The Criminalization of Homelessness
Assignments and Questions

Spring 2024
Professor Schnably  

Class 1: January 18, 2024 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: For the first class, the readings will be entirely from the Litigation & Statute Supplement packet (also available at the Copy Center in three-hole punch, color, double-sided form): Litigation & Statute Supplement: pp. 23-57 pp. 147-155 pp. 453-491 (just skim through 469-491 to get an idea of what’s there) pp. 498-512 The questions below give guidance as to what to think about as you do the readings. Because of a pre-trial conference in the Cooper-Levy case that was recently scheduled for January 18 at 3:30 pm, the class will not meet in person today. Please watch the video available on the Asynchronous Videos Page. It provides an overview of the course and some help in working through the materials for this class. To access the Asynchronous Videos page: First, enter the password (which is case-sensitive) in the box above, and Second, click on the link to the Asynchronous Videos Page. Note: The password is in the email sent to the class on January 18. Objectives: Become familiar with the constitutional issues arising in legal challenges to criminalization of homelessness. Begin to lay the groundwork for understanding the Grants Pass case currently before the Supreme Court. _____________________________________________________ Questions: Be prepared to discuss the facts found in Pottinger and alleged in Cooper-Levy. What are the causes of homelessness, as found in Pottinger? What constitutional violations were found (Pottinger) or alleged (Cooper-Levy)? What are the essential elements that must be alleged for each of the constitutional violations found (Pottinger) or alleged (Cooper-Levy) in the two cases? What is the basis of federal jurisdiction in the two cases? What relief was granted (Pottinger) or sought (Cooper-Levy) in the two cases? With respect to damages, how would you calculate them? What differences in the plaintiffs do you see in the two cases? What effect would this have on the relief? Look through the revised Pottinger consent decree provisions relating to law enforcement (Addendum to Settlement Agreement, pp. 147-155). Do you think it adequately protected the right not to be arrested for being homeless? Property rights? What if any impact would you expect winning a case like Pottinger or Cooper-Levy to have beyond the specific facts and parties?

Class 2: January 25, 2024 + 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 Understand the Eighth Amendment holding in Pottinger and Martin Understand critiques of the Eighth Amendment as a ban on criminalization, focusing on the dissents in Tobe and the dissents in Martin _____________________________________________________ Questions: Eighth Amendment Read all of Robinson, but you should focus especially on the following three opinions (and may read the rest quickly): Justice Stewart’s opinion for the majority (Readings, pp. 1-19), and Justice Clark’s dissent (Readings, pp. 19-26). 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. 19-26) and Justice Black’s concurrence in Powell (Readings, pp. 54-65)? Note the comment by Justice Marshall in Powell that involuntary civil commitment facilities may be no better than jails, and “[t]hus we run the grave risk that nothing will be accomlished beyond the hanging of a new sign -- reading ‘hospital’--over one wing of the jailhouse.” (Readings, p. 46). (Justice Black says the same thing in Powell, see Readings, p. 56). 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. 27-28, 30) Is Justice White right in criticizing the majority for recognizing “no degrees of addiction”? (Readings, pp. 29) Why or why not? Consider Justice White’s assertion (Readings, pp. 29): 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?

Class 3: February 1, 2024 + 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 Understand the Eighth Amendment holding in Pottinger and Martin Understand critiques of the Eighth Amendment as a ban on criminalization, focusing on the dissents in Tobe and the dissents in Martin Understand the holding in Grants Pass and any differences from Martin Analyze what issues are currently before the Supreme Court in Grants Pass _____________________________________________________ Questions: Eighth Amendment (cont.) 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”? In reading Pottinger, focus on: Part II (Findings of Fact) (Litigation & Statute Supplement, at pp. 29-32) Parts III.B & C (Litigation & Statute Supplement, at pp. 33-37) Part IV (Litigation & Statute Supplement, at pp. 55-57. From Martin, read: Judge Berzon’s panel opinion (Introduction and Part I, Readings, p. 116-121, and Part II.C., Readings, p. 128-131 ) Read Weisberg (Readings, pp. 333-337) for help in understanding the issues posed in the cases. Status: Pottinger sets out a two-part test in discussing the Eighth Amendment. On each of these, consider how the court reaches its conclusion, and on what evidence does it rely in doing so: A determination that homelessness is involuntary, not voluntary. A determination that there are not enough shelter spaces for homeless people. Consider these counter-arguments (which some courts have made). Are they persuasive? Consistent with the Supreme Court cases? A sharp distinction between voluntariness and involuntariness is unrealistic; homelessness is at least partly the result of choices individuals make. The presence or absence of shelter is irrelevant to status, because (a) there is no legal right to housing, and (b) it makes no sense to determine status based on discretionary acts of others. Even if homelessness is a status (involuntary), it is more immediately remediable (by the provision of shelter or housing) than drug addiction, the subject of Robinson. Offenses: What kinds of illegal conduct constitute cruel and unusual punishment if applied to homeless persons based on their status as homeless persons? Why is obstructing the sidewalk covered, but not trespassing on private property, or petty theft (say, of food)? Read Weisberg (Readings, pp. 333-337) for help in this respect. Review Section VII of the Law Enforcement Protocol in the Pottinger Consent Decree (Litigation & Statute Supplement, at pp. 147-155), and consider the following questions: Assume that all the shelters in the City of Miami are full. Is the arrest of a homeless person by a City of Miami police officer permissible under the following circumstances? Suppose the individual is: sleeping in a park, in a tent, after the park is closed. 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. Consider CMC 38-54 (Litigation & Statute Supplement, at pp. 565-566). 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. Is CMC 37-11 (Litigation & Statute Supplement, at pp. 564) relevant? using a public water fountain to wash clothes. Consider CMC 38-54 (Litigation & Statute Supplement, at pp. 565-566), CMC 38-62 (Litigation & Statute Supplement, at pp. 566) carrying an open can of beer. committing an armed robbery and assault. littering. asking pedestrians passing by for money. Consider CMC 37-8 (Litigation & Statute Supplement, at pp. 561-564) Consider that under Martin, Grants Pass, and Pottinger, a person experiencing homelessness is may be arrested for (say) camping in public if they are offered available shelter and turn it down. Must the shelter offered be within the same jurisdiction that is threatening arrest? Suppose a person living on the streets is told by a City of Miami police officer that he is obstructing the sidewalk, in violation of a City of Miami ordinance. Suppose, further, that the officer tells the individual that he will not be arrested if he accepts a shelter bed in Homestead, 30 miles south of Miami, and the individual refuses that offer. Is it consisent with the Eighth Amendment for the officer to arrest the individual for obstructing the sidewalk? Is the answer the same under the Consent Decree? Disagreements with Pottinger and Martin: Tobe: Focus on Part I of the opinion, Readings, pp. 88-89, and Part III.B (Readings, pp. 94). 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.B, I.C. & II.B Readings, pp. 106-109, 111-112) Judge Bennett’s dissent, Parts I & II Readings, pp. 112-116) Why are the dissents set out in Martin before the court’s opinion? City of Grants Pass v. Johnson: Read the majority opinion and dissents in Readings, pp. 134-178. You may skim Parts II.A & B of the majority opinion(Readings, pp. 145-153 You may skim Sections II & III of Collins’ dissent (Readings, pp. 166-175) How did the ordinance in City of Grants Pass differ from that in Martin? On what basis did Grants Pass claim that its ordinance was valid Martin? What was the Ninth Circuit’s response to that claim? Consider Section II.C of Grants Pass (Readings, pp. 153-160) and Section I.A. of Judge Collins’ dissent (Readings, pp. 161-164) Suppose you represented the City of Grants Pass in the courts below, and now the case was before the U.S. Supreme Court. What arguments would you make for the proposition that the Ninth Circuit incorectly applied Robinson and Powell? Suppose you represented the plaintiffs. What arguments would you make in response?

Class 4: February 8, 2024 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages Objectives: Discuss potential federal or state constitutional bases for challenging criminalization other than the Eighth Amendment _____________________________________________________ Questions: Seizure of Property Fourth and Fifth Amendments Read Parts III.E and III.F of Pottinger (Litigation & Statute Supplement, at pp. 41-45). Procedural Due Process Read Sections I & III.B, and the dissent, in Lavan v. City of Los Angeles (Readings, pp. 288-294). Review the Cooper-Levy Complaint (Litigation & Statute Supplement, at pp. 453-468). 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. What issue would have to be resolved under the Fifth Amendment that does not matter for the Fourth Amendment? Right to Privacy Pottinger holding, Part III.G.1, (Litigation & Statute Supplement, at pp. 45-47). 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. 338-355) 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, Litigation & Statute Supplement, at pp. 49-50). 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, (Litigation & Statute Supplement, at pp. 50-55). First Amendment Anti-Panhandling Ordinances Consider City of Miami Code § 37-8 (Litigation & Statute Supplement, at 561-564). 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. 295-301) hold as to CMC § 37-6? Consider City of Miami Code § 37-6 (aggressive panhandling) (Litigation & Statute Supplement, at pp. 559-560). How would you analyze it under Messina, Readings, pp. 302-332. Focus on Background, Readings, pp. 306-308, and Part I, Readings, pp. 312-327 Could there be an Eighth Amendment challenge to CMC § 37-8? To CMC § 37-6? Why or why not? Food Sharing Bans and Restrictions Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale (FNB I), Readings, pp. 408-415: 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. 413-415 Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale (FNB II), Readings, pp. 416-430: Read the Introduction, Readings, pp. 416 and Part III.B, Readings, pp. 424-430. You may skip Sections II.A & II.C, Readings, pp. 416-424; 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. 577-580). 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. 634-635)? 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. 360-362). 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?

Class 5: February 15, 2024 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages Objectives: Moot Court on Grants Pass Application of Martin, Grants Pass, and Pottinger Eighth Amendment holding to City of Miami Beach arrests in November-December 2023 Become familiar with federal statutory protections of persons with disabilities as a basis for challenging criminalization NOTE: while I have made specific assignments related to the exercises, everyone in the class should be familiar with both exercises. There is no new material to read for the Grants Pass exercise, but do give some real thought about the questions raised even if you are not assigned to that exercise. Similarly, do read through the materials for City of Miami Beach Code § 70-45 and give them some thought, even if you are not assigned to that exercise. Attendance: It is essential that everyone attend next week’s class, since everyone has an assigned role. If you anticipate any problem in attendance, please let me know by the close of business Monday, February 12. If something arises unexpectedly subsequent to that time, please let me know as soon as possible. You can find your assignment by looking through Questions/Exercises below. _____________________________________________________ Questions/Exercises: Grants Pass Argument (50 minutes) Question Presented: “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?” Roles and conduct of moot court: Representing petitioner the City of Grants Pass: Andrew Dymowski, Jared Meisselman Representing respondent Gloria Johnson: Alexandra Santamaria, Samantha Van Heiden The Court: Janeal Fordham (Chief Justice), Emma Page (Associate Justice), Hanna Smaglis (Associate Justice) Conduct of the argument: Each side will have 15 minutes to present their argument. It would be best for counsel on each team to divide up the issues between the two of them. The Chief Justice will call each party to begin at the start of the argument, and give each side a two-minute warning, and then when 15 minutes have elapsed, call time. A very brief statement (no more than 2 minutes at most) of the facts may be useful at the start for each side. Don’t go into details; try to identify what you think are the critical facts you want to focus on, and summarize in a very brief and terse statement. The members of the Court may ask questions of counsel, at their discretion, during oral argument. After both sides have completed argument, the Court will make its decision. We will simulate what the Court does when it meets in conference after oral argument (no need for the ritual handshake at the start!). The Chief Justice will first state her views, then Justice Page, then Justice Smaglis (going in order of seniority, which I determined by alphabetical order of last names). After each Justice has stated their views, each will state their vote, in the same descending order of seniority. The total time for this part of the exercise will be 20 minutes. Below are some major issues. If you think there are others, you can address them as well; if you think there are some below you don’t need to address, then that is fine as well. Fifteen minutes in total for each side is not a lot, but keep in mind that parties before the Supreme Court often have no more than 20 minutes. The scope of the Eighth Amendment: Strands of Eighth Amendment: Methods of punishment Excessiveness or disproportionate punishment in relation to a crime Substantive limits on what can be made a crime as opposed to how a crime can be punished -- is this a valid part of it? The original intent of the Framers of the Eighth Amendment The relevance of original intent to constitutional interpretation generally or in the Eighth Amendment in particular; whether the Eighth Amendment reflects “the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958). No need to read Trop v. Dulles; just be aware of what it said as an alternative approach to constitutional interpretation. Whether the Eighth Amendment ban on cruel and unusual punishment is inapplicable to this case because the ordinance provides for civil fines (not the most central issue, but has some relevance). Status v. conduct: Whether Robinson v. California was correctly decided Assuming it was, whether Robinson supports the ruling in Grants Pass The proper reading of Powell v. Texas, including under Marks v. United States, 430 U.S. 188 (1977) (no need to read Marks itself; you can rely on the discussions of it in the majority and dissenting opinions in Martin and Grants Pass). The involuntariness of homelessness and camping in public: Is homelessness involuntary? Is camping in public involuntary? Is the Ninth Circuit’s test of what makes status or conduct involuntary correct? Would the impact of affirming the Ninth Circuit be to protect all assertedly compulsive/involuntary behavior from criminal sanction? Or would it have a more limited reach? The effects of affirming the Ninth Circuit: Federalism and the Judicial Role Does the Ninth Circuit’s decision amount to a federal court wrongly precluding local governments from making policy decisions about how best to address homelessness? Or was the Ninth Circuit’s decision one that simply protected constitutional rights while leaving local governments with full discretion on the policy questions? Administrability: is it workable to expect local police to know whether or not shelter beds are available at any given point when someone who is homeless is camping in public? City of Miami Beach Code § 70-45 Analysis (30 minutes) Review the City of Miami Beach Code § 70-45 (as amended in September/October 2023 (Litigation & Statute Supplement, at pp. 636-640) Optional: you may be interested to look at an additional ordinance Miami Beach is considering, § 70-46 (Litigation & Statute Supplement, at pp. 641-645), but you do not need to consider it for this exercise. Review the police reports of arrests from November 28-December 3, 2023 (Litigation & Statute Supplement, at pp. 649-706) Keep in mind that there are no homeless shelters within the City of Miami Beach. The City does pay for beds in some shelters within the City of Miami, so on any given night there might (or might not) be shelter beds available. In thinking about whether the ordinance is consistent with the Eighth Amendment rulings of Martin, Grants Pass, and Pottinger, consider as well whether it matters how long a person who accepts shelter would have a place in it -- 24 hours? A month? Three months? Also, you may ignore the statement in the Memorandum, Litigation & Statute Supplement, at pp. 636, asserting that the Eleventh Circuit approved a nearly identical statute in Joel v. City of Orlando. In Joel, the court specifically noted that there was no evidence in the record that there were more persons experiencing homeless in Orlando than there were shelter beds, and that there was a uncontested evidence that no one had ever been turned away from a shelter in Orlando. Is the text of § 70-45 in conformity with the Eighth Amendment rulings of Martin, Grants Pass, and Pottinger? Yes: Emily Espinosa (5 minutes) No: Eric Shier (5 minutes) Are any of the arrests for violating § 70-45 in violation of the Eighth Amendment rulings of Martin, Grants Pass, and Pottinger? Be familiar with each one you are assigned, and have an evaluation of each one. In your remarks, you can, however, group similar ones if that helps. I redacted the names, so for ease of reference, refer to each one by the first page number. In other words, you can refer to the first one as “Number 649,”, the second one as “Number 652,”, the third one as “Number 655,”, and so on. Litigation & Statute Supplement, at pp. 649-667 Anthony Mena (6 minutes) Litigation & Statute Supplement, at pp. 668-685 Nathen Castillo (6 minutes) Litigation & Statute Supplement, at pp. 686-706 Jalen Watson (6 minutes) Federal Statutory Protection of Persons with Disabilities (20 minutes) Read Tyson v. City of San Bernardino (Readings, pp. 436-451) What regulations did the City of San Bernardino provide for governing encampment cleanups? Did they provide for accommodations for those with disabilities? 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?

Class 6: February 29, 2024 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages Note: Your paper topic proposal is due March 1. More information available on the Papers page. Objectives: 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. Understand the different theories of the causes of homelessness -- and what it means to identify something as a “cause” of homelessness. _____________________________________________________ Issues: The demographics and characteristics of the current population of persons experiencing homelessnes in the U.S. and Miami Overall: Most relevant materials: Overviews: The “State of Homelessness” Report by the National Alliance to End Homelessness (Readings, pp. 505-527) Schwartz, Housing Policy, Readings, pp. 528-532 Karen Mahar, Readings, pp. 549-565 History and Causes Rossi (Readings, pp. 533-538) Padgett (Readings, pp. 539-548) Definitions Congressional Research Service, McKinney Vento Act (Readings, pp. 566-571) Questions: Who are “the homeless”? How many homeless people are there in the United States, according to the National Alliance to End Homelessness? How are the numbers arrived at? 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? Is homelessness a timeless phenomenon, always present? What does the Rossi article say about that? What causes homelessness? What factors have contributed to making it such a prominent issue since the 1980s? Why might the history and causes of homelessness be relevant to understanding the criminalization of homelessness? What do you take from these readings to be the cause(s) of homelessness? How have policy responses to homelessness evolved over time in the United States? What is the legal definition of homelessness? Or would it be better to say what are the legal definitions? How does the McKinney-Vento Act, 42 U.S.C. § 11302, define homelessness? What about someone who stays with friends? Lives on the street by choice? Stays in a homeless shelter? Is living in an apartment from which she will be evicted in 10 days? How has that definition changed over the years? How does the definition used by the Department of Education, set out in 42 U.S.C. § 11434a, differ? Is one better than the other? Does it depend on the context? What other definitions of homelessness does the law provide? What are the major demographic groups nationally among those experiencing homelessness? How might the challenges differ for each group? What are the major demographic groups in Miami among those experiencing homelessness? How might the challenges differ for each group? Are there respects in which the experience of homeless individuals is the same for different demographic groups? In Miami, what was the outcome for individuals leaving homeless shelters -- i.e., where did they end up? Why do people leave homeless shelters? What was the data source for Mahar’s study? What strengths and limitations does it have? Youth Homelessness & Domestic Violence Most relevant materials iCount Miami, 2019-2022 (Readings, pp. 626-629) National Center for Homeless Education (Readings, pp. 630-655). Focus on: Overview and Students Experiencing Homelessness and Educational Rights (Readings, pp. 632-634) Unaccompanied Homeless Youth (Readings, pp. 641-642) Race and Ethnicity (Readings, pp. 643-646) Congressional Research Service, McKinney Vento Act (Readings, pp. 566-571) DiPiero & Mitchell, Hidden Toll (Readings, pp. 656-680) Serving Our Youth 2015: The Needs of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth Experiencing Homelessness (Readings, pp. 681-684) Washington State Coalition Against Domestic Violence Readings, pp. 685-696. Questions How prevalent is youth homelessness? Note that one estimate is 4.2 million youth and young adults in 2023. How does this figure compare to that given by the National Center for Homeless Education? What is the reason for the difference? How do either of these figures compare with that given by the National Alliance to End Homelessness? What is the reason 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 more like 10,000. 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? How do the problems of LGBTQ youth differ from those of other youth? How might these differences require policy responses tailored to their needs? To what extent would policies tailored to homeless youth without regard to gender or sexual identity serve their needs? How does domestic violence cause homelessness? Who is most affected by it? What is the history of efforts to deal with it? Would creating more affordable housing solve the problem -- entirely? mostly? only a little? What policies might best respond to it? How have those policies changed over the years? Problems with Counting the Number of People Experiencing Homelessness Most relevant materials The “State of Homelessness” Report by the National Alliance to End Homelessness (Readings, pp. 505-527) Homeless Trust Census Results (Readings, pp. 572-577) Schwartz, Housing Policy, Readings, pp. 528-532 National Homelessness Law Center, Don’t Count on It (Readings, pp. 578-589) Questions 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? 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? In a PIT Count, are some groups of those experiencing homelessness more likely to be undercounted than others? To what extent? Why? How do HUD and Department of Education counts differ? What policy concerns do the differences raise? What are the various ways counts of those experiencing homelessness could be expanded? What advantages would doing so have? How could this be accomplished? Is it entirely a matter of federal action and federal law? State and local action/law? The National Alliance to End Homelessness says that 582,462 persons were experiencing homelessness on a single night in January 2022, which would represent approximately 0.17% of the U.S. population of about 333,270,000. How would you defend the following propositions, based on the Schwartz reading: A more representative figure for 2022 would be 10,331,000 (about 3.1% of the population) (people who were homeless at least once in last five years) A more representative figure for 2022 would be 3,332,700 (about 1% of the population) (people who stayed at a shelter in the last year) What assumptions lie behind each? Do you have any thoughts about which counts might be most useful in challenging policies that criminalize homelessness? The Causes of Homelessness Most relevant materials Rossi (Readings, pp. 533-538) Padgett, Housing First (Readings, pp. 539-548) Camillus House, The Causes of Homelessness (Readings, pp. 596-598) Johnson & Chamberlain (Readings, pp. 599-602) White House Council of Economic Advisers report (Readings, pp. 603-607) Colburn & Aldern (Readings, pp. 608-622) Alternatively, or in addition, you might watch this video from the beginning to 32:12. Questions What agencies of government develop and implement policies to address homelessness? What are some of those policies? What do Camillus House and the National Law Center point to as the primary causes of homelessness? Is substance abuse a cause of homelessness? A consequence? What do Johnson & Chamberlain have to say on this? What policy implications would their study have? What are the causes of homelessness according to the Trump Administration’s Council of Economic Advisers? How does its account differ from what you see in the other readings? 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? Consider this list of causes that are often cited, alone or in conjunction with other factors: Housing costs Income levels Urban renewal/gentrification Availability of public transportation Availability of health care Racial and gender discrimination Substance abuse / mental health problems / availability of treatment facilities Domestic violence This is a long list -- is it complete? To what extent must all the factors be tackled in the effort to end homelessness?

Class 7: March 7, 2024 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: Readings, pp. 697-830; review Readings, pp. 539-548, 582-583 Note: as you will see below, I have assigned class members to be primarily responsible for parts of the readings. You do read all the materials and think about the questions posted, but as to the material for which you are primarily responsible you should be prepared to discuss that material in response to my questions. As to any given segment, participaton in the discussion by class members not designated as primarily responsible is of course very much welcome as well. Objectives: Gain a thorough understanding of the different policy approaches to homelessness, including their evolution over time and their effectiveness. Become familiar with the concept of a “homeless services industry” and critiques of it _____________________________________________________ Issues: Federal and State Actors Primarily responsible: Nathen Castillo Rodriguez, Andrew Dymowski, Emma Page, and Eric Shier. Note: also Primarily Responsible for Number 2 below. Focus on Readings, pp. 705-716, 740-749; review Readings, pp. 506-507, 574 Consider the Congressional Research Service (CRS) report (“Targeted Federal Programs”, Readings, pp. 740-749). When and in what ways did the federal government respond to the rise of homelessness in the 1980s? Currently, what federal agencies are involved in the response to homelessness? What do they do? What currently (since 2009) is the fundamental goal of the federal government in dealing with homelessness? What federal statute set that goal? What federal agency is charged with developing plans to meet it? What more particular goals has the governmet set in trying to achieve its fundamental goal? Have those particular goals been met? Are we closer to the federal government’s fundamental goal? In this respect, consider not only the CRS Report, but also the State of Homelessness Report, 2023 (See Readings, pp. 506-507), and the Miami-Dade Homeless Trust Census Results (See Readings, pp. 574) What is the Miami-Dade County Homeless Trust? Is it public or private? What is its role? What goal/objective does the Trust have? What measures does it aim to take to achieve that goal? (See Readings, pp. 705-710). What conclusions/criticisms might you have from a careful look at the chart on Readings, p. 710? 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. 708-716) What is meaning of the distinction between Capital Plan versus its Operating Expenditures? What activities/projects are included in the former? In the latter? The shelter/continuum of care (CoC) model: Primarily responsible: Nathen Castillo Rodriguez, Andrew Dymowski, Emma Page, and Eric Shier. Note: also Primarily Responsible for Number 1 above. Focus on Readings, pp. 697-704, 717-734 What is meant by the term “Continuum of Care” as an approach to addressing homelessness? Camillus House is a major private provider of services for persons experiencing homelessness in Miami. What are the different kinds of services it 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 is the relationship between shelter providers like Camillus House and the Miami-Dade County Homeless Trust? 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 Primarily responsible: Anthony Mena Acosta, Hannah Smaglis, Samantha Van Helden, and Jalen Watson Focus on Readings, pp. 735-738, 750-787; review Readings, pp. 539-548, 582-583 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? Critical Analyses of Homelessness Services Primarily responsible: Emily Espinosa, Janeal Hightower Fordham, Jared Meiselman, Alexandra Santamaria Focus on Readings, pp. 788-830; review Readings, pp. 539-548, 582-583 Padgett et al. describe the growth of a homeless services “industry.” (Review Readings, pp. 542-545 (“From Single-Room Occupancy to Emergency Shelters to Transitional Housing” and pp. 547-548 (“A Homeless Services Institutional Complex (or a Homeless Service ‘Industry’) is Born”)) How did this come about, in their account? In what ways is it open to change? In what ways does it limit change? How have models of advocacy and practice by those offering services to persons experiencing homelessness changed over the years? Is the evolution they describe from Lineage 1 through 2 through 3 a good one? One to be regretted? Mixed? What are the philosophies that underlie each one? How have they converged? What criticisms of Housing First does Eide make (Readings, pp. 765-786; review Readings, pp. 582-583)? How do you think the National Alliance to End Homelessness (Readings, pp. 750-751), Nicholas Pleace (Readings, pp. 752-764), and Padgett (Readings, pp. 735-739; review Readings, pp. 542-545 (“From Single-Room Occupancy to Emergency Shelters to Transitional Housing” and pp. 547-548 (“A Homeless Services Institutional Complex (or a Homeless Service ‘Industry’)) would respond? What does Willse mean by the “invention” of chronic homelessness (Readings, p. 800)? What is its history? What does he mean by the terms “neoliberal biopolitics” (Readings, p. 812) or “[t]he biopoliticization of homelessness” (Readings, p. 815)? Why, according to Willse, are initiatives like Project 50 “quite surprising” (Readings, p. 790)? What does he make of Housing First being first adopted in the Bush administration? What accounts for the rise of Housing First, according to Willse? How does Willse describe the Continuum of Care? What functions does it serve, according to him? What vision lies behind it? What does he mean by “pathologizing assumptions about homeless populations” (Readings, p. 795? How does this relate, according to Willse, to terms like “service resistant” and “housing ready” (Readings, p. 796)? How is Housing First a “potentially radical break” Readings, p. 793)? What, according to Willse, are its fundamental principles? How is Housing First a “counter-discourse of public health” (Readings, p. 799 What, according to Willse, is the source of the organizational challenges the federal government faced in adopting Housing First? How has the federal overcome it? What does he mean with his reference to “translat[ing] the economic dimensions of the category [of chronic homelessness] into business plans for its management” (Readings, p. 805)? How are these different in vision from that articulated in the Pleace article (Readings, p. 760)? Why, according to Willse, have advocates for the homeless population taken up the business plan/economic arguments for Housing First? If the term “chronic homelessness” is a medicalization or pathologizing of homelessness, has the adoption of Housing First ended that? What is the relationship between Housing First and homeless families? How has the notion of the “chronically homeless” come to serve a sorting function, according to Willse (Readings, p. 810? What are the limits of Housing First in addressing even chronic homelessness, according to Willse? What does he mean in arguing that “disciplinary mechanisms of individuated control, considered inadquate or ineffective, are being suppressed by population management techniques” (Readings, p. 813)? Even if Housing First-based 10-Year Plans simply “clean up the mess made by the evaporation of SROs and other forms of low-cost housing by removing the individuals left behind” (Readings, p. 815), what is wrong with that, according to Willse? Wacquant argues that there is a general “state policy of criminalization of state-sponsored poverty” (Readings, p. 828). What implications might this thesis have for criminalization of homelessness? Which of the five properties Wacquant says characterize U.S. society (Readings, pp. 822-823) might be most relevant to criminalization of homelessness?

Class 8: March 21, 2024 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below Guest Speaker: Benjamin S. Waxman, Partner, Black Srebnick, who was lead counsel in Pottinger v. City of Miami, and co-counsel in Cooper-Levy v. City of Miami Objectives: Explore practical and doctrinal aspects of the Pottinger litigation, 1988-2019 _____________________________________________________ Overview of Planning a Lawsuit Read: Housing Not Handcuffs: A Litigation Manual (Readings, p. 996-1015) (you can skim pp. 996-1009)) Read the Dowd article, Introduction, Sections I-III (Readings, p. 1086-1095) In a case where a local authority (such as a school board) is not complying with statutory or constitutional requirements, what steps does Dowd recommend taking before filing a lawsuit? What is the purpose of those steps? Class Actions It is also important to understand class actions. Read: Fed. R. Civ. P. 23 (Readings, pp. 1028-1031) The Shriver Center Federal Practice Manual, ch. 7 (Readings, pp. 1032-1035) The Pottinger Class Certification opinion, 720 F. Supp. 955 (Litigation & Statute Supplement, pp. 17-22) Grants Pass, Part II.B (Readings, pp. 149-153), and the dissent, Part II (Readings, pp. 166-170) (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. 1036-1046) Under what part of Rule 23 was Pottinger brought? Sourovelis? Why does it matter? What are the legal requirements for certification of a class action lawsuit? If the law as described in Sourovelis had applied at the time of the Pottinger lawsuit, what would the outcome have been as to damages in Pottinger? In this connection, look at the 1998 Pottinger Consent Decree (“Settlement Agreement”), Part X (Compensatory Damages), Litigation & Statute Supplement, pp. 74-84, and materials on Proof of Claim, pp. 95-113, to be generally familiar with them. 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? The Pottinger Lawsuit and Consent Decree Read the following materials on the Pottinger lawsuit: Look over the Second Amended Complaint, (Litigation & Statute Supplement, pp. 1-16) Read the article by Benjamin Waxman (Readings, pp. 1047-1076) Review the 1992 Pottinger decision (Litigation & Statute Supplement, pp. 23-57) Settling a case with a Consent Decree: Read: Rule 23(e) (Settlement) (Readings, pp. 1029-1030) Dowd, No Other Choice, Part IV (Readings, pp. 1096-1105) What requirements does Rule 23(3) 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? (Optional) Read these documents regarding the approval of the 1998 Settlement Agreement: Miami City Commission Order approving the Settlement, (Litigation & Statute Supplement, pp. 114-118) Final Order Approving Settlement and Dismissing Case, Pottinger v. City of Miami, 10/1/98 (Litigation & Statute Supplement, pp. 119-130) Go over the 1998 Consent Decree (Litigation & Statute Supplement, pp. 58-113) to familiarize yourself with what the 1998 Consent Decree provided regarding: 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, meaning it could still be cited as precedent. Training of City personnel Monitoring of City compliance Enforcement in case of violation by the City Suppose a homeless individual complained to you of a violation, which you verified after investigation. Could you go straight to court seeking a holding of contempt? Damages 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? Modification of the Consent Decree Suppose the City wished to modify the Consent Decree. Could it go straight to court seeking modification? Termination? Attorneys fees 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? (Previously assigned and discussed; review) The Law Enforcement Protocol of the 1998 Consent Decree (Section VII) (Litigation & Statute Supplement, pp. 63-70). Consider the following questions. In each case identify the specific provision of the 1998 Consent Decree on which you base your answer. Whom did protect? Individuals living on the streets of Miami? Individuals living in homeless shelters in Miami? Individuals living outside the City of Miami? Assume that all the shelters in the City of Miami are full. Is the arrest of a homeless person by a City of Miami police officer permissible under the following circumstances? Suppose the individual is: sleeping in a park, in a tent, after the park is closed. sitting in a grocery store, refusing to leave at the manager’s request. sleeping on a sidewalk. sitting on a bench in a public square. building a fire in a park. sitting in the lobby of City Hall for hours. urinating in a public alley with no one else present. using a public water fountain to wash clothes. carrying an open can of beer. committing an armed robbery and assault. littering. asking pedestrians passing by for money. In Question 2, do your answers change if there is shelter space available in Homestead, Florida, about 30 miles south of downtown Miami? Why or why not? Does the Consent Decree set out how the police officer is supposed to know whether there is shelter space in Miami at any given time? Suppose you were the Chief of Police for the City of Miami. How would you go about trying to design a system that would give individual police officers that information? Suppose at the time a homeless person is arrested by a City of Miami police officer, she has the following property with her: a backpack with ID and medicines a duffel bag full of clothes and blankets a bike What happens to her property? Suppose a homeless individual goes early in the morning to a labor pool, and leaves his belongings behind, neatly stacked in a park or against a fence on a sidewalk but not blocking passage. Are they protected from being seized by the City while the individual is gone? What kinds of obligations did the Consent Decree place on the City, in regard to protection of the rights of homeless individuals in future interactions with homeless individuals? What City employees are bound? May an officer tell a homeless individual staying in a certain location that he must move on because a local business owner has complained that the individual’s presence is driving away customers? Does it matter whether it is phrased as a request or as an order? Must a City of Miami police officer document his or her interaction with a person who is homeless in the following situations? Warning to a homeless person that they are violating the law Arrest of a homeless person Offer of services to a homeless person Modification of Consent Decrees, including modification of the Pottinger Consent Decree in 2013-2014: To get the best understanding, read Board of Education v. Dowell, Rufo v. Inmates of Suffolk County Jail, and Horne v. Flores (Readings, pp. 1106-1130), relating to modification and termination of consent decrees. However, if pressed for time, you can rely on the Order Requiring Evidentiary Hearing, Pottinger v. City of Miami, 10/13/2013 (below), though it goes into much less detail and does not cover the dissents. Order Requiring Evidentiary Hearing, Pottinger v. City of Miami, Oct. 30, 2013 (Litigation & Statute Supplement, pp. 131-133) Carefully review the Addendum to Settlement Agreement (Litigation & Statute Supplement, pp. 136-146). In addition, read the pre-modification Flyers and newspaper ads (Litigation & Statute Supplement, pp. 157-159), and the rights flyer put together after the Addendum went into effect, pp. 160-161. How would you state, in a sentence (or two at most), what the legal standard is for modifying an existing consent decree? What changes to the consent decree did the City seek in 2013? What reasons did the district court give for concluding that the City of Miami had made a prima facie showing that it was entitled to an evidentiary hearing on requested modifications? In what way did the Addendum change who is protected by the Consent Decree? 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? For this purpose, you can use the Consent Decree §§ VII-VIII [unofficial interleaved version] (Litigation & Statute Supplement, pp. 147-156). 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? Enforcement of the Modified Consent Decree Plaintiffs’ Motion to Enforce (Litigation & Statute Supplement, pp. 220-324) Note: The entire motion including affidavits is included so you can see the complete filing, but you need read only pp. 220-239 Testimony by Plaintiffs in Pottinger Evidentiary Hearing (Litigation & Statute Supplement, pp. 325-393) Note: You need only skim through this reading to get a sense of the kind of evidence plaintiffs sought to put before the court, and some of the difficulties encountered (ranging from legal issues like hearsay objections to helping the court keep track of a relatively rapid sequence of witnesses). Termination of Consent Decrees Review Board of Education v. Dowell, Rufo v. Inmates of Suffolk County Jail, and Horne v. Flores (Readings, pp. 1106-1130), relating to modification and termination of consent decrees. Memorandum Opinion, Pottinger v. City of Miami (2/15/2019) (Litigation & Statute Supplement, pp. 394-419) Note: focus mainly on Section III, Conclusions of Law (Litigation & Statute Supplement, pp. 411-419) Optional: The Eleventh Circuit opinion affirming Judge Moreno’s ruling is at Litigation & Statute Supplement, pp. 419-435

Makeup Class 9: March 22, 2024, 2-3:50 pm (Room F402) + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See Below Questions: Affordable Housing The Florida Live Local Act Readings: Readings, pp. 915-995 Focus on: Readings, pp. 915-932 Skim: Readings, pp. 933-991 to get some sense of the kinds of things the Act provides for Readings, pp. 992-995 to get some sense of the 2024 amendments Questions What approaches to increasing the stock of affordable housing does the Live Local Act take? How effective do you think they will be? Should other approaches be considered as well, either along with the approaches the Live Local Act or instead of them? Right to Shelter/Housing Criminalization might be challenged in another way -- indirectly -- by establishing a right to shelter or even a right to adequate housing. Is there a federal constitutional right to housing? What does Lindsey v. Normet (Readings, pp. 363) say? Is there anything in the text of the Constitution that might, even just implicitly, suggest that housing or shelter is a fundamental interest? On what did Callahan v. Carey (Readings, pp. 364-366) 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. 384-385) 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. 367-377). 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. Why did attempts to establish a right to shelter in Connecticut fail? The article by James Welcome (Readings, pp. (Readings, pp. 378-383) discusses this. Note further what happened in Montana after a relatively successful court case. See the last page of Welcome’s article (Readings, pp. 383). 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. 379-383) In light of Main’s description of changing New York City policies (Readings, pp. 389-382), 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. 452-504? Read the 2022 Request, Readings, pp. 452-457, and App. 3 (Readings, pp. 484-486) Read the articles on the City’s actions in 2023 (Readings, pp. 487-504) The rest of Readings, pp. 452-504 is optional. What does the International Covenant on Economic, Social and Cultural Rights provide with regard to housing or shelter? (Readings, pp. 393-394)? 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. 395-404) 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. 405-407) Criminalization as a Policy Approach (Readings, pp. 881-914) What does “criminalization” mean in the context of homelessness, according to the USICH and National Homelessness Law Center? Does it refer to particular statutes specifically targeted at people who are homeless? Patterns of enforcement? What kinds of statutes are typically involved? Are they all geared specifically towards people who are homeless? Does criminalization necessarily involve arrests of people experiencing homelessness? Is HB 1365 (Readings, pp. 908-914) an example of criminalization? For the latest update, see this article on the signing of the bill. What are the harms of criminalization? On whom are the harms inflicted? What accounts for the increasing resort to policies of criminalization by local governments? What might local governments be seeking to accomplish through such policies? What does the Schnably article suggest? What justifications does Ellickson offer for policies that the National Homelessness Law Center would call criminalization? What reasons might he offer for rejecting that label? Another way to put it is: what might someone who accepts Ellickon’s analysis say are the harms of not employing criminal law and related powers (such as police warnings or threats of arrest) in ways that critics might deem “criminalization”? What critiques of Ellickson’s analysis might you make from the perspective of Amster’s, Schnably’s, and Feldman’s analysis? Recent initiatives in California and New York: Criminalization or Care? (Readings, pp. 836-880) CARE Court/California (Readings, pp. 836-861) What problem(s) is the CARE Court aimed at solving? What is the target population -- in other words, to whom will the CARE Court statute apply? Is “eligible” the right word to describe who is covered by it? Why or why not? 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? Does the CARE Court follow a “least restrictive” approach? What happens if an individual does not follow the Care Court-approved plan? Will the CARE Court provide for housing for those under its jurisdiction? Initially? After completing the program? If so, in what ways? How does the CARE Court differ from the new Miami Center for Mental Health & Recovery? (Readings, pp. 838-840)? How does the CARE Court approach differ from California’s LPS Mental Health Conservatorship? See Readings, p. 851-854. Involuntary commitment under an LPS Conservatorship requires a finding of “grave disability”, which is defined under California Welfare and Institutions Code § 5008(h)(1) as either of: A condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter. A condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist: The complaint, indictment, or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person. There has been a finding of probable cause on a complaint pursuant to paragraph (2) of subdivision (a) of Section 1368.1 of the Penal Code, a preliminary examination pursuant to Section 859b of the Penal Code, or a grand jury indictment, and the complaint, indictment, or information has not been dismissed. As a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner. The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. What criticisms does Human Rights Watch make of the CARE Court in terms of constitutional and human rights? What arguments does it make regarding mental health care? Would Human Rights Watch’s criticisms be addressed by providing a substantial increase in funding for mental health treatment for those under the jurisdiction of the CARE Court? By a substantial increase in funding for housing for those under its jurisdiction? New York’s “Involuntary Removal Directive” Readings: Readings, pp. 862-880 Optional: you can find the Directive itself here. How does New York’s plan compare to California’s in terms of: The problem(s) its plan is aimed at solving The target population, including whether the individual must pose a threat of serious self-harm or or serious harm to others, and coverage of drug addiction How proceedings are initiated and by whom, including the role of the police The measures to which those who are encompassed within the plan are subject, including in-patient versus out-patient, and medication Observation of a “least restrictive” approach Provision of housing Note that the CARE Court is the product of legislation. Is Mayor Adam’s Directive a regulation? An initiative to educate police about currently existing legal options? See the Smith article, Readings, p. 871-872. Why might it matter? Could the New York approach to unhoused persons be taken in Miami under the Baker Act § 394.463(1), which applies to a person who is believed to have a mental illness and because of their mental illness: (a) 1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or      2. The person is unable to determine for himself or herself whether examination is necessary; and (b) 1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or      2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior. What would the approach taken by the New York State Health Department’s February 18, 2022 memorandum suggest with respect to the Baker Act (Readings, p. 873-880)? Would Ms. Brown aka Billy Boggs (Readings, p. 875) meet the standard under the Baker Act? How about Patient C (Readings, p. 877)? What alternatives to initiatives like CARE Court and the New York Directive might opponents pose to avoid scenarios where “mentally ill people ... starve to death, bleed to death in the street, walk into traffic” (Readings, p. 872)? Would a Homeless Court like that described in the Binder and Horton-Norwell article (Readings, p. 831-835) be a useful model? Recall the vision or philosophies behind the shelter model and the Housing First model. What vision or philosophy would you say lies behind the New York and California models? Would it be accurate or helpful in your view to call the California and New York initiatives “criminalization of homelessness”? Why or why not?

Class 10: March 28, 2024 + Assigned Readings, Objectives, and Questions [Click to expand] Objectives Continue our look at planning a lawsuit Become familiar with the following issues generally and in the context of the Cooper-Levy case. Standing Whether to bring the action as a class action or as one representing individual plaintiffs Section 1983 Attorneys fees Become familiar with relevant discovery and evidentiary issues Become familiar with the law governing attorneys fees in civil rights litigation, and practical considerations Examine the considerations relevant to determining whether and on what terms to settle a civil rights Assigned Readings: Carefully review the following materials from Cooper-Levy v. City of Miami (previously assigned): The Complaint (Litigation & Statute Supplement, at pp. 453-491). Focus on the Complaint and Exhibit A (Litigation & Statute Supplement, at pp. 453-473) but also look through Exhibit C (Litigation & Statute Supplement, at pp. 474-484), Order on Motion to Dismiss (Litigation & Statute Supplement, at pp. 498-512) Read the Omnibus Order on Motions for Summary Judgment (Litigation & Statute Supplement, at pp. 513-544) Read the materials below under Questions. Questions: Overview of Planning a Lawsuit Re-read the Dowd article, Introduction, Sections I-III (Readings, p. 1086-1095) (previously assigned) In a case where a local authority (such as a school board) is not complying with statutory or constitutional requirements, what steps does Dowd recommend taking before filing a lawsuit? What is the purpose of those steps? Standing Review the facts in Grants Pass, Part I (Readings, pp. 140-145), and then re-read Part II.A (Standing & Mootness) (Readings, pp. 145-149), and the dissent, Part II (Readings, pp. 166-173) (focusing on standing). Suppose you represent a client who is currently experiencing homelessness, living on the streets, and was arrested two months ago for violating an anti-camping ordinance. The charges were subsequently dropped. Would this individual have standing to bring a federal court challenge to the ordinance? What would you want to allege regarding standing? Suppose the same facts as 1, except that the client has found housing and will soon move into it? Suppose the same facts as 1, except that a new city administration has recently announced that it will not enforce the anti-camping statute (a) while it reconsiders its policies on homelessness, or (b) and will instead focus on providing shelter or implementing Housing First? What was the standing issue in Cooper-Levy? How did it differ from the standing issue in Grants Pass? See the Order on Motion to Dismiss, Part III.C., Litigation & Statute Supplement, at pp. 508-512 Section 1983 It is important to understand Section 1983 because it is one of the main vehicles for bringing cases vindicating constitutional (and federal statutory) rights. Read: Optional: These PowerPoint slides by the National Homelessness Law Center give a good overview. The Shriver Center Federal Practice Manual, ch. 5 (Readings, pp. 1016-1018) The Schwartz article (Readings, pp. 1019-1022) The Smith article (Readings, pp. 1023-1027) Cooper-Levy v. City of Miami, Order on Motion to Dismiss, Part III.B, Litigation & Statute Supplement, pp. 503-507. What specific facts alleged in the Complaint were deemed sufficient to withstand the City’s motion to dismiss as to municipal liability? What, if anything, might be the relevance of the City’s written policies on the property of people experiencing homelessness? APM 1-19, Exhibit A to the Complaint (Litigation & Statute Supplement, pp. 469-473 Police Departmental Order 11, § 10.7 (Property), Exhibit C to the Complaint, Litigation & Statute Supplement, pp. 487-491 On what basis did the court distinguish the cases cited by the City? Omnibus Order on Motions for Summary Judgment (Litigation & Statute Supplement, at pp. 513-544) What was the City’s argument for summary judgment in its favor? (See (Litigation & Statute Supplement, at pp. 527-540) (You may ignore the argument in Section III.A.i.) What was the Plaintiffs’ response? What was the court’s ruling on the City’s motion? In particular, consider the issues of Final Policymaker, the handling of property, and Deliberate Indifference. What was the Plaintiffs’ argument for partial summary judgment in their favor? What made it a motion for partial summary judgment? (See (Litigation & Statute Supplement, at pp. 540-543) What was the court’s ruling on it? Settling a Case Read Dowd, No Other Choice, Part IV (Readings, pp. 1096-1105) 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? Attorneys Fees 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. 1131-1132) The Shriver Center Manual on Attorneys Fees Readings, pp. 1133-1142) Note: focus on § 9.4.c (Readings, pp. 1133-1135); you can skim the rest Buckhannon Board and Home Care, Inc. v. West Virginia Dep⁏t of Health and Human Resources (Readings, pp. 1143-1153) Note: you can focus on the majority opinion (Readings, pp. 1143-1147). The dissent is optional reading, but interesting. Read Section IX (“Attorney Fees”) of the 1998 Pottinger Consent Decree (Litigation & Statute Supplement, pp. 84-85) Consider the following hypothetical: Suppose the Eleventh Circuit had reversed Judge Atkins’ 1992 ruling in favor of the plaintiffs. Subsequently Plaintiffs’ attorneys moved for an award of attorneys fees, based on the changes in policy the City of Miami and Miami-Dade County made in response to the public pressures Judge Atkins’ ruling created: the creation of the Miami-Dade County Homeless Trust, a county agency funded by the 1% meals and beverage tax the creation of a shelter system funded and overseen by the Trust Note: Read the excerpt from Wright & Donley (Readings, pp. 1077-1085), focusing mainly on pp. 1077-1082, for insight into the impact of the Pottinger decision. What arguments would Plaintiffs’ attorneys have had before Buckhanon? After Buckhanon?

Class 11: April 4, 2024   + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: Please see the readings set out below under “Questions.” Objectives: Examine what social change litigation can accomplish, and consider the role of the lawyer in social change litigation Readings and Questions: Social Change Litigation: What can social change litigation accomplish? What are its limits? Read the excerpts from the article by Henderson (Readings, pp. 1154-1156), the Rosenberg book (Readings, pp. 1157-1166) and the Ziegler article (Readings, pp. 1167-1176) (you can focus mainly on Parts I & II, but the rest is interesting), and the NeJaime article (Readings, pp. 1177-1184). Consider: How useful is public interest litigation in achieving social justice, according to Judge Henderson? What are the different ways that lawyers can play a role in pursuing public interest law, according to Judge Henderson? How has the environment for public interest law changed in the past few decades, according to Judge Henderson? Gerald Rosenberg’s book was originally published in 1991, and became a major focal point for skepticism about the ability of impact litigation to bring about important change. The example here relates to prisoners’s rights, including prison conditions. What factors in general bear on the possibility of achieving social change through the courts? (He identifies four factors.) Why does he pronounce the prisoners’ rights revolution “the revolution that wasn’t”? What implications might his analysis have for using litigation to counter policies criminalizing homelessness? Ziegler summarizes the work of Rosenberg and other critics of impact litigation, and then posits what she says are the critics’ underlying assumptions about the relationship between legal and social change. What are those assumptions, according to Ziegler? Why does she think they are wrong? What does Ziegler mean by framing? What does that mean in the context of the abortion debate? Are you persuaded by her response to the criticism that Roe may have been counterproductive by causing a backlash and perhaps undercutting the urgency of abortion advocates to foster political support for abortion rights? What implications might her analysis have for using litigation to counter policies criminalizing homelessness? NeJaime offers the perhaps counter-intuitive thesis that losing major litigation can produce positive benefits for social change movements. How does that happen, according to his analysis? Is his example of the Thomas More Law Center a case study in social movement success, or in the success of a legal advocacy organization? Or both? How did losing the court battles over LGBT adoption rights in Florida positively contribute to the ultimate success of the movement to recognize those rights, according to NeJaime? What implications might his analysis have for using litigation to counter policies criminalizing homelessness? The role of the lawyer in social change litigation: Read the excerpts from the articles by Garcia (Readings, pp. 1185-1194) and Pow (Readings, pp. 1195-1207) and the excerpt from the Shriver Center Manual on representing clients (Readings, pp. 1208-1209);and the Preamble to Chapter 4 of the Florida Rules of Professional Conduct, and Rule 4-1.2 (Readings, pp. 1210-1216). Consider: What role for a lawyer does the Shriver Manual assume? Consider also Garcia’s description of “the traditional lawyer” (Readings, pp. 1186-1189). In what ways does the lawyer’s role become problematic, judged by the traditional model, in social change lawyering as described by Garcia? What does she mean by cause lawyering? In what ways might cause lawyering threaten to disempower clients or members of the communities they represent or of which they are a part? What can be done about this problem? In what different ways would a traditional lawyer and a cause lawyer handle the hypothetical case Garcia talks about? Consider that the criminalization of traffic court debt (as described by Pow) has strong similarities to the criminalization of homelessness. What strategies did Pow take in attempting to counter the criminalization of traffic court debt? What strengths and limitations did each have? What implications did each of the strategies have for the role of lawyers? What would it mean to institute a rebellious lawyering approach to the criminalization of homelessness? What is the difference, in addition, between a rebellious lawyering approach (as set out by Lopez and others) and a rebellious social movement lawyering approach (as articulated by Pow)? What relevance does his 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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