · Filed under addresses, mail, public services ·Tagged homeless law

Government agencies have to verify residency and citizenship when providing ongoing services to clients. They realize, however, that residency for the homeless is in places like lobbies, halfway houses, bus stations, churches, and other people’s houses. When people have those kinds of non-permanent residences, the agencies have a variety of ways to confirm that somebody is who he claims to be and that he generally resides in the place he claims.

The Social Security Administration, which provides financial support for the elderly and disabled, has detailed policies in place for verifying an applicant’s identity.[i] Because that agency is one of the country’s official registrars of citizens,[ii] it has an enormous database of identifying facts about each person here. Using that database, the staff can ask applicants to state their social security number and then answer simple questions including date of birth and parents’ names to establish their identity without having to show an ID card with a street address.
When determining where an applicant can usually be located, Social Security staff are required to “assume that transient or homeless individuals need assistance in providing evidence of their living arrangements.”[iii] This means that the staff will make note of the shelters and other services and places where the applicant reports spending time and will rely on verifications from witnesses who regularly see the claimant at any of those places.

There is a specific provision of the Social Security Disability regulations asserting that people are still eligible for the benefits when they are in a homeless shelter.[iv]

Food stamps, Temporary Aid to Needy Families (a.k.a. “TANF” or “cash assistance”), and Medicaid are federally funded public assistance programs that are administered through state agencies rather than through federal branch offices located in those states. All of these are available to homeless people but, because they have state administration, do not follow exact federal identification rules the way the Social Security programs do. Instead, the public assistance or welfare office in each state makes its own rules about how claimants can prove that they are homeless and lack sufficient financial resources to pay for their own food,[v] healthcare, and other basic needs.[vi]

The United States Code has a basic standard for states to follow in establishing their public assistance eligibility requirements. “The State shall require…that each applicant for or recipient of benefits under that program furnish to the State his social security account number and the State shall utilize such account numbers so as to enable the association of the records pertaining to the applicant or recipient with his account number.”[vii] In other words, if someone does not have a street address, his social security number will be used as the fall-back I.D. validation.

Supplemental to that, the Department of Health and Human Services declares in its fact sheet about Medicaid prescription drug coverage for the homeless that “a Post Office Box, an address of a shelter or clinic, or the address where the individual receives mail (e.g. social security checks) may be considered the place of permanent residence.”[viii]

The United States Department of Agriculture, in its regulations about how states can verify the residency of food stamp applicants says that if a homeless person does not have documents showing that he is affiliated with a street address, “the State agency shall use a collateral contact or other readily available documentary evidence…Any documents or collateral contact which reasonably establish the applicant’s residency must be accepted and no requirement for a specific type of verification may be imposed. No durational residency requirement shall be established.”[ix]

The State offices tend to follow these guidelines with minor variations.

Sample laws:

In California, the residency regulation for food stamps says that the welfare department “shall not require an otherwise eligible household to reside in a permanent dwelling or have a fixed mailing address as a condition of eligibility”.[x] If a California applicant declares a shelter as his residence, the local food stamp office has to confirm that the shelter primarily houses people who are homeless, limits the amount of time that people can stay there, and does not have any kind of lease arrangements with people who stay there.[xi] If a California applicant is not affiliated with a shelter, the food stamp office will decide, after interviewing the applicant, what proof of residency to obtain. New York’s regulations merely declare that an application for food stamps will be accepted even if it only has the applicant’s name and signature and no other information, not even an address. Those regulations do not tell how the department will confirm that an applicant is truly homeless.

In Illinois, only one application is needed when requesting cash assistance, medical assistance, and/or food stamps and that application simply asks “Are you homeless? Yes / No”.[xii] The Illinois Administrative Code explains that homeless people applying for assistance through the Department of Human Services can use a friend or relative’s address or the address of a social service agency or the closest DHS office.[xiii]

To find a state’s food stamp address requirement, look in the state health and human services department’s regulations. Here is a link to a site that lists administrative codes http://www.llsdc.org/sourcebook/state-leg.htm. Look in the administrative code’s index under “food stamps” or else look to see if there is an entire section or volume of health and human services regulations. Another way to find these regulations is navigating through the state health and human services department’s Web site. http://www.acf.hhs.gov/programs/ofa/stlinks.htm

Since an address is not merely used for benefit applications, but is also necessary for ongoing correspondence between clients and government agencies, the agencies might recommend that homeless clients identify a caseworker or social service agency as their contact person or “authorized representative.”[xiv] That way, there will be a consistent place where mail can be sent and where the homeless client knows to check-in.

Serving as the authorized representative is often a basic job duty of someone who works in a shelter.[xv] Another possibility is that applicants can designate someone to serve as a “representative payee” to receive and deposit checks and generally manage their funds. That relationship clearly involves more than simply providing an address, but that is because it is available to claimants, not on the basis of homelessness, but because they cannot or don’t want to manage money.

A Pennsylvania case cautions about deciding which street address to list when applying for government services. The plaintiff in this case, who later became homeless, had applied for unemployment benefits at an address far away from where he now spent most of his time. He was not allowed to pick-up his benefits check at the office closest to his real location and was instead required to make the long, expensive, time consuming trek to the office near the original address.[xvi] There may be more efficient ways to change an address with a government agency now, and more understanding of the difficulties that homeless people have in documenting their actual whereabouts, but the caution is still worth noting.

[i] Social Security Administration, Program Operations Manual System (POMS)- Section SI 00601.062. The POMS is available online at http://www.ssa.gov/regulations/. See also the Fact Sheet on Supplemental Security Income available from the National Law Center on Homelessness and Poverty http://www.nlchp.org/Pubs/index.cfm

[ii] See the background note at the beginning of the Social Security Administration POMS- Section RM 00203-001. “Over time, the SSN has increasingly been used as a multi-purpose identifier by government, business, and other organizations.”

[iii] Social Security Administration, POMS – Section SI 00835.060

[iv] 20 CFR §416.201. Note that this regulation is part of a broader rule stating that people in the care of institutions are not eligible for the benefits. Since homeless shelters do not provide care, they are exempted from that rule.

[v] U.S. Dep’t. of Agriculture, An Introduction to the Food Stamp Program, http://www.cms.hhs.gov/apps/firststep/content/foodtips.html This is a page of tips for caseworkers assisting homeless food stamp applicants.

[vi] U.S.Dep’t of Health and Human Services, An Introduction to Temporary Assistance for Needy Families, http://www.cms.hhs.gov/apps/firststep/content/tanf_tips.html#tip1

[vii] 42 USC §1320b-7(1)

[viii] U.S. Dept. of Health and Human Services, What Do I Need to Know to About Medicare Prescription Drug Coverage to Help My Homeless Clients?, http://www.cms.hhs.gov/HomelessnessInitiative/Downloads/HomelessFactSheet.pdf

[ix] 7 CFR Ch.II §273.2

[x] California Dep’t of Social Services Food Stamp Regulations 63-401.5

[xi] California Dep’t of Social Services Information Notice # 1-04-04. Available at http://www.dss.cahwnet.gov/getinfo/acin04/pdf/I-04_04.pdf

[xii] Application available at http://www.dhs.state.il.us/ts/fss/il444-2378b(text).html.

[xiii] Ill. Adm. Code tit. 89 §10.210 (2006).

[xiv]U.S. Dep’t of Agriculture, An Introduction to the Food Stamp Program, http://www.cms.hhs.gov/apps/firststep/content/foodtips.html ; Wash. Admin. Code 388-408-0050 and 388-460-0005 available at http://apps.leg.wa.gov/wac/; California “Work Pays” program application at http://www.dss.cahwnet.gov/pdf/SAWS1.pdf ;

[xv] See, the Commonwealth of Virginia’s funding application for housing and homeless assistance units http://www.dhcd.virginia.gov/HOUSING/Worddocs/FY07Combined%20Application.doc ;

[xvi] Regoli v. Commw Unemployment Bd. Rev. Unemployment Comp. Bd. Rev., 427 A.2d 1275 (Pa. Commw. Ct., 1981).

Permalink Leave a Comment

Under what circumstances can you use the address of a service organization or shelter?

March 25, 2008 at 3:15 pm · Filed under addresses, mail

The law does not give anyone the right to use an agency’s address without permission. Shelters and service organizations will usually have clear policies if they allow clients to use their address to get mail. Those policies, which could require participation in particular services on a regular basis and over a certain amount of time, are a form of contract. This means that only by agreeing to cooperate with the agency’s terms is somebody allowed to use the address. Not cooperating is a breach of the contract. Once the contract has been breached, the agency no longer has an obligation to allow that person to use the address and the staff can write “return to sender” on incoming mail.

Permalink Leave a Comment

Is anyone else allowed to open and read your mail before you do?

March 25, 2008 at 3:12 pm · Filed under addresses, mail ·Tagged homeless law

It is a federal crime to intercept mail. Opening and reading someone else’s mail is a crime above and beyond that.[i] Even though most federal crimes are investigated by the FBI, those relating to mail are handled by the postal inspection service. The crimes are identified in Title 18 of the U.S. Code Chapter 83. Section 1701.
That section, titled “Obstruction of mails generally,” states that anyone who “knowingly and willfully obstructs or retards the passage of the mail” will be fined and/or imprisoned for up to six months. Section 1702 says that taking mail out of a mail box or from a mail carrier, “before it has been delivered to the person to whom it was directed, with design to obstruct correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.”
These sound like clear crimes, but they become convoluted if someone is having mail delivered to another person’s address and the address holder feels some degree of responsibility to watch for checks or important messages. If there has been some agreement between a homeless person and an address holder giving the address holder permission to open and preview mail, then there probably won’t be anybody filing a complaint to the postal inspector alleging that the mail has been obstructed.
The person with the right to file that kind of complaint would be the person named in the mail. This is an example of when it can be very helpful to have a written agreement identifying responsibilities and expectations. In fact, an address holder would be wise to get written permission if a homeless friend has asked that mail be opened. That way, if there is ever a legal complaint that he was obstructing correspondence or prying into secrets, the address holder can prove that he was not opening the mail for those reasons, he was opening it to only satisfy the request of the homeless person.
The federal law against “theft or receipt of stolen mail matter generally” supports the right of homeless people to get their mail even if they have arranged to have it sent to an address where they don’t live and they have authorized someone to open it and see what’s inside. That law, in Title 18 Section 1708 forbids taking or trying to take mail or even one item contained within a mailed package or envelope. An address holder with written permission to open mail who does open the mail, but then uses something in that mail for his own benefit or simply doesn’t hand it over, has committed a federal crime.
If any of these obstruction or theft of mail crimes seems to have occurred, there are two ways that a victim can file a complaint with the Postal Inspection Service: 1. by making a report in person at any post office, which will involve completing a form and then being available for the postal inspector’s follow-up investigation or 2. by completing the complaint form available on the home page of the Postal Inspection Service.

[i] http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_83.html

Permalink Leave a Comment

If you arrange to have your mail sent to someone else’s house, is that homeowner responsible for letting you know you have mail waiting?

March 25, 2008 at 3:03 pm · Filed under addresses, mail ·Tagged contracts, mail

Doing someone a favor can create a legal obligation under contract law, but only when the favor is repayment for something or when the recipient of the favor has made a promise to do something in exchange for the favor. So law about doing the favor of receiving mail would generally come from contracts cases.[i] In limited circumstances, the crime of mail theft might apply.[ii]

Undoubtedly, the legal remedy of suing in court comes about too late in problems caused by not finding out whether mail has arrived. If mail containing a big check or a job offer or a housing opportunity has not gotten to the intended recipient, the chance to benefit from that mail content has just been lost and some slow court dispute with the address holder is not going to bring it back.

As in most contract law situations, the way to use the law effectively is to make a good clear agreement in the first place, rather than hoping that the court system will solve anything later. If a homeless person wants an address holder to get his mail to him, he has to make that expectation perfectly clear in the agreement and, ideally, should contribute some effort toward assuring that he gets his mail.
For example, he could promise that he will personally come to that address every Thursday to ask for mail or he could arrange to be available in a particular location every evening in case there is mail that the address holder needs to give him. The address holder also has to make his interests very clear in the agreement. He might want to obligate himself for a limited time only or he might want the homeless person to use his address just for Social Security mailings and nothing else. Certainly, the agreement should detail how the address holder and the homeless person are going to communicate with each other because communication is the primary task involved in getting the mail from one person to another.
Contract law does not require that agreements be written down, but the process of writing down the separate responsibilities and intentions, especially when both parties doing the write together, assures that the address holder and the homeless person both know their own and each other’s obligations. Writing makes it a serious deal, more than just a casual notion. And having the writing enables both parties to point to the document as a reminder to the other if anything starts to go wrong.
If things do go wrong and the parties end-up fighting in court over a failed mail delivery, the written contract will make the court process simpler because the judge won’t have to figure out what promises the parties made to each other. Instead, the court will try to determine whether someone breached the agreement and whether any reparable harm occurred because of that breach. The court will consider how much of the contract was fulfilled and how the parties interacted up to the point of the breach. The person filing the lawsuit has to state what remedy he is entitled to if he successfully proves a breach.

It will be tempting to claim that if the undelivered mail could have led to riches and contentment. The hopes and possibilities that could have ensued from getting the mail (i.e., the income from the job that was advertised in that envelope, the lottery winnings that might have come from using part of the check in that never-given envelope, the bountiful benefits that could have begun by getting into the housing program that was offered in that mail…) cannot be claimed as contract damages. Those possibilities are only guesses. Most of the time, if anything, a court might only order repayment of real losses that can honestly be counted, such as the amount of a check that should have been passed along.

[i] State contract statutes are usually about sales of goods, insurance policies, financial matters, and sometimes employment.

[ii] Title 18 US Code Section 1708.

Permalink Leave a Comment

When can you use a post office box instead of a street address?

March 25, 2008 at 11:58 am · Filed under addresses, public services ·Tagged homeless, mail, police, post office, probation, voting

A post office box can be used instead of a street address when establishing a place for people to send mail, but not when someone needs to identify himself to the government. For example, street address is required for obtaining a government-issued photo I.D., registering to vote, and applying for jobs.

Applying for a job doesn’t sound like communicating with the government, but the communication is indirect; employers are required to make payments to the Social Security Administration and the Internal Revenue Service on behalf of employees. They have to identify each employee by name, social security number, and address in order to make those payments.

When registering to vote, it is permissible for a homeless person to give the street address of a relative or an agency he or she is involved with. But it is also necessary to identify where you reside or expect to continue residing (name the park, bridge, or other location specifically) because the voting system is intended to appoint representatives for populations according to their geographic designations. The National Law Center for Homelessness and Poverty has a voting fact sheet available at http://www.nlchp.org/view_report.cfm?id=132.

There is not merely one law stating that people have to give the government their street address. Instead, there are minute regulations, many separate hard-to-find requirements by government agencies, declaring when and where addresses are to be used in each agency’s conduct of business.

Criminal law requirements for homeless contact information are generally stricter than the procedures in the social services codes. Probation rules and sex offender registries, for example, require that offenders provide a street address where they can be located if an officer comes looking for them; living on the street is simply not an option. A homeless shelter or halfway house address may be used if the offender truly resides there, but the probation and sex offender registry rules additionally require that offenders report to an agent on a regular basis and immediately notify police authorities of any change in their whereabouts.[i]

The agencies involved with housing and health and income services, for example HUD (Housing and Urban Development) and HHS (Health and Human Services), which routinely interact with the homeless population have ways for people to access their services by communicating through channels other than mail or by having the mail sent to places where clients do not live, but can at least check-in.

[i] Sample sex offender registry statutes show the variety of ways states verify street addresses:
California “Beginning on or before the 30th day following initial registration upon release, a transient must reregister no less than once every 30 days thereafter.” Cal. Penal Code §290(c)(1).

Connecticut “the Department of Public Safety shall verify the address of each registrant by mailing a nonforwardable verification form to the registrant at the registrant’s last reported address. Such form shall require the registrant to sign a statement that the registrant continues to reside at the registrant’s last reported address and return the form by mail by a date which is ten days after the date such form was mailed to the registrant. The form shall contain a statement that failure to return the form or providing false information is a violation of section 54-251, 54-252, 54-253 or 54-254, as the case may be. Each person required to register under section 54-251, 54-252, 54-253 or 54-254 shall have such person’s address verified in such manner every ninety days after such person’s initial registration date.” Ct. Gen. Stat. Ann. §54-257(c).

District of Columbia “The procedures and requirements [of the offender registration agency] may include….(1) Verify address information or other information at least annually, or at more frequent intervals as specified by the Agency;(2) Return address verification forms;(3) Appear in person for purposes of verification;(4) Cooperate in the taking of fingerprints and photographs, as part of the verification process; and (5) Update any information that has changed since any preceding registration or verification as part of the verification process.” DC Code §22-4008(a).

Florida “Each time a sexual offender’s driver’s license or identification card is subject to renewal, and, without regard to the status of the offender’s driver’s license or identification card, within 48 hours after any change in the offender’s permanent or temporary residence or change in the offender’s name by reason of marriage or other legal process, the offender shall report in person to a driver’s license office”…. “A sexual offender who vacates a permanent residence and fails to establish or maintain another permanent or temporary residence shall, within 48 hours after vacating the permanent residence, report in person to the sheriff’s office of the county in which he or she is located.” Fl. Stat. Ann. §943.0435 (4)(a)&(b).

Permalink Leave a Comment

Older Posts »

Homeless Law Blog

Archive for March, 2008

Is the City allowed to throw away possessions that you leave temporarily in public places?

If the police or other government workers find your possessions in a place that doesn’t belong to you, what are your legal rights?

What if you find something that is not labeled with the owner’s name, the way shopping carts are? Does that count as theft? Suppose you find something that seems impossible to trace, is it still illegal to have that item?

Do you have to submit to sexual overtures if you generally sleep outdoors?

If you remove soap or paper towels from a restroom in a public facility is it necessarily stealing?

Can you open fire hydrants to get water for bathing?

In what sources of fresh water can you legally bathe or wash laundry? If waterways are polluted and you get sick from washing in them, does the law entitle you to anything? Can your bathing or washing laundry in rivers or lakes, etc… count as pollution?

Are there any legal limitations on what hygiene functions you can perform in a public restroom?

Is naked always obscene? What is illegal about being naked when changing clothes or bathing in outdoor public spaces?

Are you entitled to privacy when you carry out private acts in public places?

What kinds of information can you get when you do legal research?

What kinds of legal research sources are jails and prisons required to provide?

Where can you go to conduct legal research?

If you can’t get out on bail and are later proved innocent, can you get paid back for the time you spent in jail?

Is it possible to get out on bail if you have no money?

What are some of the criminal charges commonly used against the homeless?

Under what circumstances might your conversations with police count as criminal confessions?

Do you always have to leave a place simply because a police officer tells you to move on?

When police commit you to the mental hospital, are they entitled to information that you give to the hospital?

Is it true that the police can have you committed to a mental hospital against your will?

Do you have to answer questions from the police if they are not accusing you of wrongdoing?

Do homeless employees have any legal right to get out of doing the dangerous day labor jobs?

If you work at day labor or another occasional part-time work that pays you in hand and does not ask about your address, do you have to accept any amount of pay they give you?

Can government services force you to seek housing as a condition of getting benefits and services?

Can you have different addresses at which you get mail for different purposes?

Do you need an address to get access to government services such as Welfare, Food Stamps, Medicaid, and Social Security Disability?

Under what circumstances can you use the address of a service organization or shelter?

Is anyone else allowed to open and read your mail before you do?

If you arrange to have your mail sent to someone else’s house, is that homeowner responsible for letting you know you have mail waiting?

When can you use a post office box instead of a street address?

Pages

Archives

Categories

Search

Meta