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. 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

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.

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.

 

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.

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.

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).

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.

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).

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.