The Criminalization of Homelessness
Assignments and Questions

Spring 2026
Professor Schnably  

Class 1: January 14, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: Readings, pp. 1-60 The questions below are intended to give guidance as to what to think about as you do the readings. Objectives: Become familiar with some basic information and questions about the phenomenon of homelessness and policy responses to it. Become familiar with the some types of criminalization and legal challenges to it. _____________________________________________________ Questions: Who are “the homeless”? How many homeless people are there in the United States? How are the numbers arrived at? Do you see any potential problems with PIT counts as indicating the extent of homelessness? Who do you think is “homeless” or unhoused? What about someone who: Lives on the street? Stays in a homeless shelter? Stays with friends? Is living in an apartment from which she will be evicted in 10 days? Is living in their car or a van? Was evicted and lived on the streets for two weeks before moving in with relatives? What are the causes of homelessness? What is the difference between predictors of homelessness (or risk factors) and causes of homelessness? Is homelessness spread evenly throughout the United States? Is “homelessness” in the United States today the same phenomenon as before World War II? In the post-War era up to the late 1980s? How does what Rossi called in 1990 “the New Homelessness” differ from homelessness in the past? How does it compare to homelessness today? What policy responses (other than criminalization) are deployed to address homelessness? Do you think the policies are inadequate, or simply underfunded? Both? What is Housing First? How is it different from shelters? What are the arguments for Housing First as the best policy response to homelessness? What criticisms do Lonsdale & Glock make of Housing First? What policies does President Trump’s Executive Order advocate for addressing homelessness? How does it differ from the National Alliance to End Homelessness and the National Homelessness Law Center advocate? What vision of the nature and causes of homelessness does it embody? What constitutes “criminalization of homelessness”? Consider these examples: A city arrests unhoused individuals for sleeping in parks after hours (i.e., at night when they are closed to the public). The ordinance making it illegal to be in the parks after hours does not single out homeless individuals. A city arrests unhoused individuals for drinking in public. The ordinance making it illegal to be in the parks after hours does not single out homeless individuals. A city arrests unhoused individuals for drinking in public. The ordinance making it illegal to be in the parks after hours does not single out homeless individuals. Very few unhoused individuals are ever arrested for this offense. City police warn unhoused individuals that who urinate in public that they are violating the law, and order them to leave the area and not come back. What are some examples of criminalization of homelessness? Why would local governments adopt such approaches? Do Florida HB 1365 criminalize homelessness? What exactly does it do? What vision of the causes or nature of homelessness might it represent?

Class 2: January 21, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages. Objectives: Understand the roots of the Eighth Amendment challenge to the criminalization of homelessness in Robinson v. California and Powell v. Texas, including complexities relating to (a) notions of what is voluntary versus involuntary, (b) the differences between criminal law and involuntary civil commitment for treatment, and (c) the distinction between status and conduct. Understand the Eighth Amendment holdings in Pottinger and Martin, to see how they evolved from Robinson and Powell. Get a sense of other constitutional and statutory challenges to criminalization of homelessness. We will go over them subsequently in more depth; right now focus on getting a general idea of what the non-8th Amendment challenges are based on. Understand the legal rationales given by lower courts that rejected the Eighth Amendment as a ban on criminalization, focusing on Tobe and the dissents in Martin _____________________________________________________ Questions: Read all of Robinson, but you should focus especially on the opinions by Justices Stewart (Readings, pp. 61-69), Clark (Readings, pp. 80-86), and White (Readings, pp. 86-89), and may read the rest quickly: Make sure you understand in specific terms why, according to the Court, Robinson’s conviction violated the Eighth Amendment. Do you agree with the Court’s holding? Why or why not? What are its implications for criminal law generally? For the Eighth Amendment? 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. 80-86) and Justice Black’s concurrence in Powell (Readings, pp. 114-124)? 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 accomplished beyond the hanging of a new sign -- reading ‘hospital’--over one wing of the jailhouse.” (Readings, p. 106). (Justice Black says the same thing in Powell, see Readings, p. 116). 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. What is the significance of the venue/location issue that Justice White discusses in his dissent? (Readings, pp. 86-90) Is Justice White right in criticizing the majority for recognizing “no degrees of addiction”? Why or why not? Consider Justice White’s assertion (Readings, pp. 89): 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. 33-54); Parts II & IV of Justice Black’s concurrence (Readings, pp. 57-58, 60-62); Justice White’s concurrence in the result (Readings, pp. 65-71); and Justice Fortas’s dissent (Readings, pp. 71-87). Why do you think the Supreme Court was undertaking review of a county trial court judgment, rendered without a jury and with one expert only (the defendant’s) whom the prosecution barely cross-examined, and which consisted of brief (and broad) proposed findings of fact submitted by the defendant and adopted verbatim by county court, which nevertheless convicted him? 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. 50) What is the “limitation by fiat” he worries about in the dissent’s opinion? (Readings, p. 51) How is federalism relevant, according to Marshall? (Readings, p. 52) You may recall United States v. Lopez, 514 U.S. 549 (1995), from Constitutional Law I, in which the Court held that possession of a gun is not an economic “activity” under the Commerce Clause. Under the Eighth Amendment, is possession of drugs status or conduct? Is “conduct” the same as “activity”? What is a “condition” as opposed to a “status”? Pottinger v. City of Miami. In reading Pottinger, focus on: Part II (Findings of Fact) (Readings, p. 154-157) Parts III.B & C (Readings, p. 158-162) Part IV (Readings, p. 180-182). Martin v. City of Boise. Read Judge Berzon’s opinion for the panel majority (Introduction and Part I, Readings, p. 211-216, and Part II.C., Readings, p. 223-226)

Class 3: January 28, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages. Objectives: Under the bases for rejection by some lower courts or judges of the Pottinger/Martin Eighth Amendment holdings Gain a practical sense of how the Eighth Amendment holdings in Pottinger, Martin, and Grants Pass (9th Circuit) could constrain arrests of homeless persons Understand the different doctrinal bases for disagreement in the lower courts with the Eighth Amendment holdings in Pottinger, Martin, and Grants Pass (9th Circuit) could constrain arrests of homeless persons Understand the Supreme Court’s holding in City of Grants Pass v. Johnson. _____________________________________________________ Questions: Disagreements with Pottinger and Martin: Tobe: Focus on Part I of the opinion, Readings, pp. 183-184, and Part III.B (Readings, pp. 189-190). 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? Martin dissents: Judge Smith’s dissent, Parts I.A., I.B, I.C. & II.B Readings, pp. 198-204, 206-207) Judge Bennett’s dissent, Parts I & II Readings, pp. 207-211) Why are the dissents set out in Martin before the court’s opinion? Counter-arguments to Pottinger/Martin: Pottinger set 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: A determination that homelessness is involuntary, not voluntary. A determination that there are not enough shelter spaces for homeless people. Consider these counter-arguments. Are they persuasive? Consistent with Robinson and Powell? How much do Tobe and the dissents in Martin and Grants Pass (9th Cir.) depend on these counter-arguments? 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. Regardless of the possible theoretical case for Pottinger/Martin, it is not practical for police to observe the limitations it places on their power to arrest persons experiencing homelessness Applying Pottinger/Martin: What kinds of offenses were protected under the Eighth Amendment (as construed by Pottinger and Martin if committed by homeless persons? Why is obstructing the sidewalk covered, but not trespassing on private property, or petty theft (say, of food)? 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? (Assume all the listed acts below are prohibited by a municipal ordinance or state statute.) Suppose the individual is: sleeping in a park, in a tent, after the park is closed. 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. sleeping 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. sitting on a park bench with an open can of beer. committing an armed robbery and assault. littering. asking pedestrians passing by for money. Consider that under Martin and Pottinger, a person experiencing homelessness could be arrested for (say) camping in public if they are offered available shelter and turn it down. How would Martin and Pottinger apply if the shelter offered was not within same jurisdiction that was threatening arrest? Suppose a person living on the streets were told by a City of Miami police officer that he was obstructing the sidewalk, in violation of a City of Miami ordinance. Suppose, further, that the officer told the individual that he would not be arrested if he accepted a shelter bed in Homestead, 30 miles south of Miami, and the individual refused that offer. Would it have been consisent with the Eighth Amendment holdings of Pottinger and Martin for the officer to arrest the individual for obstructing the sidewalk? City of Grants Pass v. Johnson (Supreme Court). Read the majority, concurrence, and dissent (Readings, pp. 280-286) How does the Court depict homelessness in these respects in Section I of its opinion, Readings, pp. 274-316: its sources the issues associated with it, and the responses of local governments to it (including Grants Pass’s approach). How does the majority’s description of homelessness compare with that in the NAEH State of Homelessness 2025, Readings, pp. 13-36 and in the NHLC’s Housing Not Handcuffs, Readings, pp. 37-46? How does the dissent describe the same issues? Readings, pp. 300-303. What does the dissent say about the relevant of these factors in describing the Grants Pass ordinances? Readings, pp. 306-309. The purpose of the ordinances The written scope of the ordinances The enforcement of the ordinances What problems does the Court say the Ninth Circuit rulings in Martin and Grants Pass have created? On what does the Court base these assertions? Note that the dissent characterizes the injunction against the City of Grants Pass as “narrow.” 304; The majority itself notes that the Ninth Circuit took “one” of the “wide panoply of tools in the policy toolbox” away from local governments. 283. Consider: What reasons does the majority give for considering the loss of this one tool significant and detrimental? Does the narrowness of the Ninth Circuit’s injunction as described by the dissent (Readings, pp. 304-305) undercut the protection afforded to unsheltered persons? Note the exclusion from the injunction of local laws against public urination or defecation. If sleep is a “biological necessity,” (Readings, pp. 300), what is status of urination and defecation? Note that Johnson did not challenge the ban on tents in Grants Pass (with lows averaging around 32° in the winter) (Readings, pp. 311). What if they had? Would it matter to the dissenting opinion? As the dissent also notes, (Readings, pp. 311), Johnson did not challenge the Ninth Circuit’s approval of arrest of any individual unsheltered person who refused an offer of shelter. Suppose the offer is for one night only; or requires religious observance. Compare the majority and the dissent on this scenario. What criticisms does the dissent make concerning the majority’s reliance on the amicus briefs of state and local governments? (Readings, pp. 312-313) What, according to the majority, is the scope of the Eighth Amendment? Does the majority rely on a distinction between voluntary and involuntary, or between status and conduct? How, according to the majority, do the Grants Pass ordinances at issue stack up under the Eighth Amendment? Readings, pp. 287-288. What criticisms does the majority make of Robinson? How does the Court distinguish Robinson? What is the status of Robinson after Grants Pass? Readings, pp. 289-290. How does the dissent characterize Robinson’s precedential status? Does it rely on Robinson? What is the majority’s criticism of the dissent’s treatment of Robinson? What is Justice Thomas’s criticism of Robinson? How does it differ from the majority’? Properly interpreted, in your view, does the Eighth Amendment cover a civil order excluding a homeless person from a park, the violation of which would subject that individual criminal punishment? How clear is the distinction between civil and criminal law? How does the Court read the holding in Powell? How is its reading different from that in Pottinger, Martin, and Grants Pass (9th Cir.)? What does it say about the status of Justice Marshall’s opinion? What difficulties does the Court point to in determining whether an individual is involuntarily homeless? How does its approach differ from that in Pottinger and Martin? What practical criticisms does the Court make of the Ninth Circuit’s approach? What does the Court say was the impact on homeless service providers of the Ninth Circuit’s holding? On what does it base those statements? The Court states that “many substantive legal protections and provisions of the Constitution may have important roles to play when States and cities seek to enforce their laws against the homeless.” Readings, pp. 296. The dissent agrees. Readings, pp. 314-315. What are these other potential bases? How effective in protecting persons experiencing homelessness might they be compared to the Eighth Amendment? What is the significance of Ore. Rev. Stat. § 195.530 () for the Eighth Amendment holdings of the Ninth Circuit and Pottinger? Does it undercut them by showing that state and local governments can act responsibly, and so no constitutional protection is needed? Undercut the majority by showing that limits on police power to arrest individuals for sleeping or camping in public are workable enough that a state government would adopt them?

Class 4: February 4, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages. As mentioned in class, there is a new Part III to the Readings, and a separate Litigation & Statute Supplement (both also available at the Copy Center). Objectives: Become familiar with other constitutional and statutory bases for challenging criminalization of homelessnessness Become familiar with other relevant legal Issues Seizure of Property Fourth and Fifth Amendments Read Parts III.E and III.F of Pottinger (Readings, pp. 166-170). Read the majority opinion in Fulton v. Fulton Co. Bd of Comm’rs. Focus on the majority opinion (Readings, pp. 324-358), and on Part II.C. of the dissent (Readings, pp. 371-374) Procedural Due Process Read Sections I & III.B, and the dissent, in Lavan v. City of Los Angeles (Readings, pp. 376-382). Read the Cooper-Levy Complaint (Litigation & Statute Supplement, at pp. 18-33) (no need to go through all the attachments to the Complaint). In what way is pleading of Count I adequate under Lavan, but not under Pottinger? Which standard is better, in your view? Is the pleading of Count II adequate under Lavan and Pottinger? What are significant differences between the facts in Lavan and those alleged in Cooper-Levy? Note that the Cooper-Levy Complaint does not plead a count under the Fifth Amendment. If the Eleventh Circuit had decided Fulton before the Cooper-Levy complaint was filed, how might that have affected the decision not to include a Fifth Amendment count? The case was settled shortly before trial. The City agreed to pay a sum to cover damages and attorneys fees, and to revise its adminstrative rules regarding the treatment of homeless persons’s property. Current rules showing revisions: Compare the prior rules, City of Miami APM 1-19 (2019), (Litigation & Statute Supplement, at pp. 34-38) with the rules as revised after the Cooper-Levy settlement, (Litigation & Statute Supplement, at pp. 118-125). How much protection do you think the new rules would give in comparison to the earlier ones? As a practical matter, how can the City’s compliance with the rules be monitored? Right to Privacy Pottinger holding, Part III.G.1, (Readings, pp. 170-172). Note that other states have constitutional privacy protections. Could a right to privacy that encompasses governmental interference in personal decisionmaking provide a basis for challenging criminalization? How might that be in tension with the Eighth Amendment holdings of Pottinger, Martin, and Grants Pass? Equal Protection/Suspect Classification 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. 421-438) 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 (Readings, pp. 174-175). 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 (Part III.H and III.H.1 (Readings, pp. 175-180). First Amendment Anti-Panhandling Ordinances Consider City of Miami Code § 37-8 (Litigation & Statute Supplement, at 142-144). Just based on your general knowledge (i.e., before reading Toombs or Messina, do you think this statute would violate the First Amendment? Why or why not? What does Toombs (Readings, pp. 383-389) hold as to CMC § 37-6? Consider City of Miami Code § 37-6 (aggressive panhandling) (Litigation & Statute Supplement, at pp. 140-142). How would you analyze it under Messina, Readings, pp. 390-420. Focus on Background, Readings, pp. 394-396, and Part I, Readings, pp. 400-415 Consider also the analysis in the ACLU letter to El Cajon, CA (Readings, pp. 462-464)

Class 5: February 11, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages. Objectives: Understand constitutional protection of food sharing Explore other potential bases for protecting unsheltered persons, including a necessity defense under state criminal law, federal disability rights laws, federal or state rights to housing/shelter, and the international human right to housing _____________________________________________________ Questions: First Amendment (cont.) Food Sharing Bans and Restrictions Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale (FNB I), Readings, pp. 439-437: What regulations regarding food sharing did the plaintiff (Fort Lauderdale Food Not Bombs) challenge in FNB I? Under what circumstances is food-sharing protected by the First Amendment? What, according to the court, made FNB’s activity “expressive conduct”? What about FNB’s activities distinguished them from law schools’ claim that the Solomon Amendment violated their First Amendment rights? (See Section III.C, Readings, pp. 444-446 Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale (FNB II), Readings, pp. 447-461: Read the Introduction, Readings, pp. 447Readings, pp. 447 and Part III.B, Readings, pp. 455-461. You may skip Sections II.A & II.C, Readings, pp. 447-455; we will come back the § 1983 and standing issues later in the course. Given the holding in FNB I that FNB’s food sharing was expressive conduct, what is the framework for determining whether the Park Rule violated FNB’s First Amendment rights? Consider: Is the Park Rule content neutral? What is the significance of this determination for the First Amendment analysis? What framework did United States v. O’Brien provide for evaluating the constitutionality of the Park Rule? What is the difference between the United States v. O’Brien framework and the “time, place, and manner restriction” framework? Did it matter in FNB II? Consider City of Miami Code § 25-25 (Ordinance 13907)(Litigation & Statute Supplement, at pp. 158-161). Is this a ban on food sharing? A permit scheme? Would FNB have been able to succeed in a challenge based on the Florida Religious Freedom Restoration Act, (Litigation & Statute Supplement, at pp. 215-216)? Why or why not? Suppose the group providing the food was sponsored by a church. Would that make a difference? Consider the food sharing ban contested by the ACLU in its Letter to the City Attorney of El Cajon, CA (Readings, pp. 462-464). Was that ban content neutral, according to the ACLU? What difference does that make to the analysis? Given that the ACLU conceded that “preservation of public health is a compelling interest,” on what basis did it argue that the ban was nevertheless unconstitutional? Non-Constitutional Bases Necessity defense See City of Grants Pass v. Johnson (Justice Sotomayor, dissenting), Readings, pp. 313-314, noting Oregon statute § 195.530 (2021) providing: “Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry otdoors on public property that is open to the publi must be objectively reasonable as to time, place and manner with regards to persons exeriencing homelessness.” A person who is homeless who is arrested and charged with, say, violating a local anti-camping statute may offer an affirmative defense that the local ordinance is not objectively reasonable. Persons experiencing homelessness may “bring suit for injunctive or declaratory relief to challenge the objective reasonableness” of the ordinance. In 2023, the City of Portland enacted an ordinance that banned camping in many Portland public spaces from 8:00 am to 8:00 pm. Unsheltered individuals challenged the statute under the Oregon statute and Article 1 § 16 of the Oregon Constitution (“Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”). Duncan v. City of Portland, No. 23CV39824 (Or. Cir. Ct.) (Complaint filed Sep. 29, 2023). The trial court granted a preliminary injunction against enforcement of the ordinance. Subsequently, the city repealed the ordinance and enacted a new one in May 2024, and the case was dismissed. The new ordinance eliminates the blanket time restriction, and has a number of other provisions. See the City’s page explaining the 2024 ordinance. Does the 2024 ordinance adequately protect the interests of unsheltered persons, in your view? Do you agree with the City’s statement that the 2024 ordinance does not criminalize homelessness? Why or why not? Federal Statutory Protection of Persons with Disabilities Read the DREDF Manual (Readings, pp. 691-718), focusing on pp. 696-698 (Background) and pp. 700-717. Read Tyson v. City of San Bernardino and the two accompanying articles (Readings, pp. 719-738). What regulations did the City of San Bernardino provide for governing encampment cleanups? In what way did the City’s actions violate the Fourth Amendment, at least for purposes of a prima facie determination? In what way did the City’s actions violate the Fourteenth Amendment Due Process clause, at least for purposes of a prima facie determination? In what way did the City’s actions violate the Americans with Disabilities Act and § 504 of the Rehabilitation Act? What is the difference between those two statutes? Review the factual allegations of the Cooper-Levy complaint, ¶¶ 32-91 (Litigation & Statute Supplement, at pp. 23-29). Might one or more plaintiffs in the case have had a federal disability law claim? What specific facts might suggest that? What other information might be needed about the plaintiffs and the City’s practices? What specific allegations would be needed to sustain a complaint against a motion to dismiss? Consider that the City often offers shelter, sometimes just for a night, sometimes longer, in connection with encampment cleanups. What federal disability law issues might arise with respect to such a practice. Among other things, suppose an individual was offered shelter, but said that because of severe anxiety they could not stay in a congregate environment such as a homeless shelter. Assuming that is the case, would federal disability law require that the individual instead be offered an apartment? Suppose the City told a person experiencing homelessness that the mattress they use to sleep on is contaminated and so is going to be thrown away. The individual replies that because of a serious back problem they need a lot of cushioning when they sleep, and blankets or a sleeping bag is not enough. Would disposing it violate the individual’s rights under federal disability law? Review the revised (and current) APM 1-19 (Litigation & Statute Supplement, at pp. 118-125). What changes might you suggest making to it in light of federal disability law? Federal Constitutional Right to Shelter/Housing Criminalization might be challenged in another way -- to some extent 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. 465) say? Is there anything in the text of the Constitution that might, even just implicitly, suggest that housing or shelter is a fundamental interest? Ben McJunkin (The Negative Right to Shelter) (Readings, pp. 563-636) argues for a right to shelter under the U.S. Constitution. The article is very interesting but long; focus on the parts indicated below. Later in the course we will go over Section III of McJunkin’s article (Readings, pp. 599-610). For now just be aware that it has a good analysis of why unsheltered people might reject shelter that is offered to them: violence (or the fear of violence) in shelters, the spread of disease (e.g., Covid), lack of accessibility for those with disabilities, having to dispose of much of one’s property to enter a shelter, loss of community developed in encampments, separation from partners or children in shelters, and subjection in many cases to rigid or pervasive rules. Read Sections IV.A. and IV.B (Readings, pp. 610-628), where he sets out a negative right -- a right to exercise the agency to decide how to shelter, protected from government interference. This dignity right, he says, is grounded in substantive due process (not the Eighth Amendment), and is “best understood as ensuring a specific capacity for self-determination.” He grounds this on Lawrence v. Texas, which struck down a sodomy statute on substantive due process grounds, focusing on individual autonomy and personal decisionmaking. How persuasive do you find his argument in Section IV.B. that the law protects a dignity right “to make autonomous choices about how to best navigate periods of housing instability”? State Law or Constitutional Right to Shelter/Housing Establishment of a right to shelter: New York: On what did Callahan v. Carey (Readings, pp. 466-468) 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. 486-487) 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. 469-479). Become familiar with the basic structure of the consent decree in terms of the obligations imposed on the City and the means of ensuring compliance. Consider how the relief in the Consent Decree might differ from the relief a court could provide as part of a judgment. States and local governments other than New York: Why did attempts to establish a right to shelter in Connecticut fail? The article by James Welcome (Readings, pp. 480-485) discusses this. Note further what happened in Montana after a relatively successful court case. See the last page of Welcome’s article (Readings, pp. 485). McJunkin discusses a right to shelter in West Virgina, D.C., and Massachusetts (Readings, pp. 587-592). How successful have they been? Implementation of the New York right to shelter: 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. 486-490) In light of Main’s description of changing New York City policies (Readings, pp. 491-494), 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 lessons might you draw about a right to shelter in light of New York City’s subsequent effortst to formally modify the Callahan consent decree in light of the impact of immigrants, as set out in Readings, pp. 495-547? Focus on the following; the rest is optional: Read the 2022 Request, Readings, pp. 495-500, and App. 3 (Readings, pp. 526-529) Read the articles on the City’s actions in 2023 (Readings, pp. 530-547)

Class 6: February 18, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages Note that a new set of Readings, Part V, is available at the Copy Center, and also through the Course Web page. Note: Your paper topic proposal is due March 2. More information available on the Papers page. Objectives: Complete our discussion of the range of legal issues involving homelessness, by looking at South Africa’s right to housing (previously assigned). Become familiar with some basic information and questions about the phenomenon of homelessness, as well as the definition of homelessness 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. _____________________________________________________ Issues: International Human Rights Law Right to Shelter/Housing What does the International Covenant on Economic, Social and Cultural Rights provide with regard to housing or shelter? (Readings, pp. 548-549)? Is the right absolute? Note: the United States has signed the Covenant but has not ratified it. There are 171 parties to it. See UN OHCHR, Status of Ratification. 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. 550-559) 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. 560-562) The rise of the “homeless services institutional complex” We will take a more intensive look in subsequent classes at the rise of a set of governmental and private institutions aimed at addressing homelessness, but the reading by Padgett et al. (Readings, pp. 739-748) provides useful context for the other materials we will discuss in this class. How has the federal government’s role in affordable housing changed over the years since World War II? What impact did it have on issues of affordability? Of homelessness? How did the federal government’s role in housing change with the McKinney Vento Act in 1987? What was the USICH tasked with accomplishing? In what sense were the earlier SROs a form of private shelter? How and why did local governments become responsible for providing shelter or transitional housing to persons without homes? In what ways do publicly operated or publicly funded emergency shelters operate differently from the ways the SROs operated? How is staying in a shelter different from the exprience of staying in an SRO? How did the rise of “broken windows” policing relate to a number of local governments’ approach to homelessness? What lessons, according to Padgett et al., does the Pottinger case have for the ability to effect changes in social policy through litigation? What impelled the aggregation of local and federal efforts to deal with homelessness? The demographics and characteristics of the current population of persons experiencing homelessness in the U.S. and Miami Readings, pp. 749-848 Demographics What are the demographics of the homeless population in Miami (as of the time of Mahar’s work)? In Miami, what was the outcome for individuals leaving homeless shelters -- i.e., where did they end up? Why do people leave homeless shelters? How has the homeless population changed in size over the years? Where are most of the unsheltered homeless population in Miami-Dade County located? What kind of political dynamic might that create? How many people are homeless in the United States? What is the current official number (as of August 2023) 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 City of Miami? In Overtown? In downtown? How many people are homeless in Surfside? What was the data source for Mahar’s study? What strengths and limitations does it have? Definitions 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? How has definition under § 11302 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? Who do you think is “homeless” under the various defintions? What about someone who: Lives on the streets? Lives on the street by choice? Stays in a homeless shelter? Stays with friends? Is living in an apartment from which she will be evicted in 10 days? Is living in their car or a van? Was evicted and lived on the streets for two weeks before moving in with relatives? What definition would govern the Miami-Dade County Homeless Trust’s census? Population Counts What is the importance of the annual PIT Count in practical terms? In shaping views of homelessness? What specific methodological points does the National Homelessness Law Center (then the National Law Center on Homelessness & Poverty) identify in the PIT Counts (Readings, pp. 777-788) 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 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? What do you make of the problems described in the article on San Francisco’s PIT Count in 2024? (Readings, pp. 789-794) Are these reasons to significantly change how the PIT Counts are done? Inevitable flaws in a difficult but worthwhile endeavor? 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? How prevalent is youth homelessness? Is it different from homelessness among enrolled students? Note that one estimate is 4.2 million youth and young adults. How does this figure compare to the annual PIT Count done under HUD’s auspices? What might be the reasons for the difference? What is meant by unaccompanied youth homelessness? What is the figure for youth homelessness in Miami given in the iCount Miami figures? Compare the figure the Miami-Dade County School system gives, which is nearly 11,000. Why are these figures so different? How accurate do you think the figures are on school children experiencing homelessness? What are the major causes of youth homelessness? What problems are there with the counts of homeless students? What might be done to remedy those problems? How was iCount Miami conducted? In what ways did it differ from how PIT counts are done? What are the advantages and disadvantages of each?

Class 7: February 25, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Readings: See below for specific pages. Objectives: Gain a thorough understanding of the different accounts of the causes of homelessness and the policy approaches to homelessness, including their evolution over time and their effectiveness. Become familiar with the agencies addressing homelessness in Miami. Understand the shelter model and Housing First. _____________________________________________________ The Causes of Homelessness Readings: NAEH (Readings, pp. 16-20, 25-32) (review) Camillus House, The Causes of Homelessness (Readings, pp. 849-851) Johnson & Chamberlain (Readings, pp. 852-858) White House Council of Economic Advisers report (Readings, pp. 859-863) Colburn & Aldern (Readings, pp. 864-878) Alternatively, or in addition, you might watch this video up to 32:12. Soon Kyu Choi et al. (Readings, pp. 879-882) Washington State Coalition Against Domestic Violence (Readings, pp. 883-895) Questions: Consider this list of factors often cited, alone or in conjunction with others, as causes or risk factors: Substance abuse and mental health problems / availability of treatment facilities Housing costs Income levels Racial discrimination Domestic violence Urban renewal/gentrification Availability of public transportation Availability of health care LGBTQ+ youth status This is a long list -- is it complete? To what extent must all the factors be tackled in the effort to end homelessness? What do Camillus House and the National Alliance to End Homelessness point to as the primary causes of homelessness? How do their accounts differ? 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? How does Colburn & Aldern’s approach differ from the other accounts? What do they see as the primary causal factor? How do they account for regional variation in levels of homelessness? How well does Colburn & Aldern’s approach deal with LGBTQ youth homelessness? Homelessness associated with domestic violence? Would creating more affordable housing solve the problem -- entirely? mostly? only a little? Public and Private Agencies Addressing Homelessness in Miami Readings: Camillus House & Chapman Partnership readings (Readings, pp. 914-916 Miami-Dade County Homeless Trust Readings (Readings, pp. 917-828) Padgett, Lineages of Homeless Services (Readings, pp. 947-951) Questions: How and was the Miami-Dade County Homeless Trust formed? What role Is it public or private? What is its role? (See Readings, pp. 917-918) What goal/objective does the Trust have? What measures does it aim to take to achieve that goal? (See Readings, pp. 919-921). What might you gather about the Trust’s performance from a careful look at the chart on Readings, p. 922? About how big is the Homeless Trust’s annual budget? Is it public or private? Where does its funding come from? What is its main operating expenditure? (See Readings, pp. 919-928) What is meaning of the distinction between Capital Plan versus its Operating Expenditures? What activities/projects are included in the former? In the latter? What role do homeless services providers like Camillus House and the Chapman Partnership play? How do they relate to the Homeless Trust? (You can see a complete list of Miami-Dade Homeless Trust Providers here.) Does the Trust fit within the “Business Model” that Padgett describes? The “Social Enterprise Model”? (Readings, pp. 948-949) The Shelter/Continuum of Care (CoC) model: Readings: Camillus House, Our History & Mission (Readings, pp. 904-913) Sarah DeWard, Like a Prison (Readings, pp. 929-932) Laura Nichols, Mobile Shelter (Readings, pp. 933-937) Tent City (Readings, pp. 938-946) Questions: What is meant by the term “Continuum of Care” as an approach to addressing homelessness? What are the different kinds of services Camillus House provides? What are examples of each? 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 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? What benefits and challenges do other forms of emergency shelter or accomodations provide for persons experiencing homelessness? Consider: “Mobile shelters” Homeless encampments 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? The Housing First Model: Readings: USICH, Implementing Housing First in Permanent Supportive Housing, Readings, pp. 45-46 (review) NAEH, Fact Sheet: Housing First (952-953) Pleace, Housing First Europe (Readings, pp. 954-966) Tsai, Housing First v Residential Treatment First (970-971) Questions: 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 8: March 4, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for pages. Note: as you will see below, I have randomly assigned three class members to be primarily responsible for leading discussion of particular topics covered in the readings. You can focus on the questions posted but also on any others you may have. I would anticipate each segment being about 15 minutes. It would be useful to give an overview of the topic for 5-7 minutes (more if you need the time) and then questions from the rest of the class -- as well as any questions class members may have as you give the overview. Objectives: Gain an understanding of an NAEH-funded survey of the impact of HB 1365 on persons experiencing homelessness in the City of Miami and in Broward County Understand criticisms of Housing First Understand the Trump Administration’s policies on homelessness and housing Become familiar with California’s CARE Court, homeless courts, and diversion programs. _____________________________________________________ Issues: Report by Trey Santorine on the impact of HB 1365; discussion. The report is funded by a grant from the National Alliance to End Homelessness as it described below: Trey Santorine will research the impact of statewide criminalization on people experiencing homelessness. As a doctoral student at the University of Miami, he hopes to measure the effect that HB1365’s obligatory criminalization of homelessness has on people in two counties in Florida. Using an academic survey to hear from 500 people, he will build on ongoing qualitative research in social services to understand the impacts on mental health, medical history, substance use behaviors, and willingness to seek and receive social services. Criticisms of Housing First (Diana Roy) On Housing First in Utah, review McEvers (Readings, pp. 967-969), read Eide (Readings, pp. 972-995, and review National Homelessness Law Center, Don’t Count on It (Readings, pp. 781-782). What lessons might you draw from the experience with Housing First and homelessness in Utah? What criticisms have been made of the reported sharp drop in homelessness in Utah in the decade from 2005 to 2015? Do these criticisms go to the effectiveness of Housing First in (a) helping individuals out of homelessness and staying housed or to (b) ending homelessness? Do these criticisms address the human rights basis of Housing First that Pleace (Readings, pp. 954-966) describes? What might make Housing First more effective? Trump administration policies (Alexzandrea B Bartle) Read Readings, pp. 995-1022. In addition, review the July 2025 Executive Order, Readings, pp. 49-53 What was the federal government’s approach to homelessness prior to the second Trump administration, in terms of (a) the aim of the policies; (b) the federal agency coordinating and developing homelessness policy, and (c) the strategic iniatives aimed at particular segments of the homeless population? What is the current status of the USICH? By what means was its status changed? Note that the USICH was created by statute (the McKinney Act of 1987 but “was left unfunded and remained without staff under President Clinton,” becoming functional only in 2002 under the Bush Administration (Readings, pp. 742). Does that history provide a justification for the Trump administration’s Executive Order, in your view? What are the current policies of the Trump Administration regarding homelessness in terms of the causes of homelessness and the best approaches to addressing it? What changes has the Trump Administration planned with regard to funding of local government agencies addressing homelessness? What is the current status of those changes? What approach to homelessness is Utah currently considering? What is the policy behind it? What change does it represent from past Utah policy? Would it be in in line with prior federal policy? Current policy? Is it a good idea, in your view? California’s CARE Court (Sara Howard) Readings, pp. 1111-1112, 1023-1062, 1130-1136. What problem(s) is the CARE Court, approved by the California legislature in 2022, aimed at solving? Is the program voluntary? A form of involuntary civil commitment? What is the target population -- in other words, to whom does the CARE Court statute apply? How did SB 27, which went into effect on January 1, 2026, expand the target population? What criticisms does the ACLU Letter (1130-1136) make of the CARE Court? Is there a requirement that the individual pose a threat of serious self-harm or serious harm to others? Are individuals with serious drug addictions covered? How are CARE Court proceedings initiated? By whom? What is the role of the police? What steps can the CARE Court take after proceedings are initiated? What happens during the first year? At the one-year mark? Is the treatment in-patient or out-patient? Does it involve medication? What happens if an individual does not follow the Care Court-approved plan? Does the CARE Court provide for housing for those under its jurisdiction? Initially? After completing the program? As of 2025, how many petitions had been filed? (See Readings, pp. 1043. What criticisms does the CalMatters article make of the operation of the CARE Court (Readings, p. 1048-1060 Other Court Programs Related to Homelessness (no assigned leader) Readings, pp. 1106-1110, 1113-1116. In addition, review the home page of the San Diego Homeless Court program. How does San Diego’s Homeless Court Program work: What problem was the Homeless Court created to address? Who was the initial target group? In what ways was it designed to help people experiencing homelessness? What benefits does it provide? Is the program voluntary? What might Binder and Horton-Newell’s comment that through the program, the homeless individual “actively works to rejoin society” imply about the individual’ status while homeless? Other programs: How will the Miami Center for Mental Health and Recovery operate? How is it different from the San Diego Program. Do homeless court programs and diversion programs provide a useful alternative to the criminal justice system? Do they blur the distinction between coercion and treatment?

Class 9: March 18, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Our guest speakers will be Jeffrey M. Hearne, Chief Advocacy Officer, Legal Services of Greater Miami, who was lead counsel in Cooper-Levy v. City of Miami, and Jocelyn Armand, Director of Strategic Partnerships and Advocacy, Legal Services of Greater Miami, who was co-counsel in the case. Note: As indicated on the Papers page, the due date for the Formal Topic Proposal has been changed to Friday, March 20. Objectives: Explore practical and doctrinal aspects of planning a § 1983 lawsuit and the planning, conduct, and outcome of the Cooper-Levy litigation _____________________________________________________ Assigned Readings: Overview of Planning a Lawsuit Housing Not Handcuffs: A Litigation Manual (Readings, p. 1431-1440) Benjamin Waxman, Fighting the Criminalization of Homelessness (Readings, p. 1441-1470) § 1983 and related issues: (Readings, p. 1471-1485) Cooper-Levy et al. v. City of Miami Complaint (Litigation & Statute Supplement, at pp. 18-56) (review) Order Setting Trial and Pre-Trial Schedule (Litigation & Statute Supplement, at pp. 57-62) (skim) Order on Motion to Dismiss (Litigation & Statute Supplement, at pp. 63-77) Omnibus Order on Motions for Summary Judgment (Litigation & Statute Supplement, at pp. 78-109) Revised City of Miami Policy on Treatment of Homeless Persons’ Property (Litigation & Statute Supplement, at pp. 118-125); in connection with this review the original Rules, Exhibit A to the Complaint, (Litigation & Statute Supplement, at pp. 34-38)

Class 10: March 25, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Objectives: Further explore planning a lawsuit, § 1983 requirements, class action prerequisites, and attorneys fees; Settlement and Consent Decrees _____________________________________________________ Assigned Readings: See below. Questions: Planning a lawsuit (Olivia Dill): Review: Housing Not Handcuffs: A Litigation Manual (Readings, p. 1431-1440) Read the Dowd article, Introduction, Sections I-III (Readings, p. 1512-1521) What steps does the National Homelessness Law Center (NHLC) (formerly the National Law Center on Homelessness & Poverty) suggest taking in deciding whether to bring a case challenging an ordinance that harms people experiencing homelessness? 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 each those steps? What alternatives to litigation do the NHLC and Dowd recommend considering? Section 1983 (Morgan Garces): Review Schwartz,Adelman, and Blum Readings, pp. 1474-1485) When was § 1983 enacted? In what circumstances? Why did it lie dormant for so many years? (Adelman is helpful on this; you may ignore his discussion of qualified immunity.) If you wanted to file a § 1983 lawsuit against the City of Miami for unlawful seizure of property and violation of due process rights in encampment cleanups, what are the elements you would need to satisfy? In answering this, Schwartz is helpful (ignore his discussion under “The Immunity Defenses”), as is Blum (ignore her discussion of supervisors’ liability) Class Actions (Maria Rios): Read: Fed. R. Civ. P. 23 (Readings, pp. 1491-1496) The Shriver Center Federal Practice Manual, ch. 7 (Readings, pp. 1497-1500) Grants Pass (9th Cir.), Part II.B (Readings, pp. 244-248), and the dissent, Part III (Readings, pp. 265-270) (focusing on class certification). What considerations need to be taken into account in considering whether to bring a class action lawsuit or an individual suit? Read Sourovelis v. City of Philadelphia (Readings, pp. 1501-1511) What are the legal requirements for certification of a class action lawsuit? Under what part of Rule 23 was Sourovelis? Why does it matter? Suppose Cooper-Levy had been filed as a class action lawsuit. How would you have defined the class? Under what part of Rule 23 would you bring it? In Pottinger, as you recall, the allegation was that the City engaged in a custom and practice of arresting people for being homeless and destroying their property. Plaintiffs sought damages and declaratory and injunctive relief. 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? What was the disagreement between the majority and the dissent in Grants Pass (9th Cir.) on the appropriateness of class action certification? Who had the better argument, in your view? Suppose you represent a class of homeless individuals challenging a ban on sleeping in public. During the litigation, the class representative secures permanent housing. What effect might that have on the pending claims of the class representative? The class members? Suppose, instead, that the class representative died during the litigation? Finally, suppose instead that the class representative disappeared during the litigation and could not be found? Attorneys Fees (Timothy Behn): Read the major attorneys fees statute, 42 U.S.C. § 1988, and for comparison, the attorneys fees provision in the Federal FOIA Statute (Readings, pp. 1557-1558) The Shriver Center Manual on Attorneys Fees Readings, pp. 1559-1568) Note: focus on § 9.4.c (Readings, pp. 1560-1562); you can skim the rest Buckhannon Board and Home Care, Inc. v. West Virginia Dep⁏t of Health and Human Resources (Readings, pp. 1569-1579) Note: you can focus on the majority opinion (Readings, pp. 1569-1573). The dissent is optional reading, but interesting. Read Section IX (“Attorney Fees”) of the 1998 Pottinger Consent Decree (Litigation & Statute Supplement, pp. 304-305) (pp. 278-359 of the Litigation & Statute Supplement are web only, not in the printed version). Settling a case with a Consent Decree (Eliza Kirk): Read: Rule 23(e) (Settlement) (Readings, pp. 1493-1495) Dowd, No Other Choice, Part IV (Readings, pp. 1522-1530) What requirements does Rule 23(e) impose on settlement of a class action? What are the reasons for the requirements? What kinds of provisions does Dowd suggest should be included in a consent decree in the educational rights context? Why are they important? What kinds of rights do you think should be included in a consent decree settling a class action lawsuit concerning criminalization of homelessness? Read the pre-modification Flyers and newspaper ads (Litigation & Statute Supplement, pp. 355-357), and the rights flyer put together after the Addendum went into effect, pp. 358-359. What function were these flyers and ads intended to serve? How adequately would you think they served it?

Class 11: April 1, 2026   Assigned Readings: Please see the readings set out below under “Readings and Questions.” Objectives: Continue our examination of consent decrees, focusing on the Pottinger Consent Decree. Examine what social change litigation can accomplish, and consider the role of the lawyer in social change litigation. Readings and Questions: The 1998 Pottinger Consent Decree Go over the the 1998 Pottinger Consent Decree (Litigation & Statute Supplement, pp. 278-333) to become familiar with what it covered. What did it provide regarding the following matters? Parts I-IX (Litigation & Statute Supplement, pp. 278-293) (class as a whole) Approval of the Consent Decree Admission of liability Agreement to respect constitutional rights Status of the Pottinger consent decree Note that the Consent Decree did not provide for the 1992 Pottinger decision to be vacated. What was the significance of that for the Pottinger decision as precedent? Training of City personnel Limits on police arrest and seizure of property Monitoring of City compliance Enforcement in case of violation by the City Suppose a homeless individual complained of a violation to you as an attorney in the case, which you verified after investigation. Could you go straight to court seeking a holding of contempt? Parts X-XIV (Litigation & Statute Supplement, pp. 294-333) Damages (Skylar James) 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? What was the purpose of the forms? Attorneys fees (class as a whole) 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? Modification of Consent Decrees, including modification of the Pottinger Consent Decree in 2013-2014 (class as a whole): Read Board of Education v. Dowell, Rufo v. Inmates of Suffolk County Jail, and Horne v. Flores (Readings, pp. 1532-1566), relating to modification of consent decrees. What is the standard for modifying a consent decree? What standard was set out in the Modification Section (Section XV) of the 1998 Pottinger Consent Decree (Litigation & Statute Supplement, p. 308) How and why does the standard for modifying consent decrees differ from the usual standard governing case settlement agreements? Carefully review the Addendum to Settlement Agreement (Litigation & Statute Supplement, pp. 136-146). What changes were made to the 1998 Consent Decree in 2014? In what way did the Addendum change who was protected by the Consent Decree? Assume that all the shelters in the City of Miami were full. Was the arrest of a homeless person by a City of Miami police officer permissible under the following circumstances? For this purpose, you can use the Consent Decree §§ VII-VIII [unofficial interleaved version] (Litigation & Statute Supplement, pp. 335-341). Suppose the individual is: sleeping in a park after the park is closed sleeping in a park with a tent temporarily pitched sleeping on a sidewalk. building a fire in a park. littering urinating in public. Suppose, after 2014, the City wished to further modify the consent decree. What procedure would the Addendum require? Termination of Consent Decrees (class as a whole): Review Board of Education v. Dowell, Rufo v. Inmates of Suffolk County Jail, and Horne v. Flores (Readings, pp. 1532-1566), relating to modification and termination of consent decrees. What is the standard for termination of a consent decree? Is it different from the standard for modifying a consent decree? Social Change Litigation: What can social change litigation accomplish? What are its limits? Read the excerpts from the article by Henderson (Readings, pp. 1580-1582), the SPLC Amicus Brief (Readings, pp. 1583-1600) (focus on pp. 1589-1592, 1596-1599), the Rosenberg book (Readings, pp. 1600-1610), the Ziegler article (Readings, pp. 1611-1620) (you can focus mainly on Parts I & II, but the rest is interesting), and the NeJaime article (Readings, pp. 1621-1628). Questions 1-5 (Joshi Anusha): 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? What counts as impact in evaluating the difference litigation can make, according to Judge Henderson? How does relate to his discussion of Brown v. Board of Education? What impact did the Pottinger litigation have in Miami, according to the SPLC amicus brief in Grants Pass? How was the question of the workability of a constitutional norm prohibiting police from arresting a person who is involuntarily homeless for committing a life-sustaining conduct misdemeanor relevant to Pottinger’s impact? Questions 6-8 (Paola Calleyro): 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. 1629-1638), Pow (Readings, pp. 1639-1650), the excerpt from the Shriver Center Manual on representing clients (Readings, pp. 1651-1654);and the Preamble to Chapter 4 of the Florida Rules of Professional Conduct, and Rule 4-1.2 (Readings, pp. 1654-1656, 1665-1667). Questions 9-12 (Nicholas Raptis): What role for a lawyer does the Shriver Manual assume? Consider also Garcia’s description of “the traditional lawyer” (Readings, pp. 1630-1633). 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? Questions 13-15 (Maxx Schoenblatt) 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 Pow’s discussion of the role of race in the criminalization of traffic court debt have for strategies to counter the criminalization of homelessness?

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