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]


[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, 6th 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.


[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]


[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]

.
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?

.
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.