**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****
A place of shelter is not a place of asylum from the law. On the other hand, it is also not a place where the homeless should feel at risk of being rounded-up by the police. Unless someone commits a crime in a shelter or the police come to the shelter looking for a particular person, shelter staff have no legal obligation to identify residents to police.
If the police come to question a resident as a potential witness or perpetrator, someone who prevents the officers from having access to that resident can be charged with obstruction of justice or obstruction of process.[i]
There is a whole spectrum of interactions that might occur between shelter staff and police who come looking for a resident. At one end of the spectrum are the police with a warrant to search or seize. They might be there to seize a person or evidence. If they come to seize a person, the warrant is an arrest warrant.
As explained elsewhere in this blog, judges issue search and seizure warrants when police and prosecutors have given them probable cause to believe that evidence of a particular crime is located in the place to be searched.[ii] When the shelter-police interaction is at this end of the spectrum, the shelter has no choice but to comply with the police. Staff who interfere with the officers’ carrying out the warrant are blatantly obstructing justice. They might be handcuffed and immediately arrested so they can’t continue to impede the police work.
At the other end of the spectrum is a scene in which police have heard a vague complaint about a minor offense and come to the shelter asking the staff to present all of the male residents ages twenty to forty who have blue jeans. Here the police have not conveyed that a crime has occurred or that they even know who they are looking for. They are putting the staff in the dubious position of disrupting multiple innocent residents who came into the shelter only seeking a safe indoor place to rest.
At that point, the police might be causing the serious interference-interference with the fundamental purpose of the shelter. The shelter staff have to do their jobs and provide the residents with a place to rest. It would probably not be an obstruction of justice if they asked the police for more information so that fewer residents were interrupted or if they encouraged the police to come back and look for their suspect outside the building the next morning when the residents left for the day.
In between these two poles of the spectrum are numerous possibilities. Maybe a victim or a witness saw an attacker run into the shelter. Maybe the police have been following a shelter resident as part of a major investigation. Maybe the homeless have been crime targets and the police want to get to know them and help them avoid being victims. The decision about whether to charge shelter staff with obstruction will depend on the police officers’ assessment of the public safety risk involved if they are hindered from getting to a shelter resident, i.e. it depends on police discretion.[iii]
There are other potential criminal charges, aside from obstruction crimes, that shelter staff can face for not identifying residents to the police. They might, for example, be harboring a fugitive. Getting between the police and a shelter resident they’ve come to arrest could be harboring a fugitive.[iv] Even when counselors at a shelter have confidential knowledge of residents’ crimes, it does not mean that those counselors can hide those clients when the police come looking for them. They might be able to avoid disclosing clients’ counseling records for evidence, but they cannot keep the police away from those clients.[v]
Shelter staff can also have criminal liability for not identifying a resident when they know the resident is repeatedly committing a crime. The first time a shelter worker sees a resident stealing from other residents or dealing drugs in the shelter, he has a basic citizen’s obligation to report the crime to the police. If he doesn’t report the crime that first time, he’s not likely to be charged with a crime himself. (Although he should serve as a witness for the prosecution since he saw the illegal act.)
After the first time however, accomplice or conspiracy charges might be brought against the shelter worker who knows about a pattern of criminal behavior in the shelter but doesn’t report it to the police. Basically, an accomplice is someone who “gave assistance or encouragement or failed to perform a legal duty to prevent”[vi] a crime. A conspirator joins with others “for the purpose of committing…some unlawful or criminal act.”[vii]
[i] Obstruction of justice or process is defined and examined in 67 C.J.S. Obstructing Justice § 24 (2002). In the federal system, the statute against obstruction of justice/process is published in 18 USC §§ 1501-20 (2007). If local or state police are obstructed in their efforts, the state’s version of an obstruction of justice charge would apply. Find these by using the following terms in the index to the state statutes: obstruction of justice, police, interference with arrest, interference with process, and crimes.
[ii] Robert M. Bloom, Searches, Seizures, and Warrants (Praeger 2003). This book tells about every aspect of law that applies to warrants for searches and seizures.
[iii] To learn more about police discretion, See American Bar Association, Standards Relating to the Urban Police Function 1-43 (1972 & Supp. 1973). (These standards were developed by a joint committee of ABA members and members of the International Association of Chiefs of Police). Also, search in the National Criminal Justice Resource Center for the phrase “police discretion” to get links to full-text articles, reports, and book chapters on the topic. http://www.ncjrs.gov/index.html
[iv] 39 Am. Jur. 2d Harboring Criminals § 3 (2006).
[v] A related but much more extreme legal obligation arises when a mental health professional knows that a client seeks to hurt someone. When that happens, the mental health professional is allowed to divulge confidential client information to police, but only to the extent necessary to protect the client’s intended victim. To read more about this and see a comparison of state laws, see John C. Williams, Liability of One Treating Mentally Afflicted Patient For Failure to Warn or Protect Third Persons Threatened by Patient, 83 A.L.R. 3d 1201.
[vi] Black’s Law Dictionary, 6th Ed. 17 (1990).
[vii] Id. at 309.