The Criminalization of Homelessness —
Mondays 3:30-5:30 pm
Office, Office Hours, and Faculty Assistant
This seminar will explore the criminalization of homelessness—policies in which local governments use systematic arrests of homeless people for relatively minor misdemeanors to drive them out of core urban areas. The seminar will have three major aims. The first is to examine the large-scale economic and social trends in inequality that contribute to homelessness, and the range of policy responses aimed at preventing or alleviating it. The second is to explore the contributions that civil rights litigation can make to supporting constructive policy responses, as well as the limits of litigation as an agent of social change. The third is to gain a practical lawyering sense of how social impact litigation is conducted, using as a case study the current consent decree in Pottinger v. City of Miami. That consent decree limits the power of the police to arrest homeless people for certain misdemeanor offenses they cannot avoid committing while homeless. Paper topics will be chosen by the students, but must be approved by the professor.
You will need the Course Readings and the Pottinger Supplement. The first installment of each can be found here. In addition, the first installments will be made available at the Copy Center starting 1/16/18 in the late afternoon:
Class 1 (Monday, January 22, 2018): Introduction
This class introduces some basic background on homelessness, the Pottinger case and consent decree, and the general themes of the seminar.
This class begins with a brief overview of criminalization (provided by the United States Interagency Council on Homelessness), and a look through local ordinances whose application may raise the question of criminalization. It then moves to an intensive look at the constitutional bases for challenging criminalization, using major Supreme Court cases, Pottinger, another federal district court case, and some secondary materials. This class focuses on the Eighth Amendment.
This class continues the discussion of the constitutionality of criminalization policies, focusing on the challenges based on the Fourth and Fifth Amendments, the Fourteenth Amendment, and the First Amendment. It then examines the issue of a constitutional right to shelter.
After going over the Grootboom case, this class examines some practical legal considerations in bringing challenges to criminalization of homelessness, and in enforcing relief granted. Specifically, it examines the requirements of bringing a lawsuit under 42 U.S.C. § 1983, and the requirements of a Rule 23(b)(2) class action (a common one in social change litigation). The class will also begin to provide an overview of the legal, practical, and ethical considerations in deciding whether to bring a lawsuit challenging criminalization, and what form the lawsuit should take.
This class takes an overall look at the lawyering and strategy issues related to bringing a challenge to criminalization. Benjamin Waxman, the lead counsel in the Pottinger case, will discuss his two decades of experience of representing the homeless in federal district court. The class will also examine what can be accomplished through litigation, focusing on its potential achievements and limitations. If there is time after this discussion, we will also consider the class actions issues from last week’s readings.
This class takes an overall look at the situation of the homeless in Miami. What is the population of those experiencing homelessness? What causes homelessness? What services are available to the homeless? What agencies provide them? How are they funded and provided? What policies best address the problem? Hilda Fernandez, Chief Executive Officer of Camillus House and former executive director the Miami-Dade County Homeless Trust, will speak on these issues.
This class will examine several key lawyering issues in bringing an institutional reform case. At the start of the class we will also talk about Paper Topics and go over the Field Information Card (FIC) / Monitoring Exercise.
This class examines three topics: homelessness and preparation for emergencies, such as hurricanes; the use of involuntary commitment; and homelessness and models of policing. David Peery, one of the class representatives in the Pottinger litigation, will speak on these issues.
This class will begin with a look at the relationship between sex offender residency restrictions and homelessness, with guest speaker Jeffrey Hearne.
This class will begin with a closer look at models of policing. We will then return to another topic previously assigned, but which we did not have a chance to go over: modification of consent decrees. Finally, we will look at the law governing attorneys’ fees in civil rights cases.
The class will begin by concluding our discussion of attorneys fees, using the materials assigned last week. We will then take a look at models of lawyering in social change litigation, including some ethical questions.
We will hear presentations by class members. As set out on the Papers; Timeline page, the Questions that you need to write for others’ papers being presented this Monday are due Monday, April 16, at 9:00 am. Please check the Schedule of Assignments and Questions to see which ones you need to write a question on. Keep in mind, also, that all members of the class should (a) read all the abstracts and the written questions posed by others, and (b) be prepared to discuss the topics after the presentations.
We will hear presentations by class members. As set out on the Papers; Timeline page, the Questions that you need to write for others’ papers being presented this Monday are due Friday, April 20, at noon. Please check the Schedule of Assignments and Questions to see which ones you need to write a question on. Keep in mind, also, that all members of the class should (a) read all the abstracts and the written questions posed by others, and (b) be prepared to discuss the topics after the presentations.