What if I can’t pay my tickets or fees and fines from criminal court?

We know that people who are homeless get charged with a lot of small crimes. Examples include loitering, panhandling, obstructing the sidewalk, trespassing, and littering. Very often, the penalty for these minor crimes is a fine—either a ticket or a fine imposed in court. The fine is supposed to be paid by a deadline.

If you don’t have the money to pay that fine and you miss the deadline, you can be charged with an additional crime which is usually called something like “failure to pay” or “contempt” in the local crimes code. This second charge might result in an additional fine or another kind of penalty such as community service or even jail time.

If the court system is able to communicate with you by phone or mail, which is not always possible when people do not have a permanent home, the payment office may contact you if you have had difficulty paying your fine. In that communication, they will likely tell you if it is possible to arrange a payment plan or an alternative to payment (such as attending a class or doing community service) if you cannot afford to pay. Being poor does not relieve you of criminal punishment; it just gives you an excuse for not paying the full fine by the original deadline. So if the court system tries to make arrangements with you, you are supposed to cooperate in forming a plan and fulfill your part of the arrangement. You may need to fill out forms or appear in-person for a conversation about your ability to pay.

You can ask for a payment plan or payment alternative as soon as your fine is assessed; you do not have to wait until they add a charge of non-payment and send you a second ticket. If you don’t give the court a way to contact you and you don’t reach out to the court before they come looking for you, these criminal charges will just stay on file until the next time you have an encounter with the police.

As these various charges and your lack of cooperation with the system mount up, so do the penalties that they can use against you. At some point, a police stop that might otherwise be uneventful will become a big deal because the officers will look you up and see that you have unresolved charges. They may take you to jail because of your outstanding charges.

 In March of 2016, the Department of Justice (DOJ) issued a letter to state and local criminal courts regarding unpaid fines. The DOJ urged the court systems to confirm whether someone is financially able to pay a fine before punishing him for not paying it. It also called on the court systems to honor Constitutional due process rights. The letter spells out specific ways to honor due process: giving people notice before punishing them, giving them alternatives to payment, and not suspending their license or requiring expensive bond as the only ways of avoiding jail.

If your court system is not acknowledging your inability to pay criminal fines, your ACLU or the public defender’s office might take action on your behalf.

The ACLU published a report in 2010 about how people suffer increasing punishments after not being able to afford their court fines Subsequent to that report, state ACLU offices have produced helpful information tools for the public. Here are examples: Pennsylvania –  Washington–  ColoradoOhio .   Find your local ACLU affiliate to get instructions and other support if you cannot afford to pay a ticket or costs or fees assigned by a criminal court.

The National Association for Public Defense (NAPD) has a committee dedicated to the topic of Fines and Fees. http://www.publicdefenders.us/finesandfees Members of this committee have testified to the U.S. Civil Rights Commission about the terrible consequences that happen to people who do not have enough money to pay their criminal court fines. The Fines and Fees Committee welcomes input and offers resources to local public defenders. If you have a public defender who needs back-up to protect you from being jailed for not paying court fines, put that lawyer in touch with this group. You might like the NAPD’s Statement on Predatory Collection Practices. http://www.publicdefenders.us/files/NAPD_Statement_on_Predatory_Collection_Practices.pdf

What legal rights do users of public bathing facilities have?

**** 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. ****

Aside from the already mentioned health regulations stating that where there are toilets there must be sinks and where there are sinks there must be soap, the legal rights connected to using public bathing facilities depend, as always, on whether the place is run by the government or a private entity. The particular activities that people may undertake in the facility depend on the staffing, physical plant, and monetary resources of the place and are not a matter of law. They do not have to allow shaving or nail cutting or tooth-brushing, for example. They might only have showers, not bathtubs. They might only allow people to bathe individually to prevent people from having sexual encounters there. Law is about the way people and government behave toward each other and how society operates, it rarely ever declares that people are entitled to do any particular activity in a certain place.

Sometimes there are bathing facilities at churches, shelters, nonprofit community centers and other privately operated places that are funded by donations from individuals and businesses. These privately operated facilities are obligated to function according to the direction of their own boards and their funding sources. This means that private facilities can have their own rules and limitations about the circumstances under which they allow people to wash there or obtain hygiene supplies. It also means that they can be unfair in providing their services: allowing some people to have more time than others, excluding some people, not providing notice of rule changes, etc…

If a private agency or organization gets government funding toward a particular service, like establishing bathing facilities, there may be regulatory legal obligations connected with using that funding. The whole facility is probably not subject to those obligations,[i] only the component providing the government-funded service. To find out abut those obligations, which will probably be about the way the service is provided and the conditions of the facility, it is necessary to find out which government agency (i.e., state department of health or county department of welfare or city special grant bureau, etc…) gives that funding and then contact that government agency to obtain a copy of the regulations and instructions for interacting with them if you believe their regulations have not been followed.[ii]

Sometimes, municipalities or counties install public showers and other washing facilities as part of food banks, health clinics, community centers and other social service agencies that those government entities operate. Those kinds of facilities are considered government property because their buildings and their operations are paid for out of the ordinary tax base either through the regular budget stream or specially-dedicated government funds like limited term grants. Public users are entitled to civil rights protections when accessing these government operated facilities. The civil rights protections include things like equal access, freedom from religious impositions (i.e., they can’t force you to say a prayer or participate in religious counseling in order to obtain the service), free speech, freedom from being searched unless the search is a routine security process used for everyone, privacy…   (Read more about civil rights on Findlaw.)

All of the rights enumerated in the last paragraph are simply listed as general civil rights principles. Civil rights principles arise from the ways court cases interperet amendments to the U.S. Constitution.  So, civil rights is an area of law in which there is often not a clear rule for everyone to follow.  Rather, it is a constant analysis of comparisons:

1. weighing the government’s purpose along with its rule and

2. determining whether the rule, as applied in the situation being questioned, is structured just to serve that government interest. If it limits people unfairly by going beyond the scope of the government interest, it violates civil rights.

A helpful resource for learning about civil rights is Justia’s Annotated U.S. Constitution.  Read the sections about the Amendments to the Constitution to find easy explanations of how courts have interpreted those amendments.  Note that the list of amendments tells what subjects are covered in each amendment (due process, free speech, etc…)  Click on the hyperlinked name of any case on that site and you’ll get to the Supreme Court’s full decision.

Here are two examples demonstrating how civil rights can be outweighed by significant government interests:

  •  If a member of the public, who routinely carries a weapon, comes to the public washing facility, the facility can probably justify locking the weapon away while the visitor is on the premises because the facility has an obligation to prevent harm to its staff and users.
  • People are supposed to have the right to free speech in a public place. However, if someone comes into a washing facility and makes threatening comments to other people bathing there, the facility (i.e., the government) may be at risk of losing the victims of those comments. If the whole purpose of the washing facility is to give people a place to get clean and try to avoid disease, but people were too scared to go there, then it wouldn’t be an effective washing facility anymore unless the place refused to allow threats.

[i] The whole facility can be required to make changes in order to comply with legal requirements and accommodate the government funded part. For example, the building might have to install new doors, or fire safety devices, or a stair railing, or make other kinds of modifications to the building entrance or the building’s systems in order to make the government funded bathing service properly safe and available to public users.

[2] State agencies, such as health departments, publish their regulations in administrative codes.  All of the states’ administrative codes are available on the Internet from the National Association of Secretaries of State at http://www.administrativerules.org/.

Is the government required to provide you with bathing facilities?

**** 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 has been held that a criminal defendant who was not provided with soap, a comb, and other basic hygiene amenities in jail was entitled to a new trial because his dirty and disheveled appearance may have turned the jury against him.[i] That is an example of one of the two situations in which the government is required to provide any kind of washing facilities: those in which government buildings make toilets available to the public and those in which the government has custody of someone, as in the case of the jail inmate or when the person is in someplace like a county or state-run nursing home, etc… Other than in those instances, the public cannot expect that the law entitles them to a place in which to get clean or even to get supplies for washing or other personal hygiene functions.

In government custody situations, as the previous section demonstrates, regulations about the condition of hygiene facilities in institutions might come from the government agency of which the institution is a component or from the public health code. The standards that have to be followed when public restrooms or bathing facilities are available in restaurants, other businesses, or in government buildings are in state public health codes.[ii]

A clear and detailed example of standard public restroom requirements is in the Illinois public health code which includes specifics like, “Lavatories shall be provided and located within or immediately adjacent to all toilet rooms or vestibules. All lavatories shall be provided with hot and cold running water that can be tempered by means of a valve or combination faucet” and “A supply of bar, liquid, or powdered hand-cleaning soap or detergent in a dispenser shall be available at each lavatory.”[iii] The Kentucky public restroom regulations are also very detailed with statements like, “an adequate supply of toilet tissue shall be provided at each toilet facility at all times” and “hand washing facilities, including running water, soap, and individual cloth or paper towels, or other method for drying hands approved by the cabinet, shall be provided…The use of the common towel is prohibited.”[iv]

Oddly, even though there are no general legal requirements mandating public bathing facilities for people who don’t have homes, there are some circumstances in which the government provides hygiene supplies to members of the public who don’t need something as basic as a place to bathe and who aren’t necessarily financially needy. Notable examples of this are equipping drug users with clean syringes and dispensing condoms to teenagers.

The legal sources for these actions are public health regulations, made by state and county health departments, often in furtherance of the government’s interest in preventing the spread of HIV or other viruses, diseases, etc… It seems reasonable to ask why a government would make a law entitling members of the pubic only to such limited hygiene supplies and not just ordinary sinks and showers that are fundamental to fighting so many kinds of sickness. Lobbyists for the poor, and poor people themselves, can ask that question of lawmakers if bathing facilities are not available in a community.


[i] State v. Maisonet, 763 A.2d 1254 (N.J. 2001).

[ii] State health agencies’ Web sites are listed at http://www.cdc.gov/mmwr/international/relres.html. Within each agency’s site, look for a link to “laws” or “regulations” or use their search tool for more specific terms such as “cleanliness” or “homeless” or “shelter,” etc..

[iii] Ill. Admin. Code tit. 77, § 895.50(g), (g)(1) (2007).

[iv] 902 Ky Admin. Regs. 10:010:2:7, 12, 13 (2006).

Is it legal to kick someone out of a store or restaurant just because he or she smells bad?

**** 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, businesses serving the public have the freedom to eject prospective customers just because they smell bad. In fact, they can kick people out just because they are not wearing shoes or a shirt. Stores and restaurants do not have to do business with anybody if they don’t want to. Granted, they cannot discriminate on the basis of disability or race or other categories recognized under the Equal Protection Clause of the Constitution.[i]  But, being dirty and smelling bad (no matter how anyone measures the badness of smell) are simply not protected by law the way race and disability are.

There are some contract claims that could arise if a customer is told to leave after he has started to make a purchase. Under contract law, people have legal obligations to each other if one has offered something and the other has accepted the offer and done something to rely on that offer. Making payment is usually the action that shows that the buyer is relying on the seller to fulfill the order. So, at the point when a customer has already ordered food or merchandise and has paid for it, the business has a contractual obligation to return the money or provide the order.

If it is a sit-down restaurant and the customer ordered the food expecting to stay there and eat it, but was then told that he could only have the food to go, the customer could claim that he was entitled to get his money back on the grounds that the contract was breached by the business which, in giving him takeout food instead of an in-restaurant experience, was changing the terms of the deal without getting the customer’s agreement.

There isn’t necessarily anything tangible to be gained by having this understanding of the legal analysis; the dispute isn’t worth enough to take to court and there wouldn’t be any change in the business’s practices just because of one lawsuit. Nevertheless, knowing how the law would apply to this kind of transaction can help a person decide in advance how to control the communications and the result.

Since a deal is normally not solidified until the money is handed over, the customer should not pay that money until he has clearly been assured of what he will get for it. If the situation is one in which the goods or services are provided first and money is paid after that, the merchant takes the first risk not the customer. In that case, the merchant is the one looking for the assurance that the customer will uphold his end of the deal.

Think about the scene in the sit-down restaurant again. A dirty smelly customer comes in, is seated, looks at a menu, and maybe even orders. It is conceivable that at this point the manager of the restaurant could think that this customer might not be able to pay. If the restaurant hasn’t served the food yet, and the manager asks the customer to leave, the customer can indicate that he does have the money to pay for the meal. At that point, the manager might just admit that the customer has to leave because he smells bad. Still, the legally-informed customer can continue to handle the whole thing like a contract negotiation thereby saving his dignity while giving the restaurant one more chance to get its money. The customer can recommend to the manager that a change of seating might satisfy the restaurant’s concern about his smell and still enable the restaurant to make this sale.


[i] See http://topics.law.cornell.edu/wex/equal_protection for an introduction to equal protection with links to state and federal constitutional sources.

If you aren’t satisfied with a free lawyer, what can you do?

**** 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. ****

 

Regarding free lawyers in criminal cases:

Numerous agencies and organizations speak out against inadequate legal representation for the poor.[i]  And there have certainly been lawsuits against individual public defenders as well as public defense systems for providing ineffective legal representation.[ii]  All of these sources and the legal rights they champion are either about reforming systems or else about the right to sue a court-provided lawyer after he has botched a case. They do not tell what someone can do if he is currently getting bad help from a free lawyer.

Although someone paying a lawyer could simply fire that lawyer and hire a different one, an indigent defendant might not be able to change lawyers. It is always possible to ask the court appointment system or the public defender’s office for a replacement lawyer. But they may not have spare lawyers available and they will have to be convinced that the inefficient disruption of reassigning a case is worthwhile.

To convince any legal service provider that something is worthwhile, it is wise to describe that thing in its legal context. So, when trying to convey that a different lawyer should be assigned to a case, an indigent client has to be able to convey to the head of the court appointed program or the head of the public defenders office that his legal rights are being compromised by the current lawyer and that the lawyer is not fulfilling his professional obligations.

It is not sufficient to simply make those claims; heads of legal offices are not easily convinced by anyone, certainly not by every complaining client. You have to be able to show how the lawyer is violating your legal rights.

If you think that your Sixth Amendment right to effective assistance of counsel[iii] has been compromised,

  1. explain what the lawyer is supposed to be doing: showing up for meetings, listening to your full story, collecting evidence on your behalf, figuring out how your actions differ from the crimes charged, comparing your situation to past cases, and generally contradicting the prosecutor’s claims in any legitimate way
  2. provide proof of the lawyer’s failure to fulfill these obligations: copies of helpful evidence that he has not used, descriptions (or recordings) of meetings and phone calls in which he has ignored you, a copy of the court’s docket sheet showing that deadlines were missed, affidavits from witnesses who are willing to testify but have not been contacted by the lawyer etc…

If you think that your right to due process has been compromised,

  1. demonstrate the characteristics of proper process: use copies of the defenders’ office’s brochures or Web pages to prove what they claim they’ll do for defendants; bring examples from the ACLU and the Southern Center for Human Rights cases and fact sheets to show what indigent defendants can reasonably expect from their lawyers;[iv] present the ABA’s Ten Principles of a Public Defense Delivery System as recognized standards.
  2. Provide proof that either the office’s standards or those principles identified by legal professional organizations like the ACLU and the ABA have not been applied in your case.

Only with clear direct standards and examples will you be able to convince your lawyer’s boss that in the middle of your case it is already evident that your legal counsel is not effective or adequate.

The Ten Principles of a Public Defense Delivery System
American Bar Association
[v] 

  • 1. The Public defense function, including the selection, funding, and payment of defense counsel, is independent.
  • 2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
  • 3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment as soon as feasible, after client’s arrest, detention, or request for counsel.
  • 4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client.
  • 5. Defense counsel’s workload is controlled to permit the rendering of quality representation.
  • 6. Defense counsel’s ability, training, and experience match the complexity of the case.
  • 7. The same attorney continuously represents the client until completion of the case.
  • 8. There is parity between defense counsel and prosecution with respect to resources and defense counsel is included as an equal partner in the defense system.
  • 9. Defense counsel is provided with and required to attend continuing legal education.
  • 10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.

If you are not satisfied with an attorney assigned by the legal aid office to help you in a civil case, what can you do?

The legal relationship between clients and legal aid offices is contractual, just like the relationship between paying clients and their private attorneys. And the attorneys who work in legal aid offices are supposed to have the same skills and desire to give their clients the best possible legal representation as the private-pay attorneys. If the lawyer is not providing adequate representation, a client’s best strategy would be to handle it like any other consumer complaint.

The legal aid office might have a formal process for filing complaints. If they don’t have a process, writing a letter is the best way to let them know that you want better service. The letter can be addressed to the lawyer on the case as well as the office supervisor. Like the complaint about inadequate criminal representation described above, this letter should identify exactly what actions have been unsatisfactory and what risks you predict if the lawyer is allowed to continue representing you in that way.

If the case is already over and you believe that you lost because of the lawyer’s incompetence or negligence, you can sue him for legal malpractice claiming ineffective assistance of counsel. In that case, it would be necessary to prove that the lawyer failed “to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances”[vi] and that you lost the case because of that failure. You can also file a professional ethics claim against a bad lawyer. Ethics claims are brought before the state attorney licensing office, not in court.[vii]


[i] The Southern Center for Human Rights has published many reports and articles about inadequate representation of criminal defendants http://www.schr.org/reports/index.htm; The American Bar Association published a comprehensive report after conducting hearings about court-provided criminal defense programs. The report is titled “Gideon’s Broken Promise.”

The American Civil Liberties Union (ACLU) has fought many important cases on behalf of poor people who did not get adequate criminal defense help from public defenders or court appointed lawyers.  The ACLU’s Web site has sample court documents, fact sheets, and news stories.[ii] Cases about ineffective public defenders include Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Clark, 319 F.3d. 465 (9th Cir. 2003); Powers v. Hamilton County Public Defenders Commission docket # 02 CV 00605 (S.D. Ohio 2005) (Brought by clients who were jailed after not being able to afford court costs.)  For broad policy concepts, see the American Bar Association’s page about indigent defense systems. http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/indigent_defense_systems_improvement.html

[iii] Cuyler v. Sullivan, 446 U.S. 335 (1980) and U.S. v. Cronic, 466 U.S. 648 (1984) are two cases that explain adequate and effective legal representation.

[iv] The ACLU no longer publishes a full site about indigent defense information, but your nearest chapter likely has lots of relevant fact sheets and legal pleadings. http://www.aclu.org/affiliates  The Southern Center for Human Rights’ indigent defense information is at http://www.schr.org/reports/index.htm.

[v] The ABA’s Ten Principles of a Public Defense Delivery System are available at http://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf. The electronic document includes explanatory comments and references to related ABA professional standards.

[vi] 7A CJS Attorney and Client §327.

[vii] The American Bar Association’s Center for Professional Responsibility links to states’ legal ethics codes and attorney licensure offices. http://www.abanet.org/cpr/links.html

How Can You Get a Free Attorney?

**** 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. ****

Courts provide free attorneys only in criminal cases, when defendants cannot afford to hire attorneys.[i] They do not provide lawyers for poor people involved in civil cases.

Legal Aid offices provide free legal representation in civil cases,[ii] but litigants have to find those legal aid offices on their own.[iii] Legal Aid offices come in many forms; they might serve a particular demographic group (for example, women) or work on a limited range of issues (for example disability law). They might be available through bar associations, law schools, social service agencies, or simply as independent non-profit organizations. Usually, both criminal courts and legal aid offices use the federal poverty guidelines[iv] to determine whether someone is eligible for free legal assistance.

In some jurisdictions, there is a pool of lawyers who work full time in the criminal court system and are paid by the court system to defend accused criminals who cannot afford to hire a private attorney. Those pools of lawyers are known as public defenders. In other jurisdictions, the court system contracts, either with the entire criminal defense bar, or else just the criminal defense attorneys willing to participate, to pay lawyers to represent criminal defendants who cannot afford to hire their own attorneys.[v] In these systems, the lawyers’ names are on a roster and the court clerk simply assigns the next person on the roster as soon as a low-income criminal defendant is in need of representation. That kind of system is a court-appointed attorney system.

In many jurisdictions, the public defender’s office is backed-up by a court-appointed system when there are too many cases for the public defense team to handle.


[i] U.S. CONST. Amend. VI. This constitutional provision plus summaries of major cases interpreting it are at http://supreme.justia.com/constitution/amendment-06/index.html and at http://caselaw.lp.findlaw.com/data/constitution/amendment06/.[ii] The federal government established the Legal Services Corporation (LSC) to fund legal aid offices that provide non-criminal legal services for indigent people throughout the country. The LSC Web site http://www.lsc.gov/ has a thorough online library of resources for self-help litigants and those seeking or suing legal aid offices. The site also has numerous reports and studies about free legal services for the poor.

[iii] Three electronic sources for locating your local legal aid offices are LawHelp http://www.lawhelp.org/, Justia http://law.justia.com/, and Findlaw http://www.findlaw.com/14firms/legalaid.html.

[iv] The Department of Health and Human Services publishes the federal poverty guidelines at http://aspe.hhs.gov/poverty/index.shtml.

[v] The American Bar Association provides a chart showing how each state’s indigent criminal defense is structured. The chart also cites the state’s indigent defense statutes. http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.pdf The ABA also provides reports about state spending on indigent defense systems and sets for the fundamental principles for indigent defense systems at http://www.abanet.org/legalservices/sclaid/defender/home.html.

Does it cost money to make a court case?

**** 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 does cost money to file a case in court though it does not cost money to file a response to a case whether it is a criminal case or a civil case. When someone comes in to file a case, the court clerk’s office charges a fee just for filing the initial document. Then there is a fee from either the court or the sheriff’s office for delivering a copy of the initial document to the opponent. After the first document in a case, each party in a case has to pay the costs of photocopying and mailing his documents to both the court and the opponent.

Then there are various kinds of costs associated with collecting and presenting evidence: Witnesses have to be paid. Scientists who analyze evidence get paid. Photographs and videotapes cost money to produce. Depositions, which are interviews with witnesses or opponents, have to be transcribed by a court reporter who has to be paid. Copies of pages from medical records can get pricey. The expenses go on and on, at least for people representing themselves or hiring private attorneys.

Litigants represented by legal aid offices, public defenders, or court-appointed attorneys do not have to pay these costs; the law offices will pay for everything. Litigants who do represent themselves in court can at least get the court’s fees waived if the court deems them to be in forma pauperis, in the form of a pauper, without the financial ability to pay the court’s costs. The courts require people seeking in forma pauperis status to file a motion declaring and demonstrating their poverty. Nearly every court clerk’s office and Web site has a fill-in the blank form to use for that procedure in their court. There is also a standard form for claiming in forma pauperis status included in virtually every publication containing the court’s rules. [i]


[i] Federal court forms for in forma pauperis motions are at http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO240.pdf.  If that particular form doesn’t show up, go to the main forms page for the federal courts.  http://www.uscourts.gov/FormsAndFees.aspx   State courts’ Web sites can be reached from http://www.ncsconline.org/D_KIS/index.html.

Are there any rules about what you can say and do in court?

**** 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. ****

Just as there are numerous court rules for documents, there are also many rules for behaving and presenting in court. The basic understanding about courtroom decorum is that anyone who comes to court to argue a case will show respect for the court by demonstrating self-control, communicating precisely, and following the court rules. Even spectators have to behave according to court standards. Usually, this means being quiet, standing when the judge enters, and not interrupting the court proceedings. But in Minnesota, the Supreme Court ruled  in August, 2015 that people cannot even enter the courtroom to watch a case unless they present photo identification. This ruling did not mention homeless people, but it will result in excluding some homeless people from watching cases.

.
Not showing respect for the court, by talking out of turn or disregarding the judge’s standards, etc… can be seen as showing contempt for the court. If the judge does consider behavior as contemptuous, he can have an offending gallery member removed from the courtroom and an offending litigant fined or jailed.

In addition to basic decorum, rules of evidence are very important in the courtroom. These are the rules that govern what kind of proof each party can present. The limitation preventing irrelevant information from coming into a case is an example of a rule of evidence.

Another important evidence rule is the hearsay rule. In federal courts and in state courts there is always some version of a hearsay rule saying that witnesses in court can only testify about what they have experienced; they cannot testify about things they heard other people say.

There are some exceptions to hearsay rules. Words spoken by someone about to die can be presented in court by a surviving witness. Documents kept in the regular course of business can be presented as evidence on their own, without their author being present. Usually, there are between twenty and twenty-five exceptions to a court system’s hearsay rule.

Another important rule to know about is the character evidence rule which says that descriptions of a person’s character are not allowed to be entered as proof that he did what he is accused of doing. For example, when a defendant is accused of committing fraud (misrepresenting facts to someone who lost money relying on those facts) a witness cannot be brought to say, “Jimmy’s a liar. He lied to me about the condition of his lawnmower when I bought it from him.” That sort of testimony might get the jury to assume that the defendant committed the fraud just because this person from years ago knew of his lying in a completely different situation.

Because of the prejudices and misconceptions that exist about homeless people, it is necessary to listen for innuendos about laziness or dishonesty or irrationality that a court opponent might be trying to state as evidence of a homeless person’s character.

Dealing with the rules of evidence gets especially tricky because there is an understanding that an opponent might not mind if the other party wants to present hearsay or an unauthenticated object or a surprise. So, litigants are required to notify the judge, during a trial, when they object to the presentation of evidence that violates the rules.

They do this by immediately declaring something like, “your honor, I object to the prosecutor’s question because it invites the witness to talk about something irrelevant to this case.” Then, the judge makes an instant decision about whether the attempted evidence presentation would violate the rules. If the judge sustains the objection, it means that the evidence will not be allowed. If the judge overrules the objection, it means that the evidence will be allowed because it does not violate the rules.

COURT RULES
In order to properly communicate with the court and opponents in a lawsuit, you have to follow court rules.The four basic categories of court rules are:

  • Rules of Civil Procedure
  • Rules of Criminal Procedure
  • Rules of Evidence
  • Rules of Appellate Procedure

The rules are available from numerous sources:

  • The court’s Web site:

Federal http://www.uscourts.gov/courtlinks/

State http://www.ncsconline.org/D_KIS/info_court_web_sites.html

http://www.llrx.com/courtrules/

If you are looking for print sources instead of electronic sources, look in libraries for paperback books of court rules or for the print versions of the statutory codes.

In addition to the official rules of court, every judge has standards for behavior in the courtroom. Some judges like the participants to introduce themselves in a particular way. Some judges don’t allow lawyers and pro se litigants to tell stories to set a scene. Some judges demand a conference in chambers to try to settle the case instead of having a trial.

To be sure that litigants satisfy these preferences, judges generally publish them in their biographies on the court’s Web site or mail them in a letter to each party. A litigant who does not live at an address might be able to receive court-related mail in care of a social service agency where he regularly receives services. As an alternative to that, or in addition to it, he can ask the judge’s clerk if the judge has any courtroom behavior preferences.  A homeless litigant can also make arrangements to check-in with the judge’s clerk on a weekly basis to find out whether any scheduled events have changed or to see if the opponent has filed new documents, or if there is any other kind of news or activity connected with his case.

Where do you find out how to write documents for court?

**** 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. ****

Legal forms can be accessed from http://forms.justia.com/. Another strategy for locating court forms online is to look for a link to “documents” or something similar on the court’s Web site. http://www.ncsc.org/Information-and-Resources/Browse-by-State/State-Court-Websites.aspx The Law Librarians Resource Exchange maintains an easy interface for locating state and federal court rules and forms at http://www.llrx.com/courtrules.

Documents filed in court should be typed and submitted on clean paper. This is not always a rule or a legal requirement, but it is an expectation. Courts will often accept handwritten documents as long as they contain the necessary information and are submitted to the proper office at the appropriate time. Lawyers, who are professionally obligated to show respect to the court, always file typewritten documents.

Filing neat and properly executed documents not only shows respect for the court, it also provides the opponent with the clearest possible presentation of your message.Generally, all court documents must have a caption on the first page and must be in specific order, depending on the purpose of the particular document. The caption usually tells who is suing whom and lists the name of the court, the date of the filing, and the docket number for the case. The docket number is assigned when the first document of the case is filed with the court clerk. On all documents filed after the first one, litigants must include that docket number so that their documents get filed with the same case.

There are lots of books full of sample legal forms. Law libraries will have those books. Typically, they can only be used as examples. It is rare to find a book’s fill-in-the-blank form that will be accepted by a court. Sometimes, court’s Web pages have sample forms and those can be filled-in online or else printed and filled-in. Since almost all documents filed in court become part of the public record, another way to see how to write documents is to copy and modify someone else’s pleadings.

To do so, go to the court clerk’s office and ask if there is a way to search for cases according to topic (negligence, assault, breach of contract, etc…) If there is a way for you to do that, allocate a few days in which you can dedicate yourself to looking for and reading through the documents filed in cases similar to yours. The clerk’s office will have coin operated copy machines or computer printers available.

No matter which resources tell you how to write a court document, you absolutely have to be sure the document complies with current court rules. Every court has rules about organizing and presenting documents. In fact, every court has its own rules in addition to rules from either the state or federal court system.

The rules tell how to notify an opponent that you are suing him, how to format court documents, what kind of information is required in court documents, how much time someone has in which to file a document, what options the opponent has for responding to that document and what kind of action the court will take regarding the document (i.e. whether the clerk will file it, whether a hearing will ensue, etc…).


How do you start to connect legal research with actually proving a case?

**** 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. ****

Whether you are defending yourself in a criminal case or suing someone in a civil case, there are some basic steps to follow when making a case in court.

In criminal court, a defendant seeks to prove that the criminal charges do not match his actions, that faulty police procedures made some of the evidence inadmissible in court, and that the evidence which is presented in court does not prove him guilty.

Here is how legal research relates to those goals:

1. Read exactly how the crimes code defines that charge and think of ways to explain that your behavior does not match with that definition.[i]

2. Examine each item of the opponent’s proposed evidence against the rules of evidence.[ii] Investigate how the police obtained that evidence and how they handled it once they had it.

3. Look at the decisions in previous cases about that same charge to see how people successfully defended themselves and to see how the courts comment on the crimes code.[iii]

4. Having read the decisions in previous cases, show how your situation differs from the cases in which people were found guilty.

In a civil court case, such as a breach of contract or a negligent injury claim, a plaintiff generally seeks to prove that whomever he’s suing owed him a promise or a duty, that the promise or duty was not upheld, and that he has suffered harm or losses because of the opponents actions or inaction.

Here is how legal research relates to those goals:

  • 1. Read books, legal encyclopedias, sample jury instructions, American Law Reports, and other explanatory sources to see how to depict the duty or obligation. Those sources should lead you to statutes, regulations, and cases. In case they are incomplete, look in the indexes to statutes and regulations and in case digests using every relevant word to be sure you locate all applicable law.
  • 2. Using case references from those explanatory sources, read case decisions to get examples of what was necessary to prove that duties were breached.
  • 3. Consult the big practitioner sets mentioned in the last text box (Causes of Action, Am Jur Trials, Proof of Facts) for help thinking about how to prove the extent of your harm or loss and how to prove your opponent’s connection to your harm or loss.
  • 4. Look for books about the legal topics that apply to your case. There are helpful books about landlord-tenant law, contract law, criminal law, etc… All of these will be in the KF call number sections of libraries. If the bar association offers continuing education for lawyers, they might publish the practical training materials from those sessions and sell them to libraries. Three good Web sites that tell about proving legal issues are Justia http://www.justia.com/, Findlaw http://www.findlaw.com/, and Nolo Press http://www.nolo.com/.

[i] State criminal codes are available at http://www.law.cornell.edu/wex/table_criminal_code. Federal crimes are available from the House of Representatives at http://uscode.house.gov.
[ii] Federal rules of evidence are at http://www.law.cornell.edu/rules/fre/. State evidence rules are at http://www.law.cornell.edu/topics/state_statutes2.html#evidence.
[iii] To find case summaries, use a state or regional case digest, such as West’s California Digest or West’s Atlantic Digest. Digests are organized in topic order. After locating summaries of cases in the digest, find the full-text of those case opinions by using the case reporter citation provided in the digest.  If you don’t have access to digests and case reporters, at least investigate the criminal charges using a legal encyclopedia. Legal encyclopedias generally summarize the main case interpretations associated with legal topics.

Representing Yourself in Court

**** 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. ****

 

Pro se means “for self” in Latin. In the legal system it is the term applied to cases in which someone represents himself, rather than having a lawyer. In almost every kind of court case, individuals have the opportunity to represent themselves. But there are all kinds of documents and actions that have to be done exactly right in a court case, not only to win, but even to keep the case alive through the numerous processes in formal dispute structure.

There is an impression that judges will be flexible and patient with people representing themselves in court. Judicial conduct codes require judges to be thoughtful and unbiased,[i] but they do not require judges to waive court formalities or provide unlimited time for people representing themselves to make their way through a case. In fact, judges trying to be unbiased might have to restrain themselves from being too helpful to litigants representing themselves.

Judges’ professional organizations have produced position papers and suggestions about keeping court fair, efficient, and accurate for self-represented claimants and also their opponents who are paying attorney fees.  [ii] In sum, judges have no legal obligation to protect or assist people simply because they have come to court without a lawyer.

Many courts have a “pro se packet” or a similarly named segment of their Web sites where case filing instructions are provided for non-lawyers. [iii]   The difference between those instructions and the ones the lawyers follow is basically in the way they are written, although they also tell how to notify the court that you don’t have legal counsel. Even though a pro se printing of the court’s requirements may be easier to read than the full-text of the court rules, the fact is that pro se litigants do not get to avoid court formalities simply because they have not hired a lawyer.

The court formalities and the strange ways that laws and cases are written make it very hard to independently navigate the legal system. New litigants often want to have someone explain a legal phrase in plain English or just summarize a whole long process in a few sentences. Those kinds of communications are forms of legal advice because they involve interpreting the law.

Sometimes, people who represent themselves in court cases find themselves asking for legal advice from the lawyer on the other side of the case. This not only puts that lawyer in an awkward ethical position,[iv] it also informs him about the case strategy. It is also unwise to ask court clerks, law librarians, and various legal system employees for advice about a case. While those people may have been tangentially involved in a lot of cases, they do not necessarily have the knowledge or information to analyze or plan a case. Only lawyers can give legal advice. Non-lawyers are at risk of being charged with the crime of practicing law without a license if they give legal advice.
The more pressing problems for the pro se litigant who seeks legal advice from a non-lawyer are:
1. that he will either get incomplete or incorrect guidance or else
2. that he will irritate that legal system employee who cannot give the desired advice. It is very annoying to be asked for help that you cannot give.

For assistance in planning litigation strategies, collecting evidence, and pleading a case in court, pro se litigants (and lawyers) can get a great deal of help from law library books in the call number ranges beginning with KF 8800 and KF 8900. That section of the library has books with sample deposition questions, instructions for writing and delivering an opening statement in court, ideas for asking questions of witnesses, recommendations for how to use evidence, tactics for effectively communicating with the judge and jury, and much more.

Some books are just about bringing a case in a particular jurisdiction, others are about succeeding with specific legal claims, and others teach techniques.

There are several large series’ of practice books that give especially detailed examples: Am Jur Trials, Shepard’s Causes of Action, and Am Jur Proof of Factsare the three primary sets of these. They include features such as checklists to follow for organizing a case to be sure that all of the necessary information is collected and provided to the court, examples of actual documents that have been filed in cases, lists of questions to ask in depositions before trial and cross or direct examination during trial, and suggestions for how to present evidence.

There is a Web-based resource called Self Help Support.org http://www.selfhelpsupport.org/ with a library about self-representation, several listservs, a newsletter about self-representation, and other background about handling a case without a lawyer. Note that this service is not designed for individuals representing themselves in court, but is “a virtual resource for people involved with providing pro se assistance or directing pro se and self help programs.” (from http://www.selfhelpsupport.org/about/) They do not have information about specific law topics.LawHelp.org http://www.lawhelp.org/ does have topical law information. The first screen on LawHelp lets users select the state within which they are representing themselves. Within each state’s page are the topical categories (employment, children and families, health law, veterans, migrant issues, etc…) with links to legal explanations and free legal services for each of those categories.

Findlaw has an ever-growing collection of articles about representing yourself in at http://public.findlaw.com/.

Here is a very useful guide listing each state’s various support services for self-help litigants. http://www.co.washington.or.us/LawLibrary/upload/Collaborative_State_JD_MLS_TaskForces_April2014.pdf  Note that this list was compiled by librarian Laura Orr whose goal was to identify collaborations between law libraries, courts, bar associations, and other groups/


[i] Code of Conduct for United States Judges, available at http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx.

[ii] Paula Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape, Court Review (published by the American Judges Association) (Winter 2003) available at http://aja.ncsc.dni.us/courtrv/cr39_4/CR39-4Hannaford.pdf;  Here is an article called Pro Se Litigation: Best Practices from Judge’s Perspective.

[iii] Federal court Web sites are available through http://www.uscourts.gov/courtlinks/. Look for a link to “documents” or “communications” that might link to instructions for filing a pro se case.

[iv] Forms for self-representation in state courts are available via the National Center for State Courts at http://www.ncsc.org/Topics/Access-and-Fairness/Self-Representation/State-Links.aspx?cat=Court%20Forms. The National Center for State Courts also has other helpful information about self-representation. Simply go to http://www.ncsconline.org/ and search within the site using the phrase “self-representation.”  Also, take note of NCSC’s resource guide for self-help litigants. http://www.ncsc.org/topics/access-and-fairness/self-representation/resource-guide.aspx

[v] Rule 4.3 of the Model Rules of Professional Conduct prohibits lawyers from giving advice to litigants who are not their clients. Link to states’ lawyer ethics material at http://www.abanet.org/cpr/links.html.

What are the stages of a criminal prosecution?

**** 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. ****

1. Arrest– being taken into custody by police in order to be charged with a crime.

Who you interact with: arresting police officers and booking police officers

Basic legal rights at this stage: right to remain silent rather than responding to police questions and the right to seek a lawyer’s help for interactions with the police, the prosecutor, and the court. These rights come from the Sixth Amendment to the U.S. Constitution and similar components of state constitutions, as interpreted by court cases.

The Sixth Amendment and links to cases about the right to representation are available at: http://supreme.justia.com/constitution/amendment-06/index.html
2. Arraignment– a pre-trial court appearance where the charges are put on record and the defendant pleads guilty or not guilty. No evidence is presented and no arguments are made. It is simply a first chance for the prosecutor and the defendant to each formally put their positions in writing. “He committed this crime.” “No I didn’t.”

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to hear what crimes the prosecutor plans to prove. The state or federal rules of criminal procedure http://www.llrx.com/courtrules/ tell specifically what information has to be conveyed to a defendant at this state. If the criminal charges are serious enough that the defendant can be punished with imprisonment, the defendant has a right to have an attorney represent him in future court appearances and transactions involved with this case.

3. Preliminary Hearing – a pre-trial court appearance where the prosecution has to demonstrate that it has enough proof to demonstrate that the elements of the crime were met by this defendant’s actions.

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to contest the prosecutor’s claim that he can prove the elements of the crime. The state or federal rules of criminal procedure tell how a defendant can respond to the prosecutor’s claims at this stage. Generally, there is nothing written at this stage. When the prosecutor finishes telling about his case, the defendant (or the defendant’s lawyer) tells what the prosecutor’s claim is missing. For example, if the prosecutor says that the defendant committed burglary-breaking and entering with the intent to commit a crime-but then doesn’t show how he can prove whether the defendant actually entered the place, the defendant can point out to the hearing officer that the prosecutor has not shown that he can make the case. Find the crime components, which the prosecutor has to present, in your state’s crimes code or your local ordinances at http://www.justia.com/us-states/ or http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code.

See the Rules of Criminal Procedure http://www.llrx.com/courtrules/ to find out how the hearing is supposed to be conducted.

4. Indictment or Information– filing with the trial court a written list of the charges approved in the preliminary hearing.

Who you interact with: This is not a proceeding in which the defendant interacts with anyone. The prosecutor communicates with the court by submitting the document.

Basic legal rights at this stage: The right to receive a copy of the indictment or information. This is not always an automatic right; the document might be provided only when the defendant requests it from the court clerk. The state or federal rules of criminal procedure regulate the way this document is written and presented to the court as well as how and when the defendant can get a copy of the indictment or information.

Rules of Criminal Procedure http://www.llrx.com/courtrules/

5. Discovery – parties collect information from each other. The prosecution is typically required to provide the defendant with copies of evidence and names of witnesses that are relevant to the case. The defendant is usually required to provide the prosecution with the results of mental or physical health exams related to the case and a list of experts and other witnesses.

Who you interact with: the prosecutor and witnesses for your defense

Basic legal rights at this stage: the right not to incriminate yourself and the right to know what evidence the prosecutor plans to use. The right against self-incrimination comes from the Fifth Amendment to the U.S. Constitution and similar components of state constitutions as interpreted by cases. The right to full disclosure of the prosecutor’s evidence comes from the state or federal rules of criminal procedure.

Fifth Amendment http://supreme.justia.com/constitution/amendment-05/index.html  

Rules of Criminal Procedure http://www.llrx.com/courtrules/

6. Trial – elaborate court presentations in which the prosecutor tries to prove that the defendant is guilty of the crime and the defendant tries to prove that the prosecutor has not proved his claims.

Who you interact with: judge, jury, witnesses, prosecutor

Basic legal rights at this stage: right to a fair trial which comports with all of the rules of criminal procedure including the right to object to improper evidence, the right to present evidence contradicting the prosecutor’s assertions, and the right to cross examine the prosecution’s witnesses. These rights come from previous cases as well as the rules of criminal procedure.

To find cases about trial techniques, look under the topic “trial” in any source published by Thomson West Publishing. Books about trial techniques are in  the KF 8915 Library of Congress call number range.

Rules of Evidence and Criminal Procedure http://www.llrx.com/courtrules/

After the trial, a defendant who is found innocent is free to get away from the courthouse and the criminal justice system. A defendant who is found guilty will probably have a separate hearing at which his sentence (or punishment) is decided. In that hearing, the prosecutor tries to show why the defendant deserves the harshest possible sentence and the defendant tries to show that he deserves the lightest possible sentence. The ranges of possible sentences are published in each jurisdiction’s sentencing guidelines.[i]

Meanwhile, if the defendant can show that the judge made errors in handling the case, he can appeal the case to a higher court. The appeal is not an opportunity to prove the whole case again; it is merely a forum in which to show that the judge improperly allowed or disallowed certain evidence, that he demonstrated bias, that he failed to properly instruct the jury, or that he made other errors. When filing an appeal, it is usually necessary to request that the trial court postpone sentencing until the appellate process is over.

If the appeals process doesn’t work out in a convicted criminal’s favor, the last resort is to file a federal or state court habeas corpus petition asserting that the conviction violates federal laws or the U.S. Constitution.[ii] In this case, the defendant has to show that the prosecutor or trial judge did something that truly was illegal, for example: not providing defendant with a lawyer, allowing evidence from illegal search to be presented in court, being biased or prejudicial in judging, or misinforming the jury about appropriate sentencing options.

 

Who you interact with: Trial court judge, witnesses, and lawyers for sentencing; appellate court clerk to file appeal; district court clerk/judge for filing habeas corpus petition.

Basic legal rights at this stage: In the sentencing phase, defendants have the rights to: 1. attorney representation-even during the court’s pre-sentence investigation 2. read and contradict or explain parts of the pre-sentence report and 3. speak on their own behalf at the sentencing hearing.[iii] In the appeal, convicted criminals have the following rights: 1. representation by an attorney (court-provided for indigents) 2. have a copy of the trial transcript 3. access to a law library or other appeal preparation resources while incarcerated. The appellate rights also apply when petitioning for habeas corpus.


[i] Federal Sentencing Guidelines are at http://www.ussc.gov/guidelin.htm. States’ sentencing commissions, which typically post the guidelines on their Web sites, can be reached through the National Association of State Sentencing Commissions. http://www.ussc.gov/STATES.HTM.[ii] The federal court system provides habeas corpus forms at http://www.uscourts.gov/forms/uscforms.html. Many federal district courts post forms for Habeas Corpus and other actions on their Web sites. http://www.uscourts.gov/courtlinks Volume 13 of Am Jur Pleading and Practice Forms has a broad assortment of habeas corpus forms. The Federal Judicial Center http://www.fjc.gov/ has an outline of the habeas process with references to all of the relevant laws. Search within the FJC site using the phrase “habeas corpus” the get the publication containing this outline “Habeas Corpus Review of Capital Convictions”

[iii] Lynn S. Branham, THE LAW AND POLICY OF SENTENCING AND CORRECTIONS IN A NUTSHELL, 7th Ed, (West 2005).

Is the City allowed to throw away possessions that you leave temporarily in public places?

 

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

This question considers situations much different from what was covered in the post about the possibility that the police or other government employees might find possessions and assume that they are garbage or have been abandoned. Here, we will look at what happens when the government purposely empties out places where homeless people live.  

Many cities in the United States have launched clean-up efforts around holidays and major sports events to rid urban areas of the homeless. Some cities have undertaken these “homeless sweeps” not in connection with big events, but instead on the grounds that general city sanitation and beautification require it.

They say that some people are intimidated by the homeless or else don’t want to do business in a place that looks unpleasant and that homeless people and their possessions look bad. Sometimes they say the homeless cause health hazards. They take away homeless people’s possessions to prevent the homeless from staying where they have been.

Clearly, when government workers are required to separate homeless people from what they own there is no credible way for police or sanitation workers to claim that they merely mistook the stuff to be garbage. So a legal claim against a homeless sweep is not so much a matter of demonstrating what the public employees should have known, as in the situations when police or park employees simply found possessions and thought they were abandoned or garbage. Instead, this kind of dispute will emphasize what the government did know about who owned the stuff and why it was outside and how the government exploited that information to victimize citizens.

ACLU offices, homeless advocacy services, and other legal support agencies have fought against these homeless sweeps with a variety of Constitutional arguments.[1] Even though the U.S. Constitution does not specifically say that the government can’t take homeless people’s things, it has broad civil rights declarations that can be understood to mean that taking away the possessions of homeless people is unjust.

Some have argued that the Eighth Amendment prohibition against cruel and unusual punishment was violated. Others have asserted that the Fifth Amendment right to compensation for government takings of property (also known as “eminent domain”) applied to the situation. Many groups have successfully used the same law that was discussed in the Lost and Found part of this chapter, the Fourth Amendment to the United States Constitution which prohibits unjust searches and seizures.

Always, these arguments are accompanied by the Fourteenth Amendment. That amendment is useful for two reasons:
1. it makes these other Amendments apply to acts done by local and state governments because on their own those Bill of Rights protections in the Fourth, Fifth, and Eighth Amendments only apply to the Federal government and
2. The Fourteenth Amendment affords the victims due process in their dealings with the government.

The cruel and unusual punishment arguments have not been successful. Courts tend to hold that cruel and unusual punishment can only be a component of criminal punishment.[2] Still, there is a strategic reason for putting it into claims; it reminds the court to think about how mean, how downright insensitive, it is to take away the last few things that people own.

The Fifth Amendment claim about compensation for property taken by the government tends to work well combined with a due process claim raised under the Fourteenth Amendment. The Fifth Amendment authorizes the government to take over private property when necessary for some government purpose. It is easy to see why a local or county government could believe that encouraging tourism or alleviating public health problems would be the kinds of government purposes that might necessitate getting street dwellers out of a particular area. However, that same constitutional amendment “prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken[3]

The due process claims assert that the people whose things were taken are entitled to be alerted about sweeps in advance so they can move away voluntarily instead of losing their stuff. The due process claims also demand that people get the opportunity to reclaim their things. Combined, the Fifth Amendment claim about compensation for taken property and the due process claim for communication and cooperation say, “You took my things and so now I am entitled to have an opportunity to either get them back or be paid for them.”

Cases proving that the Fourth Amendment is violated by intentional removal of homeless people’s possessions have emphasized that even if they don’t live within walls people are entitled to have a reasonable expectation of privacy in their belongings.[4] To reach that conclusion, the courts do acknowledge that the things picked up in the sweep were simply on the ground outside in public places. But they recognize that “the interior of the bedrolls and bags or boxes of personal effects belonging to homeless individuals … is perhaps the last trace of privacy they have.” [5]

By demonstrating that the homeless sweep caused “some meaningful interference with an individual’s possessory interests in that property,” [6] lawyers for the homeless have convinced courts that taking away the stuff belonging to homeless people was against the Fourth Amendment’s protection from unreasonable seizures.

Making assertions about what makes something private or who owned the items in the first place, etc… is really only one part of succeeding in a case against a homeless sweep. Besides establishing those kinds of points that connect to the Constitution, it is necessary to prove that government seizure of possessions is more harmful to the homeless owners of those possessions than the sanitation problems (or other underlying reasons for enacting the sweeps) are to the cities.

This comparison, weighing the extent of the harm caused by the government’s action against the government’s need to take that particular action to solve a problem, is the formula for proving any claim that constitutional rights have been violated. When police or other government officials plan to roust the homeless by gathering up all of their possessions, they are acting with legal authority. Either an ordinance has been passed or a special order has been issued or some other legal action has authorized taking those possessions. So, whether the legal claim against a “homeless sweep” is about due process, government taking, search and seizure, or any other Constitutional right, it has to show that the law authorizing the sweep was itself illegal.

When they have been successful in these cases, lawsuits have usually not been able to stop the city from conducting sweeps, but they have managed to arrange for the protections identified above: advance warnings to give the homeless an opportunity to move their things away from the area to be “cleaned up” and, sometimes, safe storage of the possessions as well as a claims process for returning possessions belonging to the homeless. [7]


[i] Kevin Bundy, Officer, Where’s My Stuff? The Constitutional Implications of a De Facto Property Disability for Homeless People, 1 Hastings Race and Poverty Law Journal 57 (Fall 2003). One of the exemplary homeless sweep cases was argued by the Pittsburgh ACLU. It is described and accompanied by copies of the legal pleadings and the settlement agreement at http://www.aclu.org/rightsofthepoor/gen/13454prs20030513.html.[ii] Johnson v. City of Dallas, 860 F.Supp. 344, 355 (N.D.Tex. Aug 18, 1994).   In 2009 the National Law Center on Homelessness and Poverty put forth a model order for police departments to implement as a foundation for police interactions with homeless people.  That order, which is only valid in cities that adopt it, declares that police cannot damage or destroy homeless people’s possessions unless they are known to be health hazards and that in arrest situations the police have to handle homeless people’s possessions in the same way that they would handle any other arrestee’s possessions (which typically means that they are listed on an inventory, stored by the police, and returned to the arrestee upon release).  That model order is online at page 31 of Criminalizing Crisis: Advocacy Manual. http://www.nlchp.org/Criminalizing_Crisis_Advocacy_Manual  Note that because this post is about property rights, the arrests that might go along with this kind of sweep are not addressed here. See the posts about involvement with the police and courts to read about arrests.

[iii] Black’s Law Dictionary 6th Ed., “eminent domain”

[iv] Pottinger v. City of Miami, 810 F. Supp. 1551, 1572 (S.D. Fla. 1992).

[v] Id. at 1572.

[vi] United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

[vii] Kincaid v. Fresno No. 1:06-cv-1445 (E.D. Cal. 2006); Justin v. Los Angeles No. CV 0012352 (C.D. Cal. 2000); Love v. Chicago 96-C-0396 (N.D. Ill. 1996); Sager v. Pittsburgh CA-03-0635 (W.D. Pa 2003)–settlement agreement available at http://www.aclu.org/FilesPDFs/sager.pdf. Annual “Illegal to be Homeless” reports from the National Coalition for the Homeless http://nationalhomeless.org/references/publications/ summarize effective advocacy work such as arranging for advance notice of homeless sweeps.

If the police or other government workers find your possessions in a place that doesn’t belong to you, what are your legal rights?

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

 

Because the finding has been done by a government employee, the law that applies is the Constitution rather than theft laws. If a police officer, park gardener or other public worker comes upon bags full of objects, bedding, cooking supplies, or anything else, looks through those possessions, and then takes them away, it might be an illegal search and seizure under the Fourth Amendment of the U.S. Constitution. [1]

The Fourth Amendment declares that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” [2] Because it goes on to state that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” this clause has long been understood to mean that when they are investigating a crime, the police have to obtain a warrant from a judge before searching through people’s property and seizing any of it to use as evidence in a criminal trial. But it also applies when police are not investigating crimes. As the U.S. Supreme Court said in the case of U.S. v. Jacobsen

“[t]his text protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs where there is some meaningful interference with an individual’s possessory interests in that property.” [3]Homeless people, living outside, are likely to have their possessions searched and seized for reasons other than crime investigations. Maybe a public maintenance worker comes across the stuff and looks through it to see if it’s garbage. Perhaps a police officer goes through it or destroys it because he thinks it might be dangerous. Possibly, the mayor’s office has ordered crews to clean-up the streets.

If the public worker did think the found stuff was garbage, the first thing a court will consider in the search and seizure case is whether the owner expected that his stuff was in a private place. Usually, when police have searched through garbage left for municipal collection at a curb, in an outside garbage can (even up against a house or in a permanent location somewhere), [4] or in a shared trash receptacle for a business or apartment, [5] the courts believe that the person who put out that garbage would not have had a reasonable expectation of privacy in it.

So, when people probably don’t expect that their things were in a private place, searching those things does not violate the Constitution. An owner must show that he did expect that those possessions were private if he is going to prove that the search and seizure were illegal. [6]

Even though the stuff might have been stored outside or inside a property where the owner of the stuff does not even rent space, there are ways to demonstrate an expectation of privacy. That expectation of privacy must be considered in light of what the police have to prove for their defense; in court the police perspective will be heard right alongside the perspective of the person whose things the police went through or took away.

The police have to show that what they found was equivalent to garbage. In order to successfully prove that the things found outside were like garbage, the police or other government employees have to show that they believed those things to have been unwanted like garbage. The legal term for that status is “abandoned”. [7] Proving that property was abandoned means showing that the owner relinquished control over it.

The owner of the possessions, trying to show that he or she did not abandon those possessions, is likely to explain the situation that led to leaving those items in that place. That explanation might say that effort was made to hide the stuff or that it was arranged to clearly serve as a sleeping area or that it was located in an area well-known to be inhabited by homeless people, etc…

If that explanation is sufficiently detailed and sensible, the court is more likely to find that the owner truly did have an expectation of privacy regarding those possessions. That court decision would mean that the search and seizure of those possessions was in violation of the federal Constitution’s Fourth Amendment or the comparable state constitutional provision. [8]
This may raise another question, what if some ordinary citizen who is not a police officer takes something that has been left out for garbage collection? Does that result in an illegal possession? The argument that applies to the police also applies to everyone else: anything that is put out for garbage collection is presumed to be abandoned by its previous owner.

Taking it away is not stealing it.  The Model Penal Code (Section 223.5) definition of larceny relating to found items even says that the finder has to know that the item was “lost, mislaid, or mistakenly delivered” in order to be guilty of theft. Even when things have not been properly put in trash receptacles, a person who takes a found item honestly believing that it was discarded has a good argument against a theft charge. [9]


[i] U.S. Const. amend. IV.[ii] Id.[iii] U.S. v. Jacobsen, 466 U.S. 109, 113 (1984).

[iv] California v. Greenwood, 486 U.S. 35, 37 (1988).

[v] U.S. v. Michaels, 726 F.2d 1307, 1312 (8th Cir. 1984).

[vi] Commonwealth v. Krisco Corp., 653 N.E. 2d 579, 582-583 (Mass. 1995).

[vii] 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property§ 3 (2006).

[viii] Since the first ten amendments to the Constitution were written to control the behavior of the federal government, a Fourth Amendment claim cannot be used alone to charge that local, county, or state police have searched and seized illegally. It is necessary to also identify the Fourteenth Amendment which makes the provisions in the Bill of Rights applicable to state governments. The state constitutions also have search and seizure clauses enabling someone to bring the same kind of case in state court instead of federal court. The great value of bringing it in federal court is that, if necessary, it can be appealed all the way to the U.S. Supreme Court.

[ix] Courts are not all consistent about this.

What if you find something that is not labeled with the owner’s name, the way shopping carts are? Does that count as theft? Suppose you find something that seems impossible to trace, is it still illegal to have that item?

**** 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. ****
Having possession of lost property can count as theft. The basic definition of theft has three components:
1. possessing something that belongs to someone else
2. without the owner’s permission and
3. intending to deprive the owner of it[1]
If police believe that these three components are true, they can charge theft. Most state codes have a broad theft statute like this[2] as well as specialized varieties of theft such as burglary, robbery, and grand theft auto. In some states, the basic theft law might have an additional component: taking the item. This does not have to mean that someone took an item away from the owner while the owner was actually holding it; it can mean that he took it away from where he found it. [3] (Note that state codes might use the words “larceny” or “theft” instead of “stealing”.)
Alternatively, under the right circumstances, police can charge a finder of lost goods with possessing or receiving stolen property. The basic components of those crimes are: 1. that the accused knew the item was stolen, 2. that the accused had control over the item, 3. that the accused intended to keep the item from the owner and, 4. that the item really was stolen.<[4]

The Model Penal Code, a set of criminal law examples that most states have incorporated or adapted for their own criminal codes, has category of larceny specifically about keeping lost property. It has three components:
1. the finder knows that the item was mistakenly dropped or left behind
2. the finder has the opportunity to return the item, but does not return it and
3. the finder intends to deprive the owner of it[5]
Some of the states that have codified this law are New York[6], Montana[7][8],Idaho, and Oregon[9] There are hundreds of cases, from all over the country, analyzing the circumstances under which keeping found property can count as theft. To find these cases in case indexes published by West, look under the topic of Larceny key 10.

Some states, rather than punishing finders of lost items, have laws establishing incentives for returning found property. In Iowa, a long-time law requires that people whose lost property is returned pay ten percent of its value as a reward to the finder.[10] In Alabama and California, a finder is entitled to be repaid for money spent to protect or return lost property.[11] In Illinois and New Jersey, a finder is entitled to keep the lost property if the person who lost it has not claimed it within six months.[12] In Wisconsin, the wait is only ninety days. [13] In Massachusetts, Iowa, and New York, it is a full year.[14] In Oregon, a finder only has to report the finding to authorities if it is worth more than $100 and then wait three months to be named the legitimate owner.[15] Iowa has even taken the step of legislating that finders are not financially responsible for accidental damage done to found goods. [16]

After the police charge someone with a crime, a court determines whether the accused defendant is guilty of the crime. As you can see from the previous paragraphs, all of the possible theft charges against finders of lost property included two hard-to-prove facts: what the finder knew and what he intended.

Failure to return found property requires proof that the finder knew that the item was lost while theft requires proof that he knew the item still belonged to another person and receiving stolen property requires that he knew that the item was stolen. Intent is the same in all three charges; he intended to deprive the owner of the item. Since knowledge and intent both happen inside the head, a finder can defend himself by disproving the accusations about what he knew or intended when he found the item.

Here is an example to consider:
Suppose a homeless person finds a coat on a bench in the park where he sleeps and, because the evening is getting cold, he puts the coat on and plans to keep it for the winter. A month later, the police catch him with the coat and arrest him.

To show that he did not know the coat was lost or stolen when he found it, he can say and demonstrate that he believed the coat was abandoned or even donated. He might cross examine a police officer to get testimony about the known presence of homeless people in the park. He might bring other homeless people as witnesses to testify that people bring clothing and food donations to them in the park. He might be able to prove that there was often garbage near this bench which led him to believe that this coat may also have been tossed there as garbage.

To show that he did not intend to deprive the owner of the coat, he might ask witnesses to testify that they continued to see  him residing in the park after finding the coat which was a way of making the coat visible to the owner if he came back looking for it. He might say that he wore the coat intending to protect it from being blown away or discarded before the owner came back for it.

There are many ways of defending against a charge that by keeping a found item someone has broken the law. But if a found item seems valuable or can be traced to an owner, a finder should know that the item was lost or stolen and a prosecutor will likely accuse him of knowing that if he is caught with the item. Finders can avoid criminal charges by taking valuables and labeled items to the police before assuming that they can keep them.


[i] Black’s Law Dictionary 1516 (8th ed. 1999).[ii] 50 Am. Jur. 2d. Larceny § 2 (2006).[iii] 50 Am. Jur. 2d. Larceny § 14 (2006).[iv] Model Penal Code §223.6 (1962). See also, Wayne R. LaFave, Criminal Law §20.2 (4th Ed. 2003); Carroll J. Miller, What Constitutes “Constructive” Possession of Stolen Property to Establish the Requisite Element of Possession Supporting an Offense of Receiving Stolen Property” 30 A.L.R. 4th 488 (1984).[v] Model Penal Code §223.5 declares that “A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the amount of the property or the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.” Model Penal Code § 2235 (1962).

[vi] N.Y. Penal Law § 155.05 (McKinney 2007); N.Y. Penal Law § 165.40 (McKinney 2007).

[vii] Mont. Code Ann. § 45-6-302 (2005).

[viii] Idaho Code §18-2403(2)(c) (Michie 2007).

[ix] OR. REV. STAT. § 164.065 (2006).

[x] Iowa Code § 556F.13 (2004); Flood v. City Nat’l. Bank, 253 N.W. 509 (Iowa 1934); State v. Couch, 92 N.W. 2d 580, 582 (Iowa 1958).

[xi] Auto. Ins. Co. v. Kirby, 144 So. 123 (Ala. Ct. App. 1932); Cal. Civ. Code § 2080 (West 2007).

[xii] 765 Ill. Comp. Stat. Ann. 1020/28 (West 2006); N.J. Stat. Ann. § 40A:14-157 (West 2007).

[xiii] Wis. Stat. § 170.10 (2006).

[xiv] Mass. Gen. Laws Ann. ch. 134, § 4 (West 2007); Iowa Code § 556F.11 (2005); N.Y. Pers. Prop. § 257 (McKinney 2007).

[xv] Or. Rev. Stat. § 98.005 (2006).

[xvi] Iowa Code § 556F.16 (2005).

 

Do you have to submit to sexual overtures if you generally sleep outdoors?

**** 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. ****

Rape is rape, whether it is indoors or outdoors, whether it is done by a stranger or someone who knows the victim, and whether or not the victim has a home. It can be loosely defined as non-consensual sexual intercourse. Criminal law statutes against rape,[1] and the cases interpreting those, are consistent about the illegality of unwanted sexual contact, but have variations in every state. They define sexual contact in different ways and have diverse standards for how victims have to have conveyed their lack of consent.[2]Hospitals and police have cooperative systems for proving that the contact occurred. In every state, there are two problems in successfully prosecuting somebody for rape: identifying the attacker and proving that the contact was unwanted.  Clearly, even having one of those problems out of the way still leaves a very hard case to prove. If the victim has never seen and doesn’t know the attacker, it is hard to find the right perpetrator. Once that person is found, it is relatively easy to prove that the victim did not consent to having sex with the stranger.

In the opposite situation, when the identity of the attacker is known, the hard part is proving that the contact was unwanted.  Particularly hard to prosecute is the situation in which one homeless person has been raped by another homeless person who resides in the same shelter or outdoor area. The defendant’s attorney could ask the victim where he or she generally sleeps and then follow-up by asking something like, “then isn’t it true that you and the accused had essentially been sleeping together prior to the events of the alleged attack?”

Even when the attacker was unknown and not necessarily homeless, it is conceivable that a defense attorney might lead the jury to believe that a homeless rape accuser made him or herself available by sleeping outside or in a group setting. The prosecutors in those situations will look for guidance in the cases involving acquaintance rape, where courts have examined the concept of consent.

In cases of acquaintance rape, courts are in the odd position of analyzing social interaction[3] in order to figure out whether the crime occurred. To determine whether the victim consented to intercourse, they look at things like whether the victim and defendant were voluntary social companions,[4] and whether the accuser consented to some degree of affection, but not necessarily intercourse.[5]

A homeless victim who does not have a private space where he or she can go to avoid unwanted attention might also be burdened by jury presumptions that misinterpret those social considerations. They might think, for example, that the homeless are mentally ill and get hysterical after ordinary sex or that the homeless will do anything for money and might claim rape if they don’t get paid after sex.

A homeless victim of rape, or that victim’s friends and advocates, can help the case by educating the prosecutor about the victim’s daily life and the culture and routines in that homeless community. Those details can illustrate the homeless victim’s particular risks and limitations in trying to get away from attackers. It is not the kind of information that proves whether the crime occurred, but it will convey what kinds of protection and communication methods were available to the victim. It gives the prosecutor context for demonstrating to the jury how this particular sexual encounter was victimization and not consensual.


[i] State criminal codes are available at http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code.  Within a state’s code look under “sexual assault” or “sex crimes” if there isn’t a listing for “rape.” [ii] In public libraries, look for Frances P. Reddington and Betsy Wright Kreisel, SEXUAL ASSAULT: THE VICTIMS, THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM (Carolina Academic Press, 2005). In law libraries, look for Wayne R. LaFave, CRIMINAL LAW Chapter 17 (West, 2003).

[iii] See generally, Note, Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, 117 Harv. L. Rev. 2341 (2004).

[iv] “Rape is a felony of the second degree unless … the victim was not a voluntary social companion of the actor upon the occasion of the crime … .” Model Penal Code § 213.1(1) (1985).  However, neither current state laws nor recent appellate cases name voluntary social companionship as a consideration in date rape cases, probably because contemporary social standards recognize that even if someone has willingly participated in sex with this attacker before, it does not mean that the sex was consensual this time.  Nevertheless, because it is still in the Model Penal Code and traditional cases include it, there is a chance that a victim might have to explain how he or she communicated differently with the defendant when the sex was consensual compared to when it wasn’t acceptable to the victim.

[v] Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, supra at 2346.

Can you open fire hydrants to get water for bathing?

**** 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. ****

Only fire departments, and occasionally other units of local governments, are allowed to open fire hydrants. Because of the significant public safety risk of having inadequate water pressure with which to fight fires, punishment for illegally opening a fire hydrant tends to be severe.

There is a Uniform Fire Code in the United States that sets forth model laws about firefighting and fire protection systems for states to implement. In sections 1001.6.2 of that code, it says: “Fire hydrants and fire appliances required by this code to be installed and maintained shall not be removed, tampered with or otherwise disturbed except for the purpose of extinguishing fire, training, recharging or making necessary repairs, or when allowed by the fire department.”

More generally, the section just before that, 1001.6.1 declares that “[a]pparatus, equipment and appurtenances belonging to or under the supervision and control of the fire department shall not be molested, tampered with, damaged or otherwise disturbed unless authorized by the chief.”[i]  This uniform law might be incorporated into state statutes, but is more likely to be in the municipal or county code[ii] because fire departments, even when operated by volunteers, are authorized by those governments. Because opening a fire hydrant, outside of municipal authority, is an offense against the government, doing so is a crime. Therefore, punishment for violating a fire hydrant law involves at least a ticket and at most a jail term.


[i] Unif. Fire Code §1001.6.1, 2 (1997).[ii] Local codes are available through https://www.municode.com/library/.

In what sources of fresh water can you legally bathe or wash laundry? If waterways are polluted and you get sick from washing in them, does the law entitle you to anything? Can your bathing or washing laundry in rivers or lakes, etc… count as pollution?

**** 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. ****

You can usually expect that it is probably legal to bathe in naturally existing bodies of water such as lakes, creeks, rivers, and oceans which do not have to be entered through private property and do not have fences or signs declaring them to be off limits.

Use of these natural bodies of water is, however, subject to rules involving the land connected to them. If there is a lake in the middle of a city park that closes at 9:00 p.m., then using that lake for a bath after the park closed at 9:00 p.m. is also illegal. While laws regarding the use of public lands and waterways are often posted on signs, it is also possible that they are simply recorded in the law books, especially when they apply to an entire park system or collection of beaches.[i] 

Public fountains are not naturally existing bodies of water. They, and other man-made water-involving exhibits are usually created for the purpose of commemoration or beautification and the government has no obligation to allow people to use them for other purposes like washing. There do not have to be specifically written laws declaring that the public is only allowed to gaze upon the municipal reflecting pond or water display in order for misusing them to be illegal. The police have an array of general misconduct charges that can be legitimately applied against public behavior. See the posts about police and courts for more details about those. 

If waterways are polluted and you get sick from washing in them, does the law entitle you to anything? Can your bathing or washing laundry in rivers or lakes, etc… count as pollution?      

There is a federal law, called the Clean Water Act, which defines water pollution and explains exactly when it is illegal to discharge anything into waterways. Made by Congress, that law “is intended to protect the quality of lakes, streams, and other waters for recreational use, for maintenance of aquatic life, and for drinking water sources.”[iii] The federal Environmental Protection Agency and state environmental departments have regulations that detail how that federal law is to be carried out.[iv]     

The Clean Water Act makes it illegal for any person to put pollutants including solid waste, garbage, chemical waste, industrial waste, biological residue, etc…[v] into the waterways. Even though the law says “any person” can be guilty of a violation, the Clean Water Act is ordinarily used against businesses that dump or drain out dirty water and against local governments whose waste treatments plants aren’t sufficient to treat raw sewage or who fail to prevent excessive debris and biological overflowing when storms wash things into pubic waterways.      

This Act, and the various regulations that go with it, are all full of measurements because it simply isn’t possible to prevent every bit of pollution from going into public waterways. The laws detail under what circumstances particular quantities of various pollutants can go into waterways.      

The small amount of soap or grime that a person bathing or washing clothes might put into the water would be very far below the level of water contamination that would count as pollution, although it can be considered a violation of the local litter ordinance. Typical state and local litter laws have very broad declarations that dumping human waste, garbage, paper, detrimental substances, or other things into rivers or waterways is littering.[vi]     

Industries and waste treatment plants have to obtain permits to dump in waterways. To get a permit, it is necessary to identify one’s industry and the pollutants that are going to be discharged. The permit process is mainly a way of letting the government know that this company will be submitting regular reports to prove that they are cooperating with the pollution limits in the federal and state regulations.      

If a company or municipality allows more pollutants into a waterway than they are supposed to, they will be fined by the EPA or the state environmental agency and, if necessary, sued by the EPA. Private citizens and groups of citizens can also file lawsuits against companies or governments for violating the Clean Water Act,[vii] but because this law is intended to keep waterways clean, the remedy that comes from this kind of lawsuit emphasizes reducing pollution in the water source, not directly aiding individuals who have gotten sick from the water.

Nevertheless, violations of the Clean Water Act are important sources of proof in cases that are about injuries and sickness caused by polluted water. In other words, if a community of homeless people become sick from bathing in polluted water and the EPA or the state environmental agency has documented who caused the pollution, then the homeless people can use those documents as proof of how they got sick and who caused their sickness.     

Cases that emphasize the harm done to humans are grouped in a category called “personal injury law.” The formal legal term for this category is “torts.” Within torts are two general ways that people get injured: intentionally and by negligence. When people get sick or injured by water pollution, the lawsuit is filed on the basis of negligence.     

In order to succeed in a negligence case, it is necessary to prove that the defendant owed a duty to the injured plaintiff. The plaintiff also has to prove that the defendant breached that duty, that he (the plaintiff) is suffering harm, and that this harm has been caused by the defendant’s breach of his duty. The Clean Water Act and the federal EPA and state regulations that go with the Act all establish the duty that is owed in a negligence case about water pollution.[viii]      

A successful Clean Water Act lawsuit, which could have been brought by the EPA or an environmental group or anybody not necessarily the plaintiff in the negligence case, can serve as proof that the duty was breached. So, all that is left for the plaintiff in the negligence case to prove is the extent of his injuries or sickness and the connection between his problems and the polluted water.  

A book titled A Civil Action[ix] details the work involved in making a negligence case on behalf of leukemia victims against a company that polluted a local water source. That case was a class action lawsuit on behalf of several families which went through years of expensive preliminary court procedures. It depicts, with great pain, the work and costs involved in collecting evidence and simply trying to ascertain who was truly responsible for contaminating the water. There is also a related book titled A Documentary Companion to A Civil Action[x] which contains many of the actual court papers that were filed in the case. Both of those books would be helpful to somebody thinking about suing for injuries or sickness caused by water pollution.      There are also some law library reference books that have practical guidance for working on this kind of lawsuit. One of these, a set called “Am Jur Proof of Facts” has a very detailed article describing how to prepare a case about dioxin poisoning in a water source. It lists the evidence that should be presented, gives checklists of questions to ask experts, includes sample interrogatories identifying the documents to obtain, and generally conveys what information is necessary to prove and present a water pollution case.[xi] Another helpful article from that set is specifically about the role expert witnesses play in proving “toxic torts,” personal injuries caused by poisons and pollution. It has sample forms, clear explanations of how experts show that an accused defendant did or did not pollute water, and descriptions of the legal standards used to assess expert opinions.[xii]

[i] To find regulations, hours, and other information about lakes, ponds, and rivers under state control, look in the state’s park authority site http://www.statelocalgov.net/50states-parks.htm and the state’s environmental agency site http://www.epa.gov/epahome/state.htm. To find rules pertaining to a local body of water, locate the city ordinances using the Seattle Public Library’s list of municipal code publishers.  Link to each publisher until you find the municipality you need. http://www.spl.org/default.asp?pageID=collection_municodes[ii] The law is summarized and explained on the EPA’s Web site at http://www.epa.gov/region5/water/cwa.htm.

[iii] Joel M. Gross & Lynn Dodge, Clean Water Act 1 (Basic Practice Series) (2005).

[iv] Federal Environmental regulations are available at http://www.epa.gov/epahome/lawregs.htm.  State environmental regulations are available through state environmental agencies http://www.epa.gov/epahome/state.htm or in state administrative codes http://www.nass.org/acr/html/links.html.

[v] 33 U.S.C.S. §1362(6) (2007).

[vi] See, e.g., Denver, CO., Municipal Code § 2.39.29 (2007); Fla. Stat. § 29.403.413 (2007); 18 Pa. Cons. Stat. § 6501 (2007).  The Litterbutt Web site http://litterbutt.com/v2/Misc/LitterLawsByState.asp publishes state litter laws, but might not keep them up to date.  After reading a state’s law on that site, use the citation to look for the law in a current version of the state’s code to get the latest version.    State codes are at http://www.law.cornell.edu/statutes.html#state.

[vii] A prominent example of a Clean Water Act lawsuit brought by a group of citizens is Friends of the Earth Inc. et al. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000).

[viii] This is not the only way to establish that the water polluter owed a duty to the plaintiff or the public at large, but it is the strongest proof of an obligation to have kept the water cleaner. It is certainly possible for someone to have gotten sick or hurt from polluted water that was within EPA and state guidelines for cleanliness. In that kind of situation, the injured person can still establish that the polluter owed him some sort of duty: a duty to warn about what kinds of chemicals were going into the water, a duty to dump at a different time, or some other duty that becomes evident from the facts of the case.

[ix] Jonathan Harr, A Civil Action (Vintage Books) (1996).

[x] Lewis A. Grossman and Robert G. Vaughn, A Documentary Companion to A Civil Action: With Notes, Comments, and Questions (Revised Ed., Foundation Press) (2002).

[xi] Ray Vaughan, Liability for Dioxin Contamination, 25 Am. Jur. Proof of Facts 3d 473 (1994).

[xii] Ray Vaughan, Proof of Contamination in Toxic Tort Cases Through Expert Testimony, 39 Am. Jur. Proof of Facts 3d 539 (1996).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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