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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 


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

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

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

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

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

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What kinds of information can you get when you do legal research?

 **** 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. ****

Every branch of the government makes law.  

1. Statutes are written by the legislative branch of government.
2. Cases are decided by the judiciary branch of government.
3. Regulations are made by the executive branch of government.

The notes at the end of each of these blog posts show examples of all of these kinds of law.  Statutes, cases, and regulations are known as “primary law” because they are written by the government. There are also good “secondary” sources that are clearer to read and easier to navigate than the primary sources. It is usually a good idea to begin a legal research project by hunting through the secondary sources and, from those, getting leads for what to seek in the primary law.

Secondary sources include legal encyclopedias such as American Jurisprudence (called “Am Jur”) and Corpus Juris Secundum (known as CJS) which are both organized in alphabetical order by topic, just like most encyclopedias. At the end of each set is an index where researchers can look for a particular word or issue to find out where it fits within the main alphabetical topics of the set. Some states have their own legal encyclopedias. Other commonly used secondary sources are law journals which publish long detailed descriptive articles and have lots of footnotes leading to additional information. At public libraries, law journals might be available in social sciences databases for convenient searching.

It is almost always possible to identify at least one entire book about any legal subject. The public library might not have the particular books you need, but the county law library might have them.  If you cannot get to the county law library, as if your public  library can borrow it from another library which does have it. This procedure is called interlibrary loan. It is a service that public libraries typically provide to patrons with a library card. A homeless patron who, because of the lack of an address, does not have a library card can sometimes arrange an alternative method of obtaining interlibrary loan books though he won’t be able to remove them from the library.

The internet, as is obvious from this blog’s footnotes, has a wealth of freely available legal information. Nearly every state and federal agency, legislature, and court has its own Web site with its laws or case opinions.[i] Law libraries publish helpful online research guides with links to reliable Web sources.[ii] Bar associations and law firms publish authoritative introductions to legal issues.[iii] These types of entities are good sources of legal information. 
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[i] Cornell Legal Information Institute http://www.law.cornell.edu/ and WashLaw Web from Washburn law school http://www.washlaw.edu/ and Justia http://www.justia.com/ are all reliable sources of state and federal law.

[ii] The law librarians’ resource exchange has a good collection of research guides http://llrx.com/. NYU’s research guides are at http://www.law.nyu.edu/library/research/researchguides/index.htm. The Washington State Library has research guides at http://www.courts.wa.gov/library/index.cfm. A terrific non-library site, the University of Pittsburgh’s JURIST has extensive scholarly legal information links organized by topic http://www.jurist.law.pitt.edu/subj_gd.htm.

[iii] The Texas Bar Association provides free pamphlets on a variety of legal issues at http://www.texasbar.com/template.cfm?section=pamphlets. The Michigan Bar’s Online Legal Help Center http://www.michbar.org/generalinfo/libraries/selfhelp.cfm “was created to help Michigan citizens find legal information to help them work better with their attorney, and to represent themselves in some instances.” The Illinois Bar has a Web site called “The Law and You in Illinois” http://www.illinoislawyerfinder.com/publicinfo/home.html which links to useful summaries about all kinds of legal transactions. The Oregon State Bar has explanatory guides at http://www.osbar.org/public/legallinks.html. The State Bar of Nevada has law topic brochures at http://www.nvbar.org/publications/pamphlets.htm. All of the states’ bar associations are accessible by clicking on a state name in Washlaw http://www.washlaw.edu/.

What kinds of legal research sources are jails and prisons required to provide?

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

The U.S. Constitution has been understood to say that because people are entitled to represent themselves in criminal court[i] and to have due process in their interactions with the government[ii] they are entitled to legal information sources with which to represent themselves when they are incarcerated.[iii]   The cases explaining why inmates should have access to legal resources do not specify exactly what kinds of resources have to be available. They say that inmates should have “tools” that enable them “to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.”[iv]

While law library access is one helpful tool, the courts more broadly require that somehow the prisons and jails confer “the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.”[v] When inmates who could not read and did not know English sued a prison for not providing them with this capability, the U.S. Supreme Court recognized that a library full of standard English language law books would not make them capable of fighting their convictions or anything about their incarceration.[vi]


[i] Cases have stated that the Sixth Amendment, providing for a right to counsel, also provides criminal defendants with the choice of representing themselves. Faretta v. California, 422 U.S. 806 95 S.Ct 2525 (1975). An article showing how this principle has been followed throughout the country is John Herbrand, Accused’s Right to Represent Himself in State Criminal Proceedings, 98 ALR 3d. 13 (1980- updated through 2006).

[ii] Cruz v. Beto 405 U.S. 319 (1972) (about prisoners’ rights to file grievances about prohibitions against their religious practices in prison); Johnson v. Avery 393 U.S. 483 (1969) (about prisoners’ rights to get assistance with legal document preparation from other inmates); Buchalter v. NY, 319 U.S. 427 (1943). (“action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as the ‘law of the land.’ Where this requirement has been disregarded in a criminal trial in a state court this court has not hesitated to exercise its jurisdiction to enforce the constitutional guarantee.”)

[iii] Cases declaring that jailed criminal defendants have access to law libraries in jail include Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977) and Lewis v. Casey, 518 U.S. 343, 116 S.Ct 2174 (1996). See also William Lindsley, Penal and Correctional Institutions, 60 Am. Jur. 2d §68 (updated through 2007). Section 68 is about “inmates’ access to courts, legal assistance, and materials.”

[iv] Lewis v. Casey at 518 U.S. 355 and 116 S.Ct. 2182.

[v] Id. at 356, 2182.

[vi] Id. 

Where can you go to conduct legal research?

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

 

The general answer to this question is, go to the nearest law library. The most likely law library to be accessible to the public is a county law library, but those are usually only located in the county seat. Some law schools allow the public to use their libraries for independent legal research. But because their purpose is to assist faculty and students with serious scholarly research, rather than to help the public with practical case research, they do not always have the kinds of resources that public patrons would want.

Public libraries often have basic state laws as well as small collections of books that are written for non-lawyers to use in handling legal transactions and court cases. If going to the library is impossible, inquire about getting internet access at community centers or social service agencies. We have leads many good internet sources throughout this blog because we anticipate that accessing those is likely to be more convenient than getting access to a thorough collection of law books.

If you can’t get out on bail and are later proved innocent, can you get paid back for the time you spent in jail?

**** 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. ****

When a judge makes a bail decision, he is obligated only to use his best discretion in deciding whether the defendant should be released.  He has to rely on the prosecutor and defense attorney to be thorough and accurate.  It is very hard for individuals representing themselves to collect proof of tasks that the judge and lawyers might have failed to do.  Still, there is research material that a person who was wrongly jailed and wrongly denied bail might want to investigate.

Clearly, a person in jail awaiting trial can suffer losses of money and experience. He might lose pay for missing work or he might lose the job altogether. If he lived in a public place or even in a shelter, he might have lost all of his possessions during the time that he was in jail and unavailable to watch his stuff. If he missed making payments on something because of being in jail, the item might have been repossessed.

He could miss a job interview or someone’s birthday or some other important event. He might have gotten housing if he’d been at a meeting that he couldn’t attend because he was held in jail, waiting for a trial. These losses might not have as much significance if that person is found guilty at his trial and has to spend a long time in prison anyway. But, if the person is found to be innocent, then the justice system has cost him truly unnecessary losses.

Only after the trial is that person in a position to have full proof of his losses because only then, when a court of law has held that he was innocent of the crime he was charged with, can he definitely state that had it not been for the bail denial, he would have been able to continue that job, get into that housing, save his possessions, etc… So, it is in an entirely separate case from his criminal trial that he would seek to make a claim for financial damages.[i] And, like all claims for money damages, the case would be in civil court, rather than criminal court.

There is not a body of legal literature about cases in which innocent people who were denied bail successfully sued the court for damages. This does not mean that there have never been any successful claims like this, but closest body of law is about cases in which people were wrongly convicted and later found innocent.[ii] Nevertheless, here is how a claim might play out:

Being a civil case involving an individual against a government entity, i.e. the court that denied bail, this claim for damages arising from unnecessary jailing would be based on constitutional rights. Likely claims would be violations of Fifth and Fourteenth Amendment rights to life, liberty, and due process.[iii] It has been said that, “In convicting an individual of a crime, the government reaches out to deprive him of life, liberty, or property by execution, jail, or fine.”[iv]

Years ago, a Lawyer-in-Chief of the Office of Professional Responsibility at the U.S. Dep’t. of Justice declared that “There is no other department [of government] that is viewed with comparable terror or fear, because there is no other department that by itself can put you in jail or take your life, liberty or property away from you.”[v] And, a court deciding a case in which a lawyer did not seek pretrial release for two indigent clients firmly stated that, “Any form of pretrial incarceration infringes on an accused’s liberty interest in a powerful and obvious manner.”[vi]

Some people present their due process claim along with a claim that the court violated rules about bail or release on recognizance.[vii] For this research, the innocent person, denied bail, would find the state or local rule of criminal procedure delineating how bail decisions are to be made and would show how that procedure was not properly applied in his case. Then, this unnecessarily jailed claimant would read Title 42 of the U.S. Code §1983[viii] which is about money damages for civil rights violations, and decide whether to include that kind of claim in the case.

NOTE: If you are in jail and are representing yourself in court, you might like The Jailhouse Lawyer’s Handbook published by the National Lawyers Guild.


[i] Notice that this question and answer are only about financial damages. It is definitely possible to appeal a bail decision in the criminal court system. The procedure for appealing a bail decision is established in criminal court rules. Those rules, and possibly forms to use for the appeal, are likely to be published in the local and state statutes, in individual books titled “(Name of State) Rules of Court”, and in attorney practice manuals for that jurisdiction. The clerk of the criminal court might even have an appeal packet available upon request.

[ii] See the National Registry of Exonerations to read about people who were eventually freed after being wrongly convicted of crimes. For a comparison of cases from throughout the country, See Annotation, Application of State Statute Providing Compensation for Wrongful Conviction and Incarceration, 34 ALR 4th 648 (1984 updated through 2006). In addition to “wrongful conviction,” a related research term for locating law on this topic is “false imprisonment.”

[iii] U.S. CONST. Amend. V, XIV. “No person shall ….be deprived of life, liberty, or property, without due process of law.”

[iv] David. P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L.Rev. 864, 874 (1986).

[v] Elkin Abramowitz and Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Wrongful Prosecution, 22 Champion 22 (1998). Available at http://www.nacdl.org/CHAMPION/ARTICLES/98mar04.htm quoting from the book MAIN JUSTICE by Jim McGee and Brian Duffy.

[vi] Matter of Rosen, 470 A.2d. 292 (D.C. 1983).

[vii] The Federal Rules of Criminal Procedure are at http://www.law.cornell.edu/rules/frcrmp/. State Rules of Criminal Procedure are at http://www.law.cornell.edu/topics/state_statutes2.html#criminal_procedure. Note, however, that a criminal statute might say that bail or other pre-trial release is impossible in connection with a particular crime.

[viii] 42. U.S.C. §1983.

Is it possible to get out on bail if you have no money?

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

The purpose of bail is to assure that defendants will return to court for trial after having been formally accused of a crime at a preliminary hearing. The bail agreement between a court and a defendant establishes a defendant’s promise to pay the court a high amount of money which will then be returned to the defendant when he returns for the hearing.

A better assurance that the defendant will be present for trial is to simply keep him in jail, but that contradicts the notion that a defendant is innocent until proven guilty.[i] In many states, money does not have to be posted; defendants can be released until trial “on their own recognizance.”[ii] Even in those jurisdictions though, if the court believes either that the defendant is likely to not return for trial or to pose a threat to the public, bail may be imposed to remind the defendant to behave and return for trial or else risk staying in jail until the trial.[iii]

For a homeless person, the reasons for denying him bail, such as: no money to put down as a guarantee, no community roots like a job or house, and no way to track him down are the same issues that can be argued in favor of releasing him on his own recognizance. The fact that a homeless defendant has no money with which to post bail also means that the defendant does not have money to pay for transportation out of the jurisdiction. Not having the responsibilities of a job or house would seem to leave a defendant flexible enough to abscond, but if the defendant has already been living in the jurisdiction without those roots, there is reason to believe that he has no place else to go. Similarly, the lack of an address and the defendant’s status as homeless provide even more routes by which to track him down than anyone who does have a permanent address because the homeless tend to be out in public areas and to repeatedly access particular social services sites.


[i] The presumption of innocence is described and analyzed very thoroughly in 1 Wayne R. LeFave, et al., Criminal Procedure, §1.4 part (d) “Accusatorial Burdens” (2d. Ed. Current through 2006 update.) In support of their analysis, the authors of that authoritative treatise cite to the following U.S. Supreme Court cases: Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 1341-2 (1958); Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930 (1978); Bell v. Wofish, 441 U.S. 20, 533, 99 S.Ct 1861, 1871 (1979), and Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350 (1949). For a detailed explanation of the constitutional right to be released on bail, see 8 CJS Bail §20. (CJS is Corpus Juris Secundum, a legal encyclopedia.)

[ii] Lynn C. Cobb, Annotation, Application of State Statutes Establishing Pretrial Release of Accused on Personal Recognizance as Presumptive Form of Release, 78 A.L.R.3d 780 (1977).

[iii] 1 Wayne R. LeFave, et al., Criminal Procedure, §1.4 Part (f) “Minimizing the Burdens of Accusation and Litigation” (2d. Ed. Current through 2006 update.); Lynn C. Cobb, Annotation, Application of State Statutes Establishing Pretrial Release of Accused on Personal Recognizance as Presumptive Form of Release, 78 A.L.R.3d 780, § 2(a) (1977).

What are some of the criminal charges commonly used against the homeless?

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

The criminal charges most commonly used against the homeless, in connection with their homelessness, have all been mentioned elsewhere in this blog, but we present them here for quick reference. These are merely summaries; each state or municipality will have its own precise definitions of crimes. Locate your state and local codes through http://www.justia.com/us-states/.  If your local code is not at that site, try this one http://www.spl.org/default.asp?pageID=collection_municodes.

Note that these are all minor charges, typically punished with citations rather than jail time. Since defendants only get a full trial if their crime can be punished with jail time, there is hardly any opportunity to defend against these kinds of charges.

Disorderly conduct – Fighting, making noise, or “creating a hazardous or physically offensive condition”[i] without any legitimate reason and simply for the purpose of creating trouble.

Loitering – Lingering in a place or in a way “not usual for law abiding individuals”[ii] and which creates discomfort among other people nearby.

Obstructing traffic[iii]Blocking a public path so that vehicles or pedestrians either cannot pass or can only pass in an inconvenient way.

Open lewdness[iv]Exposing private parts of one’s own body when it is expected that others will see and possibly be alarmed or offended.

Panhandling[v]Asking people in a public place to give money to you personally without promising to do anything in return. Sometimes called “begging.”

Public nuisance[vi] – Unreasonably interfering with a right common to the general public.

Trespassing[vii] – Entering private property without the owner’s permission.

Vagrancy – This is an archaic term. There was a time when being someone who wandered aimlessly could get someone charged with vagrancy. Now, vagrancy has the same meaning as loitering.


[i] Model Penal Code §250.2

[ii] Model Penal Code §250.6.

[iii] Model Penal Code §250.7

[iv] Model Penal Code §251.1

[v] Barrett A. Lee and Chad R. Farrell, Buddy, Can You Spare a Dime: Homelessness, Panhandling, and the Public, 38 URBAN AFFAIRS REV., 299 (2003).

[vi] Black’s Law Dictionary 1095 (7th Ed. 1999).

[vii] Model Penal Code §221.2