How can I register to vote if I am homeless?

Your local election office will tell you which kinds of facilities you can use for your street address on the voter registration form. Typically, it will be a government property (such as a post office) or a social service agency in the neighborhood where you most frequently spend your time. This ensures that the polling place will be convenient for you and that your representatives actually have influence over the neighborhood that matters to you. If you can’t get straight answers from the election office, contact the Continuum of Care office.

There are always deadlines and rules to know about when you register to vote, so familiarize yourself with those. For example, you might have to use your legal name rather than the name that you actually are known by. On this same website, you can find out about voting by mail instead of going in-person on Election Day.

Use the Check Voter Registration tool to be sure that your registration is squared away.

To be sure you are informed in advance of casting your ballot, read about the candidates and referendum issues in advance. This source takes you to that information.

These tips are from the Step-by-Step Voting Guide produced by the United States Interagency Council on Homelessness.

The Homeless Law Blog

The Homeless Law Blog is intended to be a research guide for people who are homeless and trying to learn about their legal rights and liabilities. It presents typical legal questions that arise in homeless life and then provides general information by introducing likely areas of law to investigate, showing search terms, and giving leads to primary law sources. The content of this blog is not tailored to anybody’s particular situation and should not be considered legal advice. Click on any of the categories on the right column of this screen to browse through a homeless law subject.

The administrator of this site is Linda Tashbook, Esq., an attorney licensed to practice in Pennsylvania and professional law librarian. She obtained her Juris Doctorate and Masters Degree in Library Science from the University of Pittsburgh.Her private law practice emphasizes legal aid for the homeless. She is the author of Family Guide to Mental Illness and the Law: A Practical Handbook (Oxford University Press, 2019). Prior to becoming a lawyer, Ms. Tashbook coordinated public library outreach to families in public housing and homeless shelters, served on the Allegheny County Runaway and Homeless Youth Task Force as well as the Allegheny County Homeless Education Network, and volunteered with various programs benefiting and involving families experiencing homelessness.

In the comments sections following each question in this blog, please write about your relevant legal experiences with homeless life and please add links to resources that would be helpful to other readers who are interested in homeless people’s legal issues.

If I’m homeless and get a seasonal job what are my rights about pay and hours?

If you are hired to staff a holiday tree sale, a summer carnival, a pumpkin patch, a Halloween costume sale or any other “pop-up” seasonal business, you are entitled to the same Fair Labor Standards as permanent employees. You have to provide the employer with your correct contact information and your Social Security number (because the employer is obligated to withhold income taxes and Social Security money and may need to mail your last check to you after the season) and in exchange, you should get full correct contact information about the employer in case anything goes wrong and you need to assert a legal claim against that employer. The U.S. Department of Labor, which regulates and enforces laws about wages and hours, states the following facts about seasonal jobs:

You should at least be paid the federal minimum wage- no matter how few hours you work. Currently, the minimum wage is $7.25 per hour.

Jobs that include tips have to pay at least “$2.13 an hour in direct wages if that amount plus the tips received equal at least the federal minimum wage.”

You can only get overtime pay if you work more than 40 hours in a week. You do not get overtime pay just because you work late or on the weekends; it is only about the number of hours you work.

Laws about when you get breaks for meals or rest are made by state governments, not the federal DOL.

If you are not paid at all or do not get fair wages, you can file a complaint with the DOL.

What if I can’t pay my tickets or fees and fines from criminal court?

We know that people who are homeless get charged with a lot of small crimes. Examples include loitering, panhandling, obstructing the sidewalk, trespassing, and littering. Very often, the penalty for these minor crimes is a fine—either a ticket or a fine imposed in court. The fine is supposed to be paid by a deadline.

If you don’t have the money to pay that fine and you miss the deadline, you can be charged with an additional crime which is usually called something like “failure to pay” or “contempt” in the local crimes code. This second charge might result in an additional fine or another kind of penalty such as community service or even jail time.

If the court system is able to communicate with you by phone or mail, which is not always possible when people do not have a permanent home, the payment office may contact you if you have had difficulty paying your fine. In that communication, they will likely tell you if it is possible to arrange a payment plan or an alternative to payment (such as attending a class or doing community service) if you cannot afford to pay. Being poor does not relieve you of criminal punishment; it just gives you an excuse for not paying the full fine by the original deadline. So if the court system tries to make arrangements with you, you are supposed to cooperate in forming a plan and fulfill your part of the arrangement. You may need to fill out forms or appear in-person for a conversation about your ability to pay.

You can ask for a payment plan or payment alternative as soon as your fine is assessed; you do not have to wait until they add a charge of non-payment and send you a second ticket. If you don’t give the court a way to contact you and you don’t reach out to the court before they come looking for you, these criminal charges will just stay on file until the next time you have an encounter with the police.

As these various charges and your lack of cooperation with the system mount up, so do the penalties that they can use against you. At some point, a police stop that might otherwise be uneventful will become a big deal because the officers will look you up and see that you have unresolved charges. They may take you to jail because of your outstanding charges.

 In March of 2016, the Department of Justice (DOJ) issued a letter to state and local criminal courts regarding unpaid fines. See 2023 updated version https://www.justice.gov/opa/press-release/file/1580546/download.  The DOJ urged the court systems to confirm whether someone is financially able to pay a fine before punishing him for not paying it. It also called on the court systems to honor Constitutional due process rights. The letter spells out specific ways to honor due process: giving people notice before punishing them, giving them alternatives to payment, and not suspending their license or requiring expensive bond as the only ways of avoiding jail.

If your court system is not acknowledging your inability to pay criminal fines, your ACLU or the public defender’s office might take action on your behalf.

The ACLU published a report in 2010 about how people suffer increasing punishments after not being able to afford their court fines.  Subsequent to that report, state ACLU offices have produced helpful information tools for the public. Here are examples: Pennsylvania –  Washington–  Colorado – Ohio .   Find your local ACLU affiliate to get instructions and other support if you cannot afford to pay a ticket or costs or fees assigned by a criminal court.

The National Association for Public Defense (NAPD) has a committee dedicated to the topic of Fines and Fees. http://www.publicdefenders.us/finesandfees Members of this committee have testified to the U.S. Civil Rights Commission about the terrible consequences that happen to people who do not have enough money to pay their criminal court fines. The Fines and Fees Committee welcomes input and offers resources to local public defenders. If you have a public defender who needs back-up to protect you from being jailed for not paying court fines, put that lawyer in touch with this group. You might like the NAPD’s Statement on Predatory Collection Practices. http://www.publicdefenders.us/files/NAPD_Statement_on_Predatory_Collection_Practices.pdf

How can I get my mail when I’m always moving around?

There are mail forwarding business that provide people who are transient  (often RV dwellers who are on the road rather than living in one RV community) with a street address.  The mail forwarding business will either scan the incoming mail envelopes and post them in a secure online private box for you to look at over the Internet or they will bundle the mail and physically ship it to you. Even though you get a street address through a mail service, you do not automatically get to claim that location as your legal residence. State laws about residency typically require you to be physically located in the state for a particular number of days each year. The list of mail forwarding services at the bottom of this page identifies two that will help you to register your vehicle and establish residence in their states.

Here is how the mail scanning services generally work: The company scans the envelopes that come for you. You go online and view the envelopes in your password protected online box and identify any that the service should open and scan. The service will then scan those documents straight into your confidential online box.

These services charge minimal flat rate fees, typically by the month or the quarter, to receive your mail. Depending on the company and the range of services you select, they may charge an additional per-page scanning fee for any documents that they take out of your envelopes. In other words, your flat rate can include just the envelope scanning or it can also include the document scanning as well. Of course, you do not have to register for the scanning service. If the mail service is in your city you can go there to get your physical mail every couple of weeks or once a month or on whatever schedule you establish with the mail forwarding service.

Examples of companies that provide mail forwarding and mail scanning services:

http://www.yourbestaddress.com/ (also provides vehicle registration services)

http://www.texashomebase.com/texasdomicileinfo.html (includes information about vehicle registration and establishing legal residency in Texas even if you are only there for part of each year)

https://travelingmailbox.com/

https://www.escapees.com/

https://www.earthclassmail.com/solutions
See the cities in which Earth Class provides street addresses https://www.earthclassmail.com/addresses

Why do people get in trouble for feeding the homeless?

One of the ways that the legal system protects homeless people is to keep them from being victimized, in various ways, by dangerous handouts. Food handouts, for example, when they are not cooked or stored properly, can make recipients very sick. So there are laws about food preparation and management. Restaurants, organizations, and food trucks all have to follow these laws. Typically, these are health department regulations. But there can also be criminal laws that apply–such as homicide and battery laws that would punish one person for poisoning another.

Some people think that they are being helpful by collecting and handing out unused prescription medicines to people on the street. That is illegal drug distribution in every jurisdiction. Only licensed medical doctors can legally decide which kinds of medicine a patient needs. Most of the donation punishment stories that upset the public are about food donations.

When companies or nonprofit groups operate a system for distributing food to the homeless, they have a limited degree of protection from the Bill Emerson Good Samaritan Food Donation Act. This is a federal law that protects food donors (whether they donate groceries or cooked meals) from various kinds of liability unless the food that they donate either makes a homeless person sick or kills a homeless person. Most of the time, these donors are not supposed to be charged with violating the federal laws about food packaging and food handling unless they are grossly negligent or intentionally commit misconduct with the food. If they know that something has gone wrong with the food and they are donating it to an organization that will then distribute it to the homeless, they have to tell the organization what went wrong.

Here is an example: Suppose a canned food company has a mix-up at its factory and a hundred cases of canned black beans are mistakenly labeled as canned tomatoes. The company cannot sell those, so they decide to donate them to the poor. This Food Donation Act requires that the canned food company explain the problem to the organization that they donate the cans to. The organization receiving those cans of beans has to (1) be able to fix those labels and then it has to (2) actually fix them. This is not a hard task: They can just print any normal white labels in their usual printer and write on those labels that a mistake was made in the factory packaging and these cans actually hold black beans, not tomatoes.

There is nothing in this federal law that treats major corporations differently than small local food donation services. However, the law specifically says that nothing in it “shall be construed to supercede State or local health regulations.” This is why food donors can still get in trouble for not having the right kind of dish washing facilities or not keeping food at the right temperature.

A chef in San Antonio, Texas who was serving gourmet meals to homeless people got all kinds of media attention when the police cited her for not operating out of a food truck. This chef had a permit for a food truck, but on the night that the police ticketed her, she was distributing food out of a different vehicle. The reasons for the food truck permit laws are all about food safety. Those trucks have to have a certain level of cleanliness and they need refrigeration and adequately warm operating areas for keeping hot food at a safe temperature, plus other features. This chef obviously knew about these rules since she had satisfied the requirements to get the permit, but on that night she brought out food that was not properly stored because it was not in a registered food truck. She truly did break the law and put people at risk.

Her response to the ticket, at least in the media, (she has not gone to court as of this writing) is that she has a First Amendment freedom of religion right to give food to poor people. That is a nice position to take, but it is not relevant to the law she broke. No matter what motivated her, she was only allowed to distribute food from the safe food truck for which she had a permit.

The federal Good Samaritan Food Donation Act only deals with punishment after food recipients have gotten sick. Local, county, and state laws aim to prevent anyone from getting sick by regulating what happens to the food before it gets served. Anybody hoping to offer food donations to the homeless should contact the county health department and the local police to find out in advance how they can be sure that their donations will be safe and legal. And anyone who does get in trouble for violating a food or medicine donation law should appreciate that the authorities are trying to keep the recipients safe.

1. Here is the federal food safety information that applies in all of the states. http://www.foodsafety.gov/

2. Here are links to state agencies regulating food safety. http://www.fsis.usda.gov/wps/portal/fsis/topics/recalls-and-public-health-alerts/additional-recall-links/state-departments-of-public-health/ct_index

3. Here is a portal to the various sorts of laws relating to drugs. http://criminal.findlaw.com/criminal-charges/drug-charges.html

What is the Homeless Management Information System (HMIS)? Does the law require homeless service providers to record information about clients? If so, where does that information go and how is it used? If I don’t answer the questions, will I be turned away?

A Homeless Management Information System is a database of personal facts about the homeless people in a community.  These facts are gathered from people when they get services from non-profits and government agencies that receive federal funds designated for homeless services.  So, if someone spends a few nights in a shelter that gets noted in the database.  If he needs insulin at the shelter, that gets noted in the database.  If he goes to some other funded facility for a shower and shave, that is entered into the database.  If he participates in vocational counseling or is a veteran or underwent a gender transformation, those facts go in the database.  As you can see, some of these facts are gathered just as a result of participation and some are gathered when participants answer questionnaires.

These databases exist because every local and state service provider that uses federal money to provide programs, services, or resources to homeless people must collect information about how it spends the money and then report that information to the federal government.  All that they report to the federal agencies (HUD, HHS, and the VA) are the numbers, no names.  They do use the names in the community though, so that the various providers can have a total picture of each person’s needs.

Every community of homeless service providers, whether it is a city or a county or a region—depending on how homeless services are organized in that area—contracts with a database vendor to create its own HMIS.  Then, as somebody goes from one homeless service agency to the next, he or she does not have to go through the whole exhaustive intake process each time and the provider can see any facts that might help them to best serve the client and make referrals to other entities or new programs that will be relevant to that individual consumer.

You have two ways of protecting your information:

1. You can refuse to answer any of the questions that you object to. Refusing to answer will not make you ineligible for the service, but it will mess-up the provider’s records and can compromise its future funding.  In the unlikely event that a provider says that you are legally required to answer a particular question if you want the service, you should direct that person to page 11 of the HMIS Data Standards Manual https://www.hudexchange.info/resources/documents/HMIS-Data-Standards-Manual.pdf which specifically says that “client refused is considered a valid response.”
2. You can obtain a copy of your database report and tell the provider to remove any items that you do not want to have on record.

Sources:

1. See Title 24 of the Code of Federal Regulations Part 578 to read the regulations about Continuum of Care Services for homeless populations. http://www.ecfr.gov
2. Consult the HMIS Data Dictionary for clear definitions of just about every topic related to homeless life and government funding. https://www.hudexchange.info/resource/3824/hmis-data-dictionary/
3. The federal HEARTH Act established the requirements for federal agencies to collect and utilize client data and more accurately audit the way resources are allocated for the homeless population. Read about this law and related actions at https://www.hudexchange.info/homelessness-assistance/hearth-act/.
4. The United States Interagency Council on Homelessness coordinates local and state efforts to eliminate homelessness.  You can see their research publications, some of which use data from the HMIS collections, at http://usich.gov/usich_resources/.

Thank you to Bill Hale who suggested this array of questions, made sure I knew about resources, and checked his own data in the HMIS.

Living in Your Car

On June 19, 2014, the Ninth Circuit Court of Appeals decided the case of Desertrain v. Los Angeles against the city for ordering police to cite and arrest people who were living in their cars.  I published an analysis of the court’s decision at http://jurist.org/forum/2014/06/linda-tashbook-homeless-ordinance.php.  Cities should require their police departments to serve and protect the people who have to live outside–just like the serve and protect everybody else.  Please read the article and pass it along.

Can shelters require you to take a drug test?

Privately operated shelters are generally allowed to limit their populations in ways that might surprise you: They can allow people of just one gender to stay there. They can exclude children. They can exclude drug users. If the shelter is committed to keeping out drug users, then it has to be fair and legitimate in figuring out who is using drugs. The most reliable way to be sure that the shelter does not have any drug users is to conduct scientific testing.

If a shelter is testing for drug use just to prevent drug crimes from happening then, depending on whether and how it is connected with the government, it may be violating the Constitution’s Fourth Amendment which requires that investigators (or drug testers) have both 1. probable cause to believe that a particular person has committed a certain crime and 2. a warrant issued by a judge in order to search for evidence connected with the crime. http://law.justia.com/constitution/us/amendment-04/07-probable-cause.html  To simply guess that a person coming into a homeless shelter might be drug user would not, without other proof, justify a drug test.

If the shelter is targeting certain individuals or groups for drug testing, then those individuals or groups may have a legal claim of discrimination.

Even if the shelter is testing everyone or else is doing random drug testing that doesn’t target individuals or groups, the drug tests might be seen as invasions of privacy. The ACLU takes a strong stand on this and has won court cases by proving that the entities testing for drug use did not have reasons that outweighed people’s right to have the chemical content of their urine kept private. https://www.aclu.org/other/legislative-briefing-kit-drug-testing Contact your local ACLU office if you want them to consider suing a shelter for its drug testing practices. http://www.aclu.org/affiliates

In most states, if there is any drug testing law at all, it is about when and how employers can test workers for drug use. You can peruse those state laws via Nolo Press at http://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter5-3.html Even though employers and shelters have separate specific reasons for conducting drug tests, the reasons are probably connected with safety in both settings. So, if you have to argue against a drug testing policy you might want to first see whether you have a state law and then compare the shelter’s policy with it to see if the policy looks like it complies with the law. If you don’t think it does, contact Project H.E.L.P. http://homelesslegalprotection.com/h-e-l-p-locations/ or the National Law Center on Homelessness and Poverty http://www.nlchp.org/contact_us.cfm or your local legal aid office. http://www.lsc.gov

How can homeless advocates get laws to change?

There are several components to getting laws changed so that public services can better include homeless people and so that the government can better protect homeless people.

First, it is necessary to develop a very clear statement about how the law needs to change.
Examples:
If government services exclude homeless people because they lack an address or particular ID documents, maybe advocates should petition for exceptions to be added to those particular regulations .
If the crimes code doesn’t adequately deal with violent attackers who target the homeless, then perhaps the state’s hate crimes law can be modified to include crimes against the homeless as hate crimes.

The National Low Income Housing Coalition has an excellent online compilation of its Congressional testimony, letters to lawmakers, and authoritative commentary on proposed laws and regulations. http://nlihc.org/library/testimony/testimonies  Peruse these documents to see good examples of concise and persuasive ways to state your concerns.

Here are some samples of legislative issue lists from assorted homeless advocacy groups:
Vermont Coalition to End Homelessness
http://www.helpingtohouse.org/advocacy.php

Rhode Island Coalition for the Homeless
http://www.rihomeless.org/AboutHomelessness/Solutions/LegislationWeAreFightingFor/tabid/267/Default.aspx

Washington State Coalition for the Homeless
http://endhomelessnesswa.org/action/

Minnesota Coalition for the Homeless
http://www.mnhomelesscoalition.org/

Second, advocates need to identify and involve legislators whose committee work directly relates to the problem needing to be solved. 

A great example of this is the work done by Sapphire Jule King, Founder and President of the International Freedom Coalition who first declared that Rhode Island needed a Bill of Rights for Homeless People. http://strongfamiliesnow.org/blog/2010/11/26/bill-of-rights-for-the-homeless/  See also Ms. King’s analytical editorial about how that final Bill of Rights failed to include critical protections against abuses by shelters, despite all of the input from shelter abuse victims.  Along with John Joyce of the Rhode Island Homeless Advocacy Project and the Rhode Island Coalition for the Homeless, the International Freedom Coalition notified the state’s Human Rights Commission and Senator John Tassoni, Chair of the Rhode Island Senate’s Chair of Housing and Municipal Government, about a range of substandard government treatment of homeless people including the fact that they are often blocked from state government services because they lack street addresses to put on forms  and the ways they are harmed by homeless sweeps and other arbitrary government seizures of their possessions. They even got the senator to visit a homeless shelter.   http://www.strongfamiliesnow.org/documents/Homeless-Study-Working-Paper.pdf
http://strongfamiliesnow.org/bor/bill-of-rights-for-the-homeless/

Third, collect and share with legislators and the public reliable information to raise awareness about the issue.

The National Coalition for the Homeless does a masterful job of compiling facts about homeless life and has good experience at influencing legislation.  Read through some of their handbooks to see how to draft petitions, compose invitation letters to politicians, write a press release, draft a model law for the legislature to build-on, generate community support, etc…

Hate Crimes Manual— a packet of sample documents and instructions for getting your legislature to include attacks against homeless people in the hate crimes law.
http://www.nationalhomeless.org/publications/hatecrimes/hatecrimesmanual10.pdf

Fundamentals to Prevent Homelessness—a  packet of documents and instructions for getting political candidates to pledge that they will work to prevent and reduce homelessness.
http://www.nationalhomeless.org/publications/fivefundamentals/index.html

The National Association of Social Workers has a helpful Lobbying Handbook http://www.naswct.org/displaycommon.cfm?an=1&subarticlenbr=19 with practical instructions to help you through the steps of writing to legislators, organizing visits to the legislature, knowing how to testify, and other ways of making sure that your message gets through to lawmakers.

The National Conference of State Legislatures (NCSL), in its Human Services issue section http://www.ncsl.org/issues-research/human-services.aspx?tabs=858,50, provides information to legislators who are trying to develop new laws and amend old laws with provisions for people in poverty. The site specifically says that “NCSL staff can provide [for legislators] comprehensive, thorough, timely and in-depth information on critical human service policy issues.”  The same site also tells about and links to recent federal and state legislation on assorted poverty issues.

When is it legal to take stuff from the trash?

**** 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. ****

 

Usually, property that is left for trash collection is considered to be abandoned.  It is perfectly legal to take abandoned property, but it isn’t always easy to tell if property is truly abandoned.  The picture here shows household furnishings alongside trash cans left on the strip of grass between the sidewalk and the street just hours before the garbage truck is due.  Obviously, those household furnishings have been left for trash collection.

 

But what if the chairs and desk were there without trash cans nearby or not on trash collection day?  In those circumstances, it wouldn’t be so clear that this property was being abandoned.  The owners might be planning to move it somewhere or to have friends come and get it.  A safe way to avoid legal problems is to ask the owner if you can take the stuff.

 

If the stuff was next to or even inside of trash containers and those trash containers, whether dumpsters or ordinary trash cans, were on private property, then the stuff might not have been abandoned.  The owner might still be thinking about taking it back into the house.

 

If the stuff wasn’t abandoned, then taking it away without the owner’s permission is the crime of theft.  If you go onto private property to look through a dumpster or trash can, you can be charged with trespassing.  When you go to do legal research about trash ownership and abandonment, you are not likely to find much relevant information in the category of theft.   However you can find relevant cases and law journal articles in Google Scholar if you search for the words “dumpster” and “trespassing” in the same search.  Reading those cases, you can get an idea of how courts analyze whether property was abandoned and whether looking in a dumpster was a trespass in that particular case.  Here is one example in which somebody went hunting for discarded documents in a dumpster at a Walt Disney facility.

 

Searching for “dumpster” and “abandoned property” in Google Scholar, you will mainly find cases and articles about police conducting searches and seizures by going through trash containers.  Even the police cannot look in or take non-abandoned trash without permission of the owner or a judge who has issued a search warrant.  Here is one case with a good clear explanation of the law of abandoned trash. Smith v. State 510 P.2d 793 (Supreme Ct. Alaska, 1973).  Here is the seminal Supreme Court case on the topic of police access to abandoned trash.  California v. Greenwood 486 U.S. 35 (1967).

How can a squatter get the actual title to the property?

The earlier post about squatter’s rights identifies the behavior that can give a squatter rights to property.  But the legal right to property is only complete when the title is transferred. Usually, a title is transferred when a seller conveys property to a buyer.

A squatter attempting to get title is not buying from the seller; he or she is trying to get property for which no seller seems to exist.  The process for obtaining the title without having the last owner sell it to the buyer is called an “action to quiet title.”  Generally, there are three big steps involved in quieting a title:

1. Searching for anyone who has a claim to all or part of the property, even if the claim is just a right to use the property for some purpose and not to own it.  For example, there might be a neighbor who has an easement that allows him to drive his truck through the property every morning.  This search is a big expensive investigation.  Most state laws about quieting title will require claimants to prove that they have thoroughly hunted in public records (vital and property)  and placed multiple ads in various newspapers as ways of searching for the current property owner.
2. Filing documents in the appropriate court.  In this step, you have to write and submit assorted documents according to all of the rules required in your jurisdiction.  You might be able to find a sample of someone else’s action to quiet title by contacting or going to the court clerk’s office and paying for copies of the documents in that case.  If the clerk’s office will not provide you with a full case file, they might at least give or direct you to a list of things that you have to include in your court filing.  You can also look for sample forms in Justia.   Here is an example from the Philadelphia, Pennsylvania section in Justia Forms: “Fraudulent Conveyance- Quiet Title Packet.”  If you cannot find online forms for your county, you will need to go to a law library and find a book of standard real estate forms.  Any form from a book must be re-designed to match the requirements in your county court’s document rules. Here are the quiet title instructions for Kansas.  Here are the Colorado quiet title instructions. Here is North Dakota’s quiet title law. Here is an example of a Complaint to Quiet Title in Florida. Here is an example of a Complaint to Quiet Title in California.
3. Making your claim.  When you write the court documents in an action to quiet title, you will have to tell about and show the proof that you satisfied all of your state’s requirements for adverse possession and that you also satisfied your state and county requirements for taking action to quiet title.  This is a detailed descriptive writing project, not merely the simple work of completing a form.  If your documents are accepted by the court, you will be assigned a date to appear in court.  In court, you will have to answer questions that the judge asks you.   If the current property owner does not come to court that day, you might have to do an additional procedure asking the judge to give you a “default judgment.”  If the judge decides that you have satisfactorily proved your claim, he or she will give you a document to file with the deeds office.

Obituary For a Homeless Litigant

The Nov. 3, 2011 New York Times has an obituary for Yvonne McCain.  She was a homeless mother who, in 1983 sued the City of New York for failing to provide her small family with habitable emergency shelter.  Here is one of  the court decisions, the one that best summarizes a series of smaller parts in this very complex situation and which states definitively that families have to be provided with shelter.  This decision was rendered in 1987, but the full case didn’t conlude until 2008.  http://scholar.google.com/scholar_case?case=3375906449026576910&q=mccain+koch&hl=en&as_sdt=2,39  Because Yvonne McCain had the courage to use the legal system, families in New York have been able to expect decent transitional housing for nearly a quarter of a century. 

 

How can a homeless person living in a car or van get auto insurance without having an address?

**** 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. ****

 

State auto insurance laws do require you to carry some sort of coverage on your automobile and you generally do have to prove that you are eligible to be insured in that state by providing the insurance company with documentation of your living in and, if applicable, owning a vehicle in that state. In other words, insurance companies expect that the address you list on your policy application will match the address on your automobile registration and driver’s license, both of which require you to notify state authorities when you change addresses. Also, because the insurance company has legal status as your agent in matters connected with that policy it does need to know where and how to contact you.

 

To obtain a driver’s license you have to show that you truly are the person you claim to be. The federal REAL ID Act requires states to cross check other identification sources when issuing driver’s licenses. The Department of Homeland Security summarizes the Act at http://www.dhs.gov/real-id-public-faqs and links to the official documents at http://www.dhs.gov/secure-drivers-license-documentation.  Each state has the flexibility to design its drivers license identification law in ways that accommodate the homeless and long distance truck drivers and others who do not reside in a fixed location. Some states, for example, accept ID verification letters from homeless service providers. 

 

The most efficient way to find your state’s current identification rule is to contact the Department of Motor Vehicles. http://www.dmv-department-of-motor-vehicles.com/  though you might find it from the National Conference of State Legislatures’ descriptive page.    You should be able to use e-mail to contact your DMV and simply ask what documentation they want you to bring. If you can’t get satisfaction from the DMV, get in touch with your local homeless service provider and ask that agency to help you get an address exception to obtain a driver’s license. http://www.nationalhomeless.org/directories/index.html

 

If your state driver’s license ID law does not yet have a way for you to obtain a license (and, secondarily, insurance), you can contact your state legislature and petition to have the law amended. The National Conference of State Legislatures has lots of REAL ID material for state legislators to read.  because state lawmakers have been developing these new identification laws for a couple of years.

Related sources:
The Insurance Information Institute has several helpful fact sheets about state financial responsibility laws. http://www.iii.org/insurance-topics/auto-insurance.  You can find an individual state’s auto insurance laws through its insurance commission. http://www.naic.org/state_web_map.htm

See my post about mail forwarding services to find companies that will register your vehicle for you.

 

 

 

 

Is it illegal to take food from dumpsters?

**** 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. ****

Sometimes because of local ordinances against providing food to the homeless, such as laws requiring costly permits to conduct group meals, hungry people seek out food that has been thrown away.  

If property, including leftover food, has been abandoned, then it no longer belongs to the previous owner and taking it is not stealing.  In most cases, generally when trash is outside and expected to be picked up by the trash collectors, the courts have considered the trash to be abandoned property. 

These abandonment cases were not about hungry people taking food.  These cases were about police officers who, in gathering potential evidence from garbage cans, were accused of conducting illegal searches.  See California v. Greenwood at http://supreme.justia.com/us/486/35/case.html and State v. Beltz 160 P.3d 154 (Alaska Ct. of Appeals June, 2008) and Young v. State 72 P.3d 1250 (Alaska Ct. of Appeals July, 2003).

When the trash is stored indoors or in a secluded area, it is often not considered abandoned.

Business-owned dumpsters, located on a business’s own private property and not shared by multiple businesses might not contain abandoned property.  Dumpster companies provide lockable lids, so businesses can lock their dumpsters and keep their trash inaccessible can lock their dumpsters.  Many businesses lock their dumpsters to prevent thieves from stealing account numbers and other private information.

If you think of locking the dumpster as a safety precaution that businesses can take to avoid problems when it is likely that thieves will go through the trash, you might also think that restaurants should take safety precautions when they know that hungry people take food from their dumpsters. Maybe the law should require that non-perishable food be bagged separately or that food be packaged against bacteria and labeled with the date.  To research this kind of idea, look for court cases about “premises liability.”  The most efficient way to find court cases is to go through a printed case index or an electronic database.  Google Scholar and Justia.com both reproduce lots of case decisions for free online. Look for print sources and other databases at your county law library.  See also the list of self-help legal research guides available from the State, Court, and County Law Libraries section of the American Association of Law Libraries. On the topic of food safety, know that there is a federal law called the Bill Emerson Good Samaritan Food Donation Act that authorizes restaurants, caterers, stores, individuals, churches, etc… to donate “apparently wholesome food or an apparently fit grocery product” to non-profit organizations that will distribute it to needy people without being liable for problems that might be inherent in that food.

When trash is not considered “abandoned” and it is still considered the private property of the trash can or dumpster owner then, obviously, taking all or part of that private property is theft.  In some municipalities and states, there are specific theft laws punishing dumpster diving.  Even if those laws don’t exist in a particular place, generic theft laws can be used against people who take someone else’s property whether it was in the house, in the yard, in his hands, in a trash container or anywhere else.
Look for city and state laws at http://law.justia.com/.

There is a whole article about trash ownership and abandonment in  62 ALR 5th 1 (volume 62 of American Law Reports page 1) which is available at most county and university law libraries.  The article is titled “Searches and Seizures: Reasonable Expectation of Privacy in Contents of Garbage or Trash Receptacle” and the author is Kimberly Winbush.

 

If you rent a storage facility, what kinds of contractual rights and obligations do you have?

Renting a storage facility for your things involves signing a lease, just like renting an apartment. Leases are supposed to state what rights and obligations the owner of the facility and the renter have and what should happen if either of them doesn’t complete the obligations. Typical terms in this kind of lease include: the cost of rent and when it is due, a description of the space available in the rented storage unit, a list of any items that the owner won’t allow to be stored there (explosives, biological hazards, illegal goods, flammable materials…), an explanation of the security deposit, a disclaimer saying that the storage place is not liable for injuries to people who get hurt while storing or removing their things, and the inevitable declaration about what will happen if the rent is not paid.

A lease is a form of contract which means that it is a legally enforceable agreement. Because it is ordinarily fully written when it is presented to the person wanting to rent storage space, rather than being the type of contract that is written by both parties to the agreement who negotiate the terms before writing them down, the renter has very little room to bargain. It is as if the owner of the storage facility is saying, “You can rent a space if you agree to all of these terms.”

If you are not willing to agree to any particular terms that are written on his lease, you have to write that on the document to be signed. To convey definitely that you do not agree to terms, circle or mark out or underline or otherwise note any terms you cannot agree to and state in the margin near each of them that you do not agree to abide by that requirement. Simply telling the facility owner that you do not accept his terms will not protect your interests.  A judge is unlikely to believe that you truly did not agree with the written contract if you read it well enough to discuss unacceptable terms with the owner and then you signed it anyway, without changing the written terms. Remember, of course, that the facility owner does not have to agree to your changes any more than you have to agree to his terms. He has the space you need and he can leave it empty or rent it to someone else if you refuse to use it according to his terms.

Some states have statutes for the sole purpose of backing up self-storage leases. These statutes give the rules for evicting the possessions because there isn’t a human tenant or business to evict from the owner’s premises. One of the standard rules is that the owner of the possessions is supposed to be notified by mail, at the last known address, that the owner of the self-storage place is going to sell the possessions if the owner of those possessions does not pay the past-due rent.

For people without homes, this is a completely ineffective form of notice. In Delaware, the law requires that in addition to mailing that warning, the self-storage place must advertise the warning in the newspaper.[i]  This would not be a big expensive embarrassing ad in the social section; it would be a small cheap formulaic ad buried in the classified section. A person who had missed enough rental payments to be at risk of having his or her possessions sold would either have to read all of the legal notices in the classified ads every day or somehow know exactly when the storage facility happened to be advertising.

In Michigan, instead of requiring the newspaper ad, the law says that owners of self-storage places should mail the warning to the last known address of the possession owner and also, if the renter has provided adequate information, to another person who is likely to know how to locate that person.[ii]   Some of these laws may seem to be insensitive to the difficulties of people who are homeless, however, if renters have not paid their bill and have not appeared in person or otherwise made themselves available for communication, the law has to protect the other party to the contract who has held up his end of the bargain.

The Self Storage Association lobbies for legislative action on behalf of self storage facility owners. You, as a customer, might like to understand their positions on issues such as safety, cleanliness, online auctions, tenant insurance, and other issues in advance of communicating with a particular facility about any legal issue.  As a tenant, you might also seek information and possibly support from your state consumer protection office if you are having trouble dealing with a storage facility.

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[i] 25 Delaware Code Section 49.

[ii] Michigan Code 570.523 Section 3(4).

Under the law, what happens if a homeless person is found dead and nobody knows who it is?

**** 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. ****

State laws require coroners and medical examiners to investigate unexplained deaths and deaths that are likely to have resulted from a crime (attack, illegal drug use, etc…).[1]  So, if you die outside, in an abandoned building, or at a shelter or anyplace else outside of a hospital without having had a recently treated medical condition, the coroner or medical examiner will have to figure out the cause of your death. This might be a quick death scene evaluation where they can quickly determine that the victim died of exposure or it might be a longer investigation at the coroner or medical examiner’s lab.

In connection with determining the cause of death and issuing a death certificate, the coroner or medical examiner typically has a legal obligation to identify the person who has died.[2]   This might involve going through the decedent’s possessions, accessing police records, tracing dental records, searching through databases of missing persons,[3] tracing DNA…  The state’s “disposition of body” or “vital records/ death certificates” law will likely list some investigative steps for coroners and ME’s needing to identify bodies.  If the law does not list investigative steps, the guidelines for these investigations could arise from coroners’ professional standards published by the state coroners’ or medical examiners’ professional association or else an internal policy manual for the particular county coroner or medical examiner’s office.[4] 

State laws use the phrase “unclaimed dead bodies” to refer to people who have died without identification and whose remains have not been collected by relatives or others prepared to provide for burial or other final disposition.  These laws, which are typically in the statutory code’s “health and safety” category tell when and how to dispose of the unclaimed remains.  Some states require burial or cremation at government expense.[5]  Some allow the state’s anatomical board to regulate disposal of the body.[6]  Some allow the bodies to be donated for medical research.[7]  Note that medical examiners post information about unclaimed dead bodies in the National Unclaimed Persons Data System. (Note: You have to create a free log-in to use the NamUs database.)
See also the FBI site that lists found remains of missing and unidentified persons.

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[1] Find those state laws through Justia, Cornell’s Legal Information Institute, or even using a search engine with terms like “California law coroner.”

[2] Sample laws:

Pennsylvania –  35 PS 450.506.1
“Notwithstanding any other provision of law to the contrary, no certificate of death or fetal death shall be issued in this Commonwealth if the body or fetal remains have not been positively identified unless the person issuing the certificate of death first obtains a DNA sample and submits the same to the Pennsylvania State Police for storage, for forensic DNA analysis, including nuclear and mitochondrial DNA typing, and for inclusion in any appropriate DNA database…”

Washington –  Rev. C. Wash 43.43.770

“It shall be the duty of the sheriff or director of public safety of every county, or the chief of police of every city or town, or the chief officer of other law enforcement agencies operating within this state, coroners or medical examiners, to record whenever possible the fingerprints and such other identification data as may be useful to establish identity, of all unidentified dead bodies found within their respective jurisdictions, and to furnish to the section all data so obtained. The section shall search its files and otherwise make a reasonable effort to determine the identity of the deceased and notify the contributing agency of the finding.”

South Carolina – Code 1976 17-5-57-
“If the body cannot be identified through reasonable efforts, the coroner must forward the body to the Medical University of South Carolina or other suitable facility for preservation.”

New York  – NY [Executive] Section 838 (McKinney)
“Every county medical examiner shall furnish the division promptly with copies of fingerprints on standardized eight inch by eight inch fingerprint cards, personal descriptions and other identifying data including date and place of death, of all deceased persons whose deaths are in a classification requiring inquiry  by the coroner where the deceased is not identified…

[3] Read Nancy Ritter, Missing Persons and Unidentified Remains: The Nation’s Silent Mass Disaster, NIJ Journal issue 256 (January 2007) https://www.ncjrs.gov/pdffiles1/nij/jr000256.pdf which is a Department of Justice article about use of the state and federal missing person registries.

[4] These manuals are not easily available. Here are the standards for autopsies from the National Association of Medical Examiners. https://www.thename.org/assets/docs/2016%20NAME%20Forensic%20Autopsy%20Standards%209-25-2020.pdf  If a manual isn’t available in your public library or the county law library, you might find excerpts posted on the county medical examiner’s Web site which you can navigate to via http://www.statelocalgov.net/.

[5] Examples:  New York. Social Service Law Section 141; California Health and Safety Code Section 7104; Nevada Revised Statutes Chapter 451.400; DC Code Title 5, Chapter 14, Part 11 (5-14-11); Official Code of Georgia Title 31 Chapter 21.

[6] Examples: Texas Health & Safety Code Section 691.023; Colorado Revised Statutes 12-34-201; Florida Statutes Chapter 406 Part 50.

[7] Examples: Ohio Revised Code 1713.34; Arkansas Code Title 20, Chapter 17, Sub-chapter 7; Delaware Code Title 16 Chapter 27 part 02.

What legal rights do you have if the police are rough with you?

**** 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. ****

Police are authorized to use force as necessary to stop and detain a suspect,[i] but if they use excessive force beyond what is needed to control the suspect, they can be found guilty of assault and possibly violating the suspect’s civil rights.[ii] If this happens to you, you can file a complaint with the Department of Justice.

There is not one specific law that declares how much force can be used because the circumstances in which police encounter suspects are so variable. The United Stated Department of Justice has a compilation of definitions about how much police force is permissible.[iii] It quotes the U.S. Commission on Civil Rights saying, “in diffusing situations, apprehending alleged criminals, and protecting themselves and others, officers are legally entitled to use appropriate means, including force.” It also quotes a Bureau of Justice Statistics statement that “the legal test of excessive force…is whether the police officer reasonably believed that such force was necessary to accomplish a legitimate police purpose.” The Department of Justice will also accept and investigate complaints of police misconduct.[iv]

The police officer’s determination about how much force to use is based mainly on the suspect’s behavior.   Sometimes, mentally ill people behave in ways that demonstrate hostility and dangerous unpredicatbility to the police.  Homeless advocates seeking less forceful police handling of mentally ill homeless witnesses, arrestees, and prospective arrestees should read the Council of State Governments Justice Center’s March 2010 report putting forth data and ideas about police interactions with the mentally ill.  The report contains research results and also research questions and policy recommendations for police departments to follow.

Many communities have created citizen police oversight programs that have ordinary local citizens collecting and investigating claims of police misconduct. Four models of programs have been identified:

1. those in which citizen review boards accept and investigate reports from the public
2. those in which the police department takes the complaints and then passes them along to the citizen review committee for further evaluation
3. systems in which the citizen review is only available as an appeal process after the police department has already handled the situation in its own way and
4. those in which complaints are filed with and handled by police departments and then an independent auditor reports to the public about the incidents and how they were handled.[v]

These programs exist with the hope of resolving problems more efficiently than would be possible through litigation. Efficiency means not only rectifying a particular dispute as soon as possible, but also quickly fixing the problem that led to the complaint against an officer. Sometimes the underlying problem is a stressed or violent officer and sometimes the underlying problem is stressed or uncooperative citizens. When the officer is found to be the cause of the problem, his department can retrain, reassign, or otherwise work with him to prevent future incidents that would be similar. When the problem arises from perceptions or behaviors by members of the public, the police department or another unit of the local government can implement a community education program to help avoid recurrences of that kind of problem.

The report that identified the four types of citizen involvement programs also found that victims of harsh police treatment feel validated when citizen review agrees with them and that the victims appreciate that their assistance in fixing a community problem has been valued.[vi]  Additionally, the report notes that police departments and local governments like to solve police misconduct issues using citizen involvement because it “improves their relationship and image with the community”[vii]  and helps them know, earlier than they would otherwise know, how and when officers are getting rough with people which not only stops problems sooner, it also helps them avoid getting sued.[viii]

When somebody does decide to sue the police for using excessive force, the first problem to overcome is the vague notion of how much police can do to physically restrain a suspect. Without a clear legal standard to compare against, plaintiffs have a hard time asserting exactly what was violated. The defending police department can respond by saying that there is no legal basis for the allegation. The next challenge in making a police abuse case is finding a way around sovereign or qualified immunity statutes which protect the government and public employees from being held liable for intentional or negligent harm they might cause while doing their jobs, unless they violate exact statutes or constitutional provisions.[ix]

Generally, in police excessive force cases, instead of suing with a personal injury claim, such as battery or infliction of emotional distress, plaintiffs sue in federal court using a Constitutional law claim. The claim is that an officer who hurts a suspect has committed an illegal seizure under the Fourth Amendment.[x]  Usually, people think of seizure as a situation when a possession has been taken away. But, in these police excessive force claims, it is dignity and health that have been taken away. The courts have specifically stated that “Where an excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right to be secure in their persons against unreasonable seizures of the person.”[xi]

When deciding whether the force was excessive, the courts look at three things:

1. how severe the crime was (because the police might need to be more forceful with a violent criminal)
2. whether the suspect is likely to still be dangerous (for example if it is expected that the suspect still has a weapon or if the suspect is loud or aggressive when the police arrive) and
3. whether the suspect is trying to fight with or get away from the police.[xii]

Although torts claims, such as battery, can result in financial awards from the court, constitutional claims can only result in changed behavior. So, in addition to claiming that rough police conduct violates their Fourth Amendment rights, victims also claim that the police conduct violated their civil rights.[xiii]  The federal civil rights statute is Section 1983 within Title 42 of the United States Code.[xiv]  Most people just call it “section 1983.” Under that statute, victims of excessive police force can collect reimbursement for their out-of-pocket costs including medical bills and lost wages and they can also collect punitive damages to make the police department suffer financial punishment for having an officer who hurt somebody.[xv]

The final major challenge in proving that police used excessive force is collecting the necessary evidence. To prove police brutality against one person, the ordinary array of proof such as witness testimony, medically documented physical injuries, and analysis of the officer’s weapons would be used to make the case. But, in class action lawsuits against police departments, it is necessary to prove patterns of police misconduct by showing who tends to get rough and when that has happened in the past. The ACLU recommends that litigants investigate how often police on that force fire their guns or use their clubs and that litigants then analyze that data to see whether particular officers use weapons more than others. They also suggest looking at the age and race of the officers who use their weapons the most compared to the races and other characteristics of their victims.[xvi]

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[i] Model Penal Code §3.07(1) Use of Force Justifiable to Effect an Arrest, §3.07(2) Limitations on Use of Force §3.07(3) Use of Force to Prevent Escape from Custody §3.07(5) Use of Force to Prevent Suicide or the Commission of a Crime.[ii] Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981). See generally, Linda J. Collier and Deborah D. Rosenbloom, Arrest, 5 Am.Jur.2d. §145 (2006).

[iii] U.S. Dept. of Justice, Federal Bureau of Investigation, National Use of Force Data is available at https://ucr.fbi.gov/use-of-force.

[iv] The U.S. Department of Justice has a full explanation of the federal laws against police misconduct and instructions for filing a complaint. See United States Department of Justice, Addressing Police Misconduct, https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice.

[v] U.S. Dept. of Justice, Civilian Oversight of Law Enforcement: A Review of the Strengths and Weaknesses of Various Models is available at https://www.ojpdiagnosticcenter.org/sites/default/files/NACOLE_Civilian_Oversight.pdf.

[vi] Id. at p.10.

[vii] Id. at p.11.

[viii] Id.

[ix] There are thousands of state and federal court cases about qualified immunity. Some of the prominent U.S. Supreme Court cases include Saucier v. Katz, 533, U.S. 94; 121 S. Ct. (2001) (A police officer who quickly pushed a political demonstrator into a police van was entitled to qualified immunity because his need to act speedily to protect the Vice President from this uncooperative and potentially dangerous demonstrator was reasonable.) Harlow v. Fitzgerald, 457 U.S. 800; 102 S.Ct. 2727 (1982). (Citizens’ rights to collect damages must be weighed against the rights of public officials who constantly bear the risky responsibilities of relying on their discretion in performing public duties.) Wilson v. Lane, 526 U.S. 603; 119 S.Ct. 1692 (1999). (A defense of qualified immunity from having to pay damages is available to public officials who have not violated a particular law and were simply trying to do their work. So, when there was not established caselaw declaring that bringing news reporters to an arrest would violate the Fourth Amendment, police were granted qualified immunity from having to pay damages to the family whose home was filmed during the arrest.)

[x] U.S. Constitution Amendment IV. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

[xi] Graham v. Connor, 490 U.S. 386, 394 (1989). See also Jones v. Philadelphia, 890 A.2d 1188 (Pa. Comm. 2006) and Sacramento v. Lewis, 523 U.S. 833, 843; 118 S.Ct. 1708, 1715 (1998).

[xii] Graham v. Connor at 396; St. John v. Hickey, 411 F.3d 762,771 (6th Cir., 2005); Payne v. Pauley 337 F.3d 767, 778 (7th. Cir. 2003)

[xiii] Glenda K. Harnud, et al, Civil Rights: Excessive Use of Force 14 CJS §140

[xiv] 42 U.S.C. §1983. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…”

[xv] Wagner v. Memphis, 971 F.Supp. 308 (W.D Tenn. 1997); Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625 (1983); Newport v. Fact Concerts, 453 U.S. 257, 101 S. Ct. 2748 (1981).

[xvi] The ACLU’s Fighting Police Abuse: Community Action Manual is available for free online at http://www.aclu.org/police/gen/14614pub19971201.html. The section titled “Gather the Facts” has the suggestions mentioned here.

If you lost your home because of a tax lien or other tax matter, and the tax authority collected the debt by selling your home, there might be leftover profit from that sale that you are entitled to. How can you collect that if you don’t have an address?

**** 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. ****

Property tax sales are generally conducted by the municipal or county governments that collect property taxes. This means that it is necessary to look in the municipal or county code to find the rules about when and how properties will be sold to pay-off a property tax debt.[i] The phrase “tax sale excess proceeds” will likely be the heading for the rules section about money owed to the homeowner after the house is sold to pay the tax debt.

The rules will establish a schedule for property tax sales. Perhaps the town or county only has one property tax sale every quarter. Maybe property tax sales occur on the last Friday of the month. Usually, the schedules establish a short enough time within which to sell the home that the person who lost the home can still be located. Knowing that there is likely to be money coming from the sale of his home, a newly homeless person must remain in contact with the agency (probably the sheriff’s department) selling the house.

Note that even though this question is about losing a house because of a tax debt, the same legal analysis works with any debt in which a house was collateral. If the house is taken away to pay debt and is then sold by the creditor for more than the amount of money owed, the debtor is supposed to get the leftover money. The legal right to collect those proceeds does not always come from any particular law. It is a simple common law principle of debt law that the creditor is only entitled to the amount he is owed.[ii] Some states might have this principle included in their statutes. Some agencies such as state departments of revenue or banking might include it in their separate regulations. Whether it is written in the law or not, this principle still holds true.

In the hassle and confusion of losing the house and trying to get re-established elsewhere while dealing with the financial papers and tumult, anyone might lose track of procedures. It is easy to understand how someone in these circumstances might not recall who to go to for a refund. In most states, the treasurer’s office keeps track of “unclaimed property” – a fancy way of saying money that rightfully belongs to citizens whom the government cannot locate.[iii]

“Unclaimed property” might be these excess proceeds from creditor house sales, unclaimed stocks, old certificates of deposit, neglected bank accounts, money from insurance policies, and more. Anyone who can use the Internet can search the state treasurer’s unclaimed property database.  A claimant can write a letter to the state treasurer instead filing a claim online. State agencies do understand that for many people the Internet is hard to use or is not available

In many states, simply finding the unclaimed property listing on the Internet is only the first step toward getting it back. There is usually a form to submit, a signature to be notarized, and that ever challenging proof of identity. As in dealings with the federal agencies, it is generally feasible for a homeless person dealing with the state treasurer’s office of unclaimed property, to either use a street address where he doesn’t live but can receive mail or to prove his identity with the help of social service agencies where he is known as a client.

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[i] Here are some examples of tax office notices to homeowners whose houses are sold to pay off tax debts:
– Brazoria County, Texas

The sale of property for delinquent taxes may generate excess funds over and above the amount of judgment.  These funds must be turned over to the clerk of the court issuing the order of sale for safekeeping.  The retention period is two years from the date of sale.

Once the District Clerk’s Office receives the excess proceeds from a tax sale, a certified letter will be sent to the defendant within 31 days of receipt. To release the money, we must have a court order signed and dated by the presiding judge. The payor’s name, address, the amount of money as well as the person to whom the check is to be made payable must also be provided within the order.
http://www.brazoria-county.com/dclerk/AccountingRegistry.asp–
Sierra County, California
“If the property is sold, lien holders and the former owner may claim proceeds in excess of the taxes and costs of the sale.”   http://www.sierracounty.ws/county_docs/collector/faq2012.pdf
Alaska
“If the proceeds of the sale of tax-foreclosed property exceed the total of unpaid and delinquent taxes, penalty, interest, and costs, the municipality shall provide the former owner of the property written notice advising of the amount of the excess and the manner in which a claim for the balance of the proceeds may be submitted. Notice is sufficient under this subsection if mailed to the former record owner at the last address of record of the former record owner.” Title 29 Alaska Statutes Chapter 45 Section 480.
http://touchngo.com/lglcntr/akstats/Statutes/Title29/Chapter45/Section480.htm (Site not published by the state of Alaska.)

[ii] Dan B. Dobbs, LAW OF REMEDIES- DAMAGES, EQUITY, RESTITUTION§4.1 (West, 1995)

[iii] State unclaimed property offices are listed at http://www.unclaimed.org/. (Enter as an “owner.)The federal unclaimed property office (where you can find out about pension funds, mortgage interest refunds, etc…) is at http://fms.treas.gov/faq/unclaimed.html.

If you earned money this year, but you don’t have an address to put on the tax return, do you still have to pay the taxes?

**** 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. ****

Basically, anyone who earns more than about $12,000 (single)[i] during one year in the United States has to pay income tax whether he has an address or not. People can definitely earn enough money to owe income tax even though they cannot afford housing. Day laborers can certainly earn more than a few thousand dollars  in a year. Trust funds can pay someone more than the minimum taxable amount in a year.

An interesting definition relevant to the beginning of the tax return might cause a homeless person to think that income tax returns do not apply to them. While in most encounters with the Internal Revenue Service, people are referred to as “taxpayers,” the income tax returns refer to the person responsible for the form as “head of household”– defined in the tax code as someone who “maintains as his home a household which constitutes for more than one-half of such taxable year the principal place of abode, maintaining the household during the taxable year is furnished by such individual.”[ii] This definition is only meant to distinguish between the tax liabilities of people paying for the household and the people who are dependent on the ones paying for the household, not to exempt people living without a household. There is no section of the tax code establishing that a household has to be a set location, certainly not one with an address.

The first equation taxpayers figure for their tax returns is the amount of gross income which the IRS defines as “all income from any source.”[iii] Gross income includes money in hand as well as interest on financial accounts, prizes, and possibly Social Security payments- depending on the taxpayer’s circumstances. Generally, Social Security payments are not taxed if they are the only source of income. But, if the taxpayer owes taxes from previous years, Social Security payments can be garnished to pay off that tax debt.[iv]

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[i] Internal Revenue Service filing requirements as described in the IRS chart of Filing Requirements for most taxpayers.  http://www.irs.gov/publications/p501/ar01.html#en_US_2010_publink1000220675

[ii] 26 CFR Subtitle A, Chapter 1, Subchapter A, Part 1, §2(b)(1)(a).

[iii] 26 CFR Subtitle A, Chapter 1, Subchapter B Part 1, §61(a).

[iv] For a general discussion of this, see Tax Topics – Topic 423 http://www.irs.gov/taxtopics/tc423.html. For full details see IRS Publication 915 regarding Social Security and Railroad Retirement Benefits http://www.irs.gov/publications/p915/index.html.

If your pets cause damage or injuries, what can the law do to you?

**** 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. ****

Ordinarily, the civil law punishes pet owners by mandating that they pay for medical expenses and damage caused by a pet’s attack, even when it was a friendly attack with unfortunate consequences. Since those financial payments generally resolve the matter sufficiently, people are not often at risk of going to jail because a pet has ruined someone’s things or hurt someone. Unfortunately for poor people, human nature has a desire for revenge and attack victims who cannot collect any money for their suffering might just go to the police for support.

There is a spectrum of mild to drastic criminal charges that the police can use regarding pet attacks. When the attack was connected to violating the leash law or some other local ordinance, the criminal penalty will probably be a ticket.  It would probably be the kind of case that can involve an appearance before a judge, but will not involve a jury trial.

If it appears that the owner ordered the animal to attack the victim, the charge might be something like using the pet as a weapon to commit an assault. That kind of case and the others along this spectrum will be handled with all the formal proceedings of a jury trial. To prove that assault charge, there will have to be eyewitness testimony from people who saw the pet owner give the order or else there has to be background testimony from someone who knows that the animal was trained to attack people. When the prosecutor believes that the pet owner had such a lack of concern for people’s safety that he ignored signs that this kind of attack was likely to happen, the owner can be tried for criminal negligence. In situations when the victim died as a result of the attack, the owner can go on trial for homicide.[i]

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[i] A helpful book with chapters about dog bites and dangerous dogs is Mary Randolph, EVERY DOG’S LEGAL GUIDE: A MUST-HAVE BOOK FOR YOUR OWNER, Nolo Press (2007).  See also the free pet law  material from that book’s publisher. http://www.nolo.com/legal-encyclopedia/dogs-cats-pets/    Summaries of relevant cases and citations to state statutes are in Ward Miller, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 American Law Reports 4^th 446 (1987-updated to 2006).

When can the animal control authorities take away your pets?

**** 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. ****

Municipal ordinances (source 1,  source 2) regulate pet licensing as well as pets’ outdoor behavior. In most places, the local animal control authority, a.k.a. “the dogcatcher”, will take away a pet only when it has been found unattended and unleashed walking around on the loose or because it has injured people or other animals. But they can also take pets away if they believe those pets are victims of cruelty or neglect. Keeping pets outside in extreme weather and feeding pets out of garbage cans might both be considered cruel or neglectful treatment.

If you truly are the owner of an animal, as evidenced by a license, you have a constitutional due process right to be informed of where your animal is being held and what you have to do to get that pet released.[i]  Ordinarily, cities have ordinances or animal control authorities have internal rules that dictate how that information is to be conveyed to pet owners. To make a successful due process claim, you have to prove that either the process delineated in the rules or ordinances wasn’t followed or else that the lack of such rules or ordinances denies you due process.

The most common way of tracing an animal’s owner is by using the contact information on the animal’s tag. If the pet owner became homeless after that tag was issued and the contact information no longer leads the shelter or animal control office to the right person, there is not always a second way of trying to track the owner down. Similarly, if the animal does not have identification, like a collar tag or microchip, etc… showing how to contact its owners, the animal control authority generally does not have a legal obligation to try to track down an owner; the resources necessary to reach out into the community trying to find out whether anyone is missing that animal just make it too expensive a practice for the law to make it mandatory.

Although the law does not specifically say so, common sense says that if the tag information is no longer correct or it is possible that the animal’s tag came off or someone in animal control doesn’t do a job right, pet owners have to take responsibility for contacting the local animal shelters when a pet is missing. If you don’t find the pet on your own, you might never get it back; the shelter could let someone adopt your pet or, worse, they might destroy it.

Violating some pet behavior laws will result in fines rather than confiscation of the pet. Failure to clean up after a pet or walking it without a leash or not preventing it from incessantly making noise are likely to result in a fine as penalty. Most of the time, pet owners are notified of these legal violations by getting a ticket, like a traffic ticket, in the mail. But, police officers can simply hand that ticket to someone who does not have a known mailing address. Even if you get a ticket (a.k.a. citation) that does not fully identify you by name and address and even if you cannot pay the fine, you still need to communicate with the animal control authority and possibly your local court, depending on how the pet ordinances are enforced in your town.

If you have not found a way to correct the lack of a leash or loud dog or other problem before going to court, it is appropriate to ask the court for help in obtaining a leash or other equipment that might be too expensive for you and which will put your pet in compliance with the law; sometimes animal courts have relationships with charitable organizations that can help with those sorts of matters. If the court is not able to intervene and help you equip for legal compliance, then ask them for the names of agencies that might help and, at the same time, ask if the court will consider dismissing the ticket against you if you return to court in a week or two with the leash or muzzle or pooper scooper that will prevent the offense from occurring again.

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[i] Com. v. Gonzales, 588 A2d. 528, 535; 403 Pa. Super 157, 169 (Pa. Super. 1991); Clark v. Draper, 168 F.3d 1185, 1189-90 (Cir. 10, 1999).

Are you allowed to own pets if you don’t have housing for them?

**** 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. ****

It is a simple fact of American life that while humans are allowed to walk the streets unaccompanied and without identification, animals cannot. Befriending a bird in the park and involving oneself in that bird’s daily schedule might feel like having a pet, but it is not. Having a pet means being responsible for the animal’s care and safety. In the case of large pets like cats and dogs, not only does this mean feeling internal personal responsibility for feeding and walking a pet, but also having actual legal responsibility for licensing and vaccinating the animal. If an unlicensed animal, or even an untagged animal that is licensed, is captured by municipal authorities, it can be put to death.

Licensing a pet makes owning it legal.[i]  In order to get that license, a pet owner has to pay a fee and give an address where he and the animal live. This doesn’t always mean that by definition a homeless person cannot legally have pets; it can mean that the pet has to be registered to a legitimate address where mailings relating to the pet will be passed along to the homeless owner. This address can be a private home or an organization where the homeless person is known well and maintains regular enough contact to pick up messages.

Your local pet licensing requirements are in your city code.  Find the city code at  http://www.municode.com/library/library.aspx or, if your city is not included there, by linking through the federal government’s roster of cities. http://www.usa.gov/Agencies/Local_Government/Cities.shtml.  Looking at your city’s website, you will not only find the code containing ordinances about pet ownership, you will also find the form to submit for that license.

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[i] For more information about pet licensing laws, see Margaret C. Jasper, PET LAW, Oceana Press (2007).

If you don’t own or rent a place in which to store your possessions, but store them in somebody else’s home, do the homeowners have the right to move or use your things? Do they have the right to throw them away if you are gone for any particular period of time?

**** 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. ****

There are two areas of law to look at in answering these questions: contracts and torts.  A contracts analysis would consider whether the homeowner had agreed to take care of your things or at least store them for a particular amount of time and whether you had any obligations in return. Torts is the area of law that is known more casually as “personal injury.”  A torts analysis would look at the act of “conversion” which means taking unauthorized control over someone else’s possession.  A milder tort claim that might apply but would be harder to prove is “trespass against chattels” which is a claim against someone for unauthorized use of possessions.[i] Both a contract claim and a tort claim would be made in civil court, probably small claims court depending on the monetary damage that has been suffered.

In the contract dispute, the person whose possessions were taken or discarded seeks to show that the homeowner stopped protecting or storing the possessions. In other words, the terms of the storage bargain were violated. (A contract claim would probably apply to a situation involving the homeowner’s use of the stored possessions only if he used them so much that they wore out; only in that extreme kind of situation would it be likely to say that using the stuff breached an agreement to store and care for it.)

Since contract law comes from past cases, rather than statutes, the facts of each dispute are compared to previous cases with similar facts. Those facts have to be backed with good proof. If the possessions were in a church locker because that church had a policy that poor people could store things there for up to thirty days, then the court claim would have to include a copy of that written policy or admissions from church officials about the existence of the policy.[ii]

If the possessions were suddenly gone from a friend’s basement, the claim would have to demonstrate where and for how long the friend agreed to keep the stuff. Relatives of the homeowner might serve as witnesses to the agreement. Perhaps the homeless person can convince the court that he had another place where he would have moved his things had he not relied on this friend to keep them.

Clearly, there will be different facts involved with each situation, but the person trying to prove that an agreement existed always has to show as much detail as possible about the content of the agreement and the way both of the parties to the agreement knew those terms. Then, conveying that the terms were not followed will convince a court that the contract was breached.

To make the conversion claim, it is necessary to prove that even though the homeless owner of the possessions put them in the custody of the homeowner:
1. the homeowner took control over the stuff and
2. the homeless owner of the stuff could not get it back after asking for it or was not even able to ask for it.

Under the common law, and still in many states, the court claim to sue someone who has converted someone else’s possessions to his own is called “trover.” In filing that kind of lawsuit, it is proper to say something like, “the plaintiff is suing the defendant in trover to recover money damages for the television that plaintiff stored in defendant’s house and which defendant converted to his own possession by installing it in his den and subsequently refusing to return it to the plaintiff.” Although this example, which was only intended to show how the words “trover” and “conversion” relate to each other, makes a claim for money damages, that is not the only remedy for conversion. It is also proper to sue for return of the possessions, especially if they have sentimental value.

Note that a conversion claim is not only used when someone appropriates another person’s stuff. It is also correct to make a claim for conversion if someone storing things threw them away or gave them to someone else or otherwise made them unavailable to the owner.[iii]

See the Homeless Law Blog posts about court for information about bringing a contracts and/or torts case in civil court.

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[i] It has been said that both of these tort claims are really the same when somebody takes and carries away another person’s possession. Wint. V. Alabama Eye and Tissue Bank, 675 So. 2d 383 (Ala. 1996).

[ii] This example is used to demonstrate that even though the word “homeowner” is generally being used in this section, the legal reasoning applies to any private favor-type of arrangement that is not as formal as having a fee-based storage deal.

[iii] To find cases involving conversions in the state where you live, look in a West case digest or a legal encyclopedia published by West using the topic “trover and conversion.” The digests and encyclopedias will show dozens of ways that people take control over other people’s things. They will also have lots of real-life examples of how people tried to get their stuff back or tried to prevent the person who was only supposed to store it from using it.

Can people who are homeless have savings bonds or financial accounts?

**** 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. ****

The short answer to this question is that you do not have to be poor to be homeless. A person may have any number of reasons for not living in a private or permanent home. So, being homeless does not automatically mean that a person cannot have financial accounts or bonds.

Homeless or not, however, everyone has to pay taxes on the interest or dividends earned on financial accounts. Banks and investment houses are required to report their customer earnings to the Internal Revenue Service. Even when people without their own homes do not receive the tax forms or interest and dividend statements mailed by financial institutions, they are still obligated to pay their taxes because those financial assets are their property.

Having assets such as savings bonds or trusts can make a  person who is homeless ineligible for federal benefits including housing programs.[i] It might be necessary to spend those assets before applying for federal assistance.[ii]

Eligibility guidelines for Medicaid are available at http://www.cms.hhs.gov/home/medicaid.asp; housing eligibility is at http://www.hud.gov/; disability is at https://www.ssa.gov/disabilityssi/. See also the interactive benefits eligibility form at http://www.govbenefits.gov/govbenefits_en.portal.

Trusts

Trusts only make payments at certain times under circumstances that are written in that particular trust document. So it may not be necessary or even possible to spend them before applying for federal housing or food stamps, etc… The terms of the trust document might say that the beneficiary can only collect if someone dies or other things happen beyond the beneficiary’s control. If the trust pays out one big lump sum every year, that annual payout can disrupt federal benefits by temporarily making the recipient too wealthy for the program. And if a trust beneficiary just applying for federal benefits still has funds that were previously paid out from the trust, then that paid out trust money might be a high enough amount to prevent him from getting the federal benefits (housing, medical assistance, temporary aid to needy families, etc…)

People deemed by the Social Security Administration to be disabled, can benefit from a “special needs” trust.[iii]  This kind of trust can be established by an agency or a parent or guardian and the funds can come from various sources (including money awarded in a court case). The funds in the trust can only be used for disability related expenses such as equipment, therapy, and medication and will not affect federal program applications. An existing trust can be changed to a special needs trust.

Savings Bonds

Savings bonds are long-term investments identified by serial numbers. Because they can be redeemed for cash almost immediately, savings bonds count as assets in federal program applications. If they are worth more than the current asset threshold for benefits they have to be redeemed and spent before federal benefits will be granted.

Even though the owner’s address is included in an application to get a savings bond, the Treasury Department certainly would not expect that people are still at the same address years later when their bonds mature. Redeeming bonds is done in person by presenting the bonds at a major bank.

If the bonds are lost or destroyed, the owner can still cash them in by completing a form for the U.S. Treasury Department that will then be used to make sure that the bonds have not already been cashed. The information that has to go on that form is mainly for identifying the bond. You have to know the serial number, the date the bond was issued, the name and address you had when you got the bond, and your social security number.

The form, which is Treasury form PD-F-1048, also asks for explanations of when and where the bond was last seen and who else might have had access to it.[iv]  Because a replacement bond will be issued so that the owner can cash it in at the desired time, it is necessary to provide an address on that Treasury form so that you can receive it somewhere. That address does not have to be for a place where you live, only a place where you can pick up mail.

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[i] Income determines whether a family is eligible for federal housing programs. According to 24 CFR §5.609(a)(4) “annual income also means amounts derived…from assets to which any member of the family has access.”

[ii] Spending down too quickly or transferring it to someone might make an agency suspect that you still have access to the money and are trying to pretend that you no longer have it. When you read the law about a federal benefit program, see if there is a section about “spending down”.  Here is an example: 42 USC §1396p(c) is the section of the Social Security Act that tells how that agency will determine when asset transfers affect eligibility for medical assistance benefits.

[iii] 42 USC §1396P(d)(4)(a)&(c). See also, Daryl L. Gordon, Special Needs Trust, 15 Quinnipiac Probate L. J. 121-131 (July-Dec. 2000) and the following books: Stephen Elias, SPECIAL NEEDS TRUSTS (Nolo, 2005); Barbara D. Jackins, et al, SPECIAL NEEDS TRUST ADMINISTRATION MANUAL: A GUIDE FOR TRUSTEES (IUniverse, 2005).

[iv] The form for redeeming savings bonds and other related information is at http://www.savingsbonds.gov/.

Can you please help me understand why children in state custody do not qualify as homeless per the McKinney-Vento Act?

**** 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 was posted by a homeless advocate.

REPLY:

Several recent Congressional bills have proposed new ways of defining homeless children.  You can find these bills and lists of the actions Congress has taken in connection with them at http://thomas.loc.gov/.   

The proposed Homeless Children and Youth Act of 2011 defines homelessness children and teens as those identified as homeless by school districts, Head Start programs, Runaway and Homeless Youth Act programs (RHYA), and early intervention programs under Part C of the Individuals with Disabilities Education Act. 

 

In January 2009, the following definition was put forth in HR 29.  Homeless children include “…a youth verified as homeless by the director of a program funded under the Runaway and Homeless Youth Act (42 U.S.C. 5701 et seq.), or a designee of the director…a child verified as homeless under section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401) by the director or the designee of such program, and the family of such child …and a child verified as homeless under section 637 of the Head Start Act (42 U.S.C. 9832) by the director or designee of such program, and the family of such child.

In August 2008 the House of Representatives passed a revised general definition for homeless person has passed in its proposed amendments to the McKinney-Vento act.  The proposed amended act is available at Part 8 about “Homeless Prevention Activities” subpart C encourages “providing family support services that promote reunification  of (i) youth experiencing homelessness with their families and (ii) children and youth involved with child welfare or juvenile justice systems with their parents or guardiens.”  Clearly, this defnition identifies as “homeless” those children and youth who have guardians or are wards of the state through either the child welfare (foster care) system or the juvenile justice system.  The proposed amendments further call on communities to develop “policies and practices relating to the school selection and enrollment of homeless children and youth to ensure that homeless children and youths and their parents are able to exercise their educational rights…” Section 402 Community Homeless Assistance Planning Boards  (f)(B)(i)(II)(dd) .  (Click on the hyperlink above and scroll down to this section.) 

 

Families experiencing homelessness can view the National Law Center on Homelessness and Poverty’s  many resources about educating homeless children to find out about  the steps of keeping kids in school while making transitions between shelters and other temporary housing arrangements.  Another very informative resource about homeless children’s access to education is The National Association for the Education of Homeless Children and Youth.

 

Until a new definition is added, you may want to read the history of the existing law.

I looked at legislative history for the McKinney-Vento Act to ascertain how Congress came to define “homeless children and youth” as they did.  I have not found any hearing testimony or research reports that demonstrate the origin of their decision to define homeless children in connection with the places where they are located rather than in connection with the adults (private individuals or agencies) who are responsible for them.  Note that homeless adults are also defined based on their lack of “a fixed, regular, and adequate nighttime residence”. Since the definition (which is quoted further down in this message) goes to the trouble of identifying children “awaiting foster placement”, there’s reason to think that Congress must have thought about kids in state custody.  See 42 USC section 11302   See also the NLCHP’s system for determining whether a child satisfies the current definition of homeless.

I think that the only ways to figure out Congress’s reasons for limiting the definition as they did are:

 

1. To do more thorough legislative history research than I did.  I merely skimmed hearing testimonies and House Conf. Report 101-951 (2001) for sightings of the phrase “homeless children”.  You can find Congressional hearings from 1995-present for free on the Web at http://www.gpoaccess.gov/chearings/index.html.   You can find numerous congressional reports and statements about proposed and existing legislation by searching the terms “homeless children” in the Congressional Record http://thomas.loc.gov/home/r101query.html.  Note that this link takes you to the 101st Congress which debated amendments to the McKinney Vento Act.  You can change the number 101 in that Web address or click on the session links on the Congressional Record screen to search in a different session of Congress.  The 106th and 107th Congresses also have a lot of relevant material. 

 

2. To contact your legislators and enlist the help of their legislative aides in tracking down the reason for excluding foster children and kids in other forms of state custody.  Find your representatives and senators.

 

You might find some useful information in one of these articles:

 

Strong, James H. and Virginia M. Helm, Legal Barriers to the Education of Homeless Children and Youth: Residency and Guardianship Issues, Journal of Law and Education v. 20 no. 2 pp. 201-218 (Spring 1991)

 

Ernst, Greg and Maria Foscarinis, Education of Homeless Children: Barriers, Remedies, and Litigation Strategies, Clearinghouse Review vol. 29 no. 7-8 pp. 754-759 (Nov. – Dec. 1995).

 —Ask your public library to get you photocopies of these articles  through Interlibrary Loan.—

 

Clearly, advocates are still trying to convince Congress to broaden the definition of homeless children and youth.  Here is a quotation from Jim Purcell, Executive Director Council of Family and Child Caring Agencies, speaking at the House Committee on Ways and Means, Subcommittee on Income Security and Family Support on February 27, 2008.

 

“We also encourage members to weigh in during the reauthorization of No Child Left Behind (NCLB) law. CWLA has joined together with a number of other groups including some of the advocates for homeless children and families to amend and to increase funding for the McKinney-Vento Homeless Children’s program to clarify current law to assure that foster children are covered by the same protections for homeless children.” 

 

Link to the Child Welfare League of America.

Should you need it for any purpose, though I expect you already have it, here is the definition of “homeless children and youths” from 42 USC Section 11434a:

 

(2) The term “homeless children and youths’–

 

(A) means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 11302(a)(1) of this title); and

 

(B) includes–

 

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;

 

(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 11302(a)(2)(C) of this title);(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in section 6399 of Title 20) who qualify as homeless for the purposes of this part because the children are living in circumstances described in clauses (i) through (iii).

 

 

What legal rights do users of public bathing facilities have?

**** 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. ****

Aside from the already mentioned health regulations stating that where there are toilets there must be sinks and where there are sinks there must be soap, the legal rights connected to using public bathing facilities depend, as always, on whether the place is run by the government or a private entity. The particular activities that people may undertake in the facility depend on the staffing, physical plant, and monetary resources of the place and are not a matter of law. They do not have to allow shaving or nail cutting or tooth-brushing, for example. They might only have showers, not bathtubs. They might only allow people to bathe individually to prevent people from having sexual encounters there. Law is about the way people and government behave toward each other and how society operates, it rarely ever declares that people are entitled to do any particular activity in a certain place.

Sometimes there are bathing facilities at churches, shelters, nonprofit community centers and other privately operated places that are funded by donations from individuals and businesses. These privately operated facilities are obligated to function according to the direction of their own boards and their funding sources. This means that private facilities can have their own rules and limitations about the circumstances under which they allow people to wash there or obtain hygiene supplies. It also means that they can be unfair in providing their services: allowing some people to have more time than others, excluding some people, not providing notice of rule changes, etc…

If a private agency or organization gets government funding toward a particular service, like establishing bathing facilities, there may be regulatory legal obligations connected with using that funding. The whole facility is probably not subject to those obligations,[i] only the component providing the government-funded service. To find out abut those obligations, which will probably be about the way the service is provided and the conditions of the facility, it is necessary to find out which government agency (i.e., state department of health or county department of welfare or city special grant bureau, etc…) gives that funding and then contact that government agency to obtain a copy of the regulations and instructions for interacting with them if you believe their regulations have not been followed.[ii]

Sometimes, municipalities or counties install public showers and other washing facilities as part of food banks, health clinics, community centers and other social service agencies that those government entities operate. Those kinds of facilities are considered government property because their buildings and their operations are paid for out of the ordinary tax base either through the regular budget stream or specially-dedicated government funds like limited term grants. Public users are entitled to civil rights protections when accessing these government operated facilities. The civil rights protections include things like equal access, freedom from religious impositions (i.e., they can’t force you to say a prayer or participate in religious counseling in order to obtain the service), free speech, freedom from being searched unless the search is a routine security process used for everyone, privacy…   (Read more about civil rights on Findlaw.)

All of the rights enumerated in the last paragraph are simply listed as general civil rights principles. Civil rights principles arise from the ways court cases interperet amendments to the U.S. Constitution.  So, civil rights is an area of law in which there is often not a clear rule for everyone to follow.  Rather, it is a constant analysis of comparisons:

1. weighing the government’s purpose along with its rule and

2. determining whether the rule, as applied in the situation being questioned, is structured just to serve that government interest. If it limits people unfairly by going beyond the scope of the government interest, it violates civil rights.

A helpful resource for learning about civil rights is Justia’s Annotated U.S. Constitution.  Read the sections about the Amendments to the Constitution to find easy explanations of how courts have interpreted those amendments.  Note that the list of amendments tells what subjects are covered in each amendment (due process, free speech, etc…)  Click on the hyperlinked name of any case on that site and you’ll get to the Supreme Court’s full decision.

Here are two examples demonstrating how civil rights can be outweighed by significant government interests:

•  If a member of the public, who routinely carries a weapon, comes to the public washing facility, the facility can probably justify locking the weapon away while the visitor is on the premises because the facility has an obligation to prevent harm to its staff and users.
• People are supposed to have the right to free speech in a public place. However, if someone comes into a washing facility and makes threatening comments to other people bathing there, the facility (i.e., the government) may be at risk of losing the victims of those comments. If the whole purpose of the washing facility is to give people a place to get clean and try to avoid disease, but people were too scared to go there, then it wouldn’t be an effective washing facility anymore unless the place refused to allow threats.

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[i] The whole facility can be required to make changes in order to comply with legal requirements and accommodate the government funded part. For example, the building might have to install new doors, or fire safety devices, or a stair railing, or make other kinds of modifications to the building entrance or the building’s systems in order to make the government funded bathing service properly safe and available to public users.

[2] State agencies, such as health departments, publish their regulations in administrative codes.  All of the states’ administrative codes are available on the Internet from the National Association of Secretaries of State.

Is the government required to provide you with bathing facilities?

**** 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. ****

It has been held that a criminal defendant who was not provided with soap, a comb, and other basic hygiene amenities in jail was entitled to a new trial because his dirty and disheveled appearance may have turned the jury against him.[i] That is an example of one of the two situations in which the government is required to provide any kind of washing facilities: those in which government buildings make toilets available to the public and those in which the government has custody of someone, as in the case of the jail inmate or when the person is in someplace like a county or state-run nursing home, etc… Other than in those instances, the public cannot expect that the law entitles them to a place in which to get clean or even to get supplies for washing or other personal hygiene functions.

In government custody situations, as the previous section demonstrates, regulations about the condition of hygiene facilities in institutions might come from the government agency of which the institution is a component or from the public health code. The standards that have to be followed when public restrooms or bathing facilities are available in restaurants, other businesses, or in government buildings are in state public health codes.[ii]

A clear and detailed example of standard public restroom requirements is in the Illinois public health code which includes specifics like, “Lavatories shall be provided and located within or immediately adjacent to all toilet rooms or vestibules. All lavatories shall be provided with hot and cold running water that can be tempered by means of a valve or combination faucet” and “A supply of bar, liquid, or powdered hand-cleaning soap or detergent in a dispenser shall be available at each lavatory.”[iii] The Kentucky public restroom regulations are also very detailed with statements like, “an adequate supply of toilet tissue shall be provided at each toilet facility at all times” and “hand washing facilities, including running water, soap, and individual cloth or paper towels, or other method for drying hands approved by the cabinet, shall be provided…The use of the common towel is prohibited.”[iv]

Oddly, even though there are no general legal requirements mandating public bathing facilities for people who don’t have homes, there are some circumstances in which the government provides hygiene supplies to members of the public who don’t need something as basic as a place to bathe and who aren’t necessarily financially needy. Notable examples of this are equipping drug users with clean syringes and dispensing condoms to teenagers.

The legal sources for these actions are public health regulations, made by state and county health departments, often in furtherance of the government’s interest in preventing the spread of HIV or other viruses, diseases, etc… It seems reasonable to ask why a government would make a law entitling members of the pubic only to such limited hygiene supplies and not just ordinary sinks and showers that are fundamental to fighting so many kinds of sickness. Lobbyists for the poor, and poor people themselves, can ask that question of lawmakers if bathing facilities are not available in a community.

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[i] State v. Maisonet, 763 A.2d 1254 (N.J. 2001).

[ii] State health agencies’ Web sites are listed at http://www.cdc.gov/mmwr/international/relres.html. Within each agency’s site, look for a link to “laws” or “regulations” or use their search tool for more specific terms such as “cleanliness” or “homeless” or “shelter,” etc..

[iii] Ill. Admin. Code tit. 77, § 895.50(g), (g)(1) (2007).

[iv] 902 Ky Admin. Regs. 10:010:2:7, 12, 13 (2006).

Is it legal to kick someone out of a store or restaurant just because he or she smells bad?

**** 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. ****

Yes, businesses serving the public have the freedom to eject prospective customers just because they smell bad. In fact, they can kick people out just because they are not wearing shoes or a shirt. Stores and restaurants do not have to do business with anybody if they don’t want to. Granted, they cannot discriminate on the basis of disability or race or other categories recognized under the Equal Protection Clause of the Constitution.[i]  But, being dirty and smelling bad (no matter how anyone measures the badness of smell) are simply not protected by law the way race and disability are.

There are some contract claims that could arise if a customer is told to leave after he has started to make a purchase. Under contract law, people have legal obligations to each other if one has offered something and the other has accepted the offer and done something to rely on that offer. Making payment is usually the action that shows that the buyer is relying on the seller to fulfill the order. So, at the point when a customer has already ordered food or merchandise and has paid for it, the business has a contractual obligation to return the money or provide the order.

If it is a sit-down restaurant and the customer ordered the food expecting to stay there and eat it, but was then told that he could only have the food to go, the customer could claim that he was entitled to get his money back on the grounds that the contract was breached by the business which, in giving him takeout food instead of an in-restaurant experience, was changing the terms of the deal without getting the customer’s agreement.

There isn’t necessarily anything tangible to be gained by having this understanding of the legal analysis; the dispute isn’t worth enough to take to court and there wouldn’t be any change in the business’s practices just because of one lawsuit. Nevertheless, knowing how the law would apply to this kind of transaction can help a person decide in advance how to control the communications and the result.

Since a deal is normally not solidified until the money is handed over, the customer should not pay that money until he has clearly been assured of what he will get for it. If the situation is one in which the goods or services are provided first and money is paid after that, the merchant takes the first risk not the customer. In that case, the merchant is the one looking for the assurance that the customer will uphold his end of the deal.

Think about the scene in the sit-down restaurant again. A dirty smelly customer comes in, is seated, looks at a menu, and maybe even orders. It is conceivable that at this point the manager of the restaurant could think that this customer might not be able to pay. If the restaurant hasn’t served the food yet, and the manager asks the customer to leave, the customer can indicate that he does have the money to pay for the meal. At that point, the manager might just admit that the customer has to leave because he smells bad. Still, the legally-informed customer can continue to handle the whole thing like a contract negotiation thereby saving his dignity while giving the restaurant one more chance to get its money. The customer can recommend to the manager that a change of seating might satisfy the restaurant’s concern about his smell and still enable the restaurant to make this sale.

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[i] See http://topics.law.cornell.edu/wex/equal_protection for an introduction to equal protection with links to state and federal constitutional sources.

Is it illegal to smell bad?

**** 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. ****

Local nuisance laws legislate against interfering with other people’s “use and enjoyment” of a place. And individual facilities or entities, including government offices, can make their own rules about how to handle bad-smelling people. The legal system is then used to argue about whether those rules comply with existing law and whether the rules are being applied in a just way.

Public buildings, meaning those operated by government, such as libraries and post offices differ from private businesses, such as malls or individual stores. Under the Constitution, these “government actors” are required to treat people in certain ways that are enumerated in the Bill of Rights and subsequent constitutional amendments as interpreted by cases analyzing those parts of the Constitution. That body of law is known as civil rights law and is supplemented by federal civil rights statutes which further regulate the treatment of citizens by government actors.

It is fundamental to a democratic government that citizens have access to government. When that access involves being physically present and the government wants to limit anything about the way access is provided, those limits have to be made within the scope of civil rights law. This kind of limit, specifically regarding the way people smell, has been examined by cases in which public libraries tried to keep bad smelling people out of their buildings.

The flagship case of precedent for bad grooming in public libraries is Kreimer v. Morristown [1] in which the federal Third Circuit Court of Appeals upheld a library rule that said “Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building.”[ii] Kreimer, a homeless library patron barred by that rule from entering the library, asserted in court that the rule violated his First Amendment rights to use the public library for reading, writing and thinking. But the court held that “this rule prohibits one patron from unreasonably interfering with other patrons’ use and enjoyment of the Library; it further promotes the Library’s interest in maintaining its facilities in a sanitary and attractive condition.”[iii]

Subsequent courts have also upheld policies excluding unclean people from accessing public libraries. But in 2001, a District of Columbia court[iv] found a library policy to be unconstitutionally vague because it listed as a minor offense, “Conduct or personal condition objectionable to other persons using the Library’s facilities or which interfere with the orderly provision of library services….[including] objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc…).”

 

The court explained that having a few examples of what a person might consider to be objectionable followed by “etc.” simply did not set forth a clear limit on what would be tolerated. That court also said the library rule violated Fourteenth Amendment due process rights because it didn’t provide enough information for patrons to know in advance whether their appearance would be acceptable, especially because any employee who happened to be watching the door could make the decision about acceptable appearance according to his or her discretion at that moment. Clearly, just because there is a policy about body odor doesn’t mean it is a legal policy.

Libraries are not the only public buildings where a person’s odor or general hygiene might interfere with the comfort of others. Courts, post offices, and transportation facilities are other examples to consider. Courts usually have various decorum rules requiring that behavior in court not distract from the trial or hearing and declaring that the court is owed respect. Judges can use their own discretion to interpret those rules and have been known to remove trial participants and even lawyers for what the judge has deemed inappropriate dress or grooming.[v]

One can reason by comparison that the amount of time spent in a post office or on a bus is much shorter than in a library or courtroom and so the odor problem would be less significant in those places. It could also be said that because access to the court for the sake of asserting or defending one’s rights is required by law, a person simply has to be allowed there in whatever condition he appears. But those kinds of analysis are simply conjectures; a jury might not agree with them. Since case law has declared it acceptable for public libraries to limit access based on hygiene, there is a foundation for the same kind of limitation in other public buildings.

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[i] Kreimer v. Morristown, 958 F.2d 1242 (3d Cir., 1992).

[ii] Id. at 1264.

[iii] Id.

[iv] Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. Cir. 2001).

[v] 17 AM. JUR. 2d Contempt §56 (updated to 2007).

If you aren’t satisfied with a free lawyer, what can you do?

**** 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. ****

 

Regarding free lawyers in criminal cases:

Numerous agencies and organizations speak out against inadequate legal representation for the poor.[i]  And there have certainly been lawsuits against individual public defenders as well as public defense systems for providing ineffective legal representation.[ii]  All of these sources and the legal rights they champion are either about reforming systems or else about the right to sue a court-provided lawyer after he has botched a case. They do not tell what someone can do if he is currently getting bad help from a free lawyer.

Although someone paying a lawyer could simply fire that lawyer and hire a different one, an indigent defendant might not be able to change lawyers. It is always possible to ask the court appointment system or the public defender’s office for a replacement lawyer. But they may not have spare lawyers available and they will have to be convinced that the inefficient disruption of reassigning a case is worthwhile.

To convince any legal service provider that something is worthwhile, it is wise to describe that thing in its legal context. So, when trying to convey that a different lawyer should be assigned to a case, an indigent client has to be able to convey to the head of the court appointed program or the head of the public defenders office that his legal rights are being compromised by the current lawyer and that the lawyer is not fulfilling his professional obligations.

It is not sufficient to simply make those claims; heads of legal offices are not easily convinced by anyone, certainly not by every complaining client. You have to be able to show how the lawyer is violating your legal rights.

If you think that your Sixth Amendment right to effective assistance of counsel[iii] has been compromised,

1. explain what the lawyer is supposed to be doing: showing up for meetings, listening to your full story, collecting evidence on your behalf, figuring out how your actions differ from the crimes charged, comparing your situation to past cases, and generally contradicting the prosecutor’s claims in any legitimate way
2. provide proof of the lawyer’s failure to fulfill these obligations: copies of helpful evidence that he has not used, descriptions (or recordings) of meetings and phone calls in which he has ignored you, a copy of the court’s docket sheet showing that deadlines were missed, affidavits from witnesses who are willing to testify but have not been contacted by the lawyer etc…

If you think that your right to due process has been compromised,

1. demonstrate the characteristics of proper process: use copies of the defenders’ office’s brochures or Web pages to prove what they claim they’ll do for defendants; bring examples from the ACLU and the Southern Center for Human Rights cases and fact sheets to show what indigent defendants can reasonably expect from their lawyers;[iv] present the ABA’s Ten Principles of a Public Defense Delivery System as recognized standards.
2. Provide proof that either the office’s standards or those principles identified by legal professional organizations like the ACLU and the ABA have not been applied in your case.

Only with clear direct standards and examples will you be able to convince your lawyer’s boss that in the middle of your case it is already evident that your legal counsel is not effective or adequate.

The Ten Principles of a Public Defense Delivery System American Bar Association[v]  1. The Public defense function, including the selection, funding, and payment of defense counsel, is independent. 2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar. 3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment as soon as feasible, after client’s arrest, detention, or request for counsel. 4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client. 5. Defense counsel’s workload is controlled to permit the rendering of quality representation. 6. Defense counsel’s ability, training, and experience match the complexity of the case. 7. The same attorney continuously represents the client until completion of the case. 8. There is parity between defense counsel and prosecution with respect to resources and defense counsel is included as an equal partner in the defense system. 9. Defense counsel is provided with and required to attend continuing legal education. 10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.

If you are not satisfied with an attorney assigned by the legal aid office to help you in a civil case, what can you do?

The legal relationship between clients and legal aid offices is contractual, just like the relationship between paying clients and their private attorneys. And the attorneys who work in legal aid offices are supposed to have the same skills and desire to give their clients the best possible legal representation as the private-pay attorneys. If the lawyer is not providing adequate representation, a client’s best strategy would be to handle it like any other consumer complaint.

The legal aid office might have a formal process for filing complaints. If they don’t have a process, writing a letter is the best way to let them know that you want better service. The letter can be addressed to the lawyer on the case as well as the office supervisor. Like the complaint about inadequate criminal representation described above, this letter should identify exactly what actions have been unsatisfactory and what risks you predict if the lawyer is allowed to continue representing you in that way.

If the case is already over and you believe that you lost because of the lawyer’s incompetence or negligence, you can sue him for legal malpractice claiming ineffective assistance of counsel. In that case, it would be necessary to prove that the lawyer failed “to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances”[vi] and that you lost the case because of that failure. You can also file a professional ethics claim against a bad lawyer. Ethics claims are brought before the state attorney licensing office, not in court.[vii]

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[i] The Southern Center for Human Rights has published many reports and articles about inadequate representation of criminal defendants http://www.schr.org/reports/index.htm; The American Bar Association published a comprehensive report after conducting hearings about court-provided criminal defense programs. The report is titled “Gideon’s Broken Promise.”

The American Civil Liberties Union (ACLU) has fought many important cases on behalf of poor people who did not get adequate criminal defense help from public defenders or court appointed lawyers.  The ACLU’s Web site has sample court documents, fact sheets, and news stories.[ii] Cases about ineffective public defenders include Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Clark, 319 F.3d. 465 (9^th Cir. 2003); Powers v. Hamilton County Public Defenders Commission docket # 02 CV 00605 (S.D. Ohio 2005) (Brought by clients who were jailed after not being able to afford court costs.)  For broad policy concepts, see the American Bar Association’s page about indigent defense systems. http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/indigent_defense_systems_improvement.html

[iii] Cuyler v. Sullivan, 446 U.S. 335 (1980) and U.S. v. Cronic, 466 U.S. 648 (1984) are two cases that explain adequate and effective legal representation.

[iv] The ACLU no longer publishes a full site about indigent defense information, but your nearest chapter likely has lots of relevant fact sheets and legal pleadings. http://www.aclu.org/affiliates  The Southern Center for Human Rights’ indigent defense information is at http://www.schr.org/reports/index.htm.

[v] The ABA’s Ten Principles of a Public Defense Delivery System are available at http://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf. The electronic document includes explanatory comments and references to related ABA professional standards.

[vi] 7A CJS Attorney and Client §327.

[vii] The American Bar Association’s Center for Professional Responsibility links to states’ legal ethics codes and attorney licensure offices. http://www.abanet.org/cpr/links.html

How Can You Get a Free Attorney?

**** 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. ****

Courts provide free attorneys only in criminal cases, when defendants cannot afford to hire attorneys.[i] They do not provide lawyers for poor people involved in civil cases.

Legal Aid offices provide free legal representation in civil cases,[ii] but litigants have to find those legal aid offices on their own.[iii] Legal Aid offices come in many forms; they might serve a particular demographic group (for example, women) or work on a limited range of issues (for example disability law). They might be available through bar associations, law schools, social service agencies, or simply as independent non-profit organizations. Usually, both criminal courts and legal aid offices use the federal poverty guidelines[iv] to determine whether someone is eligible for free legal assistance.

In some jurisdictions, there is a pool of lawyers who work full time in the criminal court system and are paid by the court system to defend accused criminals who cannot afford to hire a private attorney. Those pools of lawyers are known as public defenders. In other jurisdictions, the court system contracts, either with the entire criminal defense bar, or else just the criminal defense attorneys willing to participate, to pay lawyers to represent criminal defendants who cannot afford to hire their own attorneys.[v] In these systems, the lawyers’ names are on a roster and the court clerk simply assigns the next person on the roster as soon as a low-income criminal defendant is in need of representation. That kind of system is a court-appointed attorney system.

In many jurisdictions, the public defender’s office is backed-up by a court-appointed system when there are too many cases for the public defense team to handle.

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[i] U.S. CONST. Amend. VI. This constitutional provision plus summaries of major cases interpreting it are at http://supreme.justia.com/constitution/amendment-06/index.html and at http://caselaw.lp.findlaw.com/data/constitution/amendment06/.[ii] The federal government established the Legal Services Corporation (LSC) to fund legal aid offices that provide non-criminal legal services for indigent people throughout the country. The LSC Web site http://www.lsc.gov/ has a thorough online library of resources for self-help litigants and those seeking or suing legal aid offices. The site also has numerous reports and studies about free legal services for the poor.

[iii] Three electronic sources for locating your local legal aid offices are LawHelp http://www.lawhelp.org/, Justia http://law.justia.com/, and Findlaw http://www.findlaw.com/14firms/legalaid.html.

[iv] The Department of Health and Human Services publishes the federal poverty guidelines at http://aspe.hhs.gov/poverty/index.shtml.

[v] The American Bar Association provides a chart showing how each state’s indigent criminal defense is structured. The chart also cites the state’s indigent defense statutes. http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.pdf The ABA also provides reports about state spending on indigent defense systems and sets for the fundamental principles for indigent defense systems at http://www.abanet.org/legalservices/sclaid/defender/home.html.

Does it cost money to make a court case?

**** 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. ****

It does cost money to file a case in court though it does not cost money to file a response to a case whether it is a criminal case or a civil case. When someone comes in to file a case, the court clerk’s office charges a fee just for filing the initial document. Then there is a fee from either the court or the sheriff’s office for delivering a copy of the initial document to the opponent. After the first document in a case, each party in a case has to pay the costs of photocopying and mailing his documents to both the court and the opponent.

Then there are various kinds of costs associated with collecting and presenting evidence: Witnesses have to be paid. Scientists who analyze evidence get paid. Photographs and videotapes cost money to produce. Depositions, which are interviews with witnesses or opponents, have to be transcribed by a court reporter who has to be paid. Copies of pages from medical records can get pricey. The expenses go on and on, at least for people representing themselves or hiring private attorneys.

Litigants represented by legal aid offices, public defenders, or court-appointed attorneys do not have to pay these costs; the law offices will pay for everything. Litigants who do represent themselves in court can at least get the court’s fees waived if the court deems them to be in forma pauperis, in the form of a pauper, without the financial ability to pay the court’s costs. The courts require people seeking in forma pauperis status to file a motion declaring and demonstrating their poverty. Nearly every court clerk’s office and Web site has a fill-in the blank form to use for that procedure in their court. There is also a standard form for claiming in forma pauperis status included in virtually every publication containing the court’s rules. [i]

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[i] Federal court forms for in forma pauperis motions are at http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO240.pdf.  If that particular form doesn’t show up, go to the main forms page for the federal courts.  http://www.uscourts.gov/FormsAndFees.aspx   State courts’ Web sites can be reached from http://www.ncsconline.org/D_KIS/index.html.

Are there any rules about what you can say and do in court?

**** 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. ****

Just as there are numerous court rules for documents, there are also many rules for behaving and presenting in court. The basic understanding about courtroom decorum is that anyone who comes to court to argue a case will show respect for the court by demonstrating self-control, communicating precisely, and following the court rules. Even spectators have to behave according to court standards. Usually, this means being quiet, standing when the judge enters, and not interrupting the court proceedings. But in Minnesota, the Supreme Court ruled  in August, 2015 that people cannot even enter the courtroom to watch a case unless they present photo identification. This ruling did not mention homeless people, but it will result in excluding some homeless people from watching cases.

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Not showing respect for the court, by talking out of turn or disregarding the judge’s standards, etc… can be seen as showing contempt for the court. If the judge does consider behavior as contemptuous, he can have an offending gallery member removed from the courtroom and an offending litigant fined or jailed.

In addition to basic decorum, rules of evidence are very important in the courtroom. These are the rules that govern what kind of proof each party can present. The limitation preventing irrelevant information from coming into a case is an example of a rule of evidence.

Another important evidence rule is the hearsay rule. In federal courts and in state courts there is always some version of a hearsay rule saying that witnesses in court can only testify about what they have experienced; they cannot testify about things they heard other people say.

There are some exceptions to hearsay rules. Words spoken by someone about to die can be presented in court by a surviving witness. Documents kept in the regular course of business can be presented as evidence on their own, without their author being present. Usually, there are between twenty and twenty-five exceptions to a court system’s hearsay rule.

Another important rule to know about is the character evidence rule which says that descriptions of a person’s character are not allowed to be entered as proof that he did what he is accused of doing. For example, when a defendant is accused of committing fraud (misrepresenting facts to someone who lost money relying on those facts) a witness cannot be brought to say, “Jimmy’s a liar. He lied to me about the condition of his lawnmower when I bought it from him.” That sort of testimony might get the jury to assume that the defendant committed the fraud just because this person from years ago knew of his lying in a completely different situation.

Because of the prejudices and misconceptions that exist about homeless people, it is necessary to listen for innuendos about laziness or dishonesty or irrationality that a court opponent might be trying to state as evidence of a homeless person’s character.

Dealing with the rules of evidence gets especially tricky because there is an understanding that an opponent might not mind if the other party wants to present hearsay or an unauthenticated object or a surprise. So, litigants are required to notify the judge, during a trial, when they object to the presentation of evidence that violates the rules.

They do this by immediately declaring something like, “your honor, I object to the prosecutor’s question because it invites the witness to talk about something irrelevant to this case.” Then, the judge makes an instant decision about whether the attempted evidence presentation would violate the rules. If the judge sustains the objection, it means that the evidence will not be allowed. If the judge overrules the objection, it means that the evidence will be allowed because it does not violate the rules.

COURT RULES In order to properly communicate with the court and opponents in a lawsuit, you have to follow court rules.The four basic categories of court rules are: Rules of Civil Procedure Rules of Criminal Procedure Rules of Evidence Rules of Appellate Procedure The rules are available from numerous sources: The court’s Web site: Federal http://www.uscourts.gov/courtlinks/ State http://www.ncsconline.org/D_KIS/info_court_web_sites.html The state’s statutory code http://www.law.cornell.edu/states/listing.html The Law Librarians Resource Exchange http://www.llrx.com/courtrules/ If you are looking for print sources instead of electronic sources, look in libraries for paperback books of court rules or for the print versions of the statutory codes.

In addition to the official rules of court, every judge has standards for behavior in the courtroom. Some judges like the participants to introduce themselves in a particular way. Some judges don’t allow lawyers and pro se litigants to tell stories to set a scene. Some judges demand a conference in chambers to try to settle the case instead of having a trial.

To be sure that litigants satisfy these preferences, judges generally publish them in their biographies on the court’s Web site or mail them in a letter to each party. A litigant who does not live at an address might be able to receive court-related mail in care of a social service agency where he regularly receives services. As an alternative to that, or in addition to it, he can ask the judge’s clerk if the judge has any courtroom behavior preferences.  A homeless litigant can also make arrangements to check-in with the judge’s clerk on a weekly basis to find out whether any scheduled events have changed or to see if the opponent has filed new documents, or if there is any other kind of news or activity connected with his case.

Where do you find out how to write documents for court?

**** 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. ****

Legal forms can be accessed from http://forms.justia.com/. Another strategy for locating court forms online is to look for a link to “documents” or something similar on the court’s Web site. http://www.ncsc.org/Information-and-Resources/Browse-by-State/State-Court-Websites.aspx The Law Librarians Resource Exchange maintains an easy interface for locating state and federal court rules and forms at http://www.llrx.com/courtrules.

Documents filed in court should be typed and submitted on clean paper. This is not always a rule or a legal requirement, but it is an expectation. Courts will often accept handwritten documents as long as they contain the necessary information and are submitted to the proper office at the appropriate time. Lawyers, who are professionally obligated to show respect to the court, always file typewritten documents.

Filing neat and properly executed documents not only shows respect for the court, it also provides the opponent with the clearest possible presentation of your message.Generally, all court documents must have a caption on the first page and must be in specific order, depending on the purpose of the particular document. The caption usually tells who is suing whom and lists the name of the court, the date of the filing, and the docket number for the case. The docket number is assigned when the first document of the case is filed with the court clerk. On all documents filed after the first one, litigants must include that docket number so that their documents get filed with the same case.

There are lots of books full of sample legal forms. Law libraries will have those books. Typically, they can only be used as examples. It is rare to find a book’s fill-in-the-blank form that will be accepted by a court. Sometimes, court’s Web pages have sample forms and those can be filled-in online or else printed and filled-in. Since almost all documents filed in court become part of the public record, another way to see how to write documents is to copy and modify someone else’s pleadings.

To do so, go to the court clerk’s office and ask if there is a way to search for cases according to topic (negligence, assault, breach of contract, etc…) If there is a way for you to do that, allocate a few days in which you can dedicate yourself to looking for and reading through the documents filed in cases similar to yours. The clerk’s office will have coin operated copy machines or computer printers available.

No matter which resources tell you how to write a court document, you absolutely have to be sure the document complies with current court rules. Every court has rules about organizing and presenting documents. In fact, every court has its own rules in addition to rules from either the state or federal court system.

The rules tell how to notify an opponent that you are suing him, how to format court documents, what kind of information is required in court documents, how much time someone has in which to file a document, what options the opponent has for responding to that document and what kind of action the court will take regarding the document (i.e. whether the clerk will file it, whether a hearing will ensue, etc…).

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How do you start to connect legal research with actually proving a case?

**** 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. ****

Whether you are defending yourself in a criminal case or suing someone in a civil case, there are some basic steps to follow when making a case in court.

In criminal court, a defendant seeks to prove that the criminal charges do not match his actions, that faulty police procedures made some of the evidence inadmissible in court, and that the evidence which is presented in court does not prove him guilty.

Here is how legal research relates to those goals:

1. Read exactly how the crimes code defines that charge and think of ways to explain that your behavior does not match with that definition.[i]

2. Examine each item of the opponent’s proposed evidence against the rules of evidence.[ii] Investigate how the police obtained that evidence and how they handled it once they had it.

3. Look at the decisions in previous cases about that same charge to see how people successfully defended themselves and to see how the courts comment on the crimes code.[iii]

4. Having read the decisions in previous cases, show how your situation differs from the cases in which people were found guilty.

In a civil court case, such as a breach of contract or a negligent injury claim, a plaintiff generally seeks to prove that whomever he’s suing owed him a promise or a duty, that the promise or duty was not upheld, and that he has suffered harm or losses because of the opponents actions or inaction.

Here is how legal research relates to those goals:

• 1. Read books, legal encyclopedias, sample jury instructions, American Law Reports, and other explanatory sources to see how to depict the duty or obligation. Those sources should lead you to statutes, regulations, and cases. In case they are incomplete, look in the indexes to statutes and regulations and in case digests using every relevant word to be sure you locate all applicable law.
• 2. Using case references from those explanatory sources, read case decisions to get examples of what was necessary to prove that duties were breached.
• 3. Consult the big practitioner sets mentioned in the last text box (Causes of Action, Am Jur Trials, Proof of Facts) for help thinking about how to prove the extent of your harm or loss and how to prove your opponent’s connection to your harm or loss.
• 4. Look for books about the legal topics that apply to your case. There are helpful books about landlord-tenant law, contract law, criminal law, etc… All of these will be in the KF call number sections of libraries. If the bar association offers continuing education for lawyers, they might publish the practical training materials from those sessions and sell them to libraries. Three good Web sites that tell about proving legal issues are Justia http://www.justia.com/, Findlaw http://www.findlaw.com/, and Nolo Press http://www.nolo.com/.

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[i] State criminal codes are available at http://www.law.cornell.edu/wex/table_criminal_code. Federal crimes are available from the House of Representatives at http://uscode.house.gov.
[ii] Federal rules of evidence are at http://www.law.cornell.edu/rules/fre/. State evidence rules are at http://www.law.cornell.edu/topics/state_statutes2.html#evidence.
[iii] To find case summaries, use a state or regional case digest, such as West’s California Digest or West’s Atlantic Digest. Digests are organized in topic order. After locating summaries of cases in the digest, find the full-text of those case opinions by using the case reporter citation provided in the digest.  If you don’t have access to digests and case reporters, at least investigate the criminal charges using a legal encyclopedia. Legal encyclopedias generally summarize the main case interpretations associated with legal topics.

Representing Yourself in Court

**** 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. ****

 

Pro se means “for self” in Latin. In the legal system it is the term applied to cases in which someone represents himself, rather than having a lawyer. In almost every kind of court case, individuals have the opportunity to represent themselves. But there are all kinds of documents and actions that have to be done exactly right in a court case, not only to win, but even to keep the case alive through the numerous processes in formal dispute structure.

There is an impression that judges will be flexible and patient with people representing themselves in court. Judicial conduct codes require judges to be thoughtful and unbiased,[i] but they do not require judges to waive court formalities or provide unlimited time for people representing themselves to make their way through a case. In fact, judges trying to be unbiased might have to restrain themselves from being too helpful to litigants representing themselves.

Judges’ professional organizations have produced position papers and suggestions about keeping court fair, efficient, and accurate for self-represented claimants and also their opponents who are paying attorney fees.  [ii] In sum, judges have no legal obligation to protect or assist people simply because they have come to court without a lawyer.

Many courts have a “pro se packet” or a similarly named segment of their Web sites where case filing instructions are provided for non-lawyers. [iii]   The difference between those instructions and the ones the lawyers follow is basically in the way they are written, although they also tell how to notify the court that you don’t have legal counsel. Even though a pro se printing of the court’s requirements may be easier to read than the full-text of the court rules, the fact is that pro se litigants do not get to avoid court formalities simply because they have not hired a lawyer.

The court formalities and the strange ways that laws and cases are written make it very hard to independently navigate the legal system. New litigants often want to have someone explain a legal phrase in plain English or just summarize a whole long process in a few sentences. Those kinds of communications are forms of legal advice because they involve interpreting the law.

Sometimes, people who represent themselves in court cases find themselves asking for legal advice from the lawyer on the other side of the case. This not only puts that lawyer in an awkward ethical position,[iv] it also informs him about the case strategy. It is also unwise to ask court clerks, law librarians, and various legal system employees for advice about a case. While those people may have been tangentially involved in a lot of cases, they do not necessarily have the knowledge or information to analyze or plan a case. Only lawyers can give legal advice. Non-lawyers are at risk of being charged with the crime of practicing law without a license if they give legal advice.
The more pressing problems for the pro se litigant who seeks legal advice from a non-lawyer are:
1. that he will either get incomplete or incorrect guidance or else
2. that he will irritate that legal system employee who cannot give the desired advice. It is very annoying to be asked for help that you cannot give.

For assistance in planning litigation strategies, collecting evidence, and pleading a case in court, pro se litigants (and lawyers) can get a great deal of help from law library books in the call number ranges beginning with KF 8800 and KF 8900. That section of the library has books with sample deposition questions, instructions for writing and delivering an opening statement in court, ideas for asking questions of witnesses, recommendations for how to use evidence, tactics for effectively communicating with the judge and jury, and much more. Some books are just about bringing a case in a particular jurisdiction, others are about succeeding with specific legal claims, and others teach techniques. There are several large series’ of practice books that give especially detailed examples: Am Jur Trials, Shepard’s Causes of Action, and Am Jur Proof of Factsare the three primary sets of these. They include features such as checklists to follow for organizing a case to be sure that all of the necessary information is collected and provided to the court, examples of actual documents that have been filed in cases, lists of questions to ask in depositions before trial and cross or direct examination during trial, and suggestions for how to present evidence. There is a Web-based resource called Self Help Support.org http://www.selfhelpsupport.org/ with a library about self-representation, several listservs, a newsletter about self-representation, and other background about handling a case without a lawyer. Note that this service is not designed for individuals representing themselves in court, but is “a virtual resource for people involved with providing pro se assistance or directing pro se and self help programs.” (from http://www.selfhelpsupport.org/about/) They do not have information about specific law topics.LawHelp.org http://www.lawhelp.org/ does have topical law information. The first screen on LawHelp lets users select the state within which they are representing themselves. Within each state’s page are the topical categories (employment, children and families, health law, veterans, migrant issues, etc…) with links to legal explanations and free legal services for each of those categories. Findlaw has an ever-growing collection of articles about representing yourself in at http://public.findlaw.com/. Here is a very useful guide listing each state’s various support services for self-help litigants. http://www.co.washington.or.us/LawLibrary/upload/Collaborative_State_JD_MLS_TaskForces_April2014.pdf  Note that this list was compiled by librarian Laura Orr whose goal was to identify collaborations between law libraries, courts, bar associations, and other groups/

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[i] Code of Conduct for United States Judges, available at http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx.

[ii] Paula Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape, Court Review (published by the American Judges Association) (Winter 2003) available at http://aja.ncsc.dni.us/courtrv/cr39_4/CR39-4Hannaford.pdf;  Here is an article called Pro Se Litigation: Best Practices from Judge’s Perspective.

[iii] Federal court Web sites are available through http://www.uscourts.gov/courtlinks/. Look for a link to “documents” or “communications” that might link to instructions for filing a pro se case.

[iv] Forms for self-representation in state courts are available via the National Center for State Courts at http://www.ncsc.org/Topics/Access-and-Fairness/Self-Representation/State-Links.aspx?cat=Court%20Forms. The National Center for State Courts also has other helpful information about self-representation. Simply go to http://www.ncsconline.org/ and search within the site using the phrase “self-representation.”  Also, take note of NCSC’s resource guide for self-help litigants. http://www.ncsc.org/topics/access-and-fairness/self-representation/resource-guide.aspx

[v] Rule 4.3 of the Model Rules of Professional Conduct prohibits lawyers from giving advice to litigants who are not their clients. Link to states’ lawyer ethics material at http://www.abanet.org/cpr/links.html.

What are the stages of a criminal prosecution?

**** 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. ****

1. Arrest– being taken into custody by police in order to be charged with a crime.

Who you interact with: arresting police officers and booking police officers

Basic legal rights at this stage: right to remain silent rather than responding to police questions and the right to seek a lawyer’s help for interactions with the police, the prosecutor, and the court. These rights come from the Sixth Amendment to the U.S. Constitution and similar components of state constitutions, as interpreted by court cases.

The Sixth Amendment and links to cases about the right to representation are available at: http://supreme.justia.com/constitution/amendment-06/index.html
2. Arraignment– a pre-trial court appearance where the charges are put on record and the defendant pleads guilty or not guilty. No evidence is presented and no arguments are made. It is simply a first chance for the prosecutor and the defendant to each formally put their positions in writing. “He committed this crime.” “No I didn’t.”

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to hear what crimes the prosecutor plans to prove. The state or federal rules of criminal procedure http://www.llrx.com/courtrules/ tell specifically what information has to be conveyed to a defendant at this state. If the criminal charges are serious enough that the defendant can be punished with imprisonment, the defendant has a right to have an attorney represent him in future court appearances and transactions involved with this case.

3. Preliminary Hearing – a pre-trial court appearance where the prosecution has to demonstrate that it has enough proof to demonstrate that the elements of the crime were met by this defendant’s actions.

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to contest the prosecutor’s claim that he can prove the elements of the crime. The state or federal rules of criminal procedure tell how a defendant can respond to the prosecutor’s claims at this stage. Generally, there is nothing written at this stage. When the prosecutor finishes telling about his case, the defendant (or the defendant’s lawyer) tells what the prosecutor’s claim is missing. For example, if the prosecutor says that the defendant committed burglary-breaking and entering with the intent to commit a crime-but then doesn’t show how he can prove whether the defendant actually entered the place, the defendant can point out to the hearing officer that the prosecutor has not shown that he can make the case. Find the crime components, which the prosecutor has to present, in your state’s crimes code or your local ordinances at http://www.justia.com/us-states/ or http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code.

See the Rules of Criminal Procedure http://www.llrx.com/courtrules/ to find out how the hearing is supposed to be conducted.

4. Indictment or Information– filing with the trial court a written list of the charges approved in the preliminary hearing.

Who you interact with: This is not a proceeding in which the defendant interacts with anyone. The prosecutor communicates with the court by submitting the document.

Basic legal rights at this stage: The right to receive a copy of the indictment or information. This is not always an automatic right; the document might be provided only when the defendant requests it from the court clerk. The state or federal rules of criminal procedure regulate the way this document is written and presented to the court as well as how and when the defendant can get a copy of the indictment or information.

Rules of Criminal Procedure http://www.llrx.com/courtrules/

5. Discovery – parties collect information from each other. The prosecution is typically required to provide the defendant with copies of evidence and names of witnesses that are relevant to the case. The defendant is usually required to provide the prosecution with the results of mental or physical health exams related to the case and a list of experts and other witnesses.

Who you interact with: the prosecutor and witnesses for your defense

Basic legal rights at this stage: the right not to incriminate yourself and the right to know what evidence the prosecutor plans to use. The right against self-incrimination comes from the Fifth Amendment to the U.S. Constitution and similar components of state constitutions as interpreted by cases. The right to full disclosure of the prosecutor’s evidence comes from the state or federal rules of criminal procedure.

Fifth Amendment http://supreme.justia.com/constitution/amendment-05/index.html  

Rules of Criminal Procedure http://www.llrx.com/courtrules/

6. Trial – elaborate court presentations in which the prosecutor tries to prove that the defendant is guilty of the crime and the defendant tries to prove that the prosecutor has not proved his claims.

Who you interact with: judge, jury, witnesses, prosecutor

Basic legal rights at this stage: right to a fair trial which comports with all of the rules of criminal procedure including the right to object to improper evidence, the right to present evidence contradicting the prosecutor’s assertions, and the right to cross examine the prosecution’s witnesses. These rights come from previous cases as well as the rules of criminal procedure.

To find cases about trial techniques, look under the topic “trial” in any source published by Thomson West Publishing. Books about trial techniques are in  the KF 8915 Library of Congress call number range.

Rules of Evidence and Criminal Procedure http://www.llrx.com/courtrules/

After the trial, a defendant who is found innocent is free to get away from the courthouse and the criminal justice system. A defendant who is found guilty will probably have a separate hearing at which his sentence (or punishment) is decided. In that hearing, the prosecutor tries to show why the defendant deserves the harshest possible sentence and the defendant tries to show that he deserves the lightest possible sentence. The ranges of possible sentences are published in each jurisdiction’s sentencing guidelines.[i]

Meanwhile, if the defendant can show that the judge made errors in handling the case, he can appeal the case to a higher court. The appeal is not an opportunity to prove the whole case again; it is merely a forum in which to show that the judge improperly allowed or disallowed certain evidence, that he demonstrated bias, that he failed to properly instruct the jury, or that he made other errors. When filing an appeal, it is usually necessary to request that the trial court postpone sentencing until the appellate process is over.

If the appeals process doesn’t work out in a convicted criminal’s favor, the last resort is to file a federal or state court habeas corpus petition asserting that the conviction violates federal laws or the U.S. Constitution.[ii] In this case, the defendant has to show that the prosecutor or trial judge did something that truly was illegal, for example: not providing defendant with a lawyer, allowing evidence from illegal search to be presented in court, being biased or prejudicial in judging, or misinforming the jury about appropriate sentencing options.

 

Who you interact with: Trial court judge, witnesses, and lawyers for sentencing; appellate court clerk to file appeal; district court clerk/judge for filing habeas corpus petition.

Basic legal rights at this stage: In the sentencing phase, defendants have the rights to: 1. attorney representation-even during the court’s pre-sentence investigation 2. read and contradict or explain parts of the pre-sentence report and 3. speak on their own behalf at the sentencing hearing.[iii] In the appeal, convicted criminals have the following rights: 1. representation by an attorney (court-provided for indigents) 2. have a copy of the trial transcript 3. access to a law library or other appeal preparation resources while incarcerated. The appellate rights also apply when petitioning for habeas corpus.

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[i] Federal Sentencing Guidelines are at http://www.ussc.gov/guidelin.htm. States’ sentencing commissions, which typically post the guidelines on their Web sites, can be reached through the National Association of State Sentencing Commissions. http://www.ussc.gov/STATES.HTM.[ii] The federal court system provides habeas corpus forms at http://www.uscourts.gov/forms/uscforms.html. Many federal district courts post forms for Habeas Corpus and other actions on their Web sites. http://www.uscourts.gov/courtlinks Volume 13 of Am Jur Pleading and Practice Forms has a broad assortment of habeas corpus forms. The Federal Judicial Center http://www.fjc.gov/ has an outline of the habeas process with references to all of the relevant laws. Search within the FJC site using the phrase “habeas corpus” the get the publication containing this outline “Habeas Corpus Review of Capital Convictions”

[iii] Lynn S. Branham, THE LAW AND POLICY OF SENTENCING AND CORRECTIONS IN A NUTSHELL, 7^th Ed, (West 2005).

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

 

**** 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.[1] 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.[2] 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[3]

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.[4] 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.” [5]

By demonstrating that the homeless sweep caused “some meaningful interference with an individual’s possessory interests in that property,” [6] 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. [7]

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[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 page 31 of Criminalizing Crisis: Advocacy Manual. http://www.nlchp.org/Criminalizing_Crisis_Advocacy_Manual  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://nationalhomeless.org/references/publications/ summarize effective advocacy work such as arranging for advance notice of homeless sweeps.

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

**** 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. ****

 

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. [1]

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…” [2] 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.” [3]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), [4] or in a shared trash receptacle for a business or apartment, [5] 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. [6]

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”. [7] 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. [8]
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. [9]

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[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.

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?

**** 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. ****

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[1]

If police believe that these three components are true, they can charge theft. Most state codes have a broad theft statute like this[2] 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. [3] (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.<[4]

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[5]
Some of the states that have codified this law are New York[6], Montana[7][8],Idaho, and Oregon[9] 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.[10] In Alabama and California, a finder is entitled to be repaid for money spent to protect or return lost property.[11] 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.[12] In Wisconsin, the wait is only ninety days. [13] In Massachusetts, Iowa, and New York, it is a full year.[14] 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.[15] Iowa has even taken the step of legislating that finders are not financially responsible for accidental damage done to found goods. [16]

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.

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[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).

 

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

**** 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. ****

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,[1] 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.[2]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[3] 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,[4] and whether the accuser consented to some degree of affection, but not necessarily intercourse.[5]

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.

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[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.

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

**** 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. ****

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 “health code” link takes you to statutes. For states’ health department regulations, navigate through this portal starting with the name of your state.)

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.

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[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).

Can you open fire hydrants to get water for bathing?

**** 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. ****

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.

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[i] Unif. Fire Code §1001.6.1, 2 (1997).[ii] Local codes are available through https://www.municode.com/library/.

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?

**** 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. ****

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]

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[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).

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

**** 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. ****

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, then 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.

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[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).

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

**** 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. ****

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.

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[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.

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

**** 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. ****

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.

 

 

 

 

 

 

 

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[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.

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

 **** 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. ****

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. 
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[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/researchguides/index.htm. 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/.

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

**** 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. ****

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]

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[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. 

Where can you go to conduct legal research?

**** 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. ****

 

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.

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?

**** 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. ****

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.

NOTE: If you are in jail and are representing yourself in court, you might like The Jailhouse Lawyer’s Handbook published by the National Lawyers Guild.

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[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] See the National Registry of Exonerations to read about people who were eventually freed after being wrongly convicted of crimes. 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.

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

**** 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. ****

The purpose of bail is to ensure 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 someone who is homeless, the reasons for denying 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 people who are homeless tend to be out in public areas and to repeatedly access particular social services sites.

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[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).

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

**** 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. ****

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.

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[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

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

**** 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. ****

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]

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[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.

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

**** 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. ****

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 a 2011 manual titled Criminalizing Crisis, 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. (The model order is on page 31 of the manual.) This 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.  (See the ACLU’s Community Action Manual on “Fighting Police Abuse“.

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

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[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.  See also the post about what to do if police are rough with you.

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

**** 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. ****

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]

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[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.

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

**** 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. ****

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 for evaluation and possible commitment.

That authority to admit someone to a mental hospital 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 admitted to a mental hospital without choosing to be admitted there 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 to involuntarily commit somebody to a mental hospital. Those laws also indicate what kinds of behavior those 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 or a privately hired lawyer 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]

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[i] The treatment advocacy keeps track of state commitment laws. http://www.treatmentadvocacycenter.org/browse-by-state 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 take 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/LinkClick.aspx?fileticket=BG1RhO3i3rI%3d&tabid=324. 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. 

The Council of State Governments Justice Center creates and compiles a lot of authoritative information about police interactions with people who have mental illness.

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

**** 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. ****

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 , your local police review committee –list available from National Association for Civilian Oversight of Law Enforcement, 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 to 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.

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[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.

[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. https://www.aclu.org/criminal-law-reform/police-practices

[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).

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

**** 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. ****

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 work sites 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 work site 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.

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[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.

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?

**** 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. ****

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 (per hour or other pay unit) 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”https://www.dol.gov/whd/regs/compliance/whdfs1.pdf 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.

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[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.

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

**** 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. ****

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:

• Department of Health and Human Services
• Department of Housing and Urban Development
• Department of Veterans Affairs
• State Agencies

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

**** 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. ****

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.

The law does not prevent homeless who are homeless 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.

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

**** 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. ****

Government agencies have to verify residency and citizenship when providing ongoing services to clients. They realize, however, that residency for people who are 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 people who are 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 verification 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 https://www.llsdc.org/state-legislation. 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/

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 clients who are homeless 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 client who is homeless knows to check-in. Someone who does not want to deal with an agency can use an address service instead. Here is a post about address services.

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.

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[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.

[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, eligibility for the Supplemental Nutritional Assistance Program.  http://www.fns.usda.gov/snap/eligibility  How to apply in each state: https://www.fns.usda.gov/snap/apply-to-accept

[vi] U.S.Dep’t of Health and Human Services, http://www.acf.hhs.gov/programs/ofa/programs/tanf/about  Here is the link to the States’ programs: http://www.acf.hhs.gov/programs/ofa/help

[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/page.aspx?item=33698

[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/

[xv] See, New Hampshire’s homeless resources list http://www.nhhealthykids.com/homeless-resources and the Massachusetts Legal Help list of SNAP facts about ways for homeless people to access food stamps. http://www.masslegalhelp.org/income-benefits/fshomelessness

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

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

**** 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. ****

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.

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

**** 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. ****

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

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.

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

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?

**** 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. ****

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.

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

 

[ii] Title 18 US Code Section 1708.

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

**** 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. ****

In general, 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 normally required for obtaining a government-issued photo I.D., registering a car, and applying for jobs.

Here is one handy work-around that works when the post office has competition from another nearby delivery service:

Post office box customers can use the post office’s street address as their street address and identify their P.O. Box number just within the zip code of that street address. The rule explaining this is at Section 4.5.4 of the Domestic Mail Manual, under the topic of “competitive P.O. Box services.”  http://pe.usps.gov/text/dmm300/508.htm#1141179 The phrase “competitive P.O. Box services” means that the post office in that neighborhood has to compete with a UPS store or a similar private business that offers package delivery services. So, if somebody has post office box #1234, and his post office is located at 100 Main St. in Long Beach, California, he can tell everyone that his street address is 100 Main Street, Long Beach, California, 90808-1234.

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 Coalition for the Homeless has a full explanation, resources for registering or even coordinating a voter registration event, and advocacy materials available at  http://nationalhomeless.org/campaigns/voting/.

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.

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[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 re-register 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 non-forwardable 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).

Is the post office obligated to deliver mail to people who don’t have an address?

**** 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. ****

The postal service has always had a way for people without addresses to get their mail. The same system that existed for pioneers in remote homesteads and mining camps that didn’t have street addresses is still in place today: general delivery. General delivery means that the post office will hold onto mail for someone to pick-up when it has been addressed to that person in care of the post office, rather than to the person at a street address.

The law describing the extent and limits of general delivery service is in Section 6.0 of the Domestic Mail Manual which says “general delivery is intended primarily as a temporary means of delivery…for transients and customers not permanently located.”[i] The terms of that section go on to state that general delivery is “available at only one facility under the administration of a multi-facility post office” (i.e. the main post office in town or in the county) and that the general delivery mail will only be held for thirty days.
Clearly, general delivery’s limits on timing and location can make it very difficult for homeless people to collect their mail.

There was an effort by several homeless men in Seattle to get general delivery extended to more convenient branch post offices or to at least obtain post office boxes, but the court determined that their First Amendment right to mail service was satisfied by the one site general delivery rule.[ii] The men’s complaint about not getting post office boxes arose from two rules in the Domestic Mail Manual. One requires that all applicants for P.O. boxes provide a street address in the application for a box.[iii] Since the homeless do not have street addresses, the rule seemed to prevent them from being able to get post office boxes even for a fee.

The Postal Service has an address exception for the homeless though. The exception allows the homeless to show signed photo identification; prove a connection to some social service office, employer or shelter; or be known to a postal clerk or the postmaster.[iv] The Postal Service’s administrative court, which first heard this case, concluded that the men who had signed photo ID’s issued by the homeless shelter had identified themselves well enough to get post office boxes.[v] The federal appeals court upheld that decision by the Administrative Law Judge.[vi]

The second P.O. box rule in this case was about payment for P.O. boxes. The homeless men believed that they should be entitled to free post office box service because their circumstances satisfied the criteria listed in the Free Box Service rule: physical location within the geographic boundaries administered by the post office, location had potential to get delivery service, post office chose not to provide delivery service, and customer didn’t get delivery service.[vii]

The Administrative Law Judge, and later the federal appeals court, held that the free box rule was really meant for people and businesses with fixed locations where the post office simply could not provide delivery services; it was not for transients and people who congregate in places that do not even have fixed addresses.

The National Law Center on Homelessness and Poverty (NLCHP) submitted a friend of the court brief to the federal appeals court in this case to assert that the Postal Service had a legal obligation to provide all communities with mail service, despite government cost and convenience worries, particularly the homeless population which has such limited access to communication systems and which depends on the mail service to deliver the government’s own unemployment, workers compensation, welfare, disability, and medical assistance checks to them. The heart of their brief was the message that homeless people miss-out on all kinds of basic necessities and dignities largely because they lack addresses and that the Postal Service, by simply allowing free post office boxes or general delivery at their branches, could fix that problem.[viii]

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[i] The Domestic Mail Manual is available on the Internet at http://pe.usps.gov/ .

[ii] Currier v. Potter, 379 F.3d 716 (9th Cir. 2004).

[iii] The rule in the Domestic Mail Manual, chapter 508 “Recipient Services” part 4.3.1(a), requires P.O. box applicants to complete Form 1093 http://about.usps.com/forms/ps1093.pdf in which the applicant has to identify himself by name, address, and phone number.

[iv] Postal Buletin 21877 issued September 29, 1994.

[v] In the Matter of the Petitions by Currier, Kerns, and Bar, Postal Service Docket # POB 00-209,00-271, and 00-272, December 29, 2000.

[vi] Currier v. Potter , 379 F.3d 716, 723 (9^th Cir. 2004).

[vii] Domestic Mail Manual Chapter 508 “Recipient Services” part 4.6.2 “Free Box Service.” The Domestic Mail Manual is free online at http://pe.usps.gov/.

[viii] Currier v. Henderson, Brief of National Law Center on Homelessness and Poverty as Amicus Curiae in Support of Appellants and Reversal, July 10, 2002. This brief is available on the Web at http://www.nlchp.org/content/pubs/Currier%20v%20Postal%20Service1.pdf .

What are the legal requirements for getting an address? If trailers have addresses, can you get one for another parked vehicle?

**** 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. ****

In the United States, all land is presumed to belong to the government unless an individual or entity holds title to it. So, a person cannot simply settle comfortably on some land, or park a vehicle there, and try to get an address for it. Getting a home address begins with the government’s making the land available for private residence. Then a real estate developer, or whoever has bought the land from the government, gets the first title to it and records his title at the deeds office, usually a component of the county government.  If you need to find out who owns a piece of land, you are allowed to search for the deed because it is a public record held at the deeds office.

Title is legal ownership of land. A deed is the document showing that someone has title to a piece of land. The deeds office identifies pieces of land by giving them block and lot numbers, known as the legal address. When the landowner applies for local permits to build structures on that land, a street address (the address used by the postal service) is assigned to it. If a landowner opts to make a trailer park on his land, then his building permit will establish street addresses for the separate spaces in the trailer park.

Look for more information about real estate law at Nolo.com and Justia.

Are shelters allowed to search through your possessions? Are shelters allowed to collect information about you?

**** 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. ****

It is said that there are negative laws, saying “though shalt not” and positive laws saying, “though shalt.” In the context of shelters collecting information and going through possessions, here’s how those apply:

Negative Law

Because shelters have legal obligations to get healthcare for sick and injured residents, to assist the police looking for certain residents, and to fulfill contractual obligations with their funders to provide basic data about the number of people served, they have legitimate reasons for collecting identifying information about their residents. Knowing that they are liable for the safety of residents, they have reasons to be sure that people do not bring in weapons, illegal drugs, or other dangerous items. This could all be restated saying, “thou shalt not let residents hurt others or suffer harm.”

 

Positive Law

There are ever-increasing community initiatives to reduce homelessness. These are typically coordinated by government agencies, such as the housing authority and the health department, acting under the authority of their federal counterparts. They bring about the construction of new shelters and the implementation of new social services.

When the agency rules and regulations say things like, “every shelter resident must be informed about the public housing program” or “every shelter resident who appears to be unable to sustain gainful employment shall be referred to a disability assessment screening for potential application for Social Security or SSI Disability benefits” they are assuring that the homeless find out about their services. They are saying to shelter staff, “thou shalt collect enough information about residents that you can give them the best possible service referrals.”

A national directory of homeless shelters is available from the Department of Housing and Urban Development at http://www.hud.gov/homeless/hmlsagen.cfm.

If the police come looking for you, does a shelter have to turn you over to them?

**** 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. ****

A place of shelter is not a place of asylum from the law. On the other hand, it is also not a place where the homeless should feel at risk of being rounded-up by the police. Unless someone commits a crime in a shelter or the police come to the shelter looking for a particular person, shelter staff have no legal obligation to identify residents to police.

If the police come to question a resident as a potential witness or perpetrator, someone who prevents the officers from having access to that resident can be charged with obstruction of justice or obstruction of process.[i]

There is a whole spectrum of interactions that might occur between shelter staff and police who come looking for a resident.  At one end of the spectrum are the police with a warrant to search or seize.  They might be there to seize a person or evidence.  If they come to seize a person, the warrant is an arrest warrant.

As explained elsewhere in this blog, judges issue search and seizure warrants when police and prosecutors have given them probable cause to believe that evidence of a particular crime is located in the place to be searched.[ii] When the shelter-police interaction is at this end of the spectrum, the shelter has no choice but to comply with the police. Staff who interfere with the officers’ carrying out the warrant are blatantly obstructing justice.  They might be handcuffed and immediately arrested so they can’t continue to impede the police work.

At the other end of the spectrum is a scene in which police have heard a vague complaint about a minor offense and come to the shelter asking the staff to present all of the male residents ages twenty to forty who have blue jeans. Here the police have not conveyed that a crime has occurred or that they even know who they are looking for.  They are putting the staff in the dubious position of disrupting multiple innocent residents who came into the shelter only seeking a safe indoor place to rest.

At that point, the police might be causing the serious interference-interference with the fundamental purpose of the shelter.  The shelter staff have to do their jobs and provide the residents with a place to rest.  It would probably not be an obstruction of justice if they asked the police for more information so that fewer residents were interrupted or if they encouraged the police to come back and look for their suspect outside the building the next morning when the residents left for the day.

In between these two poles of the spectrum are numerous possibilities. Maybe a victim or a witness saw an attacker run into the shelter.  Maybe the police have been following a shelter resident as part of a major investigation.  Maybe the homeless have been crime targets and the police want to get to know them and help them avoid being victims.  The decision about whether to charge shelter staff with obstruction will depend on the police officers’ assessment of the public safety risk involved if they are hindered from getting to a shelter resident, i.e. it depends on police discretion.[iii]

There are other potential criminal charges, aside from obstruction crimes, that shelter staff can face for not identifying residents to the police. They might, for example, be harboring a fugitive. Getting between the police and a shelter resident they’ve come to arrest could be harboring a fugitive.[iv] Even when counselors at a shelter have confidential knowledge of residents’ crimes, it does not mean that those counselors can hide those clients when the police come looking for them.  They might be able to avoid disclosing clients’ counseling records for evidence, but they cannot keep the police away from those clients.[v]

Shelter staff can also have criminal liability for not identifying a resident when they know the resident is repeatedly committing a crime.  The first time a shelter worker sees a resident stealing from other residents or dealing drugs in the shelter, he has a basic citizen’s obligation to report the crime to the police.  If he doesn’t report the crime that first time, he’s not likely to be charged with a crime himself. (Although he should serve as a witness for the prosecution since he saw the illegal act.)

After the first time however, accomplice or conspiracy charges might be brought against the shelter worker who knows about a pattern of criminal behavior in the shelter but doesn’t report it to the police.  Basically, an accomplice is someone who “gave assistance or encouragement or failed to perform a legal duty to prevent”[vi] a crime.   A conspirator joins with others “for the purpose of committing…some unlawful or criminal act.”[vii]

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[i] Obstruction of justice or process is defined and examined in 67 C.J.S. Obstructing Justice § 24 (2002). In the federal system, the statute against obstruction of justice/process is published in 18 USC §§ 1501-20 (2007). If local or state police are obstructed in their efforts, the state’s version of an obstruction of justice charge would apply. Find these by using the following terms in the index to the state statutes: obstruction of justice, police, interference with arrest, interference with process, and crimes.

[ii] Robert M. Bloom, Searches, Seizures, and Warrants (Praeger 2003). This book tells about every aspect of law that applies to warrants for searches and seizures.

[iii] To learn more about police discretion, See American Bar Association, Standards Relating to the Urban Police Function 1-43 (1972 & Supp. 1973). (These standards were developed by a joint committee of ABA members and members of the International Association of Chiefs of Police). Also, search in the National Criminal Justice Resource Center for the phrase “police discretion” to get links to full-text articles, reports, and book chapters on the topic. http://www.ncjrs.gov/index.html

[iv] 39 Am. Jur. 2d Harboring Criminals § 3 (2006).

[v] A related but much more extreme legal obligation arises when a mental health professional knows that a client seeks to hurt someone. When that happens, the mental health professional is allowed to divulge confidential client information to police, but only to the extent necessary to protect the client’s intended victim. To read more about this and see a comparison of state laws, see John C. Williams, Liability of One Treating Mentally Afflicted Patient For Failure to Warn or Protect Third Persons Threatened by Patient, 83 A.L.R. 3d 1201.

[vi] Black’s Law Dictionary, 6^th Ed. 17 (1990).

[vii] Id. at 309.

Are shelters legally obligated to maintain a certain standard of cleanliness?

**** 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. ****

Shelters, along with any other facilities that house groups of people, are subject to public health regulations regarding sanitation, rodent control, and safety just as they are subject to fire safety codes and zoning ordinances. But because so many different types of places offer various levels of sheltering and state and county health regulations vary, there is not an established standard guaranteeing that sheets are washed every day or that floors are always swept or that other measures of cleanliness are assured in every shelter.

A shelter resident who becomes sick or injured because of conditions in the shelter might be able to sue the shelter for negligence, depending on the situation. It could be the premises liability type of negligence if the sickness or injury was predictable.  An example of predictable sickness might be when a shelter with heavy dust and mold causes an asthmatic resident to have a serious asthma attack.

If the sickness or injury has nothing to do with the condition of the building, but it happens in the shelter, failing to help a resident in need might count as negligence. Ordinarily, people in the U.S. have no duty to rescue somebody.[i] But innkeepers, businesses, and other places open to the public do have to help people who become sick or ill while there.[ii] Since the law imposes that duty, breaching it to the extent that harm comes to a resident would be negligence.

There are other reasons that the homeless might sue for healthier shelter conditions.

Consider some examples from New York City:  In the mid 1990’s there was a line of New York City cases about homeless people who were temporarily housed in the Emergency Assistance offices where they went to apply for space in shelters.[iii] While it would seem that at least sleeping in an office would be better than sleeping outside, the Court of Appeals of New York declared that “The consequences of the City’s practices include families sleeping on the chairs and on the floor, washing in the sinks of public restrooms, and suffering self-evidently unsanitary and unsafe traumas.”[iv]

There was also a group of homeless people with HIV-related illness who sued the city seeking access to shelters better-suited to their health needs.[v] The city had a Comprehensive Care Program that equipped some shelters to particularly care for homeless AIDS patients. These plaintiffs with HIV-related illness had some health accommodations in the shelters, but were not entitled to shelter conditions comparable to those available to AIDS patients.  A lower court had found that housing twelve to a room constituted a tuberculosis risk for people with HIV-related illness.[vi] The appeal concluded that plans for health and hygiene in shelters were within the authority of health and housing agencies not the courts.

Shelters tend not to have special accommodations for every specific health need. Diabetics cannot expect that a shelter will have meals that are suitable for their diets and ready supplies of insulin. Asthmatics cannot expect that a shelter will take extreme measures to reduce its dust and mold to assure that they can breathe.

The Centers for Disease Control maintains a list of state and local health departments.[vii] Reading a local health department’s rules and program descriptions is the most direct way to learn what public health services are available to the homeless. There may be drop-in clinics, day programs, special facilities for certain health and hygiene functions, etc… and these may be outside of shelters or on-site at shelters.

The National Health Care for the Homeless Council provides a free online manual titled “Shelter Health: Essentials of Care for People Living in Shelter.”[viii] This manual is not a legal document and does not legally obligate shelters to do anything. It is intended as a source of information for providers of group housing. It tells shelters how to keep the facility as hygienic as possible and provides clues about how to recognize health problems so that shelter staff can make helpful referrals for clients to get appropriate medical care. The manual is full of details like sample policies about laundry, hand washing, lice control, and cleaning body fluids from floors, furniture, and bathrooms. Homeless people or their advocates seeking to improve the local legal standards for shelters could use the manual to get examples of the improvements that should be made.

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[i] Restatement (Third) of Torts § 37 (Proposed Final Draft No. 1 2005). 57A Am. Jur. 2d Negligence § 90 (2006). To find cases making this point, look in West Digests (indexes to cases) using the topic “negligence” and the key numbers 214 and 282.

[ii] Restatement (Second) of Torts § 314A (1965 & Supp. 2006). 57A Am. Jur. 2d Negligence §§ 90-91 (2006). The case of Baker v. Fenneman & Brown Properties, L.L.C., 793 N.E.2d 1203 (Ind. Ct. App. 2003) shows that business owners and innkeepers and others who have special relationships with sick and injured visitors to their establishments do have a duty to get those victims medical care.

[iii] McCain v. Dinkins, 639 N.E.2d 1132 (N.Y. 1994). This case culminated the series of cases about temporarily housing people in the Emergency Assistance Unit offices. It summarizes the cases leading up to it.

[iv] Id. at 1136.

[v] Mixon v. Grinker, 669 N.E.2d 819 (N.Y. 1996).

[vi] Id. at 820.

[vii] List of state and local health departments http://www.cdc.gov/mmwr/international/relres.html. If this Web address changes, go to http://www.cdc.gov/ and use its search box to find the most recent list.

[viii] The shelter health manual is at http://www.nhchc.org/resources/clinical/tools-and-support/shelter-health/.

Are the rules in shelters equivalent to laws?

 

**** 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. ****

The rules in shelters are not equivalent to laws in every way because violating them will not get you arrested or lead to a lawsuit against you. But they, like the rules in any private or public establishment, are the law of that facility. Violating them can mean that someone is no longer eligible to stay at the shelter.

Can participation in religious activities be required in a church-run shelter?

**** 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. ****

Yes, if a church[i] operates a shelter as part of its ministry,[ii] it can require shelter residents to participate in religious classes or services in order to continue staying at the shelter.[iii]  But, if the shelter component of the church is really a government-operated service that is merely renting space in a church, then religious activities cannot be required of the residents.[iv]  

The First Amendment says that the government cannot make laws establishing religion.[v]  This has been interpreted to mean that when the government provides funding for religious institutions, it can only fund “the non-religious social services that they provide.” [vi]

 
It can be hard to distinguish between a church-run shelter and a government program. In terms of legal status for tax and injury liability purposes, a church shelter might be an accessory use[vii] of a church or an entirely separate non-profit organization,[viii] but neither of those status categories necessarily conveys whether the shelter is able to involve participants in religious activities.

Churches that shelter the homeless tend to do so because their religious doctrine somehow obligates or inspires them to provide helpful services to the poor. So the motivation for the church’s shelter is almost always religious. However, there are ways, at least in large cities, for churches to contract with state or city agencies so that those agencies pay the staff salaries or other costs associated with operating the shelter.

The circumstances surrounding those contracts establish either the private religious or public/governmental identity of a particular church shelter. In other words, the shelter program’s stated mission, its funding sources, and its related legal obligations determine whether religion can be a component of its programming.

The local and state laws at the foundations of these contracts typically delineate which particular funding relationships make the shelter service a government activity. A good example comes from the case of Greentree v. Good Shepherd which explains that the church’s shelter was exempt from filing an environmental impact statement prior to opening because it was not a new facility of the church. Instead, the shelter was part of an ongoing program of the City’s Housing Resources Administration, authorized by local ordinance. [ix]

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[i] The word “church” is being used generically here to refer to any house of worship, be it a synagogue, mosque, temple, or other type of facility operated by a religious denomination and primarily in existence for religious worship services.

[ii] There are interesting zoning cases saying that operating a shelter or meal service for the poor is legally considered a church’s free exercise of religion under the First Amendment of the U.S. Constitution. See, St. John’s Evangelical Lutheran Church v. Hoboken, 479 A.2d 935 (N.J. Super. Ct. Law Div. 1983); Western Presbyterian Church v. Board of Zoning Adjustment, 849 F.Supp. 77 (D.D.C. 1994), mot. den., sum. j. granted, 862 F.Supp. 538 (D.D.C. 1994) dismissed, 1995 U.S. App. LEXIS 5085 (D.C. Cir. 1995).

[iii] Churches and other religious organizations exist as a distinct type of legal entity by way of the Internal Revenue Code’s definitions and treatment of various types of non-profit organizations. See, 26 U.S.C. § 501(c)(3) (2006). To get status as a religious organization under that code, they have to be “organized and operated exclusively for religious…purposes.”  See the IRS’s resources for religious organizations.

[iv] A good description of how a local government contracted with a church to operate a shelter is written in the case of Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 550 N.Y.S.2d 981, 983-84 (N.Y. Sup. Ct. 1989). Basically, if the church is merely renting space to a government shelter program, that use of church space is not, in itself, a violation of the First Amendment’s separation of church and state provisions anymore than using churches as polling places for elections would be a violation. An example of when this kind of rental might occur is during a severe weather emergency when people cannot stay in their homes. Sometimes, there are government facilitated activities that temporarily need access to a big space in a certain neighborhood.

[v] U.S. Const. amend. I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

[vi] Department of Justice archived material about Faith-Based Community Initiatives and Partnering with the Federal Government is available at http://www.justice.gov/archive/fbci/index.html.  Note that the Faith Based Initiatives program has now closed.  It is cited here only for description.

[vii] William W. Bassett, Religious Organizations and the Law §10:16 (2006).

[viii] Id. At §9:76.

[ix] Greentree, 550 N.Y.S.2d at 987-88.

When you sleep in an airport or at a train or bus station are you in a public place or privately owned place and what legal rights or responsibilities do you have when resting there?

**** 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. ****

Transportation stations are usually under the control of government authorities and, as such, are considered public places. The possession posts, the bathing posts and the food posts  all apply in public transportation stations. Like parks and government office buildings, they can have limited access. They might be closed to non-ticket holders after a certain hour. They might allow sleeping only in designated passenger areas. And, as in any other public places, the local loitering or vagrancy laws apply there.[i]

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Being public in nature, if not in fact,[ii] (because sometimes they are owned by a bus or train company) their restrooms, lighting, chairs, vending machines, and other amenities are generally available to anyone who might come in. In privately owned stations, economic reasons like the high expense of having staff and procedures to remove people and the loss of prospective future business are behind this access; it just isn’t worth the money to try and keep out non-passengers. But having seating and restrooms for non-passengers and cleaning up after them cost money too. When people make excessive use of the amenities without using the facility for its intended service, it becomes economically necessary to have the police do vagrancy arrests.

Despite the various legal forms of exclusion, homeless people are visible and numerous in transportation stations. Service providers and the police look for them there. In fact, the Code of Federal Regulations requires Veterans Administration outreach workers to look for needy homeless veterans in bus and train stations.[iii] Searching for veterans, they reach out to every homeless person they encounter. This uninvited, though potentially helpful, attention raises a question about homeless people’s legal rights in transportation centers: whether they have to accept help or even listen to helpful offers.
There is certainly no law providing for peace and quiet when a person sits down to rest or lies down to sleep in a transportation station. There is, however, a crime of “disturbing the peace” which groups of homeless might invoke if they felt imposed-upon by do-gooders.

Black’s Law Dictionary defines disturbing the peace as, “[i]nterruption of the peace, quiet and good order of a neighborhood or community, particularly by unnecessary and distracting noises.”[iv] Each locality has its own ordinance defining breach of the peace or disturbing the peace. Any citizens whose peace is breached can ask police to charge the perpetrator. People do that when the neighbor’s dog barks too much. Why couldn’t people trying to rest in bus stations try it, at least when they are directly and intentionally interrupted by people demanding their attention?

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Aside from trying that revolutionary tactic for warding off social services, it is also possible to simply say, “go away” or “no thank you.” The law does not require people to hear or read messages that they do not want to get. We know this from the logic of First Amendment free speech cases. When civil rights lawyers argue that someone has a right to say something, they assert that listeners have equal free speech rights to respond to, criticize, or ignore the message. A famous court opinion about the Nazi party’s right to wear swastikas and demonstrate in a U.S. Jewish community concluded with this declaration: “direct the citizens of Skokie that it is their burden to avoid the offensive symbol.”[v]

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[i] People v. Guilbert, 472 N.Y.S.2d 90 (N.Y. Crim. Ct. 1983); People v. Goodwin. 519 N.Y.S.2d 189 (N.Y. Crim. Term 1987).

[ii] The Supreme Court explained why and how a privately owned train station has certain obligations as a public place in Boynton v. Virginia, 364 U.S.454 (1960). That case was brought by an African American man who was refused service at a restaurant in a Trailways bus terminal. The Supreme Court held that “When a bus carrier has volunteered to make terminal and restaurant facilities and services available to its interstate passengers as a regular part of their transportation, and the terminal and restaurant have acquiesced and cooperated in this undertaking, the terminal and restaurant must perform these services without discriminations prohibited by the [Interstate Commerce] Act.” Id. at 454.

[iii] 38 C.F.R. § 61.81 (2007).  http://www.ecfr.gov 

[iv] Black’s Law Dictionary 477 (6th ed. 1990).

[v] Skokie v. National Socialist Party, 373 N.E.2d 21, 26 (Ill. App. Ct. 1978).

If a place seems abandoned are you legally obligated to get permission to be there? If you are only trying to stay warm and dry one time, is it illegal to go onto private property for shelter?

**** 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. ****

Going onto somebody’s property without permission is trespassing, one of the distinct actions that is a civil wrong as well as a crime. It only has to happen once to be illegal.

As a civil offense, trespass is negligently or intentionally entering someone else’s property or even having your possessions on somebody else’s property without permission.[i] Homeless people are not likely to be sued in civil court for trespass because all that the property owner could get from the suit would be money, which homeless people generally do not have, and maybe a court order saying that the trespasser is not allowed to go on the property again.

The only practical use for the civil court order would be to present it as proof in a criminal case of defiant trespass which is trespass made worse because the trespasser ignored a “do not enter” warning.[ii] Since that warning could just be a sign or a fence or a simple statement from the property owner, rather than a court order, there really is no reason for anyone to bring a civil trespass claim against a homeless person.

Regular criminal trespass, as opposed to the kind that defies a warning, can be charged when someone merely “enters or surreptitiously remains in any building or occupied structure”[iii] without permission. Both of the criminal forms of trespass can result in punishment to the trespasser, at least the punishment of eviction. Still, there are usually defenses for every crime.

In trespass crimes, unlike so many others, there is a defense that is favorable to the homeless: when a privately owned building has been abandoned, the Model Penal Code says that being in it without permission is not trespassing.[iv] On the other hand, not every state’s trespassing law includes this abandoned building exception.

RESEARCH TIP: To defend a trespassing charge on the grounds that the building was deserted or abandoned, it is necessary to look at similar cases in the state where the charge was brought. Those cases will demonstrate important legal requirements such as how long an owner has to have been absent for a place to be considered abandoned in that state. They will also identify any clues that should have informed an intruder whether or not the place was abandoned. Summaries of cases are published in case digest (i.e. indexes to cases) published by West Publishing, the primary publisher of U.S. case law. Cases about trespassing in abandoned building are listed under “key 79” within the topic of Trespass.

The exception almost never applies to government-owned buildings.[v] Additionally, governments have an arsenal of reasons, beyond trespass, to keep people out of their buildings. They can use their condemned building codes or their health or fire codes. There’s always a criminal mischief or loitering charge that can apply to people who won’t follow police orders to leave a place. There might even be a specific statute or ordinance declaring it illegal to occupy a city, county, or state owned empty building.

Some case examples show how homeless squatters and municipalities have used the legal system to dispute the squatters’ occupation of abandoned buildings. In New York, the city evicted a group of homeless people who had not only occupied an unused and decrepit city building for nearly six months, but had actually improved the building and made it usable by installing new plumbing and electrical systems all by themselves. The court upheld the eviction noting that the plumbing and electrical work were not necessarily up to code and declaring that the squatters simply had no legal right to occupy those premises.[vi]

In the town of Brookhaven Long Island, homeless squatters in a building complex responded to an immediate forced eviction by asserting that their due process[vii] and fair housing[viii] rights had been violated. The due process claim was that they were entitled to notice and a hearing before being evicted. The fair housing claim was that they were unfairly targeted because of being Latino. The federal court held that since the squatters did not have a legal right to be on the property, they were not entitled to due process. However, since the evictions truly did target only Latinos who would suffer irreparable injury by being put out, the squatters were allowed to pursue their fair housing claim.[ix]

There’s a charming historical case out of Boston in which the city ordered a squatter to vacate one of its buildings. When he wouldn’t leave, the city ordered him to pay rent. He refused to pay the rent, so the city took him to court. The court found that since the squatter’s occupancy was illegal, he wasn’t obligated to pay any rent.[x]

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[i] 87 CJS “Trespass”.

[ii] Model Penal Code §221.2(2) (1962), defiant trespass happens when “knowing that he is not licensed or privileged to do so, [someone] enters or remains in any place as to which notice against trespass is given by: (a) actual communication to the actor; or (b) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or (c) fencing or other enclosure manifestly designed to exclude intruders.”

[iii] Model Penal Code §221.2(1) (1962).

[iv] Model Penal Code §221.2(3) (1962), “It is an affirmative defense to prosecution under this section that a building …was not occupied.”

[v] Mary K. Cunningham et al., De Facto Shelters: Homeless Living in Vacant Public Housing Units, (Urban Institute 2005). This is a research study about homeless squatters in Chicago and serves as a good example of how public authorities deal with people living in abandoned public buildings. Available at http://www.urban.org/uploadedPDF/411144_defacto_shelters.pdf.

[vi] Paulino v. Wright, 620 N.Y.S.2d. 363 (N.Y. App. Div. 1994).

[vii] U.S. Const. amend. XIV.

[viii] 42 U.S.C. §3601 et seq. (2007). “The Fair Housing Act” and the “Fair Housing Amendments Act” are combined in this part of the United States Code.

[ix] Valdez v. Brookhaven 05-CV-4323 (E.D.N.Y. 2005) also at 2005 WL 3454708.

[x] O’Brien v. Ball, 119 Mass. 28 (Mass. 1875).

Is it ever illegal to sleep in public places?

**** 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. ****

According to the trespassing laws shown in the post about abandoned places, remaining in a public building after hours is a form of trespassing.[i] That means that it would be illegal to sleep in City Hall or the public library or another public building after operating hours.

Another way the law can prohibit sleeping in public places is with a local curfew ordinance declaring that certain outdoor spaces are off-limits at particular times. Curfews might apply only to juveniles or else to geographic locations such as entire parks or sections of them, neighborhoods, or whole cities.

A third way of illegalizing sleeping in public is with laws specially written just for the purpose of preventing that activity.[ii] 

Curfew laws have been contested enough over the years that cities now write them to avoid compromising Constitutional rights to assembly and travel.[iii] Some courts find that curfews are perfectly legitimate as long as they include exceptions for actions like traveling from a job or participation in something of benefit to society.

Other courts find at least the age-based curfews to be un-Constitutional or unnecessary. These courts tend to note that since existing criminal laws are available for punishing crimes, imposing a curfew to reduce crime causes non-criminals to be punished for doing nothing wrong. Courts have also pointed out that when the police take time to arrest and process people for curfew violations, they are not on the street pursuing and arresting with deviant criminals.[iv]

Laws specifically against sleeping or resting outside, the third way of making it illegal to sleep in public, are also known as “anti-homelessness” laws.

An example of one of these laws that was found to be constitutional was a Seattle, Washington ordinance against sitting on sidewalks during business hours. Two homeless advocates, one of whom was formerly homeless, sat on the sidewalk just so that they could get arrested and argue against the ordinance in court. They claimed that the ordinance violated due process because it was overbroad and limited their basic right to move around or be still. The court determined that the law did not invade that right because it only applied during business hours. In other words, since it only applied during the hours when the City needed to support business and reduce crime, the ordinance was rationally related to those legitimate government purposes.[v] 

An example of a blatant anti-homeless sleeping law found not to be constitutional is a Los Angeles ordinance that was only recently modified. It prohibited sitting, lying or sleeping on the city’s streets or sidewalks at any time of day.  San Francisco’[vi] In 2006, a group of six homeless men successfully sued the city for “cruel and unusual punishment” because of that law. One of the significant facts in the case was that the city did not have enough shelter spaces to house all of the homeless.  Five years later, San Francisco began enforcing its “sit-lie” ordinance. [vii]

Since cruel and unusual punishment is presented in the U.S. Constitution as a description of how the government cannot treat criminal defendants, the court required proof that the homeless who couldn’t get into shelters truly were being arrested for nothing more than their presence on the sidewalk or street. As a result of this case, the police in Los Angeles agreed not to charge the homeless under this ordinance unless they were also engaged in crimes such as theft, drug use, or other illegal acts beyond merely being outside.[viii]

In August of 2015, the Department of Justice filed a statement in the case of Bell v. City of Boise (Link to the earlier trial court decision.) telling the court that it is unconstitutional to have laws prohibiting life on the street when there are not enough shelters to house the people who cannot afford housing. In the same month, the U.S. Interagency Council on Homelessness issued a community guide titled Ending Homelessness for People Living in Encampments. This guide advises communities of ways to develop permanent housing opportunities for homeless people.

When looking at all of these different ways the laws prevent people from sleeping in public you might wonder how anyone would even know when and where sleeping isn’t allowed. It is probably easiest to avoid trespassing or violating a curfew because there are usually printed warnings telling when people can’t be in a place. There might be a sign telling when the library is open; anyone there at other times knows that he shouldn’t be there. There might be curfew notices posted in a park or other outdoor spaces. But the anti-sitting, camping, or sleeping ordinances do not usually come with any advance notice to first-time violators.

There is no requirement that people have to know about laws before getting charged for violating them.  It is required, however, that federal, state, and local laws comply with the rights established U.S. Constitution such as due process,[ix] freedom from illegal searches and seizures,[x] free speech[xi]… No matter which constitutional right is claimed, the law’s effect will be compared to its purpose. As long as laws about sleeping in public are written to serve a legitimate government purpose and are rationally related to that purpose,[xii] they will be found constitutionally acceptable. When reading the full case decisions that were summarized above, pay attention to how the court talks about purpose to see how to make arguments in your own case.

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[i] Model Penal Code § 221.2(1) (1962), says that “surreptitiously remaining” on property is trespassing.

[ii] “A Dream Denied: Criminalization of Homelessness” and “Illegal to be Homeless” are some of the titles used by the National Coalition for the Homeless in their annual summaries of laws and local government actions against homeless people, available at http://www.nationalhomeless.org/publications/reports.html. These reports have numerous examples of laws enacted to prevent the homeless from sleeping in particular public places and they tell how homeless advocates have responded to the laws.

[iii] Freedom to assemble is in the First Amendment to the US Constitution. U.S. Const. amend. I. The right to move about freely, which cases often refer to as “travel”, has been interpreted from the Fourteenth Amendment. U.S. Const. amend. XIV.

[iv] Curfew cases are often not major enough to be appealed and published in case reporters. Since the ACLU frequently disputes curfews, a good place to read about them is on the ACLU’s Web site http://www.aclu.org/. There you will find news stories about curfew cases and samples of documents filed in cases contesting actual curfew laws.

[v] City of Seattle v. McConahy, 937 P.2d 1133 (Wash. Ct. App. 1997).

[vi] L.A., Cal., Mun. Code § 41.18(d) (2005).

[vii] Jones v. Los Angeles, 444 F.3d. 1118 (9th Cir. 2006). The prohibition against cruel and unusual punishment is the 8th Amendment to the U.S. Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. Const. amend. VIII.  The San Francisco ordinance against sitting and lying on sidewalks between 7:00a.m. and 11:00p.m. is Section 168 in the “Disorderly Conduct” part of the Police Code.

[viii] Henry Weinstein & Cara Mia DiMassa, Justices Hand LA’s Homeless a Victory, L.A. Times, Apr. 15, 2006, at A1. article link

[ix] U.S. Const. amend. XIV.

[x] U.S. Const. amend IV.

[xi] U.S. Const. Amend. I.

[xii] Comparing the government’s purpose against the way it has written a law to see if there is a rational relationship between them is called “rational basis scrutiny” and is explained in legal encyclopedias such as American Jurisprudence and Corpus Juris Secundum and in books about constitutional law which are generally in the KF 4550 call number range at libraries.

What sorts of shelter protection does the law require in the event of a weather emergency?

**** 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. ****

One of the best places to start answering this question is in newspaper articles about lawsuits arising from past weather emergencies.  Go to the online version of your local newspaper or to papers from other cities that have had major tornadoes, blizzards, etc… and see if there are articles telling who sued, what legal grounds they claimed, and how their cases turned out.  You probably remember the names of the significant storms in your area; use those, along with “sued” or “lawsuit” or “legal”,  as your search terms in the newspaper site.  Since court cases are public, you want to look for dates, claimants’ names, and court identification in these news articles.  Then, at least if you found some local cases, you can go to the court clerk’s office and look through the documents filed in the case to get ideas about writing your own.

Local and county governments make emergency plans for dealing with severe weather and they rely on state and federal programs for additional support in extreme circumstances.[i]   Plans are not laws, but because they set forth obligations for government units, they have a degree of legal authority. They are assurances from the government to the people and the people have a right to expect that those assurances will be fulfilled to the best of the government’s ability.

The authority to make county and municipal emergency plans, which necessarily disrupt and alter ordinary local government responsibilities, comes from state statutes.[ii] Protection rights for the homeless during weather emergencies can arise in connection with these plans and the fact that the plans are authorized by statutes.

After a weather emergency, the legal question a victim of the weather asks is “can I sue the government for not doing enough to help?” The answer is “maybe.”

The victims could say that the government had a duty to protect them or rescue them or provide post-emergency help. They could say that by not fulfilling their duty, the government caused harm to come to the populace. It would be a basic negligence analysis.

There are two likely challenges to this seemingly easy analysis: the doctrine of sovereign immunity and the difficulty of proving exactly what duty the government owed. It can also be hard to prove that government inaction was the cause of harm when it is obvious that the severe weather itself was the true cause; at most the government can only be a contributing cause to a victim’s continued exposure to the weather.[iii]

The doctrine of sovereign immunity can come from cases or statutes in either state or federal legal analysis. It says that the government is immune from being sued.[iv]  In every jurisdiction, there are numerous exceptions to this doctrine.[v]

—-  The Federal Tort Claims Act,[vi] is a blanket exception to sovereign immunity, entitling people to sue the federal government for just about any action other than those that are based on discretion. It allows that the federal government can be sued for negligent acts or omissions in weather emergencies.[vii] The Federal Emergency Management Association was sued by approximately 250,000 people asserting that the agency owed them adequate temporary housing after Hurricane Katrina.[viii] —-

The only way to know if any state’s doctrine of sovereign immunity makes it impossible to sue for injuries in a particular circumstance is to study the state’s law and compare it to what happened to the person wanting to sue.

—- To find a state’s sovereign immunity law or laws, look in the alphabetical index to any state code under “government liability,” “state liability,” or “government immunity” to see the circumstances under which they say that the state cannot be held liable. Some states have just one sovereign immunity law; others include it within numerous topical categories such as law enforcement, utility service, waterways, etc… —-

When a state’s sovereign immunity laws do not prevent people from holding emergency workers liable in weather emergencies, injured people have the chance to bring a negligence claim in court.[ix] This is when they have to show that the government breached its duty. To prove duty, it is most effective to show specific obligations that the government itself has described.  Some sources of those are the local weather emergency plans mentioned earlier in this post.

Here are some sample weather emergency plans for homeless populations:

In Boston, the Emergency Shelter Commission compiles an electronic guide to expanded hours and spaces at shelters. The guide also states that the EMS service, the park rangers, and the police will drive around looking for homeless people and will help them get out of the bad weather.[x]

In Allegheny County Pennsylvania, the Bureau of Hunger and Housing Services operates one facility called the Severe Weather Emergency Shelter when the temperature goes down to twenty degrees; there is freezing rain, heavy snow, or an extreme wind chill; or when the National Weather Service has declared an emergency weather situation.[xi] Baltimore also opens one specific facility to operate as a shelter for the homeless in extreme weather.[xii] Milwaukee police dispatch an outreach team to help street dwellers get inside when the weather is extremely cold.

In all of the known areas where homeless people sleep, Mahoning County, Ohio posts notices titled “There is a Warm Place to Sleep.” The notices tell the homeless how to get in contact with the area Rescue Mission.[xiii] New York City used to have an entire Homeless Outreach Unit in its police department. In dangerous weather, that unit would make the rounds of known homeless hangouts and helps the inhabitants get to safe places.  The city still has an entire department of homeless services. [xiv]

In claiming that Boston or New York (when it used to offer pick-up service) was negligent for not saving him from a blizzard, a homeless person could assert that emergency workers did not drive to a known homeless settlement looking for people needing a ride to shelter. In Anchorage, someone might claim that the database of cold weather shelters did not have correct information.  In Pittsburgh and Baltimore, the strongest negligence claims would assert that the emergency shelters weren’t opened or else that they weren’t sufficient.

Being able to prove that any of these duties exist is only the first part of proving negligence. Even if a plaintiff is able to prove all of the parts of the negligence analysis, there will almost surely be a response from the government asserting that the homeless person contributed to causing his own weather-related suffering. This kind of response will differ depending on each homeless person’s circumstances. But it might say that the homeless person should have gotten himself to a shelter before the weather got so bad or that he should have taken advantage of the local free shoes and coats program or that he simply should have found a phone and called the free emergency line.

In almost every community, it is appropriate to dial 911 (or 311 or 411-the local emergency line), which is a free call from pay phones, to seek help in a weather emergency. Operators at these call centers will tell callers where they can get shelter and will generally ask for information that they can relay back to rescue workers. They might want to know how many other homeless people are with the one who is calling and whether any of those people have known vulnerabilities or medical problems. The police will not necessarily be available to transport stranded people, but the city or the health department may have made transportation arrangements with a local organization or volunteers.

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[i] The federal statute establishing the backup system for emergency responses is 42 USC § 5121 et seq. (2007).  There is a wealth of information available in William C. Nicholson, Emergency Response and Emergency Management Law, (2003).  Note that the National Coalition for the Homeless has collected city phone numbers to call for help in a weather emergency as well as data about community standards for helping homeless people when temperatures are very cold.  In a lawsuit, this data could be used to assert either that a particular community is below par or is doing as well as any ordinary community would do.

[ii] To find state laws authorizing local governments to make emergency plans, link from the list of links to each state government’s emergency service agencies at http://www.statelocalgov.net/50states-public-safety.cfm. If that doesn’t work, look in the state code under “disaster preparation” and “emergency planning.” At least one of those phrases should get you to the right information. See also: Howard D. Swanson, The Delicate Art of Practicing Municipal Law Under Conditions of Hell and High Water, 76 N.D. L. Rev. 487 (2000), which is a detailed explanation of how local government adjusts to best help the public in disasters. It has a list of state emergency statutes in footnote 10.

[iii] Springer v. U.S., 641 F. Supp. 913 (D.S.C. 1986). In this case, the National Weather Service was liable for failing to amend a weather forecast when it was known that airline pilots would make flying decisions based on the forecast. In other words, the weather would not have harmed the flyer if he had not been in it and he would not have been in it if the forecast had properly warned him.

[iv] One example is Kentucky, Ky. Rev. Stat. Ann. § 39A.280 (West 2006), declaring that emergency personnel cannot be held liable for failing to help people unless their lack of help was gross negligence.

[v]A weather-related exception, occasionally seen in federal law, is that the National Weather Service can be held liable for harm or loss resulting from an incorrect weather forecast. But, there are limited circumstances when it is legal to hold the weather service liable. Springer, 641 F. Supp. at 913, found them liable (as described in the earlier note), but that was for failing to post the amended and more accurate information that should have been made available to the plane pilot. Brown v. U.S., 790 F. 2d 199 (1st Cir., 1986) declared that the National Weather Service was not liable for a faulty weather forecast even though four fishermen died in a terrible storm after relying on the forecast. The court held that weather forecasting is exempt from liability because it is a discretionary function. In other words, it is work that involves interpretation and judgment. The Federal Tort Claims Act 28 U.S.C. §2671et. seq. entitles people to sue the federal government for personal injuries, but not when the government’s work or decision was discretionary.–In state law, the phrase “qualified immunity” is a variation of sovereign immunity that says governments can be sued but not for discretionary functions. Use both “sovereign” and “qualified” as search terms for government immunity. A weather related exception seen in state laws is that highway departments are not immune from liability when they fail to repair potholes or other street damage caused by weather. N.Y. Town Law § 65-a (McKinney 2006); 42 Pa. Cons. Stat. Ann. § 8522(b)(4)&(5) (West 2006).

[vi] 28 USC § 2671, et seq. (2006).

[vii] 28 USC §§ 2672, 2674 (2006).

[viii] Laura Parker, After Katrina, courts flooded by lawsuits, USA Today, Jan. 15, 2006 available at http://usatoday.com/news/nation/2006-01-15-katrina-suits_x.htm.

[ix] Ken Lerner, Governmental Negligence Liability Exposure in Disaster Management, 23 Urb. Law. 333 (1991). This is a clear and detailed journal article telling all of the angles from which to make a negligence claim about a government’s emergency response.

[x] The City of Boston Emergency Shelter Commission has a Web page at http://www.cityofboston.gov/dnd/services.asp.

[xi] The Allegheny County plan is available at http://www.county.allegheny.pa.us/Human-Services/Programs-Services/Basic-Needs/Winter-Shelter.aspx. Note that the shelter and the majority of homeless people in that county are in the city of Pittsburgh, Pennsylvania.

[xii] Baltimore’s “Code Blue” program is a collaborative effort between the Health Department and the Department of Housing and Community Development. “Code Blue” Program, available at http://health.baltimorecity.gov/emergency-preparedness-response/code-blue. 

[xiii] The Anchorage plan for cold weather is at http://www.muni.org/Departments/health/Pages/ColdWeatherPlan.aspx.

[xiv] New York City’s Department of Homeless Services is described at http://www.nyc.gov/html/dhs/html/home/home.shtml.  Here is New York’s cold weather procedure document.

Do you have a right to sleep in public?

**** 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. ****

Public safety is one of the paramount obligations of city governments. Police and fire assistance, garbage pick-up, sewer authority, street repair, and numerous other city services function to assure safety.[i] People who walk public streets, ride public transportation, patronize public buildings, and sleep in public places are all legally entitled to public safety.

As was described in the blog post about having sleep disrupted while staying as a guest in someone else’s place, both criminal laws and civil laws punish people whose actions aggravate, annoy, or attack another person. The criminal law system punishes with fines payable to the state, probation, community service, and jail time-depending on the crime. The civil law system punishes people by making them pay money to their victims. See the posts about dealing with police and the courts for more information about making these different kinds of court cases.

In both criminal and civil law, actions like annoyance and aggravation constitute harassment. Physical attacks are classified in the category of assault crimes. In any state the assault category might include such divisions as simple assault, assault and battery, assault with a deadly weapon, or sexual assault.

Sometimes homeless victims don’t access the criminal system after attacks because they don’t expect help. A victim’s location does not affect the right to have an attacker charged with harassment or assault. It also does not alter the potency of those charges. In other words, the police cannot say, “well too bad he got attacked; he was asking for it by sleeping outside.” Police do not make those kinds of location-based judgments about domestic violence victims who remain at home with someone violent or about road rage victims who continue driving when someone else on the road is being aggressive; they cannot make them about homeless people.

Even the attacker’s defense attorney usually cannot use the victim’s homelessness as some sort of excuse for the attack. To imply that because someone is homeless he might be mentally ill, or asking for trouble, or somehow morally inferior would be an illegal use of victim character evidence in the criminal trial against the attacker. The Federal Rules of Evidence, which apply in federal court cases and which serve as a model for state evidence rules, rarely allow a victim’s character to be invoked in a case.[ii] If a lawyer did try to use those kinds of claims against a homeless victim, or even a homeless attacker[iii] or witness,[iv] the judge would forbid them from being presented.

When there is a pattern of crime in an area populated by homeless folks, there are several ways to reduce the likelihood of being victimized:
1. Stay away from that area
2. Get the police to regularly patrol the area
3. Establish an internal patrol system by which you and the others who stay there take turns keeping watch
4. Have a threat response system, a plan for how you’ll react to help yourself or someone else and
5. Enlist homeless advocacy organizations to help draw public and government attention to an outbreak of crimes against the homeless.

Even if no methods of self-protection are implemented, continuing to stay in a vulnerable place would not reduce a homeless person’s ability to have an attacker arrested and prosecuted. The Police Officers’ Code of Ethics assures that, “the fundamental duties of a police officer include serving the community; safeguarding lives and property; protecting the innocent; keeping the peace; and ensuring the rights of all to liberty, equality and justice.”[v] If police officers do not respond to distress calls or do not help to protect victims by investigating crimes and arresting attackers, then the victims and the public need to file ethics complaints with the police department. See the post asking “What if the police are rough with you” for information about reporting and fighting police misconduct.

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[i] 2 McQuillin on Municipal Corporations §9.05 (1988).

[ii] Fed. R. Evid. 404 says, “Evidence of a person’s character or a trait of character is not admissible…except: (2) …a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.” Rule 412 tells about the limited circumstances when the sexual history of a sex crime victim can be used as evidence in the case against the attacker. The Federal Rules of Evidence are available for free in several places on the Internet including the Cornell Legal Information Institute http://www.law.cornell.edu/rules/fre/. State evidence rules are available within each state’s listings on another part of the Cornell site http://www.law.cornell.edu/states/listing.html.

[iii] Fed. R. Evid. 404, 405, 406.

[iv] Fed. R. Evid. 404, 608, 609.

[v] International Association of Chiefs of Police, Law Enforcement Code of Ethics, “Primary Duties of a Police Officer,” available at http://www.theiacp.org/documents/index.cfm?fuseaction=document&document_id=94 See also the next section of that code about “Performance of the Duties of a Police Officer” which says, “A police officer shall perform all duties impartially, without favor or affection or ill will and without regard to status, sex, race, religion, political belief or aspiration. All citizens will be treated equally with courtesy, consideration and dignity.” See http://www.theiacp.org/.  Individual police departments have their own codes of ethics with similar promises of quality service.