privacy – Homeless Law Blog

March 28, 2008April 5, 2011

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).

March 27, 2008January 20, 2019

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

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).

March 27, 2008April 13, 2015

Is naked always obscene? What is illegal about being naked when changing clothes or bathing in outdoor public spaces?

The words obscene and obscenity generally refer to printed or electronically published materials, rather than a person’s actions. Exposure of private body parts in person is more likely to be called “public nudity” or “open lewdness” in the law.[i] No matter what it is called, being naked, or at least having genitalia uncovered, is almost always illegal when you are in a place where people would not expect to come upon the sight of someone’s private parts.[ii] This is why people wearing skimpy bathing suits on the beach don’t get in trouble, but people bathing in a park or changing clothes in an alleyway do.

Often, it is a combination of unexpected exposure along with the possibility of offending or exciting an onlooker’s sexual sensibilities that makes public nudity illegal. Indiana courts have declared for decades that their anti-nudity statute was written for the purpose of “protecting the unsuspecting and non-consenting viewer from another’s exposure.”[iii] The Michigan Court of Appeals recently stated that “the purposes of the indecent exposure statute are best fulfilled by focusing on the impact that offensive conduct might have.”[iv]

Statutes, themselves, do not always convey that onlookers have to be surprised or offended and they don’t necessarily tell what degree of nudity is illegal. Some locales have highly specific anti-nudity statutes telling exactly how much exposure is too much and others have broad statutes, leaving more interpretation up to police discretion.

Sample laws: In Cotati, California, the municipal code says that “It is unlawful for any person over the age of ten years to willfully expose his person…in such a manner that the genitals, vulva, pubis, pubic symphysis, public hair, buttocks, natal cleft, perineum, anus, anal region or pubic hair region is exposed to public view.”[v]

In Independence, Missouri, the indecent exposure ordinance considers it a criminal act when anyone, “knowingly exposes his/her genitals or buttocks or a female exposes her breasts or is clothed in such a manner under circumstances in which he/she knows he/she will reasonably cause alarm or embarrassment to other persons.”[vi]

The Code in Grand Rapids, Minnesota simply says, “No person shall appear in any street, park or public place of the city in a state of nudity, in any indecent or lewd dress, or make any indecent or lewd exposure of his person.”[vii]

Charleston, South Carolina has a similarly broad standard, “No person shall appear in any public place or on property open to the public in a state of nudity or otherwise make any indecent exposure of his or her person.”[viii]

The Code of Federal Regulations, regulating behavior in national parks, is more general in its description of what it calls disorderly conduct: “A person commits disorderly conduct when, with intent to cause public alarm, nuisance…knowingly or recklessly creating a risk thereof…engages in a display or act that is obscene.”[ix]

Defendants charged with violating the federal regulation at least have the opportunity to assert that they didn’t intend to cause a public alarm or didn’t know they were creating a risk of alarm or nuisance. And, since the federal regulation does not specify whether nudity alone or behavior combined with nudity might be an obscene “display or act,” there is also flexibility in defending the exposure itself.

The more specific local ordinances are harder to fight in court than the general language of the federal regulation, but those local ordinances come with less of a penalty, usually a ticket.[x] In other words, if the law says, “you can’t expose this part of your body” and a police officer has seen you expose it, then there just is not much flexible interpretation available for a defense.

Sometimes, when the police realize that they are dealing with somebody who cannot pay the fine and does not have a place to get cleaned up, they will transport the accused person to a shelter or some other place where the function that was being done in public can be done in private. That way, the people complaining to the police about having encountered someone naked or partly undressed will see that the police are responding to them and the homeless person gets to do what he needs to do without having court interaction.

This type of police action might not be specified in any legal codes, but that does not make it illegal. Law enforcement officers have broad duties to protect the public and maintain peace and order. So, transporting folks to places where they can wash or get changed or sleep is something that police can do, even though it is neither something they are prohibited from doing nor something that they are required to do.

[i] When researching case law about public nudity in any books by the Thomson West publishing company, which publishes the majority of case reporters, you will find it categorized as “obscenity key 3” and “obscenity key 5”.

[ii] 67 C.J.S. Obscenity § 9 (2005).

[iii] Townsend v. State, 750 N.E.2d 416 (Ind. Ct. App. 2001).

[iv] People v. Huffman, 702 N.W.2d 621 (Mich. Ct. App. 2005).

[v] Cotai, CA., Municipal Code § 9.33.020 (2005).

[vi] Independence, MN., Code of Ordinances § 12.06.006 (2005).

[vii] Grand Rapids, MN., City Code § 42.102 (2005).

[viii] Charleston, SC., City Code § 21.166 (2005).

[ix] 36 C.F.R. § 2.34(a)(2) (2007).

[x] See the blog posts about dealing with police and the courts to find out about responding to tickets when you cannot pay the fines.

March 27, 2008May 24, 2012

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

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.

March 26, 2008April 9, 2011

When police commit you to the mental hospital, are they entitled to information that you give to the hospital?

There is not an automatic assumption that the police are entitled to your mental health records simply because it was they who got you to the hospital. Mental health records, like all medical records, are private[i] and are only supposed to be used as evidence in a court case with the patient’s express permission. However, the USA PATRIOT Act and The Health Insurance Portability and Accountability Act (HIPAA) both provide legal ways for law enforcement agencies to obtain people’s medical records.

HIPAA is the law that protects the content of medical records from being used for anything other than the patient’s medical care. However that law does allow medical offices to give private medical records to courts “in response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or (ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal.”[ii]

This second section, about subpoenas, specifically allows courts to get medical records directly from health providers without the patient’s permission when the subpoena has been sent to the patient’s last known address.[iii] Obviously, this means that homeless people who do not have a current address on file with their doctor’s office can find that their medical records were admitted into court without their knowledge. HIPAA also allows law enforcement officers (police and the FBI) to get medical records without a patient’s permission when investigating: the identity of a dead body that might be the patient, the identity of a fugitive, or a crime against the patient.[iv]

The USA PATRIOT Act allows the FBI to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities…”[v]

Medical records are specifically mentioned in a later section specifying that only the Director or Deputy Director of the FBI or the Executive Assistant Director of National Security can use this law to request a warrant for medical records.[vi]

Even though this question is about how police and prosecutors might obtain medical records to use in bringing criminal charges or proving someone’s guilt in a crime, this is a good place to mention how and when medical records might be used in a civil case in which a homeless person might be suing for a breach of contract or some consumer right. There is no need to worry about the possibility that a civil court opponent will be able to claim “he didn’t pay the rent because he’s crazy” “he’s accusing me of negligence because he’s depressed” or anything like that. There are two protections that keep that kind of remark from getting into court documents or testimony.

First of all, the evidence rules require that only relevant information be presented in a case.[vii] Medical records are relevant in disability claims and medical malpractice claims. In those cases, the medical records are offered as evidence by the patient not the opponent in the case. They are not used to support an accusation against a sick person; they are presented as proof of the patient’s own claim for his rights. In cases about not paying debts or not fulfilling a duty, the health of neither the debtor nor the creditor has anything to do with whether a legal right was violated. The medical records would be irrelevant in relation to those types of legal controversies.

Privacy is the second legal protection against having medical records used as evidence. The medical community has a serious professional obligation to keep those records secret. The few court-related exceptions to that obligation involve limited police investigations, as described in the previous section. As a professional obligation, the rule about privacy in patient records comes not only from the law,[viii] but also from the canons of professional ethics for medical professionals. A doctor or nurse or other licensed medical professional who releases patient information despite the ethics rules can lose his license to practice in that profession.[ix] If you believe this has happened to you, contact your state’s professional licensure office for a complaint form.[x]

[i] On its Web site http://www.hhs.gov/ocr/hipaa/, the U.S. Department of Health and Human Services provides thorough and clear information about the legal obligation to keep medical records private. That site has the full-text of the HIPAA statute enacted by Congress as well as the Health and Human Services regulations detailing how that statute is to be carried out. The site also has questions and answers in plain English and a complaint form that patients can file with the Department if HHS if a doctor’s office releases medical records in violation of the law.

[ii] 45 C.F.R. §164.512(e)(updated through August 2006).

[iii] Id. at § 164.512(e)(iii)(1)(a).

[iv] 45 CFR §164.512(f) (updated through August 2006). This can be a way of assuring that scientific evidence is collected and preserved for trial. A comparable situation has been in state laws for many years allowing hospital emergency rooms to collect hair and fluid samples from rape victims and give them immediately and directly to police investigating the rape.

[v] 50 USC § 1861(a)(1) (as of August 2006).

[vi] Id. at § 1861(a)(3).

[vii] Rule 402 of the Federal Rules of Evidence states that, “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.” State court systems have their own rules of evidence; all of them model their rule about relevance closely to the federal rule.

[viii] As noted several footnotes ago, the HIPAA statute written by Congress and the regulations written by the Department of Health and Human Services about keeping medical records private are all available for free on the Internet at http://www.hhs.gov/ocr/hipaa/ along with frequently asked questions, clear fact sheets, and a complaint form to file with HHS if a doctor’s office improperly reveals medical record content.

[ix] The American Medical Association has the Principles of Medical Ethics online at http://www.ama-assn.org/ama/pub/category/2498.html. Principle IV is about patient privacy. The American Nursing Association has the nurses’ Code of Ethics at http://www.nursingworld.org/ethics/ecode.htm. A particular hospital’s code of ethics will usually be available from its patient relations or quality control office. The American Hospital Association has explanatory issues pages, including HIPAA as an issue, at http://www.aha.org/aha/issues/index.html.

[x] Professional licenses might be granted by any number of agencies or departments in each state. Look for “medical licensing” in your state government’s home page http://www.state.al.us/ (substitute your state’s two initials for AL) or ask a librarian how to file a licensure complaint against a particular type of professional in your state.

March 26, 2008April 19, 2016

Do you have to answer questions from the police if they are not accusing you of wrongdoing?

A previous post conveys that the police are required to give citizens the benefit of the doubt in potential loitering situations by asking them about their identity and purpose. Clearly, police have legal authority and legitimate public safety reasons for asking questions of people on the streets. Simply asking about someone to tell his name or show proof of identity is a perfectly legal thing for law enforcement officers to do.[i]

Some states have a specific statute requiring members of the public to identify themselves to the police.[ii] The Supreme Court has held that police can arrest anyone who does not identify himself when asked to by police.[iii] In that Supreme Court case, police were following up on a report about an assault. When the officer arrived at the scene and came upon a drunken man, he asked the man, multiple times, to identify himself but was refused every time which not only kept him from fully investigating that potential suspect, but also delayed him in pursuing other possible suspects.

The officer arrested the intoxicated man in accordance with the state’s “stop and identify” statute. The arrested man later sued the police claiming that his Constitutional rights of freedom from unwarranted search and seizure and his right not to incriminate himself had been violated. But the Supreme Court declared that stating one’s name does not convey enough information to be incriminating and that asking about identity is reasonably related to investigating a crime scene, and is not an unreasonable search.

Usually, when the police ask for people’s identification information they are seeking information not only about the names of these folks in the area but also about crimes that have been reported in the neighborhood. Collecting information by stopping people and questioning them is a basic investigative technique.

When they suspect that the person they have stopped is connected with a crime, patting him down to search for weapons is a legally permissible action for police to take. This practice was questioned and approved long ago in a Supreme Court case called Terry v. Ohio.[iv] If the pat-down search yields evidence connecting the suspect to the crime, that evidence can be used in the criminal trial against that suspect even though the police conducted the search without getting a warrant.

Routine police questioning happens when the police have set-up a system of questioning and are following that system. They could, for example, question everybody who matches the description of a suspect or everyone who might have been in that same vicinity when a crime occurred. Routinely stopping the same innocent person for questioning unrelated to an investigation would be abnormal police practice. It might even be harassment. It might be worth reporting to the police department’s disciplinary office , your local police review committee –list available from National Association for Civilian Oversight of Law Enforcement, the American Civil Liberties Union,[v] or any local homeless advocacy service for investigation.[vi]

There is quite a body of law about what happens when people get in altercations with the police.[vii] Generally, the law concludes that the police are allowed to restrain or detain people who give them a hard time because there is a risk that the scene will arouse trouble involving other people present in the area. Some have argued that if they cannot use “offensive, derisive or annoying words”[viii] against the police, their free speech has been compromised. But, the Supreme Court says that kind of communication could “incite an immediate breach of the peace”[ix] and is therefore in the category of hate speech, not protected under the First Amendment’s free speech clause.

People who do not carry identification documents, even those who used to carry identification until it was confiscated or not returned in a previous police encounter, need to remember the legal rationale for why the police ask for identification before getting mad at the officers. This is yet another legal situation in which knowledge of the law might not help someone once he gets in trouble, but can help someone to avoid getting into trouble.

Certainly, homeless people have historical and legitimate reasons to believe that if they identify themselves to police, the officers will check for any outstanding arrest warrants against them. Realizing, though, that the police are likely to be asking about identity as a way of investigating a particular person or crime or else trying to ascertain whether someone is drunk, drugged, or dangerous might lead a person to put effort into assuring the police that he is none of those and that he might even be helpful to the officers.

If the officer simply wants information and he is given that information when he asks for it, then the transaction is over. The officer has done his investigative task and now has other things to do. If the person who has been asked for the information is not or was not committing a crime, does not give the officer a reason to suspect him of existing or potential wrongdoing, and does not distract the officer from his investigative task by acting surly, there is no reason for that officer to arrest or cite him.

On the other hand, there are plenty of legal records showing that police can be abusive.[x] Some courts have held that police officers are entitled to a certain amount of lenience in controlling their tempers and actions because their work is unusually stressful and they are at constant risk of facing dangerous and uncontrolled people.[xi] The obvious counter argument has also been made; the police have more training and experience than anyone to deal with emergencies, danger, and the wide array of public behavior and therefore the public should be able to expect police to control themselves under pressure.[xii]

No matter which of these opposing perspectives a court has, it will still acknowledge that police officers are allowed to use their own discretion in judging how necessary it might be to handcuff and arrest someone who does not answer their questions while they are trying to investigate and control a situation.[xiii] Knowing that the legal system entitles police officers to use that discretion, an individual can try to get the officers’ discretion in his favor by acknowledging the broad legal context of being questioned, rather than responding as if he is being accused or criticized.

[i] Internal Revenue Service v. Delgado, 466 U.S. 210, 2116 (1984).

[ii] Find “stop and identify” statutes by looking for phrases like “interference with police” “obstructing police” “obstruction of justice” and “resisting arrest” in the state crimes code; a law against failing to identify yourself to police is likely to be included as a component of one of those crimes. Articles commenting on “stop and identify” laws include: Shelli Calland, Stop and identify statutes do not violate the Fourth or Fifth Amendments, 40 HARV. C.R.-C.L. L. REV., 251 (2005); James G. Warner, Dudley Do Wrong: Analysis of a Stop and Identify Statute, 39 AKRON L. Rev. 245 (2006). See also: What Constitutes Offense of Obstructing or Resisting Officer, 48 ALR 746.

[iii] Hiibel v. Sixth Judicial District Court of Nevada, Humboldt City, 542 U.S. 177, 124 S. Ct. 2451 (2004).

[iv] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868. (1968).

[v] The chapters and affiliate offices of the ACLU are listed at http://www.aclu.org/affiliates/index.html

[vi] The National Coalition for the Homeless maintains a list of organizations doing homelessness advocacy http://www.nationalhomeless.org/resources/state/index.html.

[vii] Michael G. Walsh, Annotation, Insulting Words Addressed Directly to Police Officer as Breach of Peace or Disorderly Conduct, 14 ALR4th 1252 (1982). This is an article summarizing scores of cases from all over the country.

[viii] Chaplinsky v. New Hampshire, 315 U.S. 568 at 573; 62 S. Ct. 766, at 770 (1942).

[ix] Id. at 572 and 769.

[x] The American Civil Liberties Union (ACLU) has a collection of legal information about police misconduct including news reports, legal documents from court cases, legislative resources, and fact sheets available for anyone to download. https://www.aclu.org/criminal-law-reform/police-practices

[xi] There is a detailed discussion of this perspective in Pavish v. Meyers, 225 P.633 (Wash. 1924). Duncan v. U.S., 219 A2d. 110 (D.C. App., 1966) remanded on other grounds 379 F.2d. 148; City of St. Petersburg v. Calbeck, 121 So.2d 814 (Fla. App. 1960); St. Paul v. Morris, 104 N.W. 2d. 902 (Minn. 1960) cert. denied 365 U.S. 815. State v.McKenna, 415 A.2d. 729 (RI., 1980) “We believe the officers justifiably reacted in anger as any group of persons of average sensibilities would have.”; Com. v. Hock, 696 A.2d 225 (Pa. Super., 1997) “we agree with the majority of states which “can conceive of no reason why a police officer, or other public official responsible for maintaining law and order, should have to be the object of obscenities and vulgarities of the type which, if addressed to a layman, would have a direct tendency to incite him to acts of violence.” [Citing Bale v. Ryder, 290 A.2d 359 (Me. 1972)].

[xii] Chicago v. Blakemore, 305 NE2d 687 (Ill. App, 1973); People v. Slaton, 322 N.E.2d 533 (Ill. App. 1974); Swann v. Huntsville, 455 So.2d 944 (Ala. Crim. App. 1984).

[xiii] See MCQUILLIN, EUGENE, A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 3d Ed., §45.18 (updated through July 2006) for a thorough explanation of police duties and arrest powers. Footnotes following that explanation lead to cases and statutes across the country. Note, however that the U.S. Supreme Court struck down a local ordinance that made it “unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.” The Court held that the statute was so broad and vague that it violated the First Amendment right to free speech because almost anything that anyone might ever say to a police officer could be construed as an interruption. Houston v. Hill, 482 U.S. 41, 107 S.Ct. 2501 (1987).

March 25, 2008April 9, 2011

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

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

Negative Law

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

Positive Law

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

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

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