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.

 

 

 

 

 

 

 


[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.

Advertisements

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]


[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]


[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.

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.


[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/.