Class 1: August 25, 2021
For the first class, there are some readings from the Readings packet (“Readings”), and from the Pottinger Case & Statutes and Regulations Supplement packet (“Supplement”):
- Readings, pp. 1-49
- Supplement, pp. 160-161 (Pottinger Rights Flyer), pp. 468-471 (City of Miami Code § 25-25) (“Supp”)
- Become familiar with some basic information and questions about the phenomenon of homelessness and policy responses to it.
- Become broadly familiar with the protections of the Pottinger Consent Decree
- Who are “the homeless”? How many homeless people are there in the United States? How are the numbers arrived at?
- The National Alliance to End Homelessness says that 580,466 persons “were experiencing homelessness on a single night in January 2020” (Supp. 1), which would represent approximately 0.17% of the U.S. population of about 328,200,000. How would you defend the following propositions, based on the Schwartz reading:
- A more representative figure for 2020 would be 10,106,000 (about 3.1% of the population; people who were homeless at least once in last five years)
- A more representative figure for 2020 would be 3,282,000 (about 1% of the population; people who stayed at a shelter in the last year)
- What assumptions lie behind each?
- Is homelessness a timeless phenomenon, always present? What does the Rossi article say about that?
- What causes homelessness? What factors have contributed to making it such a prominent issue since the 1980s?
- What is the legal definition of homelessness? Or would it be better to say what are the legal definitions?
- How does the McKinney-Vento Act, 42 U.S.C. § 11302, define homelessness?
- What about someone who stays with friends?
- Lives on the street by choice? Stays in a homeless shelter?
- Is living in an apartment from which she will be evicted in 10 days?
- How has that definition changed over the years?
- How does the definition used by the Department of Education, set out in 42 U.S.C. § 11434a, differ? Is one better than the other? Does it depend on the context?
- What other definitions of homelessness does the law provide?
- What agencies of government develop and implement policies to address homelessness? What are some of those policies?
- What are some recent examples of criminalization of homelessness? Why would local governments adopt such approaches?
- Is the relatively recent City of Miami Code provision (§ 25-25) an example of criminalization of homelessness? Why or why not?
- We will look at the Pottinger Consent Decree in more detail later in the semester, but for now it is enough to look at the Pottinger Rights Flyer. Would enforcement of § 25-25 be consistent with the rights set out in the Flyer? What about enforcement of ordinances banning drinking in public?
Class 2: Sept. 1
- Readings, pp. 50-98, 113-143
- Explore the demographics and characteristics of the current population of persons experiencing homelessnes in the U.S. and Miami.
- Understand the criticisms of Point in Time (PIT) Counts as a measure of the extent of homelessness -- the practical and conceptual limitations of PIT Counts; become familiar with the range of alternative approaches to developing statistics on homelessness and the different assumptions behind them.
- Understand the different theories of the causes of homelessness -- and what it means to identify something as a “cause” of homelessness.
- The demographics and characteristics of the current population of persons experiencing homelessnes in the U.S. and Miami
- Most relevant materials:
- The census materials at Readings, pp. 65-66
- The National Law Center’s Overview of Data and Causes, Readings, pp. 53-55,
- The chapter by Karen Mahar, Readings, pp. 79-95
- The SPARC Phase One Study Findings, Readings, pp. 96-98.
- What is the current official number (as of January 20) of homeless individuals in Miami-Dade County? How does that break down between sheltered and unsheltered? How have these figures changed in the last five years? The last ten years? The last twenty years? How many people are homeless in the United States?
- Can you tell from the Miami-Dade County Homeless Census Results, Readings, pp. 65, how many people are homeless in the City of Miami?
- What are the major demographic groups nationally among those experiencing homelessness? How might the challenges differ for each group?
- What are the major demographic groups in Miami among those experiencing homelessness? How might the challenges differ for each group? Are there respects in which the experience of homeless individuals is the same for different demographic groups?
- In Miami, what was the outcome for individuals leaving homeless shelters -- i.e., where did they end up? Why do people leave homeless shelters?
- What was the data source for Mahar’s study? What strengths and limitations does it have?
- Youth Homelessness & Domestic Violence
- Most relevant materials
- America’s Youngest Outcasts, Readings, pp. 113-127
- Serving Our Youth 2015, Readings, pp. 128-131
- The Intersection of Domestic Violence and Homelessness, Readings, pp. 132-143
- How prevalent is youth homelessness? How long has it been a problem in the U.S.? How does Florida rank in relation to California and New York in this respect?
- How are homeless youth counted?
- What are the demographics of youth homelessness?
- What are the major causes of youth homelessness?
- How do the problems of LGBTQ youth differ from those of other youth? How might these differences require policy responses tailored to their needs? To what extent would policies tailored to homeless youth without regard to gender or sexual identity serve their needs?
- How does domestic violence cause homelessness? Who is most affected by it?
- What is the history of efforts to deal with it? Would creating more affordable housing solve the problem -- entirely? mostly? only a little? What policies might best respond to it? How have those policies changed over the years?
- Problems with Counting the Number of People Experiencing Homelessness
- Most relevant materials
- National Homelessness Law Center, Readings, pp. 67-78
- Exactly how are PIT Counts conducted? Who is responsible for determining the procedures used for them? Who is responsible for determining how often they are done? Are the answers to these questions the same everywhere in the U.S.? If not, what are the variations?
- What is the most accurate part of the PIT Counts? Is accuracy enough?
- Which of the various definitions of homelessness in federal law (review the CRS Report, Readings, pp. 23-26 is used for PIT Counts?
- What groups are excluded from PIT Counts? Should PIT Counts be expanded to include them? Would it be feasible to do so?
- Why is an apparent decline in homelessness from 2012 to 2013 nationwide somewhat suspect? Why did chronic homelessness seem to decline in Utah in 2010? What occasioned HUD’s warning in 2013 about the numbers?
- In a PIT Count, are some groups of those experiencing homelessness more likely to be undercounted than others? To what extent? Why?
- How do HUD and Department of Education counts differ? What policy concerns do the differences raise?
- What are the various ways counts of those experiencing homelessness could be expanded? What advantages would doing so have? How could this be accomplished? Is it entirely a matter of federal action and federal law? State and local action/law?
- Do you have any preliminary thoughts about which counts might be most useful in challenging policies that criminalize homelessness?
- The Causes of Homelessness
- Most relevant materials
- The Camillus material at Readings, pp. 50-52
- The National Law Center’s Overview of Data and Causes, Readings, pp. 53-55
- The White House Council of Economic Advisers report, Readings, pp. 56-60
- The article by Johnson & Chamberlain, Readings, pp. 61-64
- Review the Padgett reading from the first class, Readings, pp. 29-38.
- What do Camillus House and the National Law Center point to as the primary causes of homelessness?
- Is substance abuse a cause of homelessness? A consequence? What do Johnson & Chamberlain have to say on this? What policy implications would their study have?
- What are the causes of homelessness according to the Trump Administration’s Council of Economic Advisers? How does its account differ from what you see in the other readings?
- Consider this list of causes:
This is a long list -- is it complete? To what extent must all the factors be tackled in the effort to end homelessness?
- Housing costs
- Income levels
- Urban renewal/gentrification
- Availability of public transportation
- Availability of health care
- Racial and gender discrimination
- Substance abuse / mental health problems / availability of treatment facilities
- Domestic violence
Class 3: Sept. 8, 2021
- Readings, pp. 144-192, 427-464; review Readings, pp. 32-35 (“From Single-Room Occupancy to Emergency Shelters to Transitional Housing” and pp. 37-38 (“A Homeless Services Institutional Complex (or a Homeless Service ‘Industry’) is Born”)
- Note: pp. 427-464 are in Part II of the Readings. These will be available at the Copy Center on Thursday, Sept. 2 but are available here now.
- Gain a thorough understanding of the different policy approaches to homelessness, including their evolution over time and their effectiveness.
- The shelter/continuum of care (CoC) model:
- Camillus House is a major private provider of services for persons experiencing homelessness in Miami. What are the different kinds of services it provides? Consider:
- Emergency shelter: what policies govern it? What is it for?
- Transitional housing: what policies govern the different types it has?
- Permanent supportive housing/permanent housing: what policies govern the different types it has?
- What is the relationship between shelter providers like Camillus House and the Miami-Dade County Homeless Trust?
- How large is the Trust’s budget? What are the Trust’s funding sources?
- What challenges are there for people experiencing homelessness in living in an emergency shelter? What benefits do they have? What problems may they create for those staying in them? What does it mean to call them a total institution?
- Other forms of emergency shelter or accomodations. Consider the following:
- “Mobile shelters”
- Homeless encampments
- What benefits and challenges do these provide for persons experiencing homelessness?
- Should local governments consider them part of their overall shelter system, and support them or accommodate them? Why or why not? What, in practice wuld this mean?
- How in fact have local governments dealt with the phenomena of individuals sheltering on buses or in encampments? What reasons do they give for trying to discourage them or to shut down encampments? What alternatives are there to such policies?
- Padgett et al. describe the growth of a homeless services “industry.” How did this come about, in their account? In what ways is it open to change? In what ways does it limit change? How have models of advocacy and practice by those offering services to persons experiencing homelessness changed over the years? Is the evolution they describe from Lineage 1 through 2 through 3 a good one? One to be regretted? Mixed? What are the philosophies that underlie each one? How have they converged?
- What federal agencies are involved in the response to homelessness? What are the fundamental goals of the federal government in dealing with homelessness? Have those goals been met? Are we closer to those goals?
- The Housing First Model
- How does Housing First differ in philosophy and practice from the shelter/continuum of care (CoC) model?
- What successes has Housing First had in Europe? Has it eliminated homelessness there?
- What are the advantages and disadvantages of each model?
- How effective is each model in (a) eliminating or reducing homelessness in general, and (b) getting unsheltered individuals who are experiencing homelessness off the streets and still housed a year later?
- The federal government has significantly reduced funding for emergency shelters, and significantly increased its funding of Housing First. What reasons might it have for doing so? Are there problems this shift might cause?
- How likely is the effectiveness of Housing First in addressing homelessness to be affected by (a) a wave of evictions following the lifting of pandemic-period eviction moratoriums, and (b) the state of affordable housing?
Class 4: September 15, 2021
- Understand the scope and depth of the affordable housing crisis in Miami, and its roots in inequality and poverty
- Examine the challenges of Covid-19 for those living on the streets, and the policy responses to it
- Examine the potential for a wave of new homelessness with the lifting of eviction moratoriums
- Understand the criminalization of homelessness as a policy response to homelessness
- Affordable Housing Nationwide (Readings, pp. 226-232; skim Readings, pp. 218-226)
- The 2019 Harvard report notes that housing construction nationwide is “still going strong”? Does that mean the stock of affordable housing is improving?
- What does the 2019 Harvard report say about the nationwide stock of low-cost rental housing?
- How many households nationwide are “cost-burdened”? What does that phrase mean?
- Affordable Housing in Miami (Readings, pp. 233-269; skim 270-274)
- What is the extent of the problem of cost-burdened households and individuals in Miami?
- What are the different ways to measure the cost of housing in Miami, and to compare that to the cost of housing elsewhere?
- Why hasn’t the construction boom in Miami, with the increase in living units, helped ease the affordability problems? Does Miami have a very low rental vacancy rate?
- In which sector is the affordability problem greater: the rental housing market or the home-ownership market?
- What are demand-side approaches to dealing with the affordable housing problem? What are supply side approaches? Is one more likely to have an impact than the other?
- How many billionaires live full-time in the Miami metro area? How many Miami residents live in poverty? What are the racial dimensions of poverty in Miami? What employment pattern in Miami contributes to poverty?
- What is the standard measure of income inequality? How does Miami compare to other US cities? To other countries?
- How do median wages for Miami compare to that in other cities in the U.S.? How do blue-collar or working class wages in Miami compare to that in other U.S. cities?
- What are the geographic, age-related, and racial characteristics of poverty in Miami?
- What makes the middle class in Miami precarious?
- What kinds of policies would address inequality in Miami?
- Homelessness and Covid-19 (Readings, pp. 198-217; skim 193-197)
- What concerns relating to homeless shelters and to street homelessness did the advent of the Covid-19 pandemic raise?
- What policies did the National Low Income Housing Coalition recommend to deal with those concerns? What policies did local Miami advocates recommend?
- What has been impact of Covid-19 on persons experiencing homelessness, in shelters and on the streets?
- Evictions and Covid-19 (Readings, pp. 275-285, 295-296, 300-304, 316-332; skim pp. 286-294, 297-299, 305-315)
- What is the potential extent of the Covid-19 eviction crisis, according to the Aspen Institute? What short- and long-term impact would it have on households? On communities? On public health? How would a wave of evictions affect communities of color? What policy recommendations does the Aspen Institute report suggest?
- What recommendations does the UN Special Rapporteur on the Right to Adequate Housing make?
- What recommendations does the Open Society Foundation make regarding protection of tenants?
- What impacts does eviction have on individuals and communities, according to Desmond? What policy responses to eviction does he suggest -- in particular his universal housing voucher program?
- Criminalization (Readings, pp. 335-361; skim Readings, pp. 362-399)
- What does “criminalization” mean in the context of homelessness, according to the USICH and National Homelessness Law Center? Does it refer to particular statutes specifically targeted at people who are homeless? Patterns of enforcement? What kinds of statutes are typically involved? Are they all geared specifically towards people who are homeless? Does criminalization necessarily involve arrests of people experiencing homelessness?
- What accounts for the increasing resort to policies of criminalization by local governments? What might local governments be seeking to accomplish through such policies?
Class 5: September 22, 2021
- Readings, pp. 465-494 (Robinson; see below for what parts to focus on); 495-552 (Powell; see below for what parts to focus on); 552-560 (Tobe; see below for what parts to focus on); 584-606
- Note: You will need Readings, Part III, which will be available in printed form at the Copy Center after class on 9/15/21.
- Supplement, pp. 29-32, 33-37, 55-57, 41-45, 49-50
- Understand the roots of the Eighth Amendment challenge to the criminalization of homelessness in Robinson v. California and Powell v. Texas
- Understand the Eighth Amendment holding in Pottinger and the California Supreme Court’s rejection of that holding
- Understand other constitutional bases for challenging criminalization
- Eighth Amendment
- Read all of Robinson, but you should focus especially on the following two opinions (and may read the rest quickly):
- Justice Stewart’s opinion for the majority (Readings, pp. 465-473), and
- Justice Clark’s dissent (Readings, pp. 484-490).
- Consider Justice Clark’s defense of the use of criminal law as treatment for drug addiction. In that respect, you might find it interesting to look at this testimony by Edward Suarez, a witness for the City in the Pottinger hearing in Fall 2018. He works with the IDEA Needle Exchange program run by the University of Miami, and earlier worked at Camillus and took part in its Lazarus program. The excerpt here shows his view that homeless individuals with mental illness might benefit from being jailed because that is the only place where mental health treatment is available for those who can’t afford it.
- What do you make of the jail as therapy idea in Justice Clark’s dissent in Robinson (see Readings, pp. 484-488) and Justice Black’s concurrence in Powell (Readings, pp. 518-521)?
- Note the comment by Justice Marshall in Powell that involuntary civil commitment facilities may be no better than jails, and “[t]hus we run the grave risk that nothing will be accomlished beyond the hanging of a new sign -- reading ‘hospital’--over one wing of the jailhouse.” (Readings, p. 510). (Justice Black says the same thing in Powell, see Readings, p. 520). Marshall goes on to say that involuntary civil commitment for treatment of an illness may be worse because it is indefinite, compared to a jail term.
- Consider Justice White’s assertion in his dissent (Readings, pp. 493):
If it is “cruel and unusual punishment” to convict appellant for addiction, it is difficult to undertand why it would be any less offensive to the Fourteenth Amendment to convict him for use on the same evidence of use which provided he was an addict.
In other words, he suggests that the decision casts into doubt the state’s power to punish the use of drugs by someone who is addicted to them. Do you agree with this reading of the Court’s holding?
- Read all of Powell, but you should focus especially on the following opinions (and may read the rest quickly):
- Justice Marshall’s opinion for the plurality (Readings, pp. 497-518); Parts II & IV of Justice Black’s concurrence (Readings, pp. 521-522, 525-527); Justice White’s concurrence in the result (Readings, pp. 529-535); and Justice Fortas’s dissent (Readings, pp. 535-551).
- What does Justice Marshall mean in reading Robinson to turn not on the absence of mens rea but on the presence of some actus reus? (Readings, p. 514) What is the “limitation by fiat” he worries about in the dissent’s opinion? (Readings, p. 515) How is federalism relevant, according to Marshall? (Readings, p. 516)
- In reading Pottinger, focus on:
- Part II (Findings of Fact) (Supplement, at pp. 29-32)
- Parts III.B & C (Supplement, at pp. 33-37)
- Part IV (Supplement, at pp. 55-57.
- Read Weisberg (Readings, pp. 584-588) for help in understanding the issues posed in the cases.
- Status: Pottinger sets out a two-part test in discussing the Eighth Amendment. On each of these, consider how the court reaches its conclusion, and on what evidence does it rely in doing so:
Consider these counter-arguments (which some courts have made). Are they persuasive? Consistent with the Supreme Court cases?
- A determination that homelessness is involuntary, not voluntary.
- A determination that there are not enough shelter spaces for homeless people.
- A sharp distinction between voluntariness and involuntariness is unrealistic; homelessness is at least partly the result of choices individuals make.
- The presence or absence of shelter is irrelevant to status, because (a) there is no legal right to housing, and (b) it makes no sense to determine status based on discretionary acts of others.
- Even if homelessness is a status (involuntary), it is more immediately remediable (by the provision of shelter or housing) than drug addiction, the subject of Robinson.
- Offenses: What kinds of illegal conduct constitute cruel and unusual punishment if applied to homeless persons based on their status as homeless persons? Why is obstructing the sidewalk covered, but not trespassing on private property, or petty theft (say, of food)? Read Weisberg (Readings, pp. 584-588) for help in this respect.
- Tobe: Focus on Part I of the opinion, Readings, pp. 552-553, and Part III.B (Readings, pp. 558-559). The California Supreme Court rejected the Eighth Amendment approach taken in Pottinger. On what basis did it conclude that punishment of someone who is homeless for camping in public is not a violation of the Eighth Amendment?
Class 6: September 29, 2021
- Understand other federal constitutional bases for challenging criminalization besides the Eighth Amendment
- Understand state constitutional bases for challenging criminalization indirectly
- Become familiar with international and comparative rights approaches
- Fourth and Fifth Amendments
- Seizure / Destruction of Property
- Read Parts III.E and III.F of Pottinger (Supplement, at pp. 41-45).
- Procedural Due Process
- Read Sections I & III.B, and the dissent, in Lavan v. City of Los Angeles, Readings, pp. 570-572, 574-575).
- Procedural Due Process
- Read Sections I & III.B, and the dissent, in Lavan v. City of Los Angeles, Readings, pp. 570-572, 574-575).
- Fourteenth Amendment: Suspect Classification (previously assigned)
- Are people experiencing homelessness a suspect class for purposes of the Fourteenth Amendment? Should they be? What difference would it make? The excerpt from the Wagner article, Readings, pp. 589-606) is helpful in considering this question, particularly if you have not taken Constitutional Law II. In addition, read the Pottinger Court’s holding on this (Part III.H and III.H.1, Supplement, at pp. 49-50).
- Fourteenth Amendment: Fundamental Rights and the Right to Travel
- Even if homeless people are not a suspect classification, how does a right to travel protect possibly protect them against criminalization? Consider the Pottinger holding, Part III.H.2, (Supplement, at pp. 50-55).
- First Amendment
- Anti-begging Statutes
- Consider City of Miami Code § 37-8 (Supplement, at 452-455). Just based on your general knowledge (i.e., before reading Toombs or the ACLU letters, do you think this statute would violate the First Amendment? Why or why not?
- What does Toombs (Readings, pp. 577-583) hold as to CMC § 37-6?
- Consider also the analysis in the three ACLU letters (two to Miami Beach, one to El Cajon, CA) (Readings, pp. 627-633, 383-389)
- What about CMC § 37-6 (Supplement, at 450-451)? In light of Toombs and the ACLU letters, how do you think a court would rule on the constitutionality of this statute?
- Could there be an Eighth Amendment challenge to CMC § 37-8? To CMC § 37-6 Why or why not?
- Right to Shelter/Housing
- Criminalization might be challenged in another way -- indirectly -- by establishing a right to shelter or even a right to adequate housing.
- Is there a federal constitutional right to housing? What does Lindsey v. Normet (Readings, pp. 634) say? Is there anything in the text of the Constitution that might, even just implicitly, suggest that housing or shelter is a fundamental interest?
- On what did Callahan v. Carey (Readings, pp. 635-637) base the right to shelter in New York? Did the court correctly interpret the New York Constitution? Consider the first part of the Haywood reading (Readings, pp. 655-656) in this respect. Article XVII § 1 provides:
The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.
- What aspects of Callahan strike you as unexpected or incomplete?
- Note that rather than appeal the ruling, the City chose to enter in negotiations with the plaintiffs, and agreed to a Consent Decree (Readings, pp. 638-648). You need not read the Consent Decree word for word. Skim through it, though, and consider how the relief in the Consent Decree might differ from the relief a court could provide as part of a judgment.
- Why did attempts to establish a right to shelter in Connecticut fail? The article by James Welcome (Readings, pp. (Readings, pp. 649-654) discusses this. Note further what happened in Montana after a relatively successful court case. See the last page of Welcome’s article (Readings, pp. 654).
- What subsequent legal issues arose with respect to Callahan? Consider the remainder of the Haywood article (as supplemented by an update from the Coalition for the Homeless)(Readings, pp. 656-659)
- In light of Main’s description of changing New York City policies (Readings, pp. 660-663), does it make sense to speak of a right to shelter? What, overall, do you think the litigation to establish a right to shelter in New York has accomplished?
- What does the International Covenant on Economic, Social and Cultural Rights provide with regard to housing or shelter? (Readings, pp. 664-665)? Is the right absolute?
- Note: the United States has signed the Covenant but has not ratified it. There are 166 parties to it. For a list, see the United Nations Treaty Collection site.
- In a lawsuit brought by a Irene Grootboom and other homeless people in Capetown, Grootboom (Readings, pp. 666-675) recognized a right to housing under the South African Constitution. We will discuss the basis of the Court’s decision; the scope of the right it recognized; and the relief it granted.
- Does it make sense to have a judicially enforceable right to housing? What are the arguments against it? What are the arguments for it? Consider the Sunstein article in this respect. (Readings, pp. 676-678)
Class 8: October 20, 2021
Please see the readings set out under “Questions” below.
Having reviewed the constitutional theories by which criminalization of homelessness can be challenged, we will now focus on some of the lawyering issues raised in bringing such challenges.
- Become familiar with the range of strategic, practical and ethical issues in planning a lawsuit challenging criminalization.
- Learn about section 1983 and class action requirements.
- Become familiar with the terms of the Consent Decree as approved in 1998 (and unmodified until 2014).
- Note: As set out on the Syllabus page, everyone must complete two written exercises. This is the first one. There will be at least two more options in subsequent classes. You need not do all of them, just two of them. The first one is set out in the box below.
- Note: You will need Readings, Part V, also available at the Copy Center.
- Planning a lawsuit to vindicate the rights of homeless persons
- The readings are intended to give you some background to the Pottinger lawsuit itself, and also some background in litigation matters beyond the constitutional theories, including the importance of § 1983 and class actions.
- The Dowd article, Introduction, Sections II & III (Readings, p. 919-921, 924-928)
- In a case where a local authority (such as a school board) is not complying with statutory or constitutional requirements, what steps does Dowd recommend taking before filing a lawsuit? What is the purpose of those steps?
- Overview of Planning a Lawsuit
- Read: Housing Not Handcuffs: A Litigation Manual (Readings, p. 829-848) (you can skim pp. 829-842))
- Section 1983:
- It is important to understand Section 1983 because it is one of the main vehicles for bringing cases vindicating constitutional (and federal statutory) rights. Read:
- The Shriver Center Federal Practice Manual, ch. 5 (Readings, pp. 849-851)
- Optional (but very useful for understanding § 1983 requirements): Read the Schwartz article (Readings, pp. 852-855)
- Pottinger, 810 F. Supp. 1551, Parts III.B & III.D (Supplement, pp. 33 and 37-41)
- Optional (but very useful for understandng how municipal immunity and the municipal policy/causation requirement can leave local governments unaccountable for unconstitutional conduct): The Smith article (Readings, pp. 856-860)
- Class Actions:
- It is also important to understand class actions. Read:
- Fed. R. Civ. P. 23 (Readings, pp. 861-864) (The settlement requirements are set out in more detail in the more recent modifications, but largely accord with prior practice. See Fed.R.Civ.P. 23)
- The Shriver Center Federal Practice Manual, ch. 7 (Readings, pp. 865-868)
- The Pottinger Class Certification opinion, 720 F. Supp. 955 (Supplement, pp. 17-22)
- What considerations need to be taken into account in considering whether to bring a class action lawsuit or an individual suit?
- Optional: Read Sourovelis v. City of Philadelphia (Readings, pp. 869-879)
- Under what part of Rule 23 was Pottinger brought? Sourovelis? Why does it matter?
- What are the legal requirements for certification of a class action lawsuit?
- If the law as described in Sourovelis had applied at the time of the Pottinger lawsuit, what would the outcome have been as to damages in Pottinger? In this connection, look at the 1998 Pottinger Consent Decree (“Settlement Agreement”), Part X (Compensatory Damages), Supplement, pp. 74-84, and materials on Proof of Claim, pp. 95-113, to be generally familiar with them.
- The Pottinger Lawsuit and Consent Decree
- Look over the Second Amended Complaint, (Supplement, pp. 1-16)
- Read the article by Benjamin Waxman (Readings, pp. 880-889)
- This article will give you insight into the planning and conduct of the original Pottinger decision.
- Review the 1992 Pottinger decision (Supplement, pp. 23-57)
- Optional: Read the excerpt from Wright & Donley (Readings, pp. 910-918) for very interesting insight into the context of the lawsuit and developments up to the planning and conduct of the original Pottinger decision, and its impact.
Exercise No. 1:
The aim of this exercise is to get you familiar with the 1998 Consent Decree. We will look at the modifications in the next class.
If you wish to hand this in you must email it to me in a Word or pdf document, with a copy to my assistant, Sue Demmings, by noon on Wednesday, October 20, 2021, at noon.
- Go over the original Consent Decree (1998) (Supplement, pp. 58-113 and answer the following questions. You need not consult the 2014 Modifications. In each case identify the specific provision of the 1998 Consent Decree on which you base your answer.
- Use this format to identify which portion of the Consent Decree on which you base your response: [Roman numeral][paragraph number][Capital letter][Arabic numeral][small letter].
- For example, if you want to cite one of the life-sustaining conduct misdemeanors -- being in the park after hours -- you would cite it as follows: VII.14.C.3.a (which you will find at Supplement, pp. 66).
- In some cases you may need to cite more than one provision. Two examples are given below (see 2.a and 2.i).
- In most cases you won’t need to write an explanation, but in a few cases you may need to write a sentence or so explaining your reasons.
- Whom did the Law Enforcement Protocol of the Consent Decree (Section VII Supplement, pp. 63-70), protect?
- Individuals living on the streets of Miami?
- Individuals living in homeless shelters in Miami?
- Individuals living outside the City of Miami?
- Assume that all the shelters in the City of Miami are full. Is the arrest of a homeless person by a City of Miami police officer permissible under the following circumstances? Suppose the individual is:
- sleeping in a park, in a tent, after the park is closed.
- Answer: No. VII.14.C.2; VII.14.C.3.a; VII.14.C.3.h; VII.14.C.3.j.
- sitting in a grocery store, refusing to leave at the manager’s request.
- sleeping on a sidewalk.
- sitting on a bench in a public square.
- building a fire in a park.
- sitting in the lobby of City Hall for hours.
- urinating in a public alley with no one else present.
- using a public water fountain to wash clothes.
- carrying an open can of beer.
- Answer: Yes. VII.14.D.1&2.
- committing an armed robbery and assault.
- asking pedestrians passing by for money.
- In Question 2, do your answers change if there is shelter space available in Homestead, Florida, about 30 miles south of downtown Miami? Why or why not?
- Suppose at the time a homeless person is arrested by a City of Miami police officer, she has the following property with her:
What happens to her property?
- a backpack with ID and medicines
- a duffel bag full of clothes and blankets
- a bike
- Suppose a homeless individual goes early in the morning to a labor pool, and leaves his belongings behind, neatly stacked in a park or against a fence on a sidewalk but not blocking passage. Are they protected from being seized by the City while the indvidual is gone?
Additional Questions: Not part of the Exercise
- What kinds of obligations did the Consent Decree place on the City, in regard to protection of the rights of homeless individuals in future interactions with homeless individuals? What City employees are bound?
- May an officer tell a homeless individual staying in a certain location that he must move on because a local business owner has complained that the individual’s presence is driving away customers? Does it matter whether it is phrased as a request or as an order?
- Must a City of Miami police officer document his or her interaction with a person who is homeless in the following situations?
- Warning to a homeless person that they are violating the law
- Arrest of a homeless person
- Offer of services to a homeless person
- What compensatory damages were provided in the Consent Decree? How were they to be distributed to class members? What showing was required for an individual to recover? How was that showing to be made?
- Suppose a homeless individual complained to you of a violation, which you verified after investigation. Could you go straight to court seeking a holding of contempt?
- Suppose the City wished to modify the Consent Decree. Could it go straight to court seeking modification? Termination?
- Would plaintiffs’ attorneys be entitled to attorneys fees in defending against a subsequent effort by the City to modify the Consent Decree? In representing plaintiffs in a motion to enforce the Consent Decree in light of violations by the City?
- What was the status of the 1992 Pottinger decision -- was it vacated? Left in place? Can it still be cited as precedent?
Class 10: November 3, 2021
Please see the readings set out below under “Questions.”
You will need Part VI of the Readings, available here and at the Copy Center. I will post questions by Friday that will let you know which parts to focus on and which you can skim or save for a later class.
- Note: As set out on the Syllabus page, everyone must complete two written exercises. You need not do all of them, just two of them. The third and fourth options are set out below.
Exercise No. 3: Attend the rally at Miami City Hall, 3500 Pan American Drive, Coconut Grove, FL 33133 at 9:00 am, Thursday, Oct. 28. Observe the rally and the Commission hearing on the proposed ordinance banning “Encampment”, City of Miami § 37-16. Write a one page account of your analysis of the effectiveness of the demonstration and public comment to the Commissioners.
Exercise No. 4: Attend the Miami ACLU Zoom Seminar and send me an email after the event confirming that you attended it (by zoom), and providing a one page analysis of the points made that you thought were most informative or effective, or of any aspect that you thought should have been the subject of more discussion.
Readings and Questions:
We will first discuss the City of Miami’s ordinance, enacted in 2020 but not enforced until the last few months, banning what it calls “Large Group Feedings” in all public spaces throughout most of the City, except for 5 designated parking lots. If we have time, we will begin our discussion of the potentials and limitations of litigation to bring about social change.
- Food Sharing
- Carefully read City of Miami Ordinance 13907, codified as § 25-25 (Readings, pp. 1050-1053). Make sure you are thoroughly familiar with the terms. Note that the various Attachments are not part of the ordinance, but they are relevant to it. What do the maps at Readings, pp. 1054-1055) show? How do they relate to the Ordinance? What is the significance of the Sanitary Nuisance Complaint (Readings, pp. 1056-1059)? Who initiated it? Why did the City include it as an attachment when the ordinance was introduced to the Commission for approval?
- Review the LGF permit materials (Readings, pp. 1063-1066). Suppose an organization wanted an LGF permit in Overtown? Could it apply for one? Receive a permit for one? Go online and check the Google Calendar (available through the Permit page) showing who has been granted what permits and for when. Is it consistent with the ordinance?
- Carefully read the two Eleventh Circuit decisions on food sharing (Readings, pp. 1067-1099). Is food sharing with persons experiencing homelessness protected under the Constitution? What in the Constitution protects it? Under what circumstances? If it is protected, under what circumstances may it be regulated or limited?
- You may also want to review the ACLU letter on a food sharing ban in El Cajon, CA Readings, pp. 631-633)
- With regard to the article by Bailey (Readings, pp. 1101-1119), focus on Part III (Readings, pp. 1107-1116), and V.B (Readings, pp. 1117-1118). Is the LGF ordinance just another instance of the kind of cooperative relationship between food sharers and a local government described at p. 1114? Would pushing for a Homeless Bill of Rights in the City of Miami be a useful strategy? What other responses to Bailey suggest?
- With regard to the González article (Readings, pp. 1120-1174), first read the Florida Religious Freedom Restoration Act (Readings, pp. 1175-1176). With regard to González, skim Part I (Readings, pp. 1130-1148) and read Parts II.A and II.B. (Readings, pp. 1149-1164).
- Social Change Litigation: What can social change litigation accomplish? What are its limits?
- Read the excerpts from the article by Henderson (Readings, pp. 987-989), the Rosenberg book (Readings, pp. 990-999), the Ziegler article (Readings, pp. 1000-1009), and the NeJaime article (Readings, pp. 1010-1017)
- How useful is public interest litigation in achieving social justice, according to Judge Henderson?
- What are the different ways that lawyers can play a role in pursuing public interest law, according to Judge Henderson?
- How has the environment for public interest law changed in the past few decades, according to Judge Henderson?
- Gerald Rosenberg’s book was originally published in 1991, and became a major focal point for skepticism about the ability of impact litigation to bring about important change. The example here relates to prisoners’s rights, including prison conditions.
- What factors in general bear on the possibility of achieving social change through the courts? (He identifies four factors.)
- Why does he pronounce the prisoners’ rights revolution “the revolution that wasn’t”?
- What implications might his analysis have for using litigation to counter policies criminalizing homelessness?
- Ziegler summarizes the work of Rosenberg and other critics of impact litigation, and then posits what she says are the critics’ underlying assumptions about the relationship between legal and social change.
- What are those assumptions, according to Ziegler? Why does she think they are wrong?
- What does Ziegler mean by framing? What does that mean in the context of the abortion debate? Are you persuaded by her response to the criticism that Roe may have been counterproductive by causing a backlash and perhaps undercutting the urgency of abortion advocates to foster political support for abortion rights?
- What implications might her analysis have for using litigation to counter policies criminalizing homelessness?
- NeJaime offers the perhaps counter-intuitive thesis that losing major litigation can produce positive benefits for social change movements.
- How does that happen, according to his analysis?
- Is his example of the Thomas More Law Center a case study in social movement success, or in the success of a legal advocacy organization? Or both?
- How did losing the court battles over LGBT adoption rights in Florida positively contribute to the ultimate success of the movement to recognize those rights, according to NeJaime?
- What implications might his analysis have for using litigation to counter policies criminalizing homelessness?
- The role of the lawyer in social change litigation:
- Read the excerpts from the articles by Garcia (Readings, pp. 1018-1027) and Pow (Readings, pp. 1028-1040); the excerpt from the Shriver Center Manual on representing clients (Readings, pp. 1041-1042); and the Introduction to Chapter 4 of the Florida Rules of Professional Conduct (Readings, pp. 1043-1047).
- What is the role of the lawyer in relation to clients, according to Florida Rule 4.1-2? What model does the Shriver Manual assume? Consider also Garcia’s description of “the traditional lawyer” (Readings, pp. 1019-1022).
- In what ways does the lawyer’s role become problematic, judged by the traditional model, in social change lawyering as described by Garcia? What does she mean by cause lawyering?
- In what ways might cause lawyering threaten to disempower clients or members of the communities they represent or of which they are a part? What can be done about this problem?
- In what different ways would a traditional lawyer and a cause lawyer handle the hypothetical case Garcia talks about?
- Consider that the criminalization of traffic court debt (as described by Pow) has strong similarities to the criminalization of homelessness. What strategies did Pow take in attempting to counter the criminalization of traffic court debt? What strengths and limitations did each have? What implications did each of the strategies have for the role of lawyers?
- What would it mean to institute a rebellious lawyering approach to the criminalization of homelessness? (What is the difference, in addition, between a rebellious lawyering approach (as set out by Lopez and others) and a rebellious social movement lawyering approach (as articulated by Pow)?
- What relevance does her discussion of the role of race in the criminalization of traffic court debt have for strategies to counter the criminalization of homelessness?
Class 11: November 10, 2021
Please review the previously assigned readings and questions on Social Change Litigation.