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

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

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

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

You have two ways of protecting your information:

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

Sources:

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

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

Can shelters require you to take a drug test?

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

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

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

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

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

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

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

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

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

Obituary For a Homeless Litigant

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

 

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

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

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

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

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

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

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

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

Negative Law

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

 

Positive Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[vii] Id. at 309.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[iv] Id. at 1136.

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

[vi] Id. at 820.

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

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

Are the rules in shelters equivalent to laws?

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[viii] Id. At §9:76.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[i] 87 CJS “Trespass”.

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

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

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

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

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

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

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

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

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

Is it ever illegal to sleep in public places?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are some sample weather emergency plans for homeless populations:

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

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

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

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

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

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

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

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

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

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

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

[vi] 28 USC § 2671, et seq. (2006).

[vii] 28 USC §§ 2672, 2674 (2006).

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

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

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

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

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

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

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

Do you have a right to sleep in public?

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

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

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

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

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

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

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

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

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

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

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

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

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

What is “squatting”? Is there such a thing as “squatter’s 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. ****

“Squatting” is an old casual word for occupying a place that legally belongs to someone else when that owner hasn’t given permission for the occupation. “Squatter’s rights” is an assertion that someone is entitled to own land after he’s been squatting there. Although “squatter’s rights” is an old concept, it is certainly not casual. The legal name for squatter’s rights is “adverse possession.”

To see the research process for getting actual title to the property, see this post.

The doctrine of adverse possession is a venerable legal standard by which a possessor of land can become the owner of that land without buying it.  Generally, it is only possible to get control of privately-owned land by adverse possession; government property like abandoned public housing units, plots of land in alleys, empty schools, and other government-owned land and buildings cannot be taken-over by individuals.[i]  If the property is owned by individuals, a non-government organization, or a private business, there are several things that a land possessor has to accomplish and prove in order to become the legal owner.  Until all of these things are accomplished, the possessor, i.e., the squatter, is considered an illegal trespasser.

The possessor first has to possess the land in a way that is open. It can’t be hidden or secret; he can’t just put his own subtle markers around the perimeter and later claim that those markers denoted his possession.  The test that courts apply to decide whether possession has been “open” is to ask whether the possession is so visible that “a reasonably prudent owner in the exercise of ordinary care would have discovered that someone was asserting a claim to the property adverse to his.”[ii]     

Next, in order to qualify for adverse possession, the possession must be continuous.  If the possessor only spends the one day a month there or goes there just to pick apples sometimes, it isn’t continuous.[iii]  If the owner has the possessor jailed for trespassing, the possession is also not continuous because the time spent in jail breaks the continuation of time that the possessor expected to spend on the land.  For how long does this continuous possession have to go on before title is granted?  That is determined differently in each state.  Generally, it ranges between five and twenty-one years.[iv] 

Third, the possession must be exclusive.  This means that the possessor and the owner are not sharing the property.  It does not necessarily mean that the possessor has to be the only one on the property.[v]  Multiple possessors could eventually become co-owners if they share the property in the same way for the same amount of time.

Consider the example of a homeless person who consistently stays on a particular piece of land.  Maybe there are other people, homeless or not, who join him by staying on the land for weeks or months.  The owner, however, almost never occupies the land during the years that this homeless person occupies it.  This homeless person will have satisfied the legal requirement that his possession of the land was exclusive.

If the story is changed slightly so that two homeless people, not members of the same family, occupy the property together for the legal number of years needed for adverse possession, they both get to claim exclusive possession.  Even though neither one was alone on the property, those two people together controlled the property exclusively, without the owner’s involvement.

Fourth, the possession must be adverse.  This means that it truly has to be without the owner’s permission.  Sometimes, court cases use the word “hostile” to show that the possessor’s use of the property is against the owner’s interests.  This criterion doesn’t require that the possessor be mean to the owner, it only requires that his reason for using the property is contrary to the owner’s right to have his land left alone.[vi]  

When there are multiple owners and one of them has given someone permission to be on the property, the possession is no longer considered adverse and the possessor cannot hope to gain ownership of the property under the doctrine of adverse possession.  Permission does not always come in the form of a clear statement like, “sure, it’s okay with me if you stay here.”  It may be that the owner knows that the possessor is there, but does not interfere with the possession.[vii] 

In sum, it is possible for squatters to get a legal claim to the property where they squat, but only if it is done openly in a clear obvious way, if the squatting lasts for the number of years required in that state, if the squatter had pretty much exclusive possession of the property for all of those years, and if the squatting was definitely against the owner’s interests in the property.  To see the research process for getting actual title to the property, see this post.

RESEARCH TIP: To find the adverse possession laws in your state, try one of these strategies: 1. Look in a West case Digest for your state or region using the topic “Adverse Possession” and Key Number 13. 2. Look in the volume of your state’s statutory code covering “property.” If there isn’t a volume or major section on that topic, look for “adverse possession” in the alphabetical index to the code. It might be listed under “A” or it might be listed as a sub-topic within “property” or “real property” or “real estate.” Try navigating through the online version of your state code.  3. Look in a library catalog for a general book about property law in your state.

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[i] R.P. Davis, Acquisition by Adverse Possession or Use of Public Property Held By Municipal Corporation or Other Governmental Unit Otherwise Than for Streets, Alleys, Parks, or Common, 55 A.L.R. 2d. 554 (1957 & 2006). To read about adverse possession of streets and alleys, see 11 McQuillin on Municipal Corporations §30.179 (1991 & Supp. 2006).

[ii] John F. Major, Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261, §8 (2006).

[iii] “Acts which are consistent with sporadic trespass are insufficient to apprise a reasonably diligent owner of any adverse claim” Pierz v. Gorski, 276 N.W. 2d 352, 355 (Wis. Ct. App. 1979); “An annual entry upon another man’s lands, to cut timber, to feed cattle, to hunt or fish, can never give title, and the cultivation of a truck-patch during the summer as incidental to the other pursuits, does not redeem such entries from the character of occasional trespasses.” Wheeler v. Winn, 53 Pa. 122, 131 (Pa. 1866); “(1) mowing and maintaining the property each and every summer; (2) storing their lake equipment on the property each and every winter; and (3) allowing their children and grandchildren to play on the property… [are] best described as occasional and sporadic, failing to satisfy the elements of adverse possession.” Standard v. Urban, 453 N.W.2d. 733, 735 (Minn. Ct. App. 1990).

[iv] Examples: District of Columbia – 15 years, D.C. Code § 16-1113 (LexisNexis 2006); Florida – 7 years, Fl. Stat. Ann. § 95.16 (West 2006); Minnesota – 15 years, Minn. Stat. Ann. § 541.02 (West 2005); Nevada – 5 years, Nev. Rev. Stat. Ann. §§ 11.070, 11.110, 11.150 (West 2006); Ohio – 21 years, Ohio Rev. Code Ann. § 2305.04 (LexisNexis 2006); Washington – 7 years, Wash. Rev. Code Ann. § 7.28.050 (LexisNexis 2007).

[v] Bryant v. Palmer Coking Coal Co., 936 P.2d 1163 (Wash. Ct. App. 1997); Roche v. Town of Fairfield, 442 A.2d 911 (Conn. 1982).

[vi] Griffin v. Brian Dev., 938 So.2d 337 (Miss. Ct. App. 2006); Schuler v. Oldervik, 143 P.2d 1197 (Colo. Ct. App. 2006); Wood v. Bell, 902 A.2d 843 (Me. 2006).

[vii] Jonathan M. Purver, 2 C.J.S. Adverse Possession § 80 (2003).

Can property owners interrupt your sleep or otherwise make you uncomfortable simply because you are not paying rent?

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

 

The law does not allow anyone to be tormented in exchange for the simple opportunity to sleep indoors.

Although this is a problem that can be efficiently resolved by leaving the place, the question deserves legal analysis.  If someone were invited to stay in a place and then got berated or hassled or physically bothered by the host, he could legitimately ask the police to charge that host with criminal harassment.

The Model Penal Code declares that harassment is a petty misdemeanor that happens when someone: “insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; …makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or… subjects another to an offensive touching; or … engages in any other course of alarming conduct serving no legitimate purpose of the actor.”[i] 

         
State crimes codes elaborate on the Model Penal Code’s definition. In New Jersey, harassment includes behavior that “subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so…or any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” [ii]  In Connecticut, harassing behavior is included in the crime of disorderly conduct when someone “by offensive or disorderly conduct, annoys or interferes with another person”. [iii]  
In Maryland, harassment occurs when someone, “maliciously engage[s] in a course of conduct that alarms or seriously annoys the other…with the intent to harass, alarm, or annoy the other; after receiving a reasonable warning or request to stop by or on behalf of the other; and without a legal purpose.” [iv] In New Mexico, “Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.” [v] 
These are just a few representative examples to show that generally bothersome behavior truly can be punishable by law. The states follow the Model Penal Code’s classification of harassment as a minor crime, likely to result in a fine or community service, but not jail time.   
If the taunting or annoying behavior makes the victim afraid of getting hurt, both the crime and the punishment for it would become more serious. Then, the crime would be assault [vi] and the punishment could involve jail time. Examples of the kind of harassment that might count as assault could include showing a weapon or raising fists, making verbal threats, having a group of people collectively mock the homeless visitor, and using a menacing tone to demand that the homeless visitor do something. 
Victims of harassment or assault are not limited to the criminal justice system for help. They can sue their tormentors for money damages in civil court. The claims might include assault, battery, intentional infliction of emotional distress, or harassment. See the posts about court for more details about making a civil case.
 

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[i]Model Penal Code §250.4 (1962).

[ii] N.J. Stat. Ann. §2C:33-4 (West 2007).

[iii] Conn. Gen. Stat. §53a-182(2) (2006).

[iv] Md. Code Ann., Crim. Law §3-803(a) (West 2006).

[v] N.M. Stat. Ann. §30-3A-2(a) (LexisNexis 2007).

[vi] Model Penal Code §211.1(1)(c) (1962), defines simple assault to include: “attempts by physical menace to put another in fear of imminent serious bodily injury.”

Do you have a legal right to live in habitable conditions if you are on someone’s property with permission?

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

In group housing facilities, such as shelters and apartment buildings, there is a legally enforceable expectation of habitability. That legal obligation is connected to local and county health department ordinances and the law about leases. If a landlord violates the health code by having a water heater that leaks carbon monoxide, for example, the health department can declare that water heater unusable. But that does not give the resident anything more than a lack of hot water.      
The resident’s legal rights come in a warranty– the implied warranty of habitability. This implied warranty is identified in the statutes of some states and in the caselaw of other states.[i]    

 
The point of the warranty is that a rent-paying tenant is entitled to get a livable facility in exchange for his money. When the landlord does not maintain the building’s basic systems: plumbing, heating, electricity and other things that are under the landlord’s control such as infestations of hallways and other common areas, then the law says that the tenant is not getting what he is supposed to get out of the lease.    

  
A visitor does not have a lease agreement with a property owner. Even though the earlier part of this chapter showed that the relationship between a homeless visitor and a homeowner could be interpreted according to contract law, it also demonstrated that unlike an ongoing lease type of contract, the arrangement between someone staying thanks to the owner’s courtesy, possibly in exchange for some chores, is not a contractual right to prolonged housing. The owner’s motivation in allowing someone to stay at his place as a favor is basically a charitable one. The owner’s motivation in renting spaces to tenants, by way of leases, is the standard business motivation-to make money.       

Having to satisfy all of the codes– fire codes, health codes, tax codes, electrical codes[ii] is a legal responsibility that comes with being in the business of providing housing. Shelters are in the non-profit business of housing people which is why they have to follow the codes.      

Homeowners who do not rent out space do not necessarily keep their places in top condition. They may have learned to live with a faulty toilet or a failing furnace or flickering lights. They may not even live at the place where they agree to allow a homeless person to stay. Whether or not they live there, they have not established a contractual obligation to maintain the property in a particular condition if they have not entered into a lease with the visitor or they do not have standard legal obligations connected with being in the business of renting property. 

     
A homeless person living in a place without paying for it can get out of the sickening, dangerous, or injurious conditions of the building by simply leaving; it is not as if he is walking away from money that was paid in a down payment or rent. Being able to simply walk away without violating a deal or owing anything is even more proof that he does not have an enforceable contract for habitable living conditions. There are certainly many variations on the relationship between property owner and homeless visitor that can create a contractual obligation of habitability, but generally the obligation will not arise.     

There is, however, another possible legal avenue by which a homeless visitor might be able to take action against unsafe or unhealthy housing conditions if he has suffered harm from those conditions. This alternative legal claim would be negligence. Property owners have long been legally responsible for preventing visitors from being injured or sickened on their property. This area of negligence is specifically known as “premises liability.”     
The law of premises liability comes from cases more than statutes or regulations, and it varies according to the history of cases in every state. Basically, it means that when someone is injured on another person’s property as a result of the property owner’s failure to repair or warn about a danger on the property, the owner has to pay damages to the injured person.    

  
Warnings are not always a legal way of avoiding responsibility for someone’s injury on property. Nobody can get away with saying, “it’s not my fault he got burned in a fire; I told him the wiring was old.” On the other hand, sometimes just warning visitors against the danger can satisfy the owner’s legal duty. Everyone has seen electrified fences with signs that say “high voltage.” The fence owner with such signs would probably not ordinarily be liable for electrocuting someone who ignored those signs and touched the fence.    
In some places, trespassers do not have a legal right to sue for injuries caused by dangerous property. In those jurisdictions, courts have decided that property owners cannot be expected to protect people who go on property without their knowledge or at least without permission. Property owners definitely cannot purposely cause something to harm trespassers.[iii] And, in most places, a property owner who knows his property well enough to be able to predict that something about it could cause sickness or injuries, (examples: broken sink could cut someone, bad water heater could lead to scalding, faulty furnace could cause carbon monoxide poisoning…) has a duty to prevent those problems from hurting people who are allowed there as well as trespassers.[iv]   

   
Negligence has been defined elsewhere in this blog. Here is how it applies to a premises liability problem: Think about a homeless person living in someone’s basement. The house’s main sewer pipe is under the floor of this basement. Every time there’s a heavy rain, the basement becomes flooded with sewage. The homeowner knows about this sewage flooding, but doesn’t know exactly what’s wrong with the sewage pipe. The homeless person develops a terrible bacterial infection from living in the basement that has repeatedly had these floods.     
Since the owner knew that there had repeatedly been raw sewage in his basement and everyone knows that raw sewage can be sickening, he had a duty to prevent the homeless visitor from getting sick from it. He breached that duty by either not cleaning his basement or not preventing new flooding. Since he breached his duty and harm was caused as a result of that breach, he can be found negligent. Being guilty of negligence will make him liable for the sick visitor’s medical expenses. He might also be ordered to pay punitive damages. In other words, the court might say that he has to additional money to the visitor as a way of being further punished for causing that visitor to get sick.

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[i] Richard. A. Lord, Williston on Contracts §48:11 (4th ed. 1990 & Supp. 2006).

[ii] These health and safety codes are usually published in the county or local ordinances. In Justia, http://www.justia.com/us-states/ click on your state’s name and then, within the state resources page, look for the link to “city websites and city codes.”

[iii] The famous case conveying this legal prohibition involved a property owner who set-up a spring-loaded gun that would shoot as soon as someone opened the door to bedroom in his old farm house. He arranged the gun that way because trespassers had been entering his old farm house, while he was at his main house, and stealing things from it. He expected that the gun would serve to punish the next trespasser and deter any others who might have come. Katko v. Briney, 183 N.W. 2d. 657 (Iowa 1971). Similar cases involving spring guns had been on the books for years, often as criminal cases against the property owners. See, Homicide-Death of Trespasser by Spring Gun in Unoccupied House, 31 Yale L.J. 562 (1922).

[iv] To see a thorough comparison of relevant cases from throughout the country, go to Vitauts M. Gulbis, Modern Status of Rules Conditioning Landowner’s Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 22 A.L.R 4th 294 (1983 & Supp. 2006).

Can property owners make you leave whenever they want to?

**** 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. ****

 

Depending on the agreement between the homeowner and the homeless visitor and the way they have mutually come to their expectations and behaviors regarding the living space, the homeowner will usually have legal justification for abruptly ending a housing relationship with a non-paying tenant.[i]

The word “usually” appears here, because of that huge range of possibilities about their expectations and behaviors. It is certainly possible for a court to find that an actual landlord-tenant relationship has formed between a homeowner and a homeless visitor in which case the homeless visitor would be entitled to formal eviction proceedings.[ii]     

Even when a visitor has fully upheld his promises and the homeowner has not asked for additional obligations from the visitor, a homeowner can legally modify the contract by saying that as of a particular day, and it can be the same day because no statutes provide extra time for guests to be warned, he will no longer house the homeless person. In other words, he will not uphold his end of the bargain anymore. He is freeing the homeless person from his obligations. Not only that, he is informing the homeless person that even if he does honor his obligations, the homeowner will no longer honor his.

Once the homeowner has told him to leave, a homeless person will not succeed in a court case declaring that the homeowner breached the contract by not allowing him to stay through the winter even though he kept shoveling the snow. He will not be able to force the homeowner to continue housing him.  A court would likely find that as of the point that the homeowner decided to no longer provide housing, the visitor no longer had any obligation to shovel the snow.

In other words, shoveling snow no longer had the effect of being part of the housing deal. If the homeless person continued to do it without the homeowner’s promise to continue providing housing then the homeless person was simply doing the homeowner a favor, not ensuring that he would continue to get his housing.

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[i]Jackson v. U.S. 357 A.2d 409 (D.C. 1976) (a girlfriend’s right to throw out her boyfriend was upheld by a court); Young v. D.C.752 A.2d 138 (D.C. 2000) (a property owner was allowed to have his son’s homeless unemployed friend ousted from an apartment even though he made token payments in exchange for the opportunity to stay there).

[ii]DeLay v. Douglas 164 S.W.2d 154 (Mo. Ct. App. 1942) (a tenant farmer who planted and tended wheat and barley crops in a year when he had no lease was entitled to keep half of the crop just as he had in the years when there was a lease between him and the landowner); Valdez v. Brookhaven 05-CV-4323 (E.D.N.Y. 2005) (though a lease was found not to exist, the court did analyze due process rights connected with eviction.)