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

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

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

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

You have two ways of protecting your information:

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

Sources:

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

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

Can shelters require you to take a drug test?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

[ii] 67 C.J.S. Obscenity § 9 (2005).

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

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

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

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

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

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

[ix] 36 C.F.R. § 2.34(a)(2) (2007).

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 


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

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

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

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

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