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. http://www.aclu.org/criminal-law-reform/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

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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.


[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.


[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).

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.


[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]

[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.


[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.


[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.