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Jailbirds in the Sunshine State: Defending Crimes of Homelessness

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Jailbirds in the Sunshine State: Defending Crimes of Homelessness Jailbirds in the Sunshine State: Defending Crimes of Homelessness Published May 2016 SOUTHERN LEGAL COUNSEL FOUNdaTION SUPPORT SOUTHERN LEGAL COUNSEL 1229 NW 12th Avenue Written by Kirsten Clanton Funding for this project provided Gainesville, FL 32601 Director of Ending Homelessness Project by the Herb Block Foundation (352) 271-8890 Edited by Jodi Siegel www.southernlegal.org Executive Director Southern Legal Counsel, Inc. (SLC) is a Florida statewide not-for-profit public interest law firm that is committed to the ideal of equal justice for all and the attainment of basic human and civil rights. SLC primarily assists individuals and groups with public interest issues who otherwise would not have access to the justice system and whose cases may bring about systemic reform. SLC uses a range of strategies to achieve its goals, including litigation, policy advocacy, and training and technical assistance to lawyers, lay persons and organizations. SLC’s Ending Homelessness Project is a statewide project in Florida to remove legal barriers that cause and perpetuate homelessness. SLC utilizes impact litigation, policy advocacy, community education and outreach to protect the civil and human rights of homeless persons and their advocates. A primary focus of SLC’s work is to advocate for constructive policy solutions to end homelessness instead of laws that criminalize homeless people for engaging in conduct essential for survival. SLC provides training and technical assistance to lawyers and advocates nationwide on the legal rights of homeless persons. SOUTHERN LEGAL COUNSEL BOARD MEMBERS Peg O’Connor, Chair Tim D. Haines Barbara Bolton Litten Elizabeth L. Bevington E. Andrus Healy D. Ross McCloy, Jr. Bennett H. Brummer Berta E. Hernández-Truyol Robert A. Rush Raul A. Cuervo Dr. Vivian L. Hobbs Tom Scarritt Karen C. Dyer Tiffani G. Lee Robert F. Spohrer William S. Graessle Marni Lennon The Hon. William A. Van Nortwick, Jr. ACKNOWLEDGMENTS The following individuals provided guidance and invaluable input during the development of this manual: Bennett Brummer, Board Member of Southern Legal Counsel and former Public Defender (Eleventh Judicial Circuit) Raine Johns, Former Homeless Outreach Attorney/Director of Baker Acts/ Director of Mobile Medical Unit/ Assistant Public Defender (Sixth Judicial Circuit) and current Executive Director of the Pasco Coalition for the Homeless Marie Marino, Assistant Public Defender (Thirteenth Judicial Circuit) Stacy Scott, Public Defender (Eighth Judicial Circuit) Whitney Untiedt, former Misdemeanor Court Supervisor/Assistant Public Defender (Eighth Judicial Circuit) and current Director of Pro Bono Initiatives at Akerman LLP Taylor Williams, Assistant Public Defender (Thirteenth Judicial Circuit) A special thanks to the interns, law clerks, and pro bono volunteers with Southern Legal Counsel who provided hundreds of hours of research assistance: Simone Chriss (JD, Univ. of Fla. Levin College of Law 2016) Melanie Franco (JD, Univ. of Fla. Levin College of Law 2015) Randall Harper (JD, Univ. of Fla. Levin College of Law 2015) Richard Hatch (B.A., Furman Univ. 2015) Alex Longo (JD, Univ. of Fla. Levin College of Law 2016) Tina O’Rourke (JD , Univ. of Fla. Levin College of Law 2016) Kelsey Peña (JD candidate, Univ. of Fla. Levin College of Law 2017) Irene Sepúlveda (JD candidate, Univ. of Fla. Levin College of Law 2017) Justin Sigtermans (JD candidate, Univ. of Fla. Levin College of Law 2017) Zachary Ullman (JD, University of Florida Levin College of Law 2013) 2 www.southernlegal.org SOUTHERN LEGAL COUNSEL DEFENDING CRIMES OF HOMELEssNEss CONTENTS Introduction ................................................................................................... 4 Substantive Due Process ............................................................45 Right to Travel .................................................................................45 Chapter 1 Homeless & Hungry, Please Help! .................7 Equal Protection .............................................................................45 Sec. 1 Right to Solicit Assistance ..............................................................7 Eighth Amendment .......................................................................46 Panhandling is Protected Speech ..............................................7 Sec. 2 Sitting as a “Reasonable Accommodation” ........................46 Street Performance is Protected Speech ...............................8 Newspaper Vending is Protected Speech ..............................8 Chapter 5 Homeless Prohibited ..............................................49 Sec. 2 Analyzing First Amendment Violations ...................................8 Sec. 1 The New Banishment .....................................................................49 How to Analyze Panhandling Ordinances Flow Chart ......9 Exclusion from Public Space .....................................................49 How to Analyze Permit Schemes Flow Chart .....................10 Sec. 2 The Anatomy of a Trespass ........................................................ 51 Public Forum Analysis.................................................................... 11 Sec. 3 Practitioner’s Tips........................................................................... 53 Determining the Level of Scrutiny ........................................... 12 Was Warning Legally Authorized? ......................................... 53 Prior Restraints ................................................................................. 17 Is Land Properly Posted? ............................................................54 Overbreadth Doctrine ................................................................... 18 Was Trespass Necessary? ...........................................................54 Free Speech protection under Florida’s State Constitution ........................................................ 18 Chapter 6 The Good Samaritan Goes to Jail ............56 Void for Vagueness Doctrine .................................................... 18 Sec. 1 Do Not Feed the Homeless .........................................................56 Equal Protection ..............................................................................19 Food Sharing as Expressive Conduct ...................................56 Sec. 3 Practitioner’s Tips............................................................................19 Food Sharing as Religious Exercise .......................................56 Failure to Charge a Crime ............................................................19 Sec. 2 Practitioner’s Tips ...........................................................................60 Obstruction of Public Streets ....................................................19 The Communicative Nature of Food Sharing ....................60 Unlawful Use of Right-of-Way ..................................................20 Content-Based Panhandling Ordinances .............................. 21 Chapter 7 Home, Sweet Home ................................................ 61 Unlawful Permit Restrictions .................................................... 22 Sec. 1 Tenancy Rights of Motel Residents .......................................... 61 Sec. 2 Practitioner’s Tips ...........................................................................63 Chapter 2 Sleeping Like A Criminal ................................... 23 “Nontransient” Residence Indicators .....................................63 Sec. 1 Status Crimes ................................................................................... 23 Cruel or Unusual Punishment ................................................... 23 Chapter 8 Hands off My Property! .......................................64 Sec. 2 Other Legal Challenges to Sleeping Ordinances ..............26 Sec. 1 Freedom from Unreasonable Searches .................................64 Void for Vagueness (Due Process) .........................................26 The Expectation of Privacy ........................................................64 Overbreadth Doctrine ................................................................. 27 Sec. 2 HMIS Privacy Protections............................................................70 Substantive Due Process ............................................................ 28 Sec. 3 “Sweeps” as Unlawful Seizures ................................................ 72 Equal Protection ............................................................................. 28 Destruction of Property .............................................................. 72 Expressive Conduct ......................................................................29 Sec. 4 Practitioner’s Tips .......................................................................... 73 Sec. 3 The Necessity Defense .................................................................30 Expectation of Privacy in HMIS ................................................ 73 Elements of Necessity Defense................................................30 Application of Necessity Defense in Florida ....................... 31 Chapter 9 Prohibition Era Revisited .................................. 75 Defending The Necessity of Sleep .......................................... 32 Sec. 1 Unlawful Possession of Alcohol ................................................ 75 Sec. 4 Practitioner’s Tips ..........................................................................34 Establishing Possession or Consumption
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