Criminalization of Homelessness -- Spring 2026 -- Papers

The Criminalization of Homelessness —
Spring 2026
Professor Schnably Office, Office Hours, and Faculty Assistant

Possible Topics

You do not have to choose a topic from this list. I welcome other suggestions.
This is a listing of possible topics. They require significant further development to determine if they are viable topics. I may have some additional information for a number of them, so if you’re interested, by all means let me know before the first deadline. You can find information about the schedule for choosing a paper topic and writing the paper here. Make sure you are familiar with all the Course Policies, including the use of AI.
This is a preliminary list. I will be making some adjustments and additions. I will mark any changes by marking the entry as New! or Revised!

New! Involuntary Commitment of Homeless Persons in Emergencies
- When Irma approached Miami in 2017, the Miami-Dade County Homeless Trust took the lead in offering temporary shelter to persons experiencing homelessness. In some instances, those offered shelter refused it. In response, the Trust used the Baker Act to commit them involuntarily. See Materials on Irma and Homelessness. In the recent major snow storm across the country, New York City officials offered drop-in warming centers and also brought a number of people who refused offers of shelter into shelter involuntarily. City outreach workers said they could also bring people into shelters involuntarily if they were at risk from the cold, and did so with at least three people. The head of the Department of Social Services said that "[a]n individual who is not appropriately dressed, who is wet, who is unable to acknowledge" that there are real dangers - those are the people the city would take to the hospital. See Mihir Zaveri, New York City Races to Help Homeless People During Brutal Cold Snap, N.Y. Times, 1/27/26. Is this practice justifiable? Legal? On the one hand, the streets could be especially dangerous in extreme weather conditions (which may also include extreme heat and humidity in some areas), and it seems irrational to refuse shelter. On the other hand, irrational refusal to evacuate in the case of hurricanes is not confined to unsheltered people; people living in mobile homes, for example, may refuse to leave in the face of a coming hurricane, and they are not involuntarily committed. Ultimately, the worry may not be so much the particulars of the situation as the way the wide use of involuntary civil commitment (a major policy proposal of the Trump administration) reflects both a denial of agency on the part of unsheltered persons and failure to provide conditions for more responsible choices. There can also be significant ADA issues. See National Council on Disability, Federal report highlights trend of involuntary institutionalization during and after disasters, May 24, 2019.
New! Relocation of Those Experiencing Homelessness
- Many cities, including Miami, have policies that involve assisting those experiencing homelessness to move to other cities. In some instances, the policy is irreproachable. There may be people who are living on the streets or in shelters who have relatives somewhere else in the country they would like to live with, but they cannot afford the cost of getting there. In other cases, it is less clear what is going on. See Marisa Kendall, Busing People out of Homelessness: How California’s Relocation Programs Really Work, Cal Matters, 11/26/24; Tyler Blint-Welsh, New York City Sued Over Program That Moves Homeless People to Other Municipalities, Wall St. J., Dec. 3, 2019; Rick Paulas, Instead of Helping Homeless People, Cities are Busing Them Out of Town, Vice, Feb. 13, 2020; Victoria Vantol, Relocation Progams Do LIttle to Help Homeless People, Invisible People, 11/12/29; Bussed Out, How America Moves Its Homeless, 12/20/17. It would be interesting to first survey such programs around the country (including Miami and San Francisco) and compare the policies (including the extent to which there are written guidelines). The Newark/NYC case was settled; it might be interesting to examine that settlement. There may have legal challenges in other cities. What policies should cities have in this regard, in order to help reunite families or help stranded individuals get back home, but avoid simply displacing those experiencing homelessness onto other municipalities?
Involuntary Commitment of Homeless Individuals with Mental Illness: California, New York, the Federal Government
- In the last few years, California and New York City instituted new programs that emphasized expanding involuntary commitment of homeless individuals with mental illness. The Trump Administration’s executive order on homelessness emphasizes this as well. Both the California and New York programs were challenged in court. It could be useful to review that history and then look closely at what the Trump administration is planning and what challenges might be brought against it. This could be combined with a policy analysis of the best ways to provide assistance to persons with mental health issues who are experiencing homelessness.
The ADA and Rehabilitation Act and Homelessness
- Increasingly, plaintiffs challenging encampment sweeps and other criminalization matters also assert ADA violations. That is not surprising in one sense, since a significant portion of the street population has one or more disabilty. It would be useful to look at the complaints brought and other litigation materials and analyze what kinds of ADA claims are most likely to succeed, and in what circumstances. There have been a number of cases brought in California, in particular, but not only there. Often the ADA is employed to challenge homeless encampment cleanups or local practices that a homeless individual who is (say) sleeping on the sidewalk in violation of an ordinance be arrested if they do not accept a spot in a local shelter, regardless of whether their disability (which might be physical or mental) could be accommodated there.
State Law Issues: State Constitutions as the Source of an Alternative to the Eighth Amendment’s Prohibition on Criminalization of Homelessness
- The Supreme Court⁏s ruling in Grants Pass ends most Eighth Amendment challenges to arrests for, in essence, being homeless. Might some state courts find a similar right not to be arrested for performing life-sustaining conduct in public spaces if you are involuntarily homeless? This would require some research into state constitutional caselaw on two levels. The specific task would be to read up on (a) state constitution-based “Eighth Amendment” rulings to see if it might form a plausible alternative. More broadly, it could also be useful to consider strands of state constitutional jurisprudence that recognize positive rights, such as state constitutional rights to shelter or assistance or to education. These rights are, for the most part, absent from federal constitutional law.
State Law Issues: Statewide Legislation Criminalizing Homelessness, and Nuisance Lawsuits and Homeless Encampments
- Some activists critical of the Ninth Circuit rulings and of the Housing First approach have supported nuisance lawsuits against encampments. Phoenix, AZ, was the site of competing lawsuits in this respect. Institutes that advocate state legislation from a generally conservative viewpoint, including the Cicero Institute, have also helped secure passage in some states of state-wide legislation that requires local governments to arrest individuals for committing life-sustaining conduct misdemeanors. An analysis of those statute and proposals in other states would be useful. In addition, typically state legislatures have such power and discretion under state constitutions as to when to exercise that power. But might there be some general rules or guidelines as to when to exercise such powers? Should there be?
State Law Issues: Criminal Law Defenses to Charges of Life-Sustaining Conduct Misdemeanors
- Are there viable state law-based defenses to charges of (say) sleeping or camping in public, or being in the park after hours? Traditionally, substantive criminal law provides for certain defenses when someone is charged with a criminal act and they did commit that act. These defenses include necessity, duress, and impossibility of compliance. Might any of these be available to homeless individuals? How far a departure (if any) from established precedent would be needed for such a defense? What would be the arguments for an against it? It would also be useful to consider in depth at least two other defenses: self-defense and entrapment. These might require the biggest leap doctrinally, but the underlying policies behind those defenses have some real overlaps with homelessness. Oregon enacted a statute of this sort; Massachusetts had a case to this effect (Magadini). It is possible that similar statutes might be enacted or considered in other states. This might work best if you have already taken or are taking substantive criminal law.
The Municipal Policy Issue in § 1983 Class Actions Challenging the Criminalization of Homelessness
- In order to succeed in a federal civil rights action alleging violation of constitutional rights, it is necessary to show that the alleged wrong was made pursuant to a municipal policy. The Supreme Court imposed this requirement in Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), but there is are reasons to view that requirement as a misreading of the statute. Under the policy requirement, if a city employee seizes and destroys a homeless individual’s property in clear violation of the Fourth or possibly Fifth Amendments, there is no prospect of recovery unless that employee’s action was pursuant to a municipal policy or practice. Courts have become increasingly demanding in what is required to show such a policy, making vindication of rights increasingly difficult as a practical matter. What reforms to judicial interpretation of § 1983 might address this problem? What legislation might address it?
Enforcing the Fifth Amendment: Fulton v. Fulton County Board of Commissioners
- The Eleventh Circuit decided last year that there is a direct action for compensation under the Fifth Amendment. How might this ruling be used to protect the property rights of those experiencing homelessness? How effective would this be, given the not-large monetary value of their belongings (though of course they are very important for practical and sentimental reasons). Could injunctive relief ever be available? What barriers to class action status might there be? (Consider the dissents in Martin and Grants Pass (9th Cir.).) How would this relate to Section 1983 litigation?
State-Sanctioned Encampments
- Should there be state sanctioned encampments? This has been the subject of controversy among advocates for persons experiencing homelessness. As the National Homelessness Law Center has urged, there may be a case for cities to give some form of recognition to homeless encampments. There are many descriptions of the community that can arise in them. E.g., Gabrielle Canon, Homeless Oaklanders were tired of the housing crisis. So they built a ‘miracle’ village, The Guardian, May 11, 2021. In more recent years, though, proposals have taken on a form that might more easily suggest open-air detention centers. Utah has announced a major plan in this respect. Florida Bill HB 1365 contemplates them, though none have been approved. Conservative policy institues and advocacy groups have advocated them. It would be useful to evaluate these proposals and actions, both in terms of the rights that might be violated and in terms of whether there is some format of them that might be useful.
Religious Freedom and Efforts to Provide Assistance to Persons Experiencing Homelessness
- Religious groups attempting to provide assistance to persons who are homeless -- assistance that can take the form of food sharing (on public or private property) or providing a place to pitch tents (on church property, for example) -- have met with municipal government opposition in a number of cases. The religious groups have cited state religious freedom acts, sometimes successfully (including in food sharing). For a recent unsuccessful such case regarding an encampment, see Michael Gryboski, Judge rules against Colorado church in homeless encampment case, The Christian Post, Nov. 13, 2025. An analysis of the ways in which these religious freedom acts might be used in challenging criminaliztion of homelessness could be very useful.
Anti-homeless Zoning
- In some states, service providers have become concerned about local laws that may put shelters out of existence. The Cicero Institute has template legislation with rules that can make it very hard for service providers to provide assistance (including harm reduction). Example could include rules mandating that service provider locations for homeless assistance be entirely drug free zones, with the service provider liable to being criminally or civilly if any drugs are ever dealt on the premises. Or they may provide that there can be no homeless shelter within a one-mile radius of child care providers. These efforts come amidst a intense move in many states to get people off streets through encampment sweeps -- potentially leaving as the only options for persons experiencing homelessess jail, involuntary mental health or substance abuse commitment, or living in camp-like facilities outside the cities. On what federal and state legal bases might challenges to this kind of zoning be premised?
Food Sharing and Homelessness
- A number of cities have banned or strictly limited food sharing with people experiencing homelessness. Miami is one of them. See, e.g., National Homelessness Law Center, Housing Not Handcuffs 2019: Ending the Criminalization of Homelessness in U.S. Cities (Dec. 2019); Grace Guarnieri, Why It’s Illegal to Feed the Homeless in Cities Across America, Newsweek, 1/16/18. For an earlier description and critique, see Feeding Intolerance: Prohibitions on Sharing Food with People Experiencing Homelessness (Nov. 2007). Legal challenges to bans on or regulations of food sharing have primarily focused on freedom of expression and religion -- the rights of those engaging in food sharing. If food sharing groups can show that their activity is expressive conduct under the First Amendment, it may be protected. Being protected does not, however, necessarily entail strict scrutiny. Courts may determine the constitutionality of food sharing ban under more flexible “time, place and manner” approaches. Food sharing bans may also be challenged under state religous freedom acts, where the group providing food is doing so as an expression of religious beliefs.
  - In the context of challeges to Covid-related restrictions, courts increasingly broadened First Amendment religious Free Exercise protections, casting doubt on the continuing viablity of Employment Div. v. Smith, 494 U.S. 872 (1990). What might those Covid-regulation challenges tell us about challenges to food sharing bans on religious freedom grounds?
  - Another aspect that is notable about these challenges is the absence of claims directly on behalf of those experiencing homelessness. Are there legal theories that might sustain a challenge by homeless individuals? Among other things, these ordinances can have a disproportionate impact on homeless individuals with disabilities.
  - Many homeless individuals, including those living on the streets, have disabilities. Food sharing bans or limitations may make it especially hard for those experiencing homelessness to take advantage of food offered by food sharing groups. For example, some statutes limiting food sharing seek to ban it from downtown areas while still permitting it to take place elsewhere in the City. Persons experiencing homelessness often stay in downtown areas because of the greater availability of services, jobs, and public transportation. Might food sharing bans trigger federal statutes banning discrimination against people with disabilities? What would it take to make such a showing? What would be the relief?
The Federal Government’s Approach to Plans to End or Greatly Reduce Homelessness
Comparative & Global Approaches to Homeless Policies
- Homelessness is a problem world-wide. See, e.g., Patrick Butler, Half of young people [in the UK] facing homelessness denied help, The Guardian, Nov. 11, 2018; Jay Bainbridge & Tony J. Carrizales, Global Homelessness in a PostRecession World; Joseph Chamie, As Cities Grow Worldwide, So Do the Numbers of Homeless; Perdue University’s Institute of Global Homelessness. Are there are advantages to taking a global perspective on homelessness? For example, other nations have had successful experience with Housing First, notably Finland. What has been the experience of Housing First in other countries? Has the initial appearance of success been qualified by subsequent developments, as with Utah? Are there policy lessons to be learned from their experience?
Counting the Homeless Population:
- The homeless population is counted in several ways: twice-a-year point-in-time head counts, the decennial census (next one in 2030), and surveys. For more information on these methods, see:
  - Point in time: HUD, The 2018 Annual Homeless Assessment Report (AHAR) to Congress, Dec. 2018
    - Critique: National Law Center on Homelessness and Poverty, Don’t Count on It: How the HUD Point-in-Time Count Underestimates the Homelessness Crisis in America (2017)
  - Census: National Coalition for the Homeless, Down the Count: Overcoming the Census Bureau’s Neglect of the Homeless
  - Surveys: see Readings, pp. 1-5; other methods
  How important are accurate counts to the formulation and implementation of homeless policy? Are some methods more useful for some policy issues than for others? Does it make sense to have these different approaches? What legislative changes might improve our knowledge of the size and nature of the population of those experiencing homelessness?

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