Rights in Public Spaces
Rights in Public Spaces
Abstract and Keywords
This chapter discusses the rights of low-income persons, including those who “look poor” or homeless, to travel, to become members of a community, and to use public spaces, such as streets, parks, libraries, and post offices. Many localities have adopted “quality of life” regulations that restrict and even criminalize acts that are innocent when done in the privacy of one’s home, such as sleeping or eating, but become illegal when done in public. The chapter sets out the constitutional right to travel from state to state and within a state, and describes the practical and legal barriers that exist to the actualization of that right, such as the absence of public transportation or not having money to buy a car. Attention is given to the constitutional status of residency requirements and how they impact efforts to obtain better housing and schooling. It explores permissible limits on rights to use public spaces, and protections that may be invoked in many typical encounters with the police, such as demands for identification cards or the seizure of possessions temporarily left in a park. Practical advice is given about library services and mail delivery, as well as how to get licenses for commercial activities that make use of public spaces, including street vending.
What is a public space?
A public space is any place, indoor or outdoor, that is not privately owned. Typical examples of public spaces include streets and sidewalks, roads and highways, parks, train stations, government offices, and libraries. In some circumstances, shopping malls are treated as public spaces, even though they are privately owned and designed for commercial use. Public spaces benefit the community by providing services and amenities that are important and which many individuals otherwise might not be able to afford. For example, a library offers access to books, newspapers, and the internet; a park provides a bench for outdoor sitting and recreation; and a street offers a pathway for travel and a place to stand and talk with other people. Being able to use and access public spaces is a critical aspect of social citizenship.
For a variety of reasons, many communities have adopted “quality of life” rules that by effect block persons who are homeless or “look poor” from accessing public spaces.1 In particular, some of these practices regulate or criminalize activities that are legal when done in the privacy of one’s home (such as sitting, sleeping, or accepting food from another person), but have been made illegal when done in public.2 Arresting a poor person who falls asleep on a park bench and has no other place to sleep is a serious invasion of personal autonomy and often results in the destruction of the person’s few possessions. It also reinforces a vicious cycle of poverty, generating fines, jail time, a criminal record, and increased barriers to housing and employability.3 Courts have not consistently ensured that persons with low income are not arbitrarily and harshly excluded from public spaces,4 but knowing the rights that do exist is a critical step in giving them force on the ground.
Does the federal Constitution protect a person’s right to travel throughout the United States?
It is now settled that the federal Constitution protects a person’s right to travel from state to state throughout the country.5 However, the U.S. Supreme Court did not always recognize that poor people have a right to interstate migration.6 To the contrary, traditionally, states and localities, borrowing from the English Poor Laws, barred poor people from entering their communities or consigned them to the “work house” or “poor house” if present within their borders.7 The Supreme Court endorsed these practices, on the view that poverty is a “moral pestilence” to be quarantined like a major illness.8 Persons of color—whether or not poor—faced additional restrictions on their right to travel. After the Civil War and the end of formal racial slavery, many Southern states adopted “Black Codes” that were designed to maintain conditions of coerced labor among African Americans by imposing curfews and other restrictions that impeded geographic mobility.9
A legal shift for the poor came in 1941, when the U.S. Supreme Court invalidated a California law that made it a crime to bring a poor person into the state.10 Some version of California’s ban had been on the books since the 1860s. However, California started vigorously enforcing the statute in the 1930s, when agricultural workers needed to escape the devastation of the “Dust Bowl”—severe storms that destroyed the economy of the Southern Plains.11 Striking down the law as unconstitutional, the Court explained that a state may not “isolate itself from difficulties common to all [states] . . . by restraining the transportation of persons . . . across its borders.” The Court also stated that the traditional view of equating “[p]overty and immorality” was no basis for excluding “paupers” from a community.12
In later opinions, the Court has clarified that the right to travel protects three distinct rights:
1. “[T]he right of a citizen of one state to enter and to leave another State”;
2. “[T]he right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present”; and
3. “[F]or those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”13
Does the federal Constitution protect the right to travel within a state?
The U.S. Supreme Court so far has declined to consider whether there is a federal constitutional right to travel within a state.14 A few lower federal courts have (p.733) held that the right to travel does include the right to travel “within a state,”15 and some state courts likewise have recognized a right to intrastate travel.16 However, whether or not there is a right to intrastate travel, the Court has held that the right to become a permanent resident of a state does not prevent a state or locality from using zoning laws that effectively bar persons with low income from living in a particular community.17 Zoning laws affect who can permanently join a community by making the cost of housing too expensive (for example, limiting land use to one-family residential homes rather than multifamily apartment houses or mixed-use buildings).18 Exclusionary zoning laws may be illegal under federal law if they have a negative disparate impact on persons of color or explicitly exclude persons on the basis of race or ethnicity.19 (The duty to affirmatively further fair housing, which may involve assessing the impact of zoning laws, is discussed in chapter 7.)
Information Box: Mobile Homes
The U.S. Supreme Court has not considered whether a locality can exclude persons in “mobile homes” from traveling to and establishing residence in a community, but a number of state courts have held that localities can regulate the location and use of mobile homes.
“Mobile home” is the old-fashioned term for housing that is delivered on wheels to a community. The stereotype of such housing was that of a trailer attached to the back of a car, lacking plumbing, and inhabited by persons who intended only temporary residence in a community.20 Since the 1960s, “manufactured housing” that is not built on the site has become an important, low-cost source of affordable housing.21 However, regulations that date to the earlier period continue to be on the books. For example, some localities have zoning laws that restrict where a manufactured home can be located; others require the owner to obtain a permit to “park” the home in a particular area.22 Another kind of regulation allows the home to be located only as an accessory to a use permitted in the zone, such as farming.23 Courts tend to view zoning laws as a legitimate way for a community to maintain property values and generate tax revenue.24 Relatedly, courts have held it is permissible to exclude manufactured homes from a neighborhood if they do not meet laws regulating the size and dimension of lots and homes.25 In practice, manufactured homes tend to concentrate in special zones or designated parks. A few states have begun to reconsider this approach, and some now bar localities from absolutely prohibiting mobile homes in residential communities.26
(p.734) Does the federal Constitution mandate giving assistance to persons too poor to travel from state to state or within a state?
The right to travel assumes that a person is financially able to travel; the federal Constitution has not yet been interpreted to guarantee cash assistance to a poor person or mandate the provision of public transportation.27 Arguably, the absence of assistance needed to use public transportation, to buy a car, to pay for a driver’s license, or to pay a toll to access the public highways burdens the right of an indigent person to travel, but the Court has not yet endorsed this position or redressed its racially disparate impact.28 Indeed, to the extent that federal law provides subsidies for personal transportation, it tilts in favor of more-resourced persons who are able to purchase automobiles and use highways.29 Some public school districts will waive transportation fees, typically for students whose family’s income qualifies for free or reduced lunch prices.30 In other contexts, a court may require that the government waive a fee that impedes travel, but the test for requiring a waiver is very hard to meet.31 Finally, limited transportation allowances to travel to work may be available through assistance programs described in this book. For example, benefits in programs funded through Temporary Assistance for Needy Families (TANF) may include transportation allowances to pay for the cost of going to and from required assignments within a state.32 Contact the local TANF office to find out if these allowances are provided under the state’s plan and what the eligibility rules are.
May a state or locality favor long-term residents over newcomers?
One of the benefits of interstate and intrastate travel is that it allows a person to relocate to a community that might have more job opportunities, better public schools, and affordable housing units. In a number of cases, the U.S. Supreme Court has held that the right to travel is violated if a state or locality discriminates in favor of long-term residents relative to newcomers by giving them better benefits. For example, in Saenz v. Roe, the Court struck down a law that gave state newcomers lower welfare benefits than those provided to long-term residents.33 As the Court had earlier explained in Shapiro v. Thompson, “a state may no more try to fence out those indigents who seek higher welfare benefits than it may try to fence out indigents generally.”34 A law that classifies on the basis of residence implicates the right to travel when the law “actually deters such travel,”35 “when impeding travel is its primary objective,”36 or when it uses a classification which serves “ ‘to penalize the exercise of that right,’ ” such as length of the person’s residence.37
(p.735) The right to travel, although considered fundamental, is thus not absolute; a rule that impacts the distribution of benefits and indirectly affects interstate travel may be legal if the government can show it is “is necessary to accomplish a compelling state interest.”38 For example, a federal appeals court upheld a law that gave teachers less than full salary credit for out-of-state teaching experience, on the view that the classification focused on “the location of teaching experience, not duration of residency.” On the other hand the U.S. Supreme Court held that New York could not give a civil service preference to veterans who entered the armed forces while residing in New York, but withhold that preference from veterans who entered the armed forces while residing in a different state and later moved to New York.39
Giving a resident a “preference” is especially when important when used to distribute a benefit that is not an entitlement and the number of eligible recipients exceeds the available pool of benefits; the applicant who is given the preference has priority over an applicant who does not.40 Federal law allows localities to use residence preferences as a mechanism for distributing affordable housing units.41 In some circumstances, the use of the preference may be illegal because of its adverse impact on persons of color.42
The Right to Access and Use Public Spaces
Does the federal Constitution protect a person’s right to be on a street or sidewalk?
Streets and sidewalks typically are government-managed spaces that provide a pathway for movement within a locality. Moreover, they have special status in constitutional law as “traditional public forums” for expressive activity protected under the First Amendment of the federal Constitution.43 It is settled that the federal Constitution protects a person’s right to be on a street or sidewalk, alone or with others, to walk or stroll, to lounge or loaf—activities “not mentioned in the Bill of Rights,” but which are, as the Court has explained, “unwritten amenities,” which give Americans a “feeling of independence.”44
The U.S. Supreme Court did not always recognize the right of poor persons to access public spaces on an equal basis with the rich. For centuries towns made it illegal for a person to be on a public street without any apparent purpose—a crime called vagrancy or loitering—and enforced these laws primarily against persons who “looked poor” and so out of place or were assumed to be engaged in criminal activity.45 In 1972, the Court invalidated Florida’s vagrancy statute, which punished walking outside at night, juggling on the streets, or wandering from place to place. The Court held that the statute violated the Due Process Clause of (p.736) the federal Constitution because it was impermissibly vague: it criminalized innocent conduct; failed to give ordinary people fair notice that their behavior was illegal; and allowed the police to make arrests for arbitrary reasons, creating the impermissible situation “in which the poor and the unpopular are permitted to ‘stand on a public sidewalk . . . only at the whim of any police officer.’ ”46
Nevertheless, a wide gap persists between what the Constitution requires and what happens in practice when persons who “look poor” wish to be physically present in a public space. Anti-vagrancy laws remain on the books throughout the United States but in many localities have been rewritten to address specific conduct that is done in public. Of 187 U.S. cities surveyed in 2016, almost half (47 percent) banned sitting or lying down in a public place, including in a park or on a bench, and more than half (54 percent) banned loitering or loafing in particular places (as an example, Burlington, Vermont, banned “remaining idle in essentially one location . . . or walking about aimlessly”).47 The restrictions give the police excessive discretion to choose which individuals to arrest, and tend to be enforced more vigorously against those who look poor or homeless; such enforcement is unconstitutional, as are many of the restrictions themselves.48 Apart from due process concerns, enforcement of these bans against persons with disabilities or persons of color raise additional issues of illegal or unconstitutional discrimination.49
May a person sleep in a public space?
The U.S. Supreme Court has not addressed whether it is constitutional to criminalize sleeping in public when the person cannot afford housing and the government does not provide free and safe space in a public shelter. In 2016, a third of 187 cities surveyed banned camping in public, 18 percent banned sleeping in public, and 27 percent banned sleeping in particular public places.50
In 2018, the Ninth Circuit Court of Appeals (which covers federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington State, as well as the District of Guam and of the Northern Mariana Islands) held that it violates the Eighth Amendment—which bars cruel and unusual punishment51—for a locality to impose criminal penalties for sleeping, sitting, or lying outside on public property on an individual who is homeless and not able to access shelter.52 The appeals court explained that “ ‘the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being,’ ” and “ ‘[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.’ ” Although the appeals court declined to mandate that the locality provide sufficient shelter for (p.737) persons who are homeless, it held that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”53 Moreover, the court recognized that shelter may be unavailable both because shelters are full and there is no bed space, or because a homeless person has exhausted the number of days a locality will provide shelter during a defined period of time.54 Not all courts have agreed with this analysis, at least when the ban applies to camping in public and not sitting, lying, or sleeping.55 Relatedly, in Clark v. Community for Creative Non-Violence, the U.S. Supreme Court held that the United States Park Service did not violate the right to free expression protected by the First Amendment to the federal Constitution when it refused to permit demonstrators to sleep in temporary structures erected in public places (including on the National Mall) as part of a protest aimed at drawing attention to the lack of affordable housing.56
In addition, some localities make it a crime for a person to sleep in a car parked on a public street.57 In 2014, the Ninth Circuit Court of Appeals invalidated Los Angeles’ ban on car-sleeping as unconstitutionally vague, calling the ordinance “broad and cryptic.” The court further stated, “The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.”58 However, courts in other localities have found it permissible to ban a person from sleeping in a vehicle on a public street.59
May the police seize and immediately destroy the possessions of a person who is in a park or some other public space?
The Fourth Amendment to the federal Constitution protects against unreasonable searches and seizures. Since the landmark decision in Katz v. United States, the U.S. Supreme Court has “recognized that the Fourth Amendment protects people—and not simply [places]—against unreasonable searches and seizures.”60 Some courts have recognized that individuals who are homeless and stay in public parks or shelters have a reasonable expectation of privacy, and thus are protected under the Fourth Amendment against warrantless police searches.61 Moreover, they acknowledge that it is unreasonable to expect a homeless person to retain physical control over possessions at all times when in a public park or shelter:
As a practical matter, homeless people cannot stay with their property 24 hours per day because they, like people who have homes, have to use the bathroom, (p.738) shower, and conduct other necessary daily activities. Those who have jobs must leave their belongings while they work, recycle, or engage in other activities. They nonetheless have an expectation of continued ownership of their property and do not intend to abandon their property because they leave it in a cart or similar device, which is covered by or wrapped in a blanket, tarp, or tent, unattended for a period of time.62
On a similar rationale, a Florida federal court held that police violated Fourth Amendment rights when they conducted warrantless searches and seizures of property left by homeless people in Miami public parks.63
Nevertheless, some localities have instituted “homeless sweeps”—seizing and destroying without notice personal items that homeless people have temporarily left unattended in a public space, arguing that they are abandoned property.64 For example, a federal court in Idaho held that a statute authorizing the seizure of property remaining or left unattended after the issuance of a citation for a person’s violation of a statute that prohibited camping was valid under the “community caretaking” exception to the Fourth Amendment.65 In contrast, the Ninth Circuit Court of Appeals affirmed a preliminary injunction that barred the City of Los Angeles from “seizure and summary destruction of . . . unabandoned, but momentarily unattended, personal property.”66
The legal analysis differs if the police seize a homeless person’s possessions while arresting the person.67 The U.S. Supreme Court has interpreted the Constitution to permit the police to conduct even a warrantless search in order to preserve evidence of a crime if a prior valid arrest has been made. Thus, whether the police can search and seize a homeless person’s property may in some circumstances turn on the legality of arresting the person in the first place (for example, for sleeping in a public space).68
If the police seize a person’s possessions from a public space, it is important to find out how to get the items back, quickly and without paying a fee. In 2012, the Ninth Circuit Court of Appeals held that it was unconstitutional for the government to seize property temporarily left on the sidewalk by a homeless person unless the government offered a process to let the owner get the property back.69
Can the police search a person’s car or mobile home when it is parked in a public space?
The Fourth Amendment requires that police obtain a warrant, based on probable cause, before conducting a search of private property. But the Fourth Amendment rule is subject to exceptions,70 allowing warrantless searches that are incident to a lawful arrest,71 or of a vehicle if it is reasonable for the police officer to believe (p.739) it contains contraband or evidence of criminal activity.72 Additionally, the U.S. Supreme Court has found that individuals have a more limited “reasonable expectation to privacy” in vehicles because of their inherent mobility and public use.73 Thus, under the vehicle exception to the Fourth Amendment, whether a police officer has probable cause to search an entire vehicle will affect the legality of a warrantless search of every part of the vehicle and of its contents, including wrapped packages, even if they belong to a passenger and not the owner of the car.74 However, the Court has emphasized that the exception does not permit a police officer, without a warrant, to enter a home or its curtilage (the land attached to a house) to search a vehicle parked in the enclosure, even if the vehicle can be seen by third parties from beyond the property.75
The exception for vehicles has been applied to searches of mobile homes and portable campers, even in cases when the mobile home or camper is not immediately mobile.76 However, the Supreme Court has not extended the vehicular exception to “a motor home that is situated in a way or place that objectively indicates that it is being used as a residence.”77
Police also may search a vehicle if consent to the search is given voluntarily by a person who is authorized to give it.78 Voluntariness is assessed by measuring the totality of the circumstances, and includes such factors as the person’s age, level of cooperation, understanding of the right to refuse consent, and intelligence.79
A related question is whether the police can obtain “location information” from a person’s car or mobile home (or even a mobile phone) without a warrant. New devices have made it easier for the government to monitor a person’s whereabouts, and courts have been slow to keep pace with these rapidly advancing technologies.80 The. Supreme Court held that attaching a Global Positioning System tracking device to a vehicle to monitor the vehicle’s movements is a search subject to the protections and restrictions of the Fourth Amendment.81 The Court also has held that individuals maintain a legitimate expectation of privacy in their historical cell-site location information—records of their physical movements captured by cell phone towers.82 Therefore, a search warrant is required to access cell phone location information spanning a period of at least seven days or longer.83
Can the police demand ID from a person who is standing on the street or in some other public place?
The U.S. Supreme Court has held that the police cannot stop a person on the street and demand identification without having a reasonable suspicion of criminal activity.84 Moreover, the kinds of identification demanded cannot be arbitrary or vague. In Kolender v. Lawson, a 1983 decision, the Supreme Court (p.740) invalidated a California law that allowed police to demand “credible and reliable” identification from a person on the street. In the Court’s view, the statute was unconstitutionally vague because it did not define what identification would be sufficient, and instead gave the police “virtually complete discretion . . . to determine whether the suspect has satisfied the statute.”85 In 2004, the Court again considered whether the refusal to identify oneself when asked to do so by the police could be grounds for arrest. The Court held that Nevada’s “stop and identify” statute—interpreted to require the police to have reasonable suspicion to make the stop and to ban the police from demanding production of an official ID such as a driver’s license—did not violate the Fourth Amendment prohibition against unreasonable searches or the Fifth Amendment right against self-incrimination.86 In practice, anecdotal reports indicate that the police arrest homeless persons when they are asked to produce an ID but are unable to do so because they lack documents.87
Information Box: How to Get an “Official” ID
“Official” identification cards can be obtained by filing an application with a state government office. The issuance of ID cards (including driver’s licenses) is regulated by the federal REAL ID Act, enacted in 2005.88 Almost all states now issue official IDs only if the applicant can present a photo ID (or a nonphoto ID stating the person’s full legal name and date of birth), proof of date of birth, proof of Social Security number or that the person is not eligible for one, and proof of the person’s name and principal residence.89 Acceptable documentation includes a certified copy of a birth certificate or a valid unexpired passport or permanent residence card.90 Many states charge a fee for the ID, although a majority of states will waive the fee based on factors such as age, indigence, or disability.91 Requiring one form of ID to obtain another is problematic for people who have lost their papers, had them taken from them, or never had them to begin with.92
When applying for government benefits, it is helpful but not generally required to have a photo ID. Some federal programs have procedures to help an applicant who does not have a photo ID in verifying eligibility information:
SNAP: The Supplemental Nutrition Assistance Program, formerly known as the Food Stamp program, verifies identity through “documentary evidence, or if this is unavailable, through a collateral contact,”93 such as a shelter worker or an employer.94
SSI: Applicants for Supplemental Security Income may verify their identity without presenting a photo ID, for example, by completing a written (p.741) certification that they are who they say they are and by providing their name, Social Security number, date of birth, parents’ names, mother’s maiden name, and place of birth.95
TANF: The Temporary Assistance for Needy Families (TANF) program is administered in each state and allows states to make their own rules regarding identity verification, and so the identification requirements vary by state.96 For example, Rhode Island’s TANF program, called Rhode Island Works, requires applicants to provide a driver’s license, school or work identification, immigration documents, birth certificate, U.S. passport, or any other documentation requested for citizenship, immigration status, or age.97
WIC: The Women, Infants and Children (WIC) program is administered in each state and allows states to make their own rules regarding identification verification, so, as with TANF, the requirements vary from program to program.98 For example, in Texas the WIC program accepts such documents as a form or letter from a Medicaid, SNAP, or TANF program, or a crib card from a hospital.99
Can the police demand ID from a person believed not to be a citizen?
Federal law requires persons who are not citizens and are temporarily in the United States to carry and to present identification papers upon request. In particular, the Immigration and Nationality Act requires “[e]very alien, eighteen years of age and over, [to] carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him.”100 However, if no registration card is provided to the person, then the statute does not require the person to carry or to present an ID. Persons falling into the latter category include those who entered the United States illegally; those who sought to regularize their immigration status after entry into the United States; and those who entered the country and applied for and were granted Temporary Protected Status or deferred action.101 Advocates suggest that a person who is over age 18 and has immigration documents carry them at all times and show them upon request from an immigration officer or police.
Federal law permits immigration officers to interrogate an undocumented immigrant or person believed to be an undocumented immigrant, and to arrest the person if the officer has “reason to believe” that the person is in violation of specified immigration laws, but the person stopped for questioning has a right to remain silent.102 In 2012, the U.S. Supreme Court considered the extent to which a state may permit police to make warrantless arrests of (p.742) persons suspected of being removable from the United States because of their immigration status. The Court held that it was impermissible for the state of Arizona to authorize its police to make a unilateral decision to detain, on the basis of immigration status, an immigrant who is not lawfully present in the country, absent any request, approval, or other instruction from the federal government. However, the Court did uphold the state’s power to check the immigration status of a person during the course of an authorized, lawful detention or after a detainee has been released.103 In January 2017, President Trump signed executive orders expanding a program to deputize local law enforcement officers to double as federal immigration agents. Once trained, local officers are authorized to interview, arrest, and detain any person who may be in violation of federal immigration laws.104 The Trump administration has undertaken aggressive anti-immigration policies, and it would be helpful to consult additional resources, available from immigrants’ rights groups, on how to handle encounters with immigration authorities and the police.105
Can the police arrest a person who does not answer questions or runs away even before questions are asked?
The U.S. Supreme Court has held that the police may “approach individuals at random in airport lobbies and other public places” to ask questions “so long as a reasonable person would understand that he or she could refuse to cooperate.” As the Court stated, “We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”106 However, the Court also has held that a police officer constitutionally may conduct a “brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot,” and has upheld the constitutionality of such a stop when the person was present “in an area of heavy narcotics trafficking” and who engaged in “evasive behavior” through “[h]eadlong flight.”107 Some lower federal courts have held that although flight does not establish guilt, it creates ambiguity and “officers may stop the person to resolve the ambiguity.”108 The Black Lives Matter movement has drawn national attention not only to racial profiling in policing practices, but also to racialized police violence.109 Some state judges, influenced by reports that police officers disproportionately “stop” persons of color even when reasonable suspicion is not present, have questioned whether it is appropriate to equate flight with guilt for Fourth Amendment purposes.110
Smart phones, social media, and mobile apps (such as the ACLU’s Mobile Justice app) have made it easier to record police activity on the street and in other public places.111 Statutes prohibiting nonconsensual recording may operate to criminalize the recording of police activity. Federal law requires consent from one of the parties to a phone call or conversation for it to be audio recorded,112 and a majority of states likewise have one-party consent statutes, but a minority of states bar audio recording unless consent is obtained from all parties to the conversation (known as two-party consent statutes).113 However, these statutes typically do not criminalize nonconsensual recording unless the parties being recorded have a reasonable expectation of privacy, which the police do not have when they engage in enforcement activity in a public area. Some states also have statutes that criminalize interference with police activity, and police may attempt to invoke these statutes against persons seeking to record police activity, although until now their application has involved much more traditional forms of obstruction.114 Nevertheless, persons who seek to record police interactions may face threats of arrest, actual arrest, demands to delete the contents of a recording device, or seizure or destruction of the device. The U.S. Supreme Court has not yet considered these specific issues.115 But, so far, the majority of federal appeals courts have found that the First Amendment protects the right to record police activity in public, subject to reasonable restrictions116 (although courts have not unanimously found this right to be clearly established in civil rights suits seeking damages for wrongful arrest).117
Can a person without a permanent home or a fixed address receive mail at the post office?
Persons who do not have a permanent home or a fixed address can apply for a post office box to be able to pick up mail at the post office.118 In addition, the person can apply for general delivery service.
Post office boxes can be rented for a fee on a three- or six-month basis by a person who does not have a street address.119 No-fee boxes are available only to individuals who have physical addresses but do not have carrier delivery.120 Persons who are homeless may request general delivery service, which means that the postal service holds the mail until the recipient calls for it. Typically, general delivery service is used by customers who are transient or cannot receive (p.744) mail at a post office box because a post office is not available. The service is available to an individual without a fixed address at the discretion of the postmaster if the individual is “personally known to the Postmaster or retail associate and [is] known as a person with no fixed address.”121 The postal service has discretion to determine where and how general delivery service will be provided.122 A federal appeals court held that Seattle’s policy of providing general delivery service at only one post office location was reasonable, and thus constitutional.123 The post office will hold mail for only 30 days, but the 30-day period does not limit how long a person may use general delivery service; as one federal judge underscored, “homeless persons may use the service indefinitely.”124 Some advocates are pushing for “ban the address” rules that would bar employers from asking an applicant for a street address until after a provisional offer an employment is made; nevertheless, the ability to access mail through a post office box or general delivery service remains critical.125
May a public library refuse admission or expel a person who “looks” poor or homeless?
Public libraries do not charge a fee for admission and most books may be borrowed for free if the patron has a current library card. An individual is allowed to remain in the library as long as the person’s behavior does not violate library regulations that govern patron conduct. The American Library Association, in its 2012 Policy Statement on Library Services to the Poor, explicitly called upon libraries to help reduce homelessness through “library engagement”—for example, by promoting networking between the library and social service agencies, sensitivity training for staff, and making it easy to obtain a library card even when required documentation is not readily available.126
However, a library may ban patrons if their behavior interferes with other people’s reasonable use of the facility or is inconsistent with the library’s purpose. In some localities, library regulations that require patrons to conform to certain standards of dress or hygiene may allow those communities to exclude persons who “look” poor or homeless.127 Challenges to libraries’ enforcement of “personal decorum” regulations have met with mixed results. Some federal courts have upheld these restrictions when challenged under the First Amendment and the Equal Protection and Due Process Clauses.128 However, a federal district court invalidated a hygiene restriction that was neither “narrowly tailored” nor “specifically defined” by statute or case law, and so was found to have created an impermissible “potential for unlimited ad hoc determinations of the regulation’s scope by Library guards, employees, supervisors, and outside police officers.”129
(p.745) Relatedly, the American Library Association’s 2012 Policy Statement urged localities to reduce library fees for those who cannot afford to pay (typically charged for the late return of books or the failure to return a book at all).130 In some localities, schoolchildren are barred from using the library if a member of their family has outstanding book fines.131 Moreover, book fines could impair a household’s credit rating.132 Overall, public libraries are an important resource for poor and low-income people—providing access to books, magazines, and the internet, as well as a safe place to sit, read, do homework, write job applications, and plan. Nevertheless, the Trump administration’s budget proposals consistently have eliminated the Institute of Museum and Library Services, which effectively would cut all federal funding for all public libraries. #FundLibraries is an important advocacy effort urging that funds for library resources be retained or increased.133
May a privately owned store exclude a person who “looks” poor or homeless?
Privately owned retail stores, including shopping malls, may post dress codes and enforce these codes to exclude individuals who “look” poor and are not expected to make purchases while on the premises.134 Private property owners also may refuse to give the public at large access to their toilets or benches.135 Property owners may seek to enforce these restrictions through the criminal justice system.136 However, federal antidiscrimination law may be implicated if any policy of exclusion intentionally or disproportionally impacts racial or ethnic minorities or persons with disabilities.137
Information Box: Access to Public Toilets
In all states, public urination and defecation are illegal or restricted as public nuisances. Moreover, no federal law requires a locality to provide public toilets, even for those individuals who lack a home or access to minimal facilities for health and hygiene.138 Most localities have declined to fund public toilets, opting instead for “quasi-public restrooms,” located in restaurants or office buildings, and for the use only of tenants or tourists.139 Police in these localities are authorized to arrest persons who use public spaces to engage in basic bodily acts, or to apply nuisance laws and impose fines which, if not paid, can result in jail time.140
(p.746) Localities that do provide public toilets cannot segregate them on the basis of race,141 but they may provide separate facilities on the basis of gender.142 The rights of transgender individuals to access public toilets and other facilities based on their gender identity remains unresolved.143 Federal law provides some basis for insisting that public toilets be accessible to persons with disabilities.144
Information Box: Access to Public Lactation Places
According to the National Conference of State Legislatures, 49 states, the District of Columbia, and the Virgin Islands have laws that specifically allow women to breastfeed in any public or private location.145 Idaho is the only state that does not have a law specifically allowing women to breastfeed in public. Twenty-nine states, the District of Columbia, and the Virgin Islands additionally exempt breastfeeding from public indecency laws.146 Some states prohibit individuals from interfering with a nursing mother’s ability to breastfeed in public.147
The Right to Solicit Work, Sell Goods, or Request or Provide Charitable Assistance
Can a person stand on the street or in another public space and solicit work?
Many industries—primarily construction, agriculture, landscaping and, to a lesser extent, housekeeping, nail salons, and child care—rely on “day laborers.”148 Day laborers solicit work by standing on the street or other public spaces where employers expect applicants to gather.149 Some localities have adopted ordinances that criminalize the act of standing on the sidewalk to solicit employment. Localities justify these bans as ways to avoid traffic congestion and to relieve a public nuisance.150 The federal Constitution does not specifically address this practice, but it does protect rights to free speech and peaceful assembly under the First Amendment. A few lower federal courts have found that day-labor bans violate the First Amendment as impermissibly broad restrictions on speech and peaceful assembly.151
Performing—such as singing, dancing, miming, or playing an instrument—is a form of expression protected under the First Amendment.152 As with any form of speech, the government may regulate when, where, and how a person may perform in public, but the restrictions must be content neutral and leave open alternative channels of communication.153 For example, the government can regulate specific problems that may arise with some performing, such as playing an instrument too loudly.154 Performing in public for money also is considered expression and protected by the First Amendment.155
May a person sell things on the street or in another public place?
States and localities may regulate street vending in reasonable ways, and in many localities a person who wishes to sell things in a public space or from a mobile or portable device must obtain a license or permit to engage in the activity.156 Special rules apply to the sale of expressive written matter or artwork and are discussed separately.
Street vending offers important entrepreneurial opportunities for low-income people who might otherwise be blocked from starting and running a small business. According to the Institute for Justice, two-thirds of street vendors in California are persons of color and over half are immigrants. Street vendors also contribute to the local economy in which they work. In New York, for example, street vendors in 2012 created an estimated 17,960 jobs and $292.7 million in added value.157 Nevertheless, in many localities persons who want to start or run a street vending business face administrative obstacles and arbitrary policy actions.
Restrictions on street vending vary by locality. The Institute for Justice examined street-vending rules in the 50 highest-population cities in the United States, and sorted vending restrictions into categories: bans from certain public areas such as streets or sidewalks, bans from whole areas of a city, minimum distance requirements from other businesses, prohibitions on parking mobile vending units, and time limits on how long mobile vendors can stay in one place. Forty-five of the cities imposed at least one of these restrictions, and 31 of the cities imposed at least two. Vendors in some cities face barriers that fall outside these five categories, such as particularly burdensome licensing processes and bans on selling certain items. Here are some examples of local rules regulating street vending:
Seattle, Washington prohibits selling anything but food and cut flowers in public spaces, and food vendors must obtain a permit and comply with the (p.748) same health department laws imposed on conventional restaurants and food stores.158
Wichita, Kansas distinguishes sidewalk vending from street vending.159
New York imposes different licensing requirements depending on whether merchandise or food is sold, and also sets a cap on the number of general vendor and food licenses it issues.160
Chicago food truck owners must prepare all food at a designated commissary and change location every two hours.161
Los Angeles, until 2018, did not have a permit system for street vending,162 and allowed mobile vending,163 but otherwise made street vending illegal. That year, California enacted statewide legislation, effectively making street vending legal and requiring localities to adopt street vendor regulations or forfeit a chance to regulate street vending at all.164
Persons selling “expressive” material receive heightened protection from licensing requirements under the First Amendment to the U.S. Constitution.165 Local ordinances generally have withstood First Amendment challenge if they are content-neutral and leave vendors at least some opportunity to sell their materials.166 Selling newspapers, including “street papers” that focus on homelessness, thus is an expressive activity even though it also is commercial.167 As such, the activity is entitled to First Amendment protection but is subject to reasonable time, place, and manner restrictions. Some localities regulate where newspapers can be sold; for example, prohibiting the sale of newspapers to motorists whose cars are stopped at an intersection. At least one federal appeals court has held that such a ban is permissible under the First Amendment if it applies to all newspapers and if the locality does not block all sales, but rather leaves other options open, such as going door to door or selling on the sidewalk.168
Information Box: Street Vendor Licenses in New York City
The rules for becoming a street vendor vary from locality to locality; New York City’s licensing regime is offered as an illustration.169 Anyone who wants to sell merchandise on the streets of New York City must obtain a general vendor license from the New York City Department of Consumer Affairs. A general vendor license is not needed to sell written matter such as newspapers, periodicals, books, and pamphlets, or artwork such as paintings, photographs, prints, and sculptures. These items are protected from license requirements under the First Amendment to the U.S. Constitution.170 However, whether other merchandise counts as protected matter is a question that may require (p.749) judicial resolution in any given situation.171 Vendors who believe their merchandise merits First Amendment protection cannot seek preapproval from the city, and thus risk penalties if they go forward without a license and it is ultimately determined that a license was required.172 Application rules are set out in the appendix.
May a person beg or panhandle on the street or in another public space?
Begging and panhandling are both forms of speech through which a person requests an immediate donation of money. These forms of speech are protected by the First Amendment,173 and thus the government may impose only reasonable “time, place, and manner” restrictions. Restrictions on speech are unconstitutional if based on the content of the speech or the identity of the speaker, and if they do not leave the speaker with alternative pathways for communication.174
Although the U.S. Supreme Court has not directly decided that the First Amendment of the federal Constitution protects an individual’s right to solicit alms, it consistently has upheld the right of members of charitable organizations to do so.175 Moreover, a number of lower courts have held that begging is a form of solicitation protected by the First Amendment, and have invalidated restrictions when not sufficiently narrowly tailored to afford alternative communicative pathways.176 For example, the First Circuit Court of Appeals held that it was unconstitutional to arrest a person for begging under a statute that banned standing, sitting, staying, driving, or parking on a median strip. As the appeals court explained, the statute violated the First Amendment because it banned virtually all expressive activity by the speaker and was not narrowly tailored to protect public safety.177
Of 187 cities surveyed in 2016, 61 percent banned begging in some public places, a 7 percent increase since 2006, and some of these bans make begging or panhandling a crime.178 A blanket ban on begging would violate the First Amendment.179
Some localities also ban “aggressive panhandling”—requests for donations that are accompanied by perceived intimidation or unwarranted physical contact.180 Such bans impinge on both speech and conduct, but governments try to defend them as regulations of the non-expressive elements of begging, and argue that courts should uphold the regulations as serving a public interest, such as safety, that is unrelated to the speaker’s expressive message.181 The better view is that a ban of this sort regulates expressive conduct, is impermissibly content-based, and can be upheld only if the regulation is “the least restrictive means for achieving a compelling state interest.”182
Some localities provide or rent space for collection bins where community members may drop off clothing, food, or household items to be distributed to those who need charitable assistance. The locality is permitted to impose reasonable time, place, and manner restrictions on the location and maintenance of the bins.183 However, in some states, it is illegal to give money or food directly to a person who is standing or sitting in a public space, without regard to whether the person solicits charitable assistance. In particular, of 187 cities surveyed in 2016, 12 cities had restrictions on “food-sharing” designed to bar groups or individuals from feeding poor and homeless persons who are on the streets.184 These restrictions generally take three forms: imposing a permit requirement on charity food providers, sometimes accompanied by payment of a substantial fee; enforcing food safety rules (that are designed for restaurants) against charity food providers; and limiting the geographic spaces in which charity food providers may serve those in need.185 Legal challenges to these restrictions have had mixed results.186
Is it legal to scavenge?
Scavenging involves a person’s searching through and removing items from garbage or recycling bins. Many localities ban scavenging. However, case law and anecdotal reports suggest that the enforcement of these anti-scavenging laws is spotty and inconsistent.187
The Right to Associate with Others in Public
Does the federal Constitution allow advocates and others to distribute information at or near a government office?
Advocates may wish to assemble at or near government offices in order to distribute “know your rights” leaflets, to talk to persons applying for benefits, or to provide other information or make referrals. A few lower courts have held that individuals may hand out leaflets or talk with individuals sitting in the waiting room of a welfare office because such activity is expressive, does not disrupt the business of the welfare office, and is protected by the First Amendment.188 However, later decisions by the U.S. Supreme Court have given the government (p.751) greater discretion to restrict speech on public property other than sidewalks, parks, town squares, or other public places deemed to be a “traditional public forum.” The Court has held that government may reserve public property that is not a traditional public forum “for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”189 The legality of any restriction or of an order to “move on” will depend on the facts and circumstances.
Does the federal Constitution protect the right of persons to assemble or protest in a public space?
Persons are permitted to associate in public spaces, but a locality may require permits for assemblies such as demonstrations and parades. Permit systems may raise constitutional problems if they fail to set forth clear standards for the granting of the permit. A permit system allows the government to anticipate and prepare for crowd control, street closings, and other consequences, and it also ensures that there will not be two groups congregating in a public space at the same time and place.190 However, as the U.S. Supreme Court has explained, a regulation that allows a permit requirement to be applied in an arbitrary way is “inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.”191 Applying these principles, courts have considered the size of the group wishing to demonstrate, the specifics of the space, and the availability of other places for expression in assessing whether the denial of a permit, or imposing a permit requirement at all, is constitutional.192
In addition to requiring the sponsor to obtain a permit, a locality generally can charge a fee, provided the amount of the fee is genuinely related to the cost of processing a permit application, does not vary with the kind of demonstration, and is so small that it does not deter the exercise of free speech.193 This is the case whether the charge is called an application fee, a cleanup fee, or an insurance fee. In 1941, the U.S. Supreme Court upheld the imposition of nominal fees on the sponsors or organizers of a demonstration to “meet the expense incident to the administration of the [licensing statute] and to the maintenance of public order in the matter licensed.”194 Two years later, the Court struck down a license fee that was “not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question.”195 However, in 1992 the Court struck down even a nominal fee as unconstitutional because the fee varied based on a discretionary assessment of the amount of hostility likely to be created by the speech based on its content.196
Several states have adopted a “Homeless Bill of Rights” to protect homeless people from some of the practices described in this chapter: arrest for sleeping or urinating in public when facilities are not available for these basic activities; exclusion from public services such as the public library; and being subjected to harassment on the street or in a park. Advocates also want to ensure that persons who lack housing are able to vote and to receive social services. The movement for adopting a “Homeless Bill of Rights” recognizes that individuals who lack a fixed and private place to reside are vulnerable to arrest, are exposed to dangerous conditions, and lose control over their lives.197 As an example, in 2012, the Rhode Island General Assembly passed a “Homeless Bill of Rights,” securing, among other protections, the right to move freely in public spaces and the right to equal treatment by state and municipal agencies.198 Connecticut has a similar statute protecting movement in public spaces.199 Similarly, the Illinois Homeless Bill of Rights protects homeless individuals’ rights to move freely in public spaces, keep a job, vote, and access emergency medical care and municipal agencies without discrimination; it also protects the person’s records, information, and privacy.200 These protections are a critical step—together with advocacy to secure housing justice, jobs with living wages, and affordable health care.
Appendix: Street Vending Application in New York City
The application for a vendor’s license requires: a completed application form; proof of eligibility (for veterans, proof of honorable discharge, and for surviving spouses or partners of veterans, proof of marriage or partnership, death certificate, and proof of honorable discharge); New York State Department of Taxation and Finance Certificate of Authority; general vendor questionnaire; residence form; license and clearance fees; and various additional forms where applicable. Applicants may file in person or online. General vendor licenses last up to one year and expire every year on September 30, before which vendors may apply to renew the license. The Department of Consumer Affairs puts a cap on the number of licenses that it will issue, and for many years the waiting list in New York has been closed. However, the cap does not cover veterans who were honorably discharged from the armed services and their surviving spouses or partners who live in New York.
Food vendors in New York do not need a general vendor license, but do need a license from the Department of Health and Mental Hygiene. New York has capped the number of general food vendor licenses, and there currently is a long waiting list. However, the city issues specific “Green Cart” licenses for vendors (p.753) of fruits and vegetables.201 Waiting lists for these licenses are created twice a year, making it slightly easier to get a license.202 The city also issues mobile food vending permits for restricted areas, for which there is no waiting list.203 Applicants for these permits must have permission to operate on certain private properties or Department of Parks and Recreation property. All food vendors must have a mobile food vending license, as well as a mobile food vending permit issued specifically for the intended vending unit, such as a truck or cart. Permissions and renewal requirements vary by the type of permit.204 Even for licensed and permitted vendors, many New York streets are restricted or have specific times during which a vendor may sell,205 and there are restrictions on where on the street the vendor’s cart or truck may be.
Selling at street fairs does not require a general vendor license but does require a temporary street fair vendor permit.206 Vendors rent street fair space directly from the private fair sponsor.207 Flea market vendors also must coordinate space rental from the event sponsor and get applicable licenses and permits.208
Unlicensed street vendors can be fined up to $250,209 be arrested, and have their goods confiscated.210 Because the caps and restrictions on licenses make it difficult to start a vending business, many vendors rent licenses from former vendors who are no longer using their license,211 but transferring licenses without authorization is illegal.212 New York law also allows for vendors with disabilities to request authorization to enlist helpers for selling.213
(1.) See Timothy Zick, Property, Place, and Public Discourse, 21 Wash. U. J.L. & Pol’y 173, 175 (2006):
Today, access to public places is treated as more of an indulgence than as a fundamental right. It can be balanced away in favor of a growing list of interests, such as in governmental proprietorship and management, public order, aesthetics, privacy, repose, and now increasingly interests relating to “security.” This is so even in “quintessential” public places such as streets and parks.
See also Brittany Scott, Is Urban Policy Making Way for the Wealthy? How a Human Rights Approach Challenges the Purging of Poor Communities from U.S. Cities, 45 Colum. Hum. Rts. L. Rev. 863, 879 (2014) (“City governments are increasingly dealing with the growing crises of poverty and homelessness by defining the people most impacted as the problem that needs to be addressed, rather than recognizing how they have been affected by inequitable and exclusionary policies and practices.”).
(2.) Report of the Special Rapporteur on Extreme Poverty and Human Rights on His Mission to the United States of America, United Nations, General Assembly, Human Rights Council, Thirty-eighth session (May 4, 2018), at 12.
(3.) On the importance of housing to a person’s ability to obey the law, see Terry Skolnik, Homelessness and the Impossibility to Obey the Law, 43 Fordham Urb. L.J. 741 (2016); Terry Skolnik, Rethinking Homeless People’s Punishments, 22 New Crim. L. Rev. 73 (2016); Gregory S. Alexander, Property’s Ends: The Publicness of Private Law Values, 99 Iowa L. Rev. 1257 (2014); Jeremy Waldron, Community and Property—For Those Who Have Neither, 10 Theoretical Inquiries L. 161 (2009). For a discussion of quality of life regulations, see Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551 (1997); Robert Ellickson, Controlling Chronic Misconduct in Public Spaces, Of Panhandlers, Skid Rows, and Public Space Zoning, 105 Yale L.J. 1165 (1996).
(4.) David Rudin, “You Can’t Be Here”: The Homeless and the Right to Remain in Public Space, 42 N.Y.U. Rev. L. & Soc. Change 309, 311 (2018) (discussing inconsistent protection of the poor and homeless).
(5.) United States v. Guest, 383 U.S. 745, 757 (1966) (calling the right to travel from state to state “firmly established and repeatedly recognized”). See also Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (“We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision.”).
(6.) See Prigg v. Pennsylvania, 41 U.S. 539, 625 (1842) (states have police power allowing them to “remove from their borders . . . idlers, vagabonds and paupers”). See also Gerald L. Neuman, The Lost Century of American Immigration Law, 93 Colum. L. Rev. 1833, 1846 (1993) (“In neither the eighteenth century nor the nineteenth century did American law concede the right of the poor to geographic mobility.”); Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 615–616 (1956) (discussing feudal origins of American restrictions on poor people’s mobility).
(7.) See Papachristou v. City of Jacksonville, 405 U.S. 156, 161 (1972):
The history is an often-told tale. The break-up of feudal estates in England led to labor shortages which in turn resulted in the Statutes of Laborers, designed to stabilize the labor force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions. Later vagrancy laws became criminal aspects of the poor laws. The series of laws passed in England on the subject became increasingly severe.
(8.) Mayor of N.Y. v. Miln, 36 U.S. 102, 141, 143 (1837) (upholding New York statute passed to prevent the state “from being oppressed by the support of multitudes of poor persons, who come from foreign countries, without possessing the means of supporting themselves,” on the ground that it is “as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts” as it is to take preventive steps against “unsound and infectious articles imported” from abroad). The Articles of Confederation, which preceded the Constitution, specifically excluded “paupers” and “vagabonds” from the privileges and immunities guaranteed in Article IV. Article IV of the Constitution does not contain the exclusionary language, but as cases like Prigg (p.755) and Miln show, the U.S. Supreme Court for many generations grafted the omitted terms onto the text.
(9.) See Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–77 (Perennial 2002). Further, until 1946, interstate buses and trains were permitted to segregate passengers by race. See Morgan v. Virginia, 328 U.S. 373 (1946). Laws enabling persons of color to access “public accommodations” were not enacted until 1964. See Civil Rights Act of 1964, 42 U.S.C. § 2000a.
(10.) Edwards v. California, 314 U.S. 160, 177 (1941).
(11.) See Stephen Loffredo, “If You Ain’t Got the Do, Re, Mi”: The Commerce Clause and State Residence Restrictions on Welfare, 11 Yale L. & Pol’y Rev. 147, 175 (1993). John Steinbeck’s novel The Grapes of Wrath, published in 1939, described the plight of the Joad family, tenant farmers unable to remain in Oklahoma, who tried to relocate to California. See generally Abbe Smith, For Tom Joad and Tom Robinson: The Moral Obligation to Defend the Poor, 1997 Ann. Surv. Am. L. 869.
(12.) Edwards v. California, 314 U.S. at 173, 177.
(13.) Saenz v. Roe, 526 U.S. 489, 500 (1999); see also United States v. Guest, 383 U.S. 745, 757–759 (1966).
(14.) See Memorial Hospital v. Maricopa Cty, 415 U.S. 250, 255–256 (1974) (reserving the question of whether there is a constitutionally protected federal constitutional right to intrastate travel). The U.S. Supreme Court has noted that as early as the Articles of Confederation (the governance structure in the United States before the states adopted the Constitution), state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.” United States v. Wheeler, 254 U.S. 281, 293 (1920). However, as earlier noted, the articles excluded the poor, see note 8.
(15.) Compare King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971), cert. denied, 404 U.S. 863 (1971) (“It would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.”); Williams v. Town of Greenburgh, 535 F.3d 71, 75 (2d Cir. 2008) (“individuals possess a fundamental right to travel within a state”); Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002) (“the Constitution protects a right to travel locally through public spaces and roadways”), with Eldridge v. Bouchard, 645 F. Supp. 749, 754 (W.D. Va. 1986) (rejecting a right to intrastate travel as outside the Privileges and Immunities Clause); Wardwell v. Bd. of Ed. of City Sch. Dist. of City of Cincinnati, 529 F.2d 625, 627 (6th Cir. 1976) (finding no federal constitutional right to intrastate travel). See Andrew M. Schnitzel, Comment, Balancing Police Action Against an Underdeveloped Fundamental Right: Is There a Right to Travel Freely on Public Fora?, 114 Penn. St. L. Rev. 667, 672–674 (2009) (arguing that in the absence of guidance from the U.S. Supreme Court, lower courts have not consistently treated the scope and existence of an intrastate travel right, but characterizing the circuit differences as a “split” is not warranted).
(16.) See Kathryn E. Wilhelm, Freedom of Movement at a Standstill? Toward the Establishment of a Fundamental Right to Intrastate Travel, 90 B.U. L. Rev. 2461 (2010). Examples:
Hawaii: State v. Shigematsu, 483 P.2d 997, 1001 (Haw. 1971) (recognizing right to freedom of movement, which “include[s] the right of men to move from place to place, to walk in the fields in the country or on the streets of a city, [and] to stand under open sky”).
Minnesota: State v. Cuypers, 559 N.W.2d 435, 437 (Minn. Ct. App. 1997) (“Minnesota also recognizes the right to intrastate travel.”).
New York: City of N.Y. v. Andrews, 719 N.Y.S.2d 442, 452 (N.Y. Sup. Ct. 2000) (“There can be no doubt that our State Constitution, no less than the Federal Constitution, supports the right to travel freely within the State.”).
Wisconsin: Brandmiller v. Arreola, 544 N.W.2d 894, 899 (Wis. 1996) (“[W]e recognize that the right to travel intrastate is fundamental among the liberties preserved by the Wisconsin Constitution. This right to travel includes the right to move freely about one’s neighborhood, even in an automobile.”).
Wyoming: Watt v. Watt, 971 P.2d 608, 615 (Wyo. 1999) (“The right to travel freely throughout the state is a necessary and fundamental aspect of our emancipated society, and it is retained by the citizens.”).
(17.) See Village of Belle Terre v. Boraas, 416 U.S. 1, 7 (1974) (local zoning ordinance that restricted land use to one-family dwellings did not infringe a right to travel). See also Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. L. Rev. 1, 102 (1990) (“An outsider has no constitutionally protected right to make a home in a locality; the right to travel does not encompass the freedom to move into the community.”). On the relation between zoning laws, policing, and “norms of order,” see Nicole Stelle Garnett, Ordering (and Order in) the City, 57 Stan. L. Rev. 1 (2004).
(18.) See Charles M. Haar, The Wrong Side of the Tracks: A Revolutionary Rediscovery of the Common Law Tradition of Fairness in the Struggle Against Inequality (Simon & Schuster 1986) (discussing challenges to zoning laws as a violation of a common law antidiscrimination principle); see also Henry Grabar, Minneapolis Confronts Its History of Housing Segregation, Slate (Dec. 7, 2019), https://slate.com/business/2018/12/Minneapolis-single-family-zoning-housing-racism.html (“By doing away with single family zoning, the city takes on high rent, long commutes, and racism in one fell swoop.”).
(19.) See Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___, 135 S. Ct. 2507 (2015) (holding that a claim that the allocation of low income tax credits had a disparate impact on African Americans was cognizable under the Fair Housing Act). See also NAACP v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 486 (3d Cir. 2011), cert. denied, 132 S. Ct. 2749 (2012) (residence requirement for municipal firefighters violated Title VII of the 1964 Civil Rights Act).
(20.) See Richard W. Bartke & Hilda R. Gage, Mobile Homes: Zoning and Taxation, 55 Cornell L. Rev. 491, 495 (1970) (“The term ‘trailer’ has been replaced by ‘mobile homes.’ ”); see also James F. Vernon, Mobilehomes: Present Regulation and Needed (p.757) Reforms, 27 Stan. L. Rev. 159 (1974) (discussing the earlier conception of mobile homes).
(21.) See James Milton Brown & Molly A. Sellman, Manufactured Housing: The Invalidity of the “Mobility” Standard, 19 Urb. Law. 367, 375–376 (1987) (explaining that manufactured housing includes two types: (1) all housing built in a factory and in compliance with state building codes; and (2) housing built to conform to national standards); see also Frequently Asked Questions, Manufactured Housing Institute, https://www.manufacturedhousing.org/faq/. Federal regulations define manufactured homes as transportable structures of a certain size built on a permanent chassis and designed to be used as a dwelling. See 24 C.F.R. Part 3280. Mobile homes are any such moveable dwellings constructed prior to the implementation of federal building regulations published by the U.S. Department of Housing and Urban Development in 1976.
(22.) See, for example, Pioneer Tr. & Sav. Bank v. McHenry Cty., 241 N.E.2d 454 (Ill. 1968). A local rule banning undocumented immigrants from obtaining such a permit was struck down as preempted by federal law. See Cent. Ala. Fair Hous. Center v. Magee, 835 F. Supp. 2d 1165, 1175–76 (M.D. Ala. 2011), vacated as moot sub nom. Cent. Ala. Fair Hous. Center v. Comm’r, Ala. Department of Revenue, 2013 WL 2372302 (11th Cir. 2013).
(23.) See, for example, Kendall Cty. v. Husler, 358 N.E.2d 1337 (Ill. App. Ct. 1977).
(24.) See, for example, Tex. Manufactured Hous. Ass’n, Inc. v. City of Nederland, 905 F. Supp. 371, 380 (E.D. Tex. 1995), aff’d, 101 F.3d 1095 (5th Cir. 1996) (“[T]here is a belief on the part of some property owners and the city council that mobile homes reduce land value.”); State v. Murray, 471 S.W.2d 460, 463 (Mo. 1971) (mobile homes “may be confined to mobile home parks, or may be excluded from residential districts . . . on the ground that they tend to stunt the growth potential of the land”). But see S. Burlington Cty. NAACP v. Mount Laurel Twp., 391 A.2d 935, 956–957 (N.J. Super. Ct. Law. Div. 1978), aff’d in part, rev’d in part on other grounds, 456 A.2d 390 (1983) (“In view of the development of the attractive, well-constructed mobile home designed and intended for permanent year-round dwelling and capable of being set in attractive surroundings in harmony with conventional residential development, it appears that [a mobile home exclusion] is no longer supported by the facts.”).
(25.) For example, McBride v. Town of Forestburgh, 388 N.Y.S.2d 940 (1976) (upholding a town zoning ordinance that required at least one-acre lots for homes).
(26.) See Daniel R. Mandelker, Zoning Barriers to Manufactured Housing, 48 Urb. Law. 233, 251–255 (2016). Examples include:
Iowa: Iowa Code Ann. § 335.30 (“A county shall not adopt or enforce zoning regulations or other ordinances which disallow the plans and specifications of a proposed residential structure solely because the proposed structure is a manufactured home.”).
Maine: Me. Rev. Stat. Tit. 30-A, § 4358 (“Municipalities shall permit manufactured housing to be placed or erected on individual house lots in a number of locations on undeveloped lots where single-family dwellings are allowed, subject to the same requirements as single-family dwellings. . . .”). (p.758)
Michigan: Mich. Comp. Laws Ann. §125.2307 (“A local government ordinance shall not contain . . . special use zoning requirements that apply only to, or excludes, mobile homes. A local government ordinance shall not contain a manufacturing or construction standard that is incompatible with, or is more stringent than, a standard promulgated by the federal department of housing and urban development pursuant to the national manufactured housing construction and safety standards act of 1974, 42 USC 5401 to 5426.”).
New Jersey: N.J. Stat. Ann. § 40:55D-104 (“A municipal agency shall not exclude or restrict, through its development regulations, the use, location, placement, or joining of sections of manufactured homes which are not less than 22 feet wide, are on land the title to which is held by the manufactured home owner, and are located on permanent foundations, unless those regulations shall be equally applicable to all buildings and structures of similar use.”).
(27.) See Dandridge v. Williams, 397 U.S. 471 (1970) (stating that “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court”).
(28.) The Ninth Circuit Court of Appeals has stated that the right to travel is not impermissibly burdened if the government fails to equalize transportation opportunities for the rich and poor. Monarch Travel Servs. v. Associated Cultural Clubs, 466 F.2d 552, 554 (9th Cir. 1972) (“[H]igher air tariffs will limit travel of those who cannot pay the price. A rich man can choose to drive a limousine; a poor man may have to walk. The poor man’s lack of choice in his mode of travel may be unfortunate, but it is not unconstitutional.”). In a later case, the Ninth Circuit upheld a policy of refusing to grant a driver’s license unless the applicant provided a Social Security number. The appeals court explained that there is no constitutional right to drive a car, and that “[b]urdens placed on travel generally, such as gasoline taxes, or minor burdens impacting interstate travel, such as toll roads, do not constitute a violation” of the right. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999); see also Mathew v. Honish, 233 Fed. Appx. 563 (7th Cir. 2007) (state driver licensing laws did not violate the right to travel).
(29.) See Timothy Baldwin, The Constitutional Right to Travel: Are Some Forms of Transportation More Equal than Others?, 1 N.W. J.L. & Soc. Pol’y 213 (2006). See also Roberta F. Mann, On the Road Again: How Tax Policy Drives Transportation Choices, 24 Va. Tax. Rev. 587 (2005); Paul Boudreaux, Vouchers, Buses, and Flats: The Persistence of Social Segregation, 49 Vill. L. Rev. 55 (2004).
(30.) For further information, contact the local school district. See, for example, Fee for Service Waiver Guidelines, Attleboro Public Schools, http://www.attleboroschools.com/central_office/transportation/fee_for_service_waiver_guidelines.
(31.) Fees that impede travel are constitutional so long as they are “based on some fair approximation of use of the facilities,” are “not excessive in relation to the benefits conferred,” and “do not discriminate against interstate commerce.” Nw. Airlines, Inc. v. County of Kent, 510 U.S. 355, 369 (1994); see also Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 102 (2d Cir. 2009) (ordering lower court to apply this test to assess the constitutionality of a highway toll).
(32.) See Nicole Stelle Garnett, The Road from Welfare to Work: Informal Transportation and the Urban Poor, 38 Harv. J. on Legis. 173, 192–194 (2001).
(33.) Saenz v. Roe, 526 U.S. 489 (1999).
(34.) Shapiro v. Thompson, 394 U.S. 618, 631 (1969).
(35.) Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (citing Crandall v. Nevada, 6 Wall. 35, 46 (1868)).
(36.) Id., citing Zobel v. Williams, 457 U.S. 55, 62 n.9 (1982).
(37.) Id. (quoting Dunn v. Blumstein, 405 U.S. 330, 340 (1972), quoting Shapiro v. Thompson, 394 U.S. 618, 634 (1969)).
(38.) Id. at 903–904. See, for example, Sosna v. Iowa, 419 U.S. 393 (1975) (upholding one-year residence requirement for maintaining an action for divorce because of state’s strong traditional interest in marriage and divorce). See Robert C. Farrell, Classifications that Disadvantage Newcomers and the Problem of Equality, 28 U. Rich. L. Rev. 547 (1994). Residency requirements for public schooling, including the validity of differential tuition for residents and nonresidents, are discussed in chapter 5 of this book.
(39.) Connelly v. Steel Valley School District, 706 F.3d 209, 214 (3d Cir. 2013) (teaching credit); Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898 (1986) (state employment and veterans).
(40.) See Tim Iglesias, Threading the Needle of Fair Housing Law in a Gentrifying City with a Legacy of Discrimination, 27 J. Affordable Housing & Community Dev. L. 51 (2018) (reporting that a lottery for 26 units of affordable housing in a San Francisco neighborhood elicited 1,900 applicants).
(41.) See 24 C.F.R. §§ 5.655, 982.207.
(42.) See Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 535 U.S. ___, 135 S. Ct. 2507 (2015). See also Zachary C. Freund, Perpetuating Segregation or Turning Discrimination on Its Head? Affordable Housing Residence Preferences as Anti-Displacement Measures, 118 Colum. L. Rev. 833 (2018).
(43.) See Hague v. CIO, 307 U.S. 496, 515 (1939) (explaining that streets and parks “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”).
(44.) Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972).
(45.) See Harry Simon, Towns Without Pity: A Constitutional and Historical Analysis of Official Efforts to Drive Homeless Persons from American Cities, 66 Tulane L. Rev. 631, 633–634 (1992).
(46.) Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 170 (1972) (quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1976)). In a later case, the Court reiterated the unconstitutionality of anti-loitering ordinances that either fail to provide notice of what behavior is prohibited or authorize discretionary decision making likely to lead to arbitrary enforcement. City of Chicago v. Morales, 527 U.S. 41, 51 (1999) (striking down a gang loitering statute as void for vagueness).
(47.) See National Law Center on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities at 24 (2016), https://www.nlchp. (p.760) org/documents/Housing-Not-Handcuffs. From 2006 to 2016, the number of cities reporting these bans increased 52% and 88%, respectively.
(48.) Modern-day anti-vagrancy laws have been successfully challenged on First, Fifth, and Eighth Amendment grounds. However, some of these laws are more narrowly tailored, prohibiting specified activities only at certain times or in certain places, and thus may survive judicial scrutiny.
Cases invalidating ordinances:
City of Chicago v. Morales, 527 U.S. 41, 51 (1999) (holding a gang loitering statute void for vagueness because the “definition of ‘loiter’ did not assist in clearly articulating the proscriptions of the ordinance.”).
Cutting v. City of Portland, Maine, 802 F.3d 79, 81 (1st Cir. 2015) (holding unconstitutional under the First Amendment a city ordinance prohibiting standing, sitting, or staying on median strips).
Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007) (holding that the Eighth Amendment prohibits punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being homeless; the Ninth Circuit vacated the decision after the parties settled the action and jointly sought dismissal of the appeal and withdrawal of the opinion). See Sarah Gerry, Jones v. City of Los Angeles: A Moral Response to One City’s Attempt to Criminalize, Rather than Confront, Its Homelessness Crisis, 42 Harv. C.R.-C.L. L. Rev. 239 (2007).
Casale v. Kelly, 710 F. Supp. 2d 347, 351 (S.D.N.Y. 2010) (holding New York City in contempt for continuously enforcing three unconstitutional loitering statutes for decades following judicial invalidation of those laws and despite numerous court orders to the contrary).
Cases upholding ordinances:
City of Cleveland v. McCardle, 12 N.E.3d 1169 (Ohio 2014) (ordinance that barred staying in public square between 10 p.m. and 5 a.m. without permit did not violate First Amendment).
Occupy Fresno v. County of Fresno, 835 F. Supp. 2d 849 (E.D. Cal. 2011) (ordinance barring loitering or being in park between 12 a.m. and 6 a.m. did not violate First Amendment).
Joel v. City of Orlando, 232 F.3d 1353, 1358–59 (11th Cir. 2000) (upholding ordinance that prohibited sleeping as rationally related to city’s interest in promoting aesthetics and public health and safety and not violative of the equal protection rights of the homeless).
Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996) (upholding ban on sitting or lying on a sidewalk during the day; the law did not ban this activity at night or in public parks).
Roulette v. City of Seattle, 850 F. Supp. 1442, 1450 (W.D. Wash. 1994), aff’d, 78 F.3d 1425 (9th Cir. 1996), opinion amended and superseded on denial of reh’g, 97 F.3d 300 (9th Cir. 1996), as amended on denial of reh’g and reh’g en banc (1996) (upholding ordinance that banned sitting or lying on public sidewalks in commercial areas during specified hours, finding no evidence that the city council “was targeting homeless people in a hostile and discriminatory fashion”).
Joyce v. City & County of San Francisco, 846 F. Supp. 843 (N.D. Cal. 1994). The court refused to enjoin San Francisco’s “Matrix Quality of Life Program,” (p.761) which criminalized such conduct as sitting on the sidewalk and sleeping in public. While an appeal from the trial court’s decision was pending, the mayor directed the chief of police to suspend enforcement of the program. In response, all citations were dismissed and all warrants were recalled, and the appeal was dismissed as moot because it was assumed that the Matrix Program had officially ended and was unlikely to be resumed. See Joyce v. City & County of San Francisco, 87 F.3d 1320 (9th Cir. 1996)). For a discussion, see Nancy Wright, Not in Anyone’s Backyard: Ending the “Contest of Nonresponsibility” and Implementing Long-Term Solutions to Homelessness, 2 Geo. J. on Fighting Poverty 163 (1995).
(49.) Congress has enacted legislation protecting the rights of persons with disabilities to access public services. These statutes are Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. At least some federal courts have held that a sidewalk is a service that must be made accessible when the locality undertakes construction or alteration. Moreover, the U.S. Supreme Court has held that persons with disabilities may sue to enforce their right of physical access to a courthouse. See Tennessee v. Lane, 541 U.S. 509 (2004). Persons of color are protected from discrimination under the Equal Protection Clause of the federal Constitution and federal civil rights laws barring discrimination in public accommodations.
(50.) See National Law Center on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities, at 22–23 (2016), https://www.nlchp.org/documents/Housing-Not-Handcuffs.
(51.) The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend. VIII.
(52.) Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), superseded by 920 F.3d 585, 603 (9th 2019) (denying petition for panel rehearing and rehearing en banc, and concluding that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to”). The Obama administration filed a statement of interest in the lawsuit, arguing that the Eighth Amendment bars criminalizing sleeping on the street when beds in public shelters are not available. See U.S. Department of Justice, Justice Department Files Brief to Address the Criminalization of Homelessness (Aug. 16, 2015), https://www.justice.gov/opa/pr/justice-department-files-brief-address-criminalization-homelessness. Earlier, in Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), the Ninth Circuit had concluded that “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]” for the homeless, Los Angeles could not enforce a similar ordinance against homeless individuals “for involuntarily sitting, lying, and sleeping in public,” but that decision was vacated due to a settlement between the parties and so was not binding.
(53.) Martin v. City of Boise, 902 F.3d at 1048 (quoting Jones v. City of Los Angeles, 444 F.3d at 1135–38).
(54.) Martin v. City of Boise, 902 F.3d at 1040–41. Likewise, a lower federal court held that it is illegal to arrest a person who is sleeping in public if the person lacks a permanent home and the locality does not provide adequate temporary indoor shelter. The court reasoned that criminalizing sleeping in public places—a normal and involuntary human act—effectively criminalizes the status of being poor and violates the Eighth Amendment. See Pottinger v. City of Miami, 810 F. Supp. 1551, 1554 (S.D. Fla. 1992). In Pottinger, homeless people living in Miami, Florida, sued the city to stop a “policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life—including sleeping and eating—in the public places where they are forced to live.” Finding that the homeless in Miami “have no realistic choice but to live in public places,” the district court held that it was a violation of the Eighth Amendment’s prohibition to criminalize doing otherwise innocent activity in public. Id. at 1563, 1584. As the district court explained:
[P]laintiffs have no place else to go and no place else to be. . . . This is so particularly at night when the public parks are closed. As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something for which they may not be convicted under the eighth amendment—sleeping, eating and other innocent conduct.
Id. at 1565. The district court further found that the city’s policy was a form of banishment violating a homeless person’s fundamental right to travel and to equal protection of the law. Id. at 1583.
(55.) Joel v. City of Orlando, 232 F.3d 1353, 1358–59 (11th Cir. 2000) (ban on camping on public property as applied to homeless person did not violate Eighth Amendment); Lehr v. City of Sacramento, 624 F. Supp. 2d 1218, 1234 (E.D. Cal. 2009) (enforcement of anti-camping ban against homeless persons did not violate Eighth Amendment).
Results in other lawsuits have been mixed. See, for example:
Alabama: Davison v. City of Tucson, 924 F. Supp. 989 (D. Ariz. 1996) (denying motion for preliminary injunction in challenge to ban on camping on city-owned property).
Arizona: Seeley v. State, 655 P.2d 803 (Ariz. Ct. App. 1982) (city ban on lying, sleeping, or sitting on public rights of way not unconstitutional).
California: Joyce v. City and County of San Francisco, 846 F. Supp. 843 (N.D. Cal. 1994) (refused preliminary injunction to stop arrest of persons engaged in camping or sleeping in public parks).
California: People v. Davenport, 222 Cal. Rptr. 736 (Cal. App. Dept. Super. Ct. 1985), cert. denied, 475 U.S. 1141 (1986) (ban on sleeping in certain public areas not unconstitutional).
Oregon: City of Portland v. Johnson, 651 P.2d 1384 (Or. Ct. App. 1982) (ban on camping in or upon sidewalk, street, alley, lane, or any public place not unconstitutionally vague or overbroad).
Rhode Island: Whiting v. Town of Westerly, 942 F.2d 18 (1st Cir. 1991) (ban on sleeping on public beach not unconstitutional).
(56.) 468 U.S. 288 (1984). If sleeping in public is part of a demonstration protesting the lack of housing for poor people, First Amendment rights are implicated. In that case, (p.763) sleeping may be prohibited only if the prohibition is a reasonable restriction on the time, place, or manner of speech and alternative means of expression remain available. Id. at 293; see also Occupy Fort Myers v. City of Fort Myers, 882 F. Supp. 2d 1320, 1328–30 (M.D. Fla. 2011). Disputes about the legality of anti-camping laws increased during the “Occupy” demonstrations and often were upheld in that context. “Occupy Wall Street” is the name of a loosely organized global movement which began on September 17, 2011, in Lower Manhattan to draw attention to growing income inequality in the United States and the influence of corporations on government, particularly in financial regulation. Many of the protests included camping sites set up by demonstrators in city centers and most famously in Zuccotti Park in Manhattan. See Occupy Solidarity Network, About, OccupyWallStreet: We are the 99% (Aug. 13, 2017), http://occupywallst.org/about/; see also Colin Moynihan, Wall Street Protest Begins, with Demonstrators Blocked, City Room: Blogging from the Five Boroughs (Sept. 17, 2011 4:26 PM), https://cityroom.blogs.nytimes.com/2011/09/17/wall-street-protest-begins-with-demonstrators-blocked/; Erik Tarloff, The Occupation, The Atlantic (Oct. 16, 2011), https://www.theatlantic.com/national/archive/2011/10/the-occupation/246755/. For decisions involving Occupy and the right to be in public spaces, see, for example, Watters v. Otter, 955 F. Supp. 2d 1178 (D. Idaho 2013); Henke v. Department of the Interior, 842 F. Supp. 2d 54 (D.D.C. 2012); Occupy Minneapolis v. County of Hennepin, 866 F. Supp. 2d 1062 (D. Minn. 2011); Occupy Fresno v. County of Fresno, 835 F. Supp. 2d 849 (E.D. Cal. 2011).
(57.) These regulations take the form of “metered street parking zones, permit-only parking zones, time restrictions, restrictions on vehicle operability, restrictions regarding licensing and registration, and even prohibitions directed specifically at vehicle habitation.” See T. Ray Ivey, The Criminalization of Vehicle Residency and the Case for Judicial Intervention via the Washington State Homestead Act, 42 Seattle U.L. Rev. 243, 244 (2018). Although the regulation may be civil, not criminal, the imposition of fees and fines could result in jail. Id. at 21 (discussing civil restrictions that allow for the conversion of unpaid, noncriminal violations into misdemeanors, having the compounding effect of dragging vehicle residents into the criminal justice system).
(58.) Desertrain v. City of Los Angeles, 754 F.3d 1147, 1157–58 (9th Cir. 2014). For further discussion, see Lindsay Walter, Judicial Limits in Addressing Homelessness: Desertrain v. City of Los Angeles, 6 Cal. L. Rev. Circuit 98 (2015). In 2016, it was estimated that at any point in time 11,000 people in Los Angeles, California, slept in cars, tents, or encampments for lack of better alternatives. See Los Angeles Homeless Services Authority, 2016 Homeless Count Results, at 12 (May 10, 2016), https://documents.lahsa.org/Planning/homelesscount/2016/factsheet/2016-HC-Results.pdf.
(59.) See, for example, Hershey v. City of Clearwater, 834 F.2d 937 (11th Cir. 1987); Allen v. City of Sacramento, 183 Cal. Rptr. 3d 654 (Ct. App. 2015); State v. Sturch, 82 Haw. 269 (Ct. App. 1996), as amended (June 27, 1996), cert. denied, 82 Haw. 360 (1996).
(60.) Katz v. United States, 389 U.S. 347, 353 (1967). See U.S. Const. Amend. IV (“The right of the people to be secure in their persons . . . shall not be violated.”). For further discussion, see Kevin Bundy, “Officer, Where’s My Stuff?”: The Constitutional (p.764) Implications of a De Facto Property Disability for Homeless People, 1 Hastings Race & Poverty L.J. 57 (2003).
(61.) Courts currently employ a two-prong test to determine whether an individual has a reasonable expectation of privacy. Under this test, an individual has a constitutionally protected interest if the person has exhibited an actual, subjective expectation of privacy and if that expectation is one that society is prepared to recognize as reasonable. See, for example, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).
(62.) Kincaid v. City of Fresno, 2006 WL 35442732 (E.D. Cal. 2006). The court entered a preliminary injunction to halt the city’s practice of seizing and destroying the possessions of homeless persons “on the spot” during sweeps of encampments variously located in a public space or on private property. The court later approved a $2.35 million class action settlement to create a medical and housing fund for 225 class members and to compensate those class members whose property had been destroyed. The settlement required the city to provide written notice “at least three days before the sweep of any encampment” and to store items that are seized for at least 90 days. See Farida Ali, Limiting the Poor’s Right to Public Space: Criminalizing Homelessness in California, 21 Geo. J. on Poverty L. & Pol’y 197, 226–227 (2014).
(63.) Pottinger v. City of Miami, 810 F. Supp. 1551, 1583 (S.D. Fla. 1992). Relatedly, a federal court in Washington, D.C., held that federal marshals looking for a fugitive acted unconstitutionally when they entered a shelter without a warrant and demanded identification from the homeless people sleeping inside. Comm. for Creative Non-Violence v. Unknown Agents of the U.S. Marshals Serv., 797 F. Supp. 7 (D.D.C. 1992).
(64.) California v. Greenwood, 486 U.S. 35 (1988) (warrantless seizure of trash deposited curbside permissible under the Fourth Amendment because the owner left the trash in public view and so there was no expectation of privacy).
(65.) Watters v. Otter, 955 F. Supp. 2d 1178 (D. Idaho 2013) (involving “Occupy Boise’s tent city”). See also Lyall v. Denver, 2018 WL 1470197 (D. Colo. 2018) (involving class action on behalf of homeless persons living on Denver’s streets). But see Carr v. Oregon Department of Transportation, 2014 WL 3741934 (D. Ore. 2014) (dismissing due process challenge to seizure of homeless person’s camping property). The community caretaking exception allows for the seizure of unattended property in public places when the seizure is made to protect the property rather than to investigate a crime. Additional exceptions to the Fourth Amendment are discussed later in this chapter.
(66.) Lavan v. City of Los Angeles, 693 F.3d 1022, 1024 (9th Cir. 2012), cert. denied, 570 U.S. 918 (2013). The preliminary injunction barred the City from:
(1.) Seizing property in Skid Row absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime, or contraband; and
(2.) Absent an immediate threat to public health or safety, destruction of said seized property without maintaining it in a secure location for a period of less than 90 days.
(67.) See, for example, Pottinger v. City of Miami, 810 F. Supp. 1551, 1570 & n.30 (S.D. Fla. 1992) (holding that seizure of homeless person’s belongings from public area (p.765) violated Fourth and Fifth Amendments). But see Stone v. Agnos, 960 F.2d 893 (9th Cir. 1992) (upholding constitutionality of seizure and destruction of homeless person’s property during arrest for sleeping on park bench); see also Commonwealth v. Gordon, 640 A.2d 422 (Pa. Super. Ct. 1994), appeal granted, 655 A.2d 467 (1995), rev’d, 683 A.2d 253 (1996) (seizure of homeless person’s belongings in abandoned building must comply with constitutional protections). The law is different if the person is sleeping on private property; then the person is considered to be a trespasser. See D’Aguanno v. Gallagher, 50 F.3d 877 (11th Cir. 1995).
(68.) Kentucky v. King, 563 U.S. 452 (2011) (police may not create grounds for warrantless search by violating the Fourth Amendment).
(69.) Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th Cir. 2012), cert. denied, 133 S. Ct. 2855 (2013). A settlement in Tucker v. Oregon Department of Transportation, No. 11-466 (D. Or. Apr. 15, 2011), required the Oregon Department of Transportation to enact regulations providing at least 10 days’ notice before removing personal property from a state right of way. Even before the settlement, the state agency was required to store property taken from a state right of way for at least 30 days and permit property owners to schedule appointments to claim it. See Or. Admin. R. § 734-035-0030 (1990); see also Panzella v. Sposato, 863 F.3d 210 (2d Cir. 2017) (gun owner was entitled to prompt hearing before neutral decision maker following seizure of rifles in connection with temporary order of protection issued by family court).
(70.) The U.S. Supreme Court, when considering the reasonableness of a search, begins with the basic rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009), quoting Katz v. United States, 389 U.S. 347, 357 (1967).
(71.) See Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016) (Fourth Amendment permitted warrantless breath tests but not warrantless blood tests incident to arrests for drunk driving).
(72.) Arizona v. Gant, 556 U.S. 332, 344 (2009) (warrantless search of vehicle not reasonable when suspect handcuffed in patrol car; vehicle search incident to arrest justified by the “possibility of access [by the arrestee] or the likelihood of discovering offense-related evidence”).
(73.) Carroll v. United States, 267 U.S. 132 (1925) (warrantless vehicular search was permissible during course of a lawful arrest); Rakas v. Illinois, 439 U.S. 128, 154 n.2 (1978) (Powell, J., concurring) (“There are sound reasons for this distinction: Automobiles operate on public streets; they are serviced in public places; they stop frequently; they are usually parked in public places; their interiors are highly visible; and they are subject to extensive regulation and inspection. The rationale of the automobile distinction does not apply, of course, to objects on the person of an occupant.”).
(74.) United States v. Ross, 456 U.S. 798 (1982).
(75.) Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018).
(76.) California v. Carney, 471 U.S. 386, 393 (1985) (because of their inherent mobility, the vehicular exception applies to motor homes, even when they are used as dwellings). (p.766) See, for example, United States v. Ervin, 907 F.2d 1534, 1538–39 (5th Cir. 1990) (warrantless search of defendant’s mobile home was valid because the mobile home was not parked in a place regularly used for residential purposes, it was not occupied as a home, and it was readily mobile); United States v. Markman, 844 F.2d 366, 369 (6th Cir. 1988) (warrantless search of mobile home was valid because vehicle had out-of-state license plates, was parked in a state other than the owner’s state of residence, and was parked in a driveway connected to a public street). But see State v. Durbin, 489 N.W.2d 655, 659 (Wis. Ct. App. 1992) (vehicular exception did not apply to an unhitched camper trailer in the owner’s backyard that was not readily movable and appeared to be used as a home).
(77.) California v. Carney, 471 U.S. 386, 394 n.3 (1985). Factors that may be relevant to determine whether a warrant would be required include the mobile home’s location, whether it is readily mobile or elevated on blocks, whether it is licensed, whether it is connected to utilities, and if it has convenient access to a public road.
(78.) Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (referring to consent as a well-settled exception to the requirements of a warrant or probable cause for a search).
(79.) The surrounding environment also is relevant, including whether the police threaten, intimidate, or make false promises or if the individual is in custody. United States v. Drayton, 536 U.S. 194, 207 (2002) (consent to search was voluntary because the officers were not coercive, even though the defendants were on a bus and they were not informed of their right to refuse); United States v. Bearden, 780 F.3d 887, 895 (8th Cir. 2015).
(80.) See Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. 527 (2017).
(81.) United States v. Jones, 565 U.S. 400, 404 (2012).
(82.) Carpenter v. United States, 585 U.S. ___, 138 S. Ct. 2206 (2018). The Court explicitly declined to extend the third-party doctrine, which holds that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” id. at 2216 (quoting Smith v. Maryland, 442 U.S. 735, 743–744 (1979)), to seven days’ worth of historical cell phone location information. However, the Court emphasized that its decision was narrow, and it declined to consider whether a person would have a legitimate expectation of privacy in real-time cell-site location information.
(83.) Carpenter v. United States, 585 U.S. ___, 138 S. Ct. 2206 (2018).
(84.) Brown v. Texas, 443 U.S. 47 (1979); Erin Murphy, Manufacturing Crime: Process, Pretext, and Criminal Justice, 97 Geo. L.J. 1435, 1468–71 (2009). As of 2018, 26 states have enacted “stop and identify” statutes in some form. Immigrant Legal Res. Center, Chart of Stop-and-Identify State Statutes (Feb. 1, 2018), https://www.ilrc.org/chart-stop-and-identify-state-statutes. Some states additionally list “failure to identify” as a ground for an officer to have reasonable suspicion of criminal loitering. Id.
(85.) 461 U.S. 352, 358–361 (1983).
(86.) Hiibel v. Sixth Judicial Circuit Court of Nevada, Humboldt County, 542 U.S. 177, 184–185 (2006). A survey conducted in 2004 by the National Law Center on (p.767) Homelessness & Poverty recorded that 59.8% of homeless people who were stopped by police for minor offenses and could not produce ID suffered harassment or arrest. See National Law Center on Homelessness & Poverty, Photo Identification Barriers Faced by Homeless Persons: The Impact of September 11, at 5 (Apr. 2004), https://www.nlchp.org/documents/ID_Barriers.
(87.) The practice was enjoined in Los Angeles, California. See Justin v. City of Los Angeles, 2000 WL 1808426, at *13 (C.D. Cal. 2000). But it persists in many places. See Erika Aguilar, How having an ID card can make or break a homeless person’s chances of recovery, Southern California Public Radio (June 3, 2015), http://www.scpr.org/news/2015/06/03/52147/how-an-id-card-can-make-or-break-a-homeless-person/.
(88.) REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 32, amending 8 U.S.C. ch. 12. In 2013, the U.S. Department of Homeland Security announced a phased-in enforcement of the act. See U.S. Department of Homeland Security, REAL ID, available at https://www.dhs.gov/real-id.
(89.) Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-113, May 11, 2005, 119 Stat. 231, § 202(c).
(90.) 6 C.F.R. § 37.11(c).
(91.) Niki Ludt, Justice Requires that Legal ID Be Affordable to All, Face to Face (Feb. 11, 2015), http://facetofacegermantown.org/news/justice-requires-legal-id-affordable-niki-ludt/ (“Thirty-three states . . . provide for waivers of non-driver’s ID fees, usually based on age, indigence, homelessness, or some combination thereof.”).
(92.) See, for example, Imani Gandy, Well Actually, It’s Pretty Hard for Some People to Get a Photo ID So They Can Vote, Rewire (Oct. 16, 2014), https://rewire.news/ablc/2014/10/16/well-actually-pretty-hard-people-get-photo-id-just-vote/.
(93.) 7 C.F.R. § 273.2(f)(1)(vii).
(94.) Food Research & Action Center, SNAP/Food Stamp Program Rights for People Experiencing Homelessness, https://web.archive.org/web/20161018021005/http://frac.org/federal-foodnutrition-programs/snapfood-stamps/homeless-persons-rights-under-the-snapsnapfood-stamp-program/; 7 C.F.R. § 273.2(f)(4)(ii).
(96.) National Law Center on Homelessness & Poverty, Photo Identification Barriers Faced by Homeless Persons: The Impact of September 11, at 15 (Apr. 2004), https://www.nlchp.org/documents/ID_Barriers. See United States Department of Health and Human Services, Office of Family Assistance, Temporary Assistance for Needy Families (TANF), http://www.acf.hhs.gov/programs/ofa/programs/tanf.
(97.) State of Rhode Island Department of Human Services, RI Works Program Verification Checklist, http://www.dhs.ri.gov/assets/documents/RHODE%20ISLAND%20WORKS%20PROGRAM%20VERIFICATION%20CHECKLIST.pdf.
(98.) U.S. Department of Agriculture Food and Nutrition Service, Women, Infants and Children (WIC), http://www.fns.usda.gov/wic/who-gets-wic-and-how-apply.
(99.) Texas WIC, What to Bring to Your WIC Appointment, http://texaswic.dshs.state.tx.us/wiclessons/docs/What-to-bring-to-your-appointment_English.pdf.
(100.) 8 U.S.C. § 1304(e).
(101.) See Jonathan Weinberg, Demanding Identity Papers, 55 Washburn L.J. 197, 213–214 (2015).
(102.) 8 U.S.C. § 1357(g). See ACLU, Know Your Rights: Immigrants’ Rights, https://www.aclu.org/know-your-rights/immigrants-rights/#ive-been-stopped-by-police-or-ice (“If you are not a U.S. citizen and an immigration agent requests your papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.”).
(103.) Arizona v. United States, 567 U.S. 387, 410 (2012). See Jennifer M. Chacón, Policing Immigration After Arizona, 3 Wake Forest J.L. & Pol’y 231, 245 (2013) (“[T]he invitation to agents to police in this way will inevitably lead to the exercise of judgment in ways that are tainted by racial stereotypes.”). That same year, a federal appeals court granted a preliminary injunction barring the county sheriff from detaining persons based solely on reasonable suspicion or knowledge of their unlawful presence in the country. Rather, an extended detention required further evidence of criminal activity because “unlike illegal entry, mere unauthorized presence in the United States is not a crime.” Melendres v. Arpaio, 695 F.3d 990, 1000–01 (9th Cir. 2012).
(104.) Border Security and Immigration Enforcement Improvements, Executive Order No. 13767, 82 Fed. Reg. 8793, § 10 (Jan. 25, 2017); Enhancing Public Safety in the Interior of the United States, Executive Order No. 13768, § 10 (Jan. 25, 2017). The latter executive order also sought to withhold funding from “sanctuary jurisdictions” that “willfully refuse to comply” with 8 U.S.C. § 1373, which requires communication between government agencies and federal immigration officials. This portion of the executive order has been challenged in federal court. See City & Cty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) (holding that the President could not constitutionally withhold funds appropriated by Congress but remanding to the district court to determine the proper scope of an injunction). See Amanda Sakuma, Donald Trump’s Plan to Outsource Immigration Enforcement to Local Cops, The Atlantic (Feb. 18, 2017), https://www.theatlantic.com/politics/archive/2017/02/trump-immigration-enforcement/517071/.
(105.) See, for example, Immigrant Defense Project, Know Your Rights with ICE (Jan. 2018), https://www.immigrantdefenseproject.org/wp-content/uploads/2016/12/IDP-ICE-Raids-Flyer-ENG-Jan-13-2018.pdf; Catholic Immigration Network, Know Your Rights: A Guide to Your Rights When Interacting with Law Enforcement, https://cliniclegal.org/resources/know-your-rights-law-enforcement; ACLU, Know Your Rights: Immigrants’ Rights, https://www.aclu.org/know-your-rights/immigrants-rights/#ive-been-stopped-by-police-or-ice.
(106.) Florida v. Bostick, 501 U.S. 429, 431, 437 (1991).
(107.) Illinois v. Wardlow, 528 U.S. 119, 123–124 (2000).
(108.) See, for example, United States v. Franklin, 323 F.3d 1298, 1302 (11th Cir. 2003).
(109.) See, for example, Garrett Chase, The Early History of the Black Lives Movement, and the Implications Thereof, 18 Nev. L.J. 1091 (2018).
(110.) See, for example, Commonwealth v. Warren, 475 Mass. 530, 538–540 (2016) (noting reports that “black males in Boston are disproportionately and repeatedly targeted. . . . Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.”).
(111.) ACLU Apps to Record Police Conduct, https://www.aclu.org/issues/criminal-law-reform/reforming-police-practices/aclu-apps-record-police-conduct.
(112.) 18 U.S.C. § 2511(2)(d).
(113.) The states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington. See Alexander Shaaban, Officer! You Are on Candid Camera: Why the Government Should Grant Private Citizens an Exemption from State Wiretap Laws When Surreptitiously Recording On-Duty Officers in Public, 42 Western St. L. Rev. 202 (2015).
(114.) For example, in Texas, persons may be charged who “with criminal negligence interrupt, disrupt, impede, or otherwise interfere with” the work of law enforcement as well as many other government officials. Tex. Penal Code Ann. § 38.15 (2015); see Berrett v. State, 152 S.W.3d 600, 604–605 (Tex. Ct. App. 2004) (moving one’s arms and continuing to film during arrest constituted interference). Kansas and New Mexico have similar statutes. See Ky. Rev. Stat. Ann. § 21-5904(a)(3) (2014) (potential felony for “knowingly obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty”); N.M Stat. Ann. § 30-22-1 (1978) (misdemeanor for “knowingly obstructing, resisting or opposing any officer of this state or any other duly authorized person serving or attempting to serve or execute any process or any rule or order of any of the courts of this state or any other judicial writ or process”).
(115.) Lower courts that do not protect the right to record police activity tend to rely on the 1972 decision in Colten v. Kentucky, where the Court rejected a First Amendment challenge to a conviction for disorderly conduct when the accused refused “to move on after being directed to do so,” explaining that the accused “had no constitutional right to observe the issuance of a traffic ticket.” 407 U.S. 104, 109 (1972). However, in 1987, the Court distinguished Colten when faced with a city ordinance that made it unlawful to interrupt a police officer “in the execution of his duty,” finding the ordinance to be overbroad under the First Amendment because it impermissibly criminalized protected speech and could not be upheld as a regulation of disorderly conduct. The Court stated: “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” City of Houston, Texas v. Hill, 482 U.S. 451, 462–463 (1987).
During the Obama administration, the Civil Rights Division of the U.S. Department of Justice submitted a Statement of Interest in a pending criminal proceeding setting forth guidance on the right to record police activity. See Statement of Interest of the United States, Sharp v. Balt. City Police Department, No. (p.770) 1:11-cv-02888-BEL, *1 (D. Md. Jan. 10, 2012), http://www.justice.gov/crt/about/spl/documents/Sharp_SOI_1-10-12.pdf.
(116.) The case law includes:
Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) (“Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.”).
Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014) (“Importantly, an individual’s exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed or in place.”).
American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 595–596 (7th Cir. 2012), cert. denied, 568 U.S. 1027 (2012) (preliminary injunction entered blocking enforcement of state eavesdropping statute as applied to “people who openly record police officers performing their official duties in public” and, specifically, the ACLU’s “Chicago-area ‘police accountability program,’ which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders”).
Glik v. Canniffe, 655 F.3d 78 (1st Cir. 2011) (person on public street had clearly established First Amendment right to film police making arrest in a public space, and his Fourth Amendment right was violated by his arrest without probable cause).
Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (district court erred in finding no First Amendment right to videotape police enforcement action, but no showing right was violated).
Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (issue of material fact existed whether person seeking to record police activity “was assaulted and battered by a Seattle police officer in an attempt to prevent or dissuade him from exercising his First Amendment right to film matters of public interest”).
Courts also have located protection of the right in the Fourth Amendment. For example, Williamson v. Mills, 65 F.3d 155 (11th Cir. 1995) (no qualified immunity from Fourth Amendment false arrest claim arising from arrest without probable cause of festival participant taking photos of police officers).
See Clay Calvert, The First Amendment Right to Record Images of Police in Public Places: The Unreasonable Slipperiness of Reasonableness & Possible Paths Forward, 3 Tex. A&M L. Rev. 131 (2015); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335 (2011); see also American Civil Liberties Union of Pennsylvania, Know Your Rights When Taking Photos and Making Video and Audio Records, https://www.aclupa.org/issues/policepractices/your-right-record-and-observe-police/taking-photos-video-and-audio/.
(117.) Cases include:
Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017) (First Amendment protects recording of police activity, but detainee did not have clearly established right to videotape activity).
Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (was clearly established “that police officers do not have a reasonable expectation of privacy when recording conversations with suspects”; it was not clearly established that a person had “a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or (p.771) arresting an individual for videotaping police during the stop would violate the First Amendment”).
Szymecki v. Houck, 353 Fed. Appx. 852, 853 (4th Cir. 2009) (First Amendment right “to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct”).
Of course, once the federal courts in a jurisdiction hold that police interference with peaceful video recording of their activities violates the First Amendment, any later such interference by the police would subject them to money damages.
(119.) The least expensive three-month fee is $11 per quarter. See United States Postal Service, Notice 123, Price List (2017), http://pe.usps.com/text/dmm300/notice123.htm#2568215.
(120.) United States Postal Service, Domestic Mail Manual § 508-4.1.1 (2014), http://pe.usps.com/cpim/ftp/manuals/dmm300/508.pdf. See Currier v. Potter, 379 F.3d 716, 730–731 (9th Cir. 2004).
(121.) United States Postal Service, Postal Operations Manual, Issue 9 § 843.1 (2013), https://www.apwu.org/sites/apwu/files/resource-files/POM%209%20Postal%20Operations%20Manual%20%5Bupdated%20through%2010-13%5D.pdf.
(122.) United States Postal Service, U.S. Postal Bulletin D930 (June 23, 1990); Postal Regulatory Commission, Report on Universal Postal Service and the Postal Monopoly (1996), http://www.prc.gov/docs/61/61628/USO%20Report.pdf (“[T]he Postal Service enjoys considerable discretion to determine the nature and location of postal facilities by which access will be provided.”); United States Postal Service, Domestic Mail Manual 508, Section 6, http://pe.usps.com/text/dmm300/508.htm#wp1052038 (“General delivery is normally available at only one facility under the administration of a Post Office with multiple facilities.”).
(123.) Currier v. Potter, 379 F.3d 716 (9th Cir. 2004). Relatedly, the County of San Francisco’s use of single-point delivery (leaving a mailbag with building management to distribute among tenants), rather than centralized delivery (delivering mail directly to individual tenant mailboxes), was found not to violate the equal protection rights of tenants living in single-room-occupancy hotels. City & Cty. of San Francisco v. U.S. Postal Serv., 546 Fed. Appx. 697 (9th Cir. 2013).
(124.) Currier v. Potter, 379 F.3d 716, 722 (9th Cir. 2004).
(125.) See Sarah Golabek-Goldman, Ban the Address: Combating Employment Discrimination Against the Homeless, 126 Yale L.J. 1788 (2017).
(126.) American Library Association, Extending Our Reach: Reducing Homelessness Through Library Engagement, http://www.ala.org/aboutala/offices/extending-our-reach-reducing-homelessness-through-library-engagement. See also Ellyn Ruhlmann, A Home to the Homeless, American Libraries (Nov. 24, 2014), http://americanlibrariesmagazine.org/2014/11/24/a-home-to-the-homeless/; Richard Gunderman & David C. Stevens, How Libraries Became the Front Line of America’s Homelessness Crisis, Washington Post (Aug. 19, 2015), https://www. (p.772) washingtonpost.com/posteverything/wp/2015/08/19/how-libraries-became-the-front-line-of-americas-homelessness-crisis/.
(127.) See, for example, Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1247 (3d Cir. 1992) (discussing library rules of Morristown Township, New Jersey, which provided that patrons must conform their “dress and personal hygiene . . . to the standard of the community for public places”); see also Madeleine R. Stoner, The Civil Rights of Homeless People: Law, Social Policy, and Social Work Practice, at 165 (Aldine 1995) (discussing removal of homeless persons from public libraries in Las Vegas); Sanford Berman, Jean E. Coleman Library Outreach Lecture, Classism in the Stacks: Libraries and Poverty, American Library Association (2005), http://www.ala.org/offices/olos/olosprograms/jeanecoleman/05berman.
(128.) Kreimer v. Bureau of Police, 958 F.2d 1242, 1264 (3d Cir. 1992); see also Neinast v. Board of Trustees of the Columbus Metropolitan Library, 346 F.3d 585 (6th Cir. 2003) (barring library users who did not wear shoes); Lu v. Hulme, 133 F. Supp. 3d 312, 321 (D. Mass. 2015) (barring library users from bringing “garbage” or “articles with a foul odor” into the facility).
(129.) Armstrong v. District of Columbia Public Library, 154 F. Supp. 2d 67, 78–79 (D.D.C. 2001) (barring patrons based on “objectionable” appearance violated Constitution).
(130.) Ruth Graham, Long Overdue: Why Public Libraries are Finally Eliminating the Late-Return Fine, Slate (Feb. 6, 2017), http://www.slate.com/articles/arts/culturebox/2017/02/librarians_are_realizing_that_overdue_fines_undercut_libraries_missions.html.
(131.) Carol Pogash, In San Jose, Poor Find Doors to Library Closed, N.Y. Times (Mar. 30, 2016), http://www.nytimes.com/2016/03/31/us/in-san-jose-poor-find-doors-to-library-closed.html?_r=0.
New York in 2017 announced a “forgiveness program” giving a library user a one-time amnesty to restore library privileges that had been stopped due to unpaid overdue fees. See New York Public Library, Get a New Start at NYC Libraries, http://nyclibraries.org/newstart/.
(132.) Anne Barnard & Jo Craven McGinty, How One Overdue Book Can Hurt a Credit Record, N.Y. Times (Dec. 26, 2007), http://www.nytimes.com/2007/12/26/nyregion/26library.html.
(133.) See American Library Association, President’s budget proposal to eliminate federal library funding “counterproductive and short-sighted,” ALA News (Apr. 16, 2017), http://www.ala.org/news/press-releases/2017/03/president-s-budget-proposal-eliminate-federal-library-funding; Loida Garcia-Febo, Federal Budget Includes Big Gains for Libraries, American Libraries (Sept. 28, 2018), https://americanlibrariesmagazine.org/blogs/the-scoop/federal-budget-includes-big-gains-libraries/ (reporting that “#FundLibraries advocacy succeeds at protecting vital programs”); American Library Association, White House budget proposal continues to miscalculate the values of libraries, ALA News (Feb. 12, 2018), http://www.ala.org/news/press-releases/2018/02/white-house-budget-proposal-continues-miscalculate-value-libraries; Andrew Albanese, In FY 2020 Budget Proposal, Trump Renews Bid to End Federal Library Funding, Publishers Weekly (p.773) (Mar. 11, 2019), https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/79496-in-fy2020-budget-proposal-trump-renews-bid-to-end-to-federal-library-funding.html. See generally Amy K. Garner, Public Libraries in the Community, 13 I/S J.L. & Pol’y for Info. Soc’y 1 (2016) (discussing the democratic importance of public libraries and noting their increased use during the Great Recession).
(135.) The owners of private shopping centers may regulate expressive activities such as handbilling without running afoul of the First Amendment to the federal Constitution. The U.S. Supreme Court has reasoned that it would be an “unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist.” Lloyd Corp. v. Tanner, 407 U.S. 551, 567 (1972).
Most state constitutions also permit private property owns to restrict speech. See Steven P. Aggergaard, When “Public Space” Isn’t Public: Shopping Malls May be the New Town Squares in Many Respects, But in Minnesota and Many Other States, Citizens Leave Their Free Speech Rights at the Door, 72 Bench & B. Minn. 28, 29–30 (2015) (citing as examples State v. Wickland, 589 N.W.2d 793 (Minn. 1999), and Jacobs v. Major, 407 N.W.2d 832 (Wis. 1987)).
However, several state constitutions, including those of California and New Jersey, have been interpreted to protect a person’s right to engage in some expressive activity in the common areas of privately-owned shopping centers. See, for example, N.J. Coalition Against War in the Middle East v. J.M.B. Realty Corp., 650 A.2d 757, 781 (N.J. 1994) (noncommercial leafleting); Bock v. Westminster Mall, 819 P.2d 55 (Colo. 1991) (distribution of pamphlets and solicitation of signatures regarding U.S. foreign policy); Batchelder v. Allied Stores Int’l, 445 N.E.2d 590, 595 (Mass. 1983) (distribution of material and solicitation of signatures in support of presidential candidate); Alderwood Associates v. Washington Environmental Council, 635 P.2d 108, 117 (Wash. 1981) (soliciting signatures to qualify an initiative for an upcoming election); Robins v. Pruneyard Shopping Center, 592 P.2d 341, 347 (Cal. 1979), aff’d, 447 US 74, 79 (1980) (solicitation of signatures for a petition to Congress). See Helen Hershkoff, “Just Words”: Common Law and the Enforcement of State Constitutional Social and Economic Rights, 62 Stan. L. Rev. 1521, 1565 (2010) (discussing state law treatment of property owner’s right to exclude speakers).
(136.) See, for example, Timothy Williams, Courts Sidestep the Law, and South Carolina’s Poor Go to Jail, N.Y. Times (Oct. 12, 2017), https://www.nytimes.com/2017/10/12/us/south-carolina-jail-no-lawyer.html (reporting that police arrested a homeless man 270 times for trespassing because he was near or at a fast-food restaurant or convenience store).
(137.) See, for example, Erik Sherman, Another Starbucks Refused to Let a Black Customer Use the Bathroom, Inc. (Apr. 18, 2018), https://www.inc.com/erik-sherman/another-starbucks-racism-video-training-will-be-harder-than-management-expected. (p.774) html; Chad Oliver, Good Question: Restaurant Bathrooms for Customers Only?, NBC2 News (May 6, 2014), http://www.nbc-2.com/story/25446355/good-question-restaurant-bathrooms-for-customers-only.
(138.) See Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA Rev. 295, 312, 315 (1991):
There is no law against urinating—it is a necessary and desirable human activity. However, there is a law against urinating in public, except in the specially designated premises of public restrooms. . . . If urinating is prohibited in public places (and if there are no public lavatories) then the homeless are simply unfree to urinate.
(139.) Mike Davis, Afterword—A Logic Like Hell’s: Being Homeless in Los Angeles, 39 UCLA L. Rev. 325, 330 (1991). For further discussion, see Irus Braverman, Loo Law: The Public Washroom as a Hyper-Regulated Place, 20 Hastings Women’s L.J. 45 (2009).
(140.) Marc L. Roark, Homelessness at the Cathedral, 80 Mo. L. Rev. 53, 109 (2015).
(141.) 42 U.S.C. § 2000a (“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, . . . without discrimination or segregation on the ground of race, color, religion, or national origin.”); see also Angela D. Hooton, Constitutional Review of Affirmative Action Policies for Women of Color: A Hopeless Paradox?, 15 Wis. Women’s L.J. 391, 406–407 (2000) (“[I]f an African-American is denied entrance to the . . . bathroom on the basis of race, there is public and judicial outrage.”).
(142.) Kelly Levy, Equal, But Still Separate?: The Constitutional Debate of Sex-Segregated Public Restrooms in the Twenty-First Century, 32 Women’s Rts. L. Rep. 248 (2011); see also G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (2017). In 2017, the Trump administration issued guidance documents on transgender access to public school bathrooms, reversing an earlier guidance issued by the Obama administration that supported civil rights protection for transgender children. See Emma Green, The Federal Government’s Reversal: Let the States Deal with Transgender Kids, The Atlantic (Feb. 22, 2017), https://www.theatlantic.com/politics/archive/2017/02/transgender-guidance/517530.
(143.) See, for example, Carcaño v. McCrory, 203 F. Supp. 3d 615 (2016) (school preliminarily enjoined from restricting bathroom use based on persons’ biological sex as defined by birth certificates).
(144.) See, for example, Gray v. City of Kern, 2015 WL 7352302 (E.D. Cal. Nov. 19, 2015), aff’d in part, rev’d in part and remanded, 704 Fed. Appx. 649 (9th Cir. 2017).
(145.) National Conference of State Legislatures, Breastfeeding State Laws (June 5, 2017), http://www.ncsl.org/research/health/breastfeeding-state-laws.aspx.
(146.) See Charity R. Clark & Elizabeth R. Wohl, Breastfeeding Laws in Vermont: A Primer, 34 Vt. Bar J. 36, 38 n.8 (2008).
(147.) Conn. Gen. State § 53-34b (1997) (“No person may restrict or limit the right of a mother to breast-feed her child”); Vt. Stat. Ann. Tit. 9 § 4502(j) (2002) (“Notwithstanding any other provision of law, a mother may breastfeed her child in any place of public accommodation in which the mother and child would otherwise have a legal right to be.”); La. Rev. Stat. Ann. § 2247.1(C) (2001) (“It is discriminatory practice in connection with public accommodation for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation . . . on the grounds that the individual is a mother breastfeeding her baby.”); Wis. Stat. Ann. §253.165 (In a location where the mother and child are otherwise authorized to be “. . . no person may prohibit a mother from breast-feeding her child, direct the mother to move to a different location to breast-feed her child, direct a mother to cover her child or breast while breast-feeding, or otherwise restrict a mother from breast-feeding her child. . . .”).
(148.) See Michelle Gilman & Rebecca Green, The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization, 42 N.Y.U. L. & Soc. Change 253, 266 (2018):
On any given day in the United States, approximately 117,600 people seek work as day laborers in jobs such as construction, landscaping, roofing, and painting, as well as in restaurants and nail salons. Employers typically hire day laborers on a day-to-day basis at a public site (such as a gas station, street corner, or home improvement store parking lot), where as many as two hundred workers may gather. The employer and worker negotiate a verbal, short-term employment agreement. Day-labor markets are usually unregulated, and workers are paid in cash; this is “temporary work in which the work, and often the workers, lack documentation.” Earnings are variable, but the median wage for day laborers is $10 per hour, meaning that most day laborers remain below the poverty level, as their annual earnings rarely exceed $15,000. The market for day labor is driven by employer demands for worker flexibility, a downtick in industrial and manufacturing jobs, and the number of migrant workers willing to accept payment below market and legally mandated rates.
(149.) See Elizabeth J. Kennedy, The Invisible Corner: Expanding Workplace Rights for Female Day Laborers, 31 Berkeley J. Emp. & Lab. L. 126, 132–133 (2010):
Day labor markets exhibit fluid dimensions, with new workers entering the market and other workers leaving it each day. Day laborers primarily search for work on a full-time basis, and the vast majority (eighty-three percent) relies on day labor as their sole source of income. Those looking for work in the male-dominated construction and landscaping industries are organized informally in parking lots and on street corners, or formally by temporary agencies or day labor centers—often run by a non-profit or faith-based organization in partnership with local government agencies. Only twenty-one percent of day laborers search for work at a day labor worker center. The others find work by standing at informal sites, such as in front of businesses (24 percent), home improvement stores (22 percent), gas stations (10 percent) and on busy streets (8 percent).
(150.) See Scott L. Cummings, Litigation at Work: Defending Day Labor in Los Angeles, 58 UCLA L. Rev. 1617 (2011).
(151.) Cases preliminarily enjoining or invalidating “day laborer” bans:
Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013).
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011).
Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 128 F. Supp. 3d 597 (E.D.N.Y. 2015), aff’d, 868 F.3d 104 (2d Cir. 2017).
Doe v. Village of Mamaroneck, 462 F. Supp. 2d 520 (S.D.N.Y. 2006).
Jornaleros de Las Palmas v. City of League City, 945 F. Supp. 2d 779 (S.D. Tex. 2013).
(152.) Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981); Goldstein v. Town of Nantucket, 477 F. Supp. 606, 608 (D. Mass. 1979). But see Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (city may ban nude dancing).
(153.) Pence v. City of St. Louis, Mo., 958 F. Supp. 2d 1079 (E.D. Mo. 2013) (granting injunction preventing the enforcement of a St. Louis ordinance requiring that street performers have a permit).
(154.) See Ward v. Rock Against Racism, 491 U.S. 781 (1989); Carew-Reid v. Metropolitan Transp. Auth., 903 F.2d 914 (2d Cir. 1990). But see Casey v. City of Newport, R.I., 308 F.3d 106 (1st Cir. 2002) (holding total ban on amplification violated First Amendment).
(155.) See, for example, Berger v. City of Seattle, 569 F.3d 1029, 1053 (9th Cir. 2009) (permit requirement before performing was not narrowly tailored and rule allowing performers passively but not actively to solicit donations was content neutral); Goldstein v. Town of Nantucket, 477 F. Supp. 606 (D. Mass. 1979) (transient vendor law as applied to musician infringed First Amendment rights).
(156.) See, for example, Philadelphia Code, Title 9, Chapter 9-203, http://www.phila.gov/philacode/html/_data/title09/CHAPTER_9_200_COMMERCIAL_ACTIV/9_203_Street_Vendors_.html (defining a street vendor as “[a]ny person travelling by foot, wagon, motor vehicle or any other type of conveyance from place to place, house to house or street to street or on property owned or controlled by the City of Philadelphia carrying, conveying, or transporting goods, wares or merchandise and offering and exposing them for sale. . . .”).
(157.) See Rob Frommer & Alex Montgomery, Street vending and the American dream, Los Angeles Daily News (Aug. 6, 2018), https://www.dailynews.com/2018/08/05/street-vending-and-the-american-dream/; Dick M. Carpenter II, Street Vending in the United States: A Unique Dataset from a Survey of Street Vendors in America’s Largest Cities, 20 Cityscape: A Journal of Policy Development & Research 245 (2018), https://www.huduser.gov/portal/periodicals/cityscpe/vol20num3/article13.html; Institute for Justice, Street Vending in the United States: A Unique Dataset from a Survey of Street Vendors in America’s Largest (p.777) Cities (Feb. 2018), https://ij.org/report/upwardly-mobile/street-vending-in-the-united-states-a-unique-dataset-from-a-survey-of-street-vendors-in-americas-largest-cities/.
(158.) See Erin Norman, Robert Frommer, Bert Gall, & Lisa Kuepper, Streets of Dreams: How Cities Can Create Economic Opportunity by Knocking Down Protectionist Barriers to Street Vending, Institute for Justice (2011).
(159.) City of Wichita, Kansas, Street and Sidewalk Vendors, http://www.wichita.gov/Licenses/Licenses/Street%20Sidewalk%20Vendor%20INFO.pdf.
(160.) For more information, see New York City Consumer Affairs, Apply, General, http://www1.nyc.gov/site/dca/businesses/license-checklist-general-vendor.page.
(161.) City of Chicago Business Affairs & Consumer Protection, Mobile Food Truck Licenses, http://www.cityofchicago.org/city/en/depts/bacp/supp_info/mobile_food_vendorlicenses.html.
(162.) Los Angeles Bureau of Street Services, Frequently Asked Questions, http://bss.lacity.org/InvestigationAndEnforcement/FAQs.htm.
(163.) County of Los Angeles Public Health, Plan Check Guidelines for Mobile Food Facilities and Mobile Support Unit, http://publichealth.lacounty.gov/eh/docs/vip/PLAN_CHECK_GUIDELINES_1.pdf. See Ernesto Hernandez-Lopez, LA’s Taco Truck War: How Law Cooks Food Culture Contests, 43 U. Miami L. Rev. 233 (2011).
(164.) See Jibran Khan, Los Angeles Legalizes Street Vending, National Review (Dec. 6, 2018), https://www.nationalreview.com/corner/los-angeles-legalizes-street-vending/; Tim Arango, L.A. Street Sellers Outlawed No More, N.Y. Times (Jan. 11, 2019), https://www.nytimes.com/interactive/2019/01/11/multimedia/la-street-vendors.html.
(165.) See, for example, White v. City of Sparks, 500 F.3d 953 (9th Cir. 2007).
(166.) See, for example, Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905 (8th Cir. 2017), cert. denied, 138 S. Ct. 986 (2018) (ordinance prohibiting commercial activity in park without permit was constitutional as applied to photographer). See Christen Martosella, Refusing to Draw the Line: A Speech-Protective Rule for Art Vending Cases, 13 N.Y.U. J. Legis. & Pub. Pol’y 603, 619 (2010) (“Outside of [the Second and Ninth Circuits], no court has attempted to construct a comprehensive rule to employ in art vending cases.”).
(167.) In 2010, it was reported that the sale of “street papers”—specialty newspapers sold by unemployed and often homeless persons—was a thriving industry, with circulation up 36% that year. Blake Farmer, “Street Papers” Sold by Homeless Are Thriving, National Public Radio (Dec. 23, 2010), http://www.npr.org/2010/12/23/132291799/Street-Papers-Sold-By-Homeless-Are-Thriving.
(168.) The Contributor v. City of Brentwood, Tenn., 726 F.3d 861, 866 (6th Cir. 2013).
(169.) For additional information about vendor licenses in New York City, see
Department of Consumer Affairs, General Street Vendor License, https://www1.nyc.gov/nyc-resources/service/2938/general-street-vendor-license.
(170.) Street Vendor Project, FAQ, http://streetvendor.org/faq/. See also Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996) (“The City apparently looks upon visual (p.778) art as mere ‘merchandise’ lacking in communicative concepts or ideas. . . . [But v]isual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection.”).
(171.) For example, the court in People v. Saul determined that playing cards containing the images and descriptive captions of Iraqi military or political personnel did not merit protection because they did not “communicate ideas, opinions, emotions or a point of view.” People v. Saul, N.Y.S.2d 189, 193 (N.Y. Crim. Ct. 2004). The plaintiffs in Mastrovincenzo v. City of New York challenged the license requirement for selling items of clothing decorated with “oil paints, spray paints, markers, and permanent paint pens.” Mastrovincenzo v. City of New York, 435 F.3d 78, 86 (2d Cir. 2006). The Second Circuit Court of Appeals disagreed that the items were “necessarily expressive” or “automatically entitled to First Amendment protection.” Id. at 105. Rather when items offered for sale straddle utility and expression, the First Amendment applies only if “an object’s dominant purpose is expressive.” Id. at 95.
(172.) Answers About New York’s Street Vendors, N.Y. Times (Oct. 9, 2009), http://cityroom.blogs.nytimes.com/2009/10/07/answers-about-new-yorks-street-vendors/.
(173.) Begging is clearly speech because of its expressive content. Restrictions on begging are not content neutral; they apply “to a particular speech because of the topic discussed or the idea or message expressed.” Norton v. City of Springfield, Ill., 806 F.3d 411,412 (7th Cir. 2015), quoting Reed v. Gilbert, 576 U.S. ___, 135 S. Ct. 2218, 2227 (2015).
In addition, bans on begging often restrict only an individual’s request for alms, and do not apply to requests by members of charitable organizations, and often leave open no alternative way to request assistance. See Helen Hershkoff & Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 Harv. L. Rev. 896 (1991); Paul G. Chevigny, Begging and the First Amendment: Young v. New York City Transit Authority, 57 Brook. L. Rev. 525 (1991).
(174.) Reed v. Town of Gilbert, 576 U.S. ___, 135 S. Ct. 2218 (2015). In Reed, the Court explained that the question of whether a restriction on speech impermissibly singles out particular kinds of speakers must be made before the government offers a justification for the restriction. See Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014), judgment vacated in light of Reed v. Gilbert, 576 U.S. ___, 135 S. Ct. 2887 (2015); Norton v. City of Springfield, Ill., 806 F.3d 411 (7th Cir. 2015), cert. denied, 136 S. Ct. 1173 (2016) (collecting conflicting decisions on this question prior to Reed, and interpreting the import of Reed). See Katie Pilgram Neidig, The Demise of Anti-panhandling Laws in America, 48 St. Mary’s L.J. 543 (2017).
(175.) Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980); see also Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013).
(176.) Invalidating ban on panhandling:
Norton v. City of Springfield, Ill., 806 F.3d 411 (7th Cir. 2015), cert. denied, 136 S. Ct. 1173 (2016).
A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006).
Loper v. New York City Police Department, 999 F.2d 699 (2d Cir. 1993).
McLaughlin v. City of Lowell, 140 F. Supp. 3d 177 (D. Mass. 2015).
Clatterbuck v. City of Charlottesville, 92 F. Supp. 3d 478 (W.D. Va. 2015), appeal dismissed (May 8, 2015).
People v. Hoffstead, 28 Misc. 3d 16 (N.Y. App. Term 2010).
Upholding ban on panhandling:
Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954 (11th Cir. 1999).
ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949 (D.C. Cir. 1995).
Young v. New York City Transit Auth., 903 F.2d 146 (2d Cir. 1990), cert. denied, 498 U.S. 984 (1990).
Chase v. Town of Ocean City, 825 F. Supp. 2d 599 (D. Md. 2011).
People v. Barton, 861 N.E.2d 75 (N.Y. 2006).
(177.) Cutting v. City of Portland, 802 F.3d 79, 81 (1st Cir. 2015).
(178.) National Law Center on Homelessness & Poverty, Housing not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities at 25 (2016), https://www.nlchp.org/documents/Housing-Not-Handcuffs.
(179.) A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006). See Anthony D. Lauriello, Panhandling Regulation After Reed v. Town of Gilbert, 116 Colum. L. Rev. 1105, 1120–22 (2016) (citing caselaw from the Second, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits in support of the view that personal solicitation is entitled to First Amendment protection).
(180.) For an example of a ban on aggressive panhandling, see Indianapolis Mun. Code § 407-102 (d) (“It shall be unlawful to engage in an act of panhandling in an aggressive manner.”).
(181.) See, for example, Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000); see also United States v. O’Brien, 391 U.S. 367 (1968) (criminal prohibition against burning draft card did not violate First Amendment because the law was justified by a substantial government interest (in an effective draft system) unrelated to the suppression of expressive protest speech and it prohibited no more speech than necessary to further that interest).
(182.) McLaughlin v. City of Lowell, 140 F. Supp. 3d 177, 191 (D. Mass. 2015).
(183.) See, for example, Recycle for Change v. City of Oakland, 2016 WL 344751 (N.D. Cal. 2016), aff’d, 856 F.3d 666 (9th Cir. 2017), cert. denied 138 S. Ct. 557 (2017) (denied preliminary injunction in nonprofit’s challenge to ordinance regulating unattended donation collection boxes).
(184.) National Law Center on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities at 26 (2016), https://www.nlchp.org/documents/Housing-Not-Handcuffs. Relatedly, until 2016, a person could be arrested in New York for asking a stranger to “swipe” into a subway; the revised policy (adopted in an internal Police Department order) permits police to issue a summons or a ticket of up to $50. See Joseph Goldstein, Spare a Swipe? New York City Eases Rules for a Subway Request, N.Y. Times (Apr. 17, 2016), https://www.nytimes.com/2016/04/18/nyregion/spare-a-swipe-new-york-city-eases-rules-for-a-subway-request.html.
(185.) See generally Sydney Rosenblum, Homeless and Hungry: Demanding the Right to Share Food, 46 Fordham Urb. L.J. 1004 (2019); Sara K. Rankin, Punishing Homelessness, 22 New Crim. L. Rev. 99 (2019); Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953 (2018); Caleb Detweiler, Breaking Bread and the Law: Criminalizing Homelessness and First Amendment Rights In Public Parks, 51 Valp. U. L. Rev. 695 (2017); Jordan Bailey, Food-Sharing Restrictions: A New Method of Criminalizing Homelessness in American Cities, 23 Geo. J. on Poverty L. & Pol’y 273, 281 (2016).
(186.) See, for example, Ft. Lauderdale Food Not Bombs v. City of Ft. Lauderdale, 901 F.3d 1235 (11th Cir. 2018) (holding that organization’s outdoor food sharing was expressive conduct protected by the First Amendment); First Vagabonds Church of God v. City of Orlando, Florida, 638 F.3d 756 (11th Cir. 2011) (upholding ordinance imposing certain restrictions on “large group feedings” in public parks as a “reasonable time, place and manner restriction”); Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006) (upholding ordinance requiring permits for food distribution in public parks); Chosen 300 Ministries, Inc. v. City of Philadelphia, 2012 WL 3235317 (E.D. Penn. 2012) (enjoining ordinance that banned food sharing with more than three people in a public park, finding that the ban, as applied to plaintiffs, violated the Pennsylvania Religious Freedom Protection Act).
(187.) See, for example, Prince George’s Cty. v. Am. Fed’n of State, Cty., & Mun. Emps., 2016 WL 4177171 (Md. Ct. Spec. App. 2016) (holding that city’s termination of municipal workers for selling scrap metal rather than taking material to landfill was arbitrary given “widespread past practice of not enforcing scavenging policy”). Municipalities are permitted to contract with private firms, giving them exclusive rights to pick up garbage and collect recyclables. See, for example, Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 889 (7th Cir. 2011) (power to make exclusive contracts included power to make exclusive contracts involving recyclables); Strub v. Vill. of Deerfield, 167 N.E.2d 178 (Ill. 1960) (regulating licensed scavengers fell within police power). The U.S. Supreme Court has stated that waste disposal “is typically and traditionally a function of local government exercising its police power.” United Haulers Ass’n Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 332 (2007).
For anecdotal accounts, see Malia Wollan, How to Make Money Collecting Bottles and Cans, N.Y. Times (Apr. 8, 2016), https://www.nytimes.com/2016/04/10/magazine/how-to-make-money-collecting-bottles-and-cans.html; Sarah Maslin Nir, New York City Fights Scavengers Over a Treasure: Trash, N.Y. Times (Mar. 20, 2016), https://www.nytimes.com/2016/03/21/nyregion/new-york-city-fights-scavengers-over-a-treasure-trash.html; Jim Dwyer, Hauling Cans and Bottles Through Brooklyn, for a Hard-Earned Extra Penny, N.Y. Times (July 26, 2011), https://www.nytimes.com/2011/07/27/nyregion/bottle-and-can-scavengers-in-brooklyn-make-every-penny-count.html; Mick Dumke, Why Can’t Chicago Recycle?, Chicago Reader (July 22, 2010), https://www.chicagoreader.com/chicago/chicago-recycling-blue-carts-service/Content?oid=2135422 (scavengers collect 75% of aluminum waste from Chicago buildings with private collection).
(188.) See, for example, Project Vote! v. Ohio Bureau of Emp. Serv., 578 F. Supp. 7 (S.D. Ohio 1982); Unemployed Workers Union v. Hackett, 332 F. Supp. 1372 (D.R.I. 1971). The First Circuit Court of Appeals rejected a constitutional challenge to a regulation that permitted a welfare office to contact the police and to suspend social services “only when an unusually large number of individuals enter a welfare service office at the same time or are known definitely to the person in charge as about to arrive, for the purpose of demonstrations, disturbances or sit-ins.” Mass. Welfare Rights Org. v. Ott, 421 F.2d 525, 528 (1st Cir. 1969) (internal quotation marks omitted).
(189.) Perry Educ. Ass’n v. Perry Local Educators’ Association, 460 U.S. 37, 46 (1983). See United States v. Kokinda, 497 U.S. 720 (1990) (four-justice plurality concluding that the sidewalk in front of the U.S. Post Office is not a traditional or designated public forum and cannot be used for expressive activity).
For speech purposes, government property now is categorized in one of four ways: (1) as a traditional public forum; (2) as a designated public forum; (3) as a limited public forum; and (4) as a nonpublic forum. See Caractor v. City of New York Department of Homeless Services, 2013 WL 2922436, at *5 (S.D.N.Y. 2013). Whether the property is open to the public depends on the government’s intent “to create a public forum,” Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802 (1985), and is to be determined by looking at “written policies and actual practice.” Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 144 (2d Cir. 2003).
(190.) A permit application may request information needed to help the locality prepare for the event. It is questionable, however, whether the application can require the sponsor of the event to provide personal information (for example, about income) that is unrelated to a legitimate administrative purpose. See Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981), cert. dismissed, 458 U.S. 1124 (1982).
(191.) Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981).
(192.) See, for example, Smith v. Executive Director of the Indiana War Memorials Commission, 742 F.3d 282 (7th Cir. 2014) (“Requirements that small groups obtain a permit to gather in a traditional public forum frequently fail” when assessed under the First Amendment.).
(193.) See Eric Neisser, Charging for Free Speech: User Fees and Insurance in the Marketplace of Ideas, 74 Geo. L.J. 257 (1985). For example, Int’l Women’s Day March Planning Comm. v. City of San Antonio, 619 F.3d 346, 370 (5th Cir. 2010) (upholding license fee because it was clearly linked to the expense of cleaning up the procession route and the cost of any “personnel” and “devices” needed for traffic control); Nat’l Awareness Found. v. Abrams, 50 F.3d 1159, 1165 (2d Cir. 1995) (“Thus, fees that serve not as revenue taxes, but rather as means to meet expenses incident to the administration of a regulation and to the maintenance of public order in the matter regulated are constitutionally permissible.”); Eastern Conn. Citizens Action Group v. Powers, 723 F.2d 1050, 1056 (2d Cir. 1983) (“Licensing fees used to defray administrative expenses are permissible, but only to the extent necessary for that purpose.”).
(194.) Cox v. New Hampshire, 312 U.S. 569, 577 (1941).
(195.) Murdock v. Pennsylvania, 319 U.S. 105, 113–114, 111 (1943) (“Freedom of speech, freedom of press, freedom of religion are available to all, not merely to those who can pay their own way.”).
(196.) Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 136–137 (1992). It bears emphasis that four Justices in dissent found that more than nominal charges may be assessed and five other Justices, in an ambiguous statement, appeared to hold that the constitutionality of a fee does not depend on whether it is nominal or not. Id. at 137–140.
Prior to Forsyth County, the Eleventh Circuit Court of Appeals had held that the First Amendment does not permit a locality to impose “unlimited charges for the costs of additional police protection based on the content of the speaker’s views.” As the appeals court explained:
[I]indigent persons who wish to exercise their First Amendment rights of speech and assembly and as a consequence of the added costs of police protection, are unable to pay such costs, are denied an equal opportunity to be heard. Although the . . . permit scheme does provide for a review of a denial of a permit before the . . . City Council, there is no provision in the ordinance which exempts those persons from paying the costs for additional police protection who are unable to pay. The granting of a license permit on the basis of the ability of persons wishing to use public streets and parks to demonstrate, to pay an unfixed fee for police protection, without providing for an alternative means of exercising First Amendment rights, is unconstitutional.
Cent. Fla. Nuclear Freeze Campaign, v. Walsh, 774 F.2d 1515, 1523–24 (11th Cir. 1985), cert. denied, 475 U.S. 1120 (1986).
(197.) See generally Sara K. Rankin, A Homeless Bill of Rights (Revolution), 45 Seton Hall L. Rev. 383 (2015); Jonathan J. Sheffield, Homeless Bills of Rights: Moving United States Policy Toward a Human Right to Housing, 22 Geo. J. on Poverty L. & Pol’y 321 (2015); Jonathan J. Sheffield, A Homeless Bill of Rights: Step by Step from State to State, 19 Pub. Int. L. Rep. 8 (2013).
(198.) 34 R.I. Gen. Laws Ann. § 34-37.1-1 (West).
(199.) Conn. Gen. Stat. Ann. § 1-500 (West).
(200.) 775 Ill. Comp. Stat. Ann. 45/10.
(201.) New York City Green Cart Permit, https://www1.nyc.gov/nycbusiness/description/green-cart-permit.
(202.) New York City Green Cart Permit, https://www1.nyc.gov/nycbusiness/description/green-cart-permit; New York City Business Solutions: Street Vending, 1, http://www.nyc.gov/html/sbs/nycbiz/downloads/pdf/educational/sector_guides/street_vending.pdf.
(203.) New York City Mobile Food Vending Permit (Seasonal or Two-Year), http://www1.nyc.gov/nycbusiness/description/mobile-food-vending-unit-permit-seasonal-or-twoyear.
(204.) What Mobile Food Vendors Should Know, New York City Health Department, 4–5, http://www1.nyc.gov/assets/doh/downloads/pdf/rii/regulations-for-mobile-food-vendors.pdf.
(205.) See New York City Mobile Food Vending Restricted Streets Guide, http://www1.nyc.gov/assets/doh/downloads/pdf/permit/mfv_restricted_streets.pdf.
(206.) New York City Consumer Affairs, Apply, Temporary Street Fair Vendor, http://www1.nyc.gov/site/dca/businesses/license-checklist-temporary-street-fair-vendor.page.
(207.) New York City Business Solutions: Street Vending, 2, http://www.nyc.gov/html/sbs/nycbiz/downloads/pdf/educational/sector_guides/street_vending.pdf.
(208.) New York City Business Solutions: Street Vending, 3, http://www.nyc.gov/html/sbs/nycbiz/downloads/pdf/educational/sector_guides/street_vending.pdf.
(209.) New York City Council Legislation, File No. Intro 0434-2010-A, http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=805611&GUID=47B3F9F9-AD2D-4C2C-AC07-6318D4DE62A7.
(210.) New York City, N.Y., Code § 20-468; The Peddler Handbook, National Criminal Justice Reference Center, 5; New York City Business Solutions, Street Vending, 1, http://www.nyc.gov/html/sbs/nycbiz/downloads/pdf/educational/sector_guides/street_vending.pdf.
(211.) Sumathi Reddy, Prices for Food-Cart Permits Skyrocket, Wall Street Journal (Mar. 9, 2011), http://www.wsj.com/articles/SB10001424052748704758904576188523780657688. See also Answers About New York’s Street Vendors, N.Y. Times (Oct. 7, 2009), http://cityroom.blogs.nytimes.com/2009/10/07/answers-about-new-yorks-street-vendors/.
(212.) New York City, N.Y., Code § 20-464(d). Many individuals interested in selling goods on the street partner with veterans who can more easily obtain a license. See, for example, Rachel Hennessey, The Secret World of SoHo’s Street Vendors, Forbes (Aug. 8, 2012), http://www.forbes.com/sites/rachelhennessey/2012/08/08/the-secret-world-of-sohos-street-vendors/#528890864dcb.
(213.) New York City, N.Y., Rules, Tit. 6, § 2-318. (p.784)