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.

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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]


[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]


[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]


[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.


[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.


[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.


[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.