What legal rights do you have if the police are rough with you?


Police are authorized to use force as necessary to stop and detain a suspect,[i] but if they use excessive force beyond what is needed to control the suspect, they can be found guilty of assault and possibly violating the suspect’s civil rights.[ii] If this happens to you, you can file a complaint with the Department of Justice.

There is not one specific law that declares how much force can be used because the circumstances in which police encounter suspects are so variable. The United Stated Department of Justice has a compilation of definitions about how much police force is permissible.[iii] It quotes the U.S. Commission on Civil Rights saying, “in diffusing situations, apprehending alleged criminals, and protecting themselves and others, officers are legally entitled to use appropriate means, including force.” It also quotes a Bureau of Justice Statistics statement that “the legal test of excessive force…is whether the police officer reasonably believed that such force was necessary to accomplish a legitimate police purpose.” The Department of Justice will also accept and investigate complaints of police misconduct.[iv]

The police officer’s determination about how much force to use is based mainly on the suspect’s behavior.   Sometimes, mentally ill people behave in ways that demonstrate hostility and dangerous unpredicatbility to the police.  Homeless advocates seeking less forceful police handling of mentally ill homeless witnesses, arrestees, and prospective arrestees should read the Council of State Governments Justice Center’s March 2010 report putting forth data and ideas about police interactions with the mentally ill.  The report contains research results and also research questions and policy recommendations for police departments to follow.

Many communities have created citizen police oversight programs that have ordinary local citizens collecting and investigating claims of police misconduct. Four models of programs have been identified:

1. those in which citizen review boards accept and investigate reports from the public
2. those in which the police department takes the complaints and then passes them along to the citizen review committee for further evaluation
3. systems in which the citizen review is only available as an appeal process after the police department has already handled the situation in its own way and
4. those in which complaints are filed with and handled by police departments and then an independent auditor reports to the public about the incidents and how they were handled.[v]

These programs exist with the hope of resolving problems more efficiently than would be possible through litigation. Efficiency means not only rectifying a particular dispute as soon as possible, but also quickly fixing the problem that led to the complaint against an officer. Sometimes the underlying problem is a stressed or violent officer and sometimes the underlying problem is stressed or uncooperative citizens. When the officer is found to be the cause of the problem, his department can retrain, reassign, or otherwise work with him to prevent future incidents that would be similar. When the problem arises from perceptions or behaviors by members of the public, the police department or another unit of the local government can implement a community education program to help avoid recurrences of that kind of problem.

The report that identified the four types of citizen involvement programs also found that victims of harsh police treatment feel validated when citizen review agrees with them and that the victims appreciate that their assistance in fixing a community problem has been valued.[vi]  Additionally, the report notes that police departments and local governments like to solve police misconduct issues using citizen involvement because it “improves their relationship and image with the community”[vii]  and helps them know, earlier than they would otherwise know, how and when officers are getting rough with people which not only stops problems sooner, it also helps them avoid getting sued.[viii]

When somebody does decide to sue the police for using excessive force, the first problem to overcome is the vague notion of how much police can do to physically restrain a suspect. Without a clear legal standard to compare against, plaintiffs have a hard time asserting exactly what was violated. The defending police department can respond by saying that there is no legal basis for the allegation. The next challenge in making a police abuse case is finding a way around sovereign or qualified immunity statutes which protect the government and public employees from being held liable for intentional or negligent harm they might cause while doing their jobs, unless they violate exact statutes or constitutional provisions.[ix]

Generally, in police excessive force cases, instead of suing with a personal injury claim, such as battery or infliction of emotional distress, plaintiffs sue in federal court using a Constitutional law claim. The claim is that an officer who hurts a suspect has committed an illegal seizure under the Fourth Amendment.[x]  Usually, people think of seizure as a situation when a possession has been taken away. But, in these police excessive force claims, it is dignity and health that have been taken away. The courts have specifically stated that “Where an excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right to be secure in their persons against unreasonable seizures of the person.”[xi]

When deciding whether the force was excessive, the courts look at three things:

1. how severe the crime was (because the police might need to be more forceful with a violent criminal)
2. whether the suspect is likely to still be dangerous (for example if it is expected that the suspect still has a weapon or if the suspect is loud or aggressive when the police arrive) and
3. whether the suspect is trying to fight with or get away from the police.[xii]

Although torts claims, such as battery, can result in financial awards from the court, constitutional claims can only result in changed behavior. So, in addition to claiming that rough police conduct violates their Fourth Amendment rights, victims also claim that the police conduct violated their civil rights.[xiii]  The federal civil rights statute is Section 1983 within Title 42 of the United States Code.[xiv]  Most people just call it “section 1983.” Under that statute, victims of excessive police force can collect reimbursement for their out-of-pocket costs including medical bills and lost wages and they can also collect punitive damages to make the police department suffer financial punishment for having an officer who hurt somebody.[xv]

The final major challenge in proving that police used excessive force is collecting the necessary evidence. To prove police brutality against one person, the ordinary array of proof such as witness testimony, medically documented physical injuries, and analysis of the officer’s weapons would be used to make the case. But, in class action lawsuits against police departments, it is necessary to prove patterns of police misconduct by showing who tends to get rough and when that has happened in the past. The ACLU recommends that litigants investigate how often police on that force fire their guns or use their clubs and that litigants then analyze that data to see whether particular officers use weapons more than others. They also suggest looking at the age and race of the officers who use their weapons the most compared to the races and other characteristics of their victims.[xvi]

[i] Model Penal Code §3.07(1) Use of Force Justifiable to Effect an Arrest, §3.07(2) Limitations on Use of Force §3.07(3) Use of Force to Prevent Escape from Custody §3.07(5) Use of Force to Prevent Suicide or the Commission of a Crime.[ii] Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981). See generally, Linda J. Collier and Deborah D. Rosenbloom, Arrest, 5 Am.Jur.2d. §145 (2006).

[iii] U.S. Dept. of Justice, Federal Bureau of Investigation, National Use of Force Data is available at https://ucr.fbi.gov/use-of-force.

[iv] The U.S. Department of Justice has a full explanation of the federal laws against police misconduct and instructions for filing a complaint. See United States Department of Justice, Addressing Police Misconduct, https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice.

[v] U.S. Dept. of Justice, Civilian Oversight of Law Enforcement: A Review of the Strengths and Weaknesses of Various Models is available at https://www.ojpdiagnosticcenter.org/sites/default/files/NACOLE_Civilian_Oversight.pdf.

[vi] Id. at p.10.

[vii] Id. at p.11.

[viii] Id.

[ix] There are thousands of state and federal court cases about qualified immunity. Some of the prominent U.S. Supreme Court cases include Saucier v. Katz, 533, U.S. 94; 121 S. Ct. (2001) (A police officer who quickly pushed a political demonstrator into a police van was entitled to qualified immunity because his need to act speedily to protect the Vice President from this uncooperative and potentially dangerous demonstrator was reasonable.) Harlow v. Fitzgerald, 457 U.S. 800; 102 S.Ct. 2727 (1982). (Citizens’ rights to collect damages must be weighed against the rights of public officials who constantly bear the risky responsibilities of relying on their discretion in performing public duties.) Wilson v. Lane, 526 U.S. 603; 119 S.Ct. 1692 (1999). (A defense of qualified immunity from having to pay damages is available to public officials who have not violated a particular law and were simply trying to do their work. So, when there was not established caselaw declaring that bringing news reporters to an arrest would violate the Fourth Amendment, police were granted qualified immunity from having to pay damages to the family whose home was filmed during the arrest.)

[x] U.S. Constitution Amendment IV. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

[xi] Graham v. Connor, 490 U.S. 386, 394 (1989). See also Jones v. Philadelphia, 890 A.2d 1188 (Pa. Comm. 2006) and Sacramento v. Lewis, 523 U.S. 833, 843; 118 S.Ct. 1708, 1715 (1998).

[xii] Graham v. Connor at 396; St. John v. Hickey, 411 F.3d 762,771 (6th Cir., 2005); Payne v. Pauley 337 F.3d 767, 778 (7th. Cir. 2003)

[xiii] Glenda K. Harnud, et al, Civil Rights: Excessive Use of Force 14 CJS §140


[xv] Wagner v. Memphis, 971 F.Supp. 308 (W.D Tenn. 1997); Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625 (1983); Newport v. Fact Concerts, 453 U.S. 257, 101 S. Ct. 2748 (1981).

[xvi] The ACLU’s Fighting Police Abuse: Community Action Manual is available for free online at http://www.aclu.org/police/gen/14614pub19971201.html. The section titled “Gather the Facts” has the suggestions mentioned here.

Do you have to submit to sexual overtures if you generally sleep outdoors?


Rape is rape, whether it is indoors or outdoors, whether it is done by a stranger or someone who knows the victim, and whether or not the victim has a home. It can be loosely defined as non-consensual sexual intercourse. Criminal law statutes against rape,[1] and the cases interpreting those, are consistent about the illegality of unwanted sexual contact, but have variations in every state. They define sexual contact in different ways and have diverse standards for how victims have to have conveyed their lack of consent.[2]Hospitals and police have cooperative systems for proving that the contact occurred. In every state, there are two problems in successfully prosecuting somebody for rape: identifying the attacker and proving that the contact was unwanted.  Clearly, even having one of those problems out of the way still leaves a very hard case to prove. If the victim has never seen and doesn’t know the attacker, it is hard to find the right perpetrator. Once that person is found, it is relatively easy to prove that the victim did not consent to having sex with the stranger.

In the opposite situation, when the identity of the attacker is known, the hard part is proving that the contact was unwanted.  Particularly hard to prosecute is the situation in which one homeless person has been raped by another homeless person who resides in the same shelter or outdoor area. The defendant’s attorney could ask the victim where he or she generally sleeps and then follow-up by asking something like, “then isn’t it true that you and the accused had essentially been sleeping together prior to the events of the alleged attack?”

Even when the attacker was unknown and not necessarily homeless, it is conceivable that a defense attorney might lead the jury to believe that a homeless rape accuser made him or herself available by sleeping outside or in a group setting. The prosecutors in those situations will look for guidance in the cases involving acquaintance rape, where courts have examined the concept of consent.

In cases of acquaintance rape, courts are in the odd position of analyzing social interaction[3] in order to figure out whether the crime occurred. To determine whether the victim consented to intercourse, they look at things like whether the victim and defendant were voluntary social companions,[4] and whether the accuser consented to some degree of affection, but not necessarily intercourse.[5]

A homeless victim who does not have a private space where he or she can go to avoid unwanted attention might also be burdened by jury presumptions that misinterpret those social considerations. They might think, for example, that the homeless are mentally ill and get hysterical after ordinary sex or that the homeless will do anything for money and might claim rape if they don’t get paid after sex.

A homeless victim of rape, or that victim’s friends and advocates, can help the case by educating the prosecutor about the victim’s daily life and the culture and routines in that homeless community. Those details can illustrate the homeless victim’s particular risks and limitations in trying to get away from attackers. It is not the kind of information that proves whether the crime occurred, but it will convey what kinds of protection and communication methods were available to the victim. It gives the prosecutor context for demonstrating to the jury how this particular sexual encounter was victimization and not consensual.

[i] State criminal codes are available at http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code.  Within a state’s code look under “sexual assault” or “sex crimes” if there isn’t a listing for “rape.” [ii] In public libraries, look for Frances P. Reddington and Betsy Wright Kreisel, SEXUAL ASSAULT: THE VICTIMS, THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM (Carolina Academic Press, 2005). In law libraries, look for Wayne R. LaFave, CRIMINAL LAW Chapter 17 (West, 2003).

[iii] See generally, Note, Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, 117 Harv. L. Rev. 2341 (2004).

[iv] “Rape is a felony of the second degree unless … the victim was not a voluntary social companion of the actor upon the occasion of the crime … .” Model Penal Code § 213.1(1) (1985).  However, neither current state laws nor recent appellate cases name voluntary social companionship as a consideration in date rape cases, probably because contemporary social standards recognize that even if someone has willingly participated in sex with this attacker before, it does not mean that the sex was consensual this time.  Nevertheless, because it is still in the Model Penal Code and traditional cases include it, there is a chance that a victim might have to explain how he or she communicated differently with the defendant when the sex was consensual compared to when it wasn’t acceptable to the victim.

[v] Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, supra at 2346.






1. Ask the employer to fix the hazard.
2. Ask the employer to assign you to different work.






[iii] Locate your state Workers’ Compensation office through the blue pages of the phone book or on the Web at http://www.dol.gov/esa/regs/compliance/owcp/wc.htm. You will see that “employee” is defined to include any person who is supervised and paid by an employer.


[v] The OSHA Web site is at http://www.osha.gov/.

[vi] OSHA’s instructions for dealing with a dangerous worksite are at http://www.osha.gov/as/opa/worker/refuse.html.

[vii] OSHA’s complaint Web site says that any employee can file a complaint about employment safety without giving his or her own name. The site includes an online complaint form and all of the necessary information about filing a complaint. http://www.osha.gov/as/opa/worker/complain.html

[viii] OSHA approved state occupational safety and health plans can be reached via http://www.osha.gov/dcsp/osp/index.html or your state’s department of labor and employment. http://www.dol.gov/esa/contacts/state_of.htm

[ix] Find legal aid offices through LawHelp at  http://www.lawhelp.org/ and homeless advocates through the National Coalition for the Homeless at http://www.nationalhomeless.org/resources/local/local.html.

If the police come looking for you, does a shelter have to turn you over to them?


A place of shelter is not a place of asylum from the law. On the other hand, it is also not a place where the homeless should feel at risk of being rounded-up by the police. Unless someone commits a crime in a shelter or the police come to the shelter looking for a particular person, shelter staff have no legal obligation to identify residents to police.

If the police come to question a resident as a potential witness or perpetrator, someone who prevents the officers from having access to that resident can be charged with obstruction of justice or obstruction of process.[i]

There is a whole spectrum of interactions that might occur between shelter staff and police who come looking for a resident.  At one end of the spectrum are the police with a warrant to search or seize.  They might be there to seize a person or evidence.  If they come to seize a person, the warrant is an arrest warrant.

As explained elsewhere in this blog, judges issue search and seizure warrants when police and prosecutors have given them probable cause to believe that evidence of a particular crime is located in the place to be searched.[ii] When the shelter-police interaction is at this end of the spectrum, the shelter has no choice but to comply with the police. Staff who interfere with the officers’ carrying out the warrant are blatantly obstructing justice.  They might be handcuffed and immediately arrested so they can’t continue to impede the police work.

At the other end of the spectrum is a scene in which police have heard a vague complaint about a minor offense and come to the shelter asking the staff to present all of the male residents ages twenty to forty who have blue jeans. Here the police have not conveyed that a crime has occurred or that they even know who they are looking for.  They are putting the staff in the dubious position of disrupting multiple innocent residents who came into the shelter only seeking a safe indoor place to rest.

At that point, the police might be causing the serious interference-interference with the fundamental purpose of the shelter.  The shelter staff have to do their jobs and provide the residents with a place to rest.  It would probably not be an obstruction of justice if they asked the police for more information so that fewer residents were interrupted or if they encouraged the police to come back and look for their suspect outside the building the next morning when the residents left for the day.

In between these two poles of the spectrum are numerous possibilities. Maybe a victim or a witness saw an attacker run into the shelter.  Maybe the police have been following a shelter resident as part of a major investigation.  Maybe the homeless have been crime targets and the police want to get to know them and help them avoid being victims.  The decision about whether to charge shelter staff with obstruction will depend on the police officers’ assessment of the public safety risk involved if they are hindered from getting to a shelter resident, i.e. it depends on police discretion.[iii]

There are other potential criminal charges, aside from obstruction crimes, that shelter staff can face for not identifying residents to the police. They might, for example, be harboring a fugitive. Getting between the police and a shelter resident they’ve come to arrest could be harboring a fugitive.[iv] Even when counselors at a shelter have confidential knowledge of residents’ crimes, it does not mean that those counselors can hide those clients when the police come looking for them.  They might be able to avoid disclosing clients’ counseling records for evidence, but they cannot keep the police away from those clients.[v]

Shelter staff can also have criminal liability for not identifying a resident when they know the resident is repeatedly committing a crime.  The first time a shelter worker sees a resident stealing from other residents or dealing drugs in the shelter, he has a basic citizen’s obligation to report the crime to the police.  If he doesn’t report the crime that first time, he’s not likely to be charged with a crime himself. (Although he should serve as a witness for the prosecution since he saw the illegal act.)

After the first time however, accomplice or conspiracy charges might be brought against the shelter worker who knows about a pattern of criminal behavior in the shelter but doesn’t report it to the police.  Basically, an accomplice is someone who “gave assistance or encouragement or failed to perform a legal duty to prevent”[vi] a crime.   A conspirator joins with others “for the purpose of committing…some unlawful or criminal act.”[vii]

[i] Obstruction of justice or process is defined and examined in 67 C.J.S. Obstructing Justice § 24 (2002). In the federal system, the statute against obstruction of justice/process is published in 18 USC §§ 1501-20 (2007). If local or state police are obstructed in their efforts, the state’s version of an obstruction of justice charge would apply. Find these by using the following terms in the index to the state statutes: obstruction of justice, police, interference with arrest, interference with process, and crimes.

[ii] Robert M. Bloom, Searches, Seizures, and Warrants (Praeger 2003). This book tells about every aspect of law that applies to warrants for searches and seizures.

[iii] To learn more about police discretion, See American Bar Association, Standards Relating to the Urban Police Function 1-43 (1972 & Supp. 1973). (These standards were developed by a joint committee of ABA members and members of the International Association of Chiefs of Police). Also, search in the National Criminal Justice Resource Center for the phrase “police discretion” to get links to full-text articles, reports, and book chapters on the topic. http://www.ncjrs.gov/index.html

[iv] 39 Am. Jur. 2d Harboring Criminals § 3 (2006).

[v] A related but much more extreme legal obligation arises when a mental health professional knows that a client seeks to hurt someone. When that happens, the mental health professional is allowed to divulge confidential client information to police, but only to the extent necessary to protect the client’s intended victim. To read more about this and see a comparison of state laws, see John C. Williams, Liability of One Treating Mentally Afflicted Patient For Failure to Warn or Protect Third Persons Threatened by Patient, 83 A.L.R. 3d 1201.

[vi] Black’s Law Dictionary, 6th Ed. 17 (1990).

[vii] Id. at 309.

Are shelters legally obligated to maintain a certain standard of cleanliness?


Shelters, along with any other facilities that house groups of people, are subject to public health regulations regarding sanitation, rodent control, and safety just as they are subject to fire safety codes and zoning ordinances. But because so many different types of places offer various levels of sheltering and state and county health regulations vary, there is not an established standard guaranteeing that sheets are washed every day or that floors are always swept or that other measures of cleanliness are assured in every shelter.

A shelter resident who becomes sick or injured because of conditions in the shelter might be able to sue the shelter for negligence, depending on the situation. It could be the premises liability type of negligence if the sickness or injury was predictable.  An example of predictable sickness might be when a shelter with heavy dust and mold causes an asthmatic resident to have a serious asthma attack.

If the sickness or injury has nothing to do with the condition of the building, but it happens in the shelter, failing to help a resident in need might count as negligence. Ordinarily, people in the U.S. have no duty to rescue somebody.[i] But innkeepers, businesses, and other places open to the public do have to help people who become sick or ill while there.[ii] Since the law imposes that duty, breaching it to the extent that harm comes to a resident would be negligence.

There are other reasons that the homeless might sue for healthier shelter conditions.

Consider some examples from New York City:  In the mid 1990’s there was a line of New York City cases about homeless people who were temporarily housed in the Emergency Assistance offices where they went to apply for space in shelters.[iii] While it would seem that at least sleeping in an office would be better than sleeping outside, the Court of Appeals of New York declared that “The consequences of the City’s practices include families sleeping on the chairs and on the floor, washing in the sinks of public restrooms, and suffering self-evidently unsanitary and unsafe traumas.”[iv]

There was also a group of homeless people with HIV-related illness who sued the city seeking access to shelters better-suited to their health needs.[v] The city had a Comprehensive Care Program that equipped some shelters to particularly care for homeless AIDS patients. These plaintiffs with HIV-related illness had some health accommodations in the shelters, but were not entitled to shelter conditions comparable to those available to AIDS patients.  A lower court had found that housing twelve to a room constituted a tuberculosis risk for people with HIV-related illness.[vi] The appeal concluded that plans for health and hygiene in shelters were within the authority of health and housing agencies not the courts.

Shelters tend not to have special accommodations for every specific health need. Diabetics cannot expect that a shelter will have meals that are suitable for their diets and ready supplies of insulin. Asthmatics cannot expect that a shelter will take extreme measures to reduce its dust and mold to assure that they can breathe.

The Centers for Disease Control maintains a list of state and local health departments.[vii] Reading a local health department’s rules and program descriptions is the most direct way to learn what public health services are available to the homeless. There may be drop-in clinics, day programs, special facilities for certain health and hygiene functions, etc… and these may be outside of shelters or on-site at shelters.

The National Health Care for the Homeless Council provides a free online manual titled “Shelter Health: Essentials of Care for People Living in Shelter.”[viii] This manual is not a legal document and does not legally obligate shelters to do anything. It is intended as a source of information for providers of group housing. It tells shelters how to keep the facility as hygienic as possible and provides clues about how to recognize health problems so that shelter staff can make helpful referrals for clients to get appropriate medical care. The manual is full of details like sample policies about laundry, hand washing, lice control, and cleaning body fluids from floors, furniture, and bathrooms. Homeless people or their advocates seeking to improve the local legal standards for shelters could use the manual to get examples of the improvements that should be made.

[i] Restatement (Third) of Torts § 37 (Proposed Final Draft No. 1 2005). 57A Am. Jur. 2d Negligence § 90 (2006). To find cases making this point, look in West Digests (indexes to cases) using the topic “negligence” and the key numbers 214 and 282.

[ii] Restatement (Second) of Torts § 314A (1965 & Supp. 2006). 57A Am. Jur. 2d Negligence §§ 90-91 (2006). The case of Baker v. Fenneman & Brown Properties, L.L.C., 793 N.E.2d 1203 (Ind. Ct. App. 2003) shows that business owners and innkeepers and others who have special relationships with sick and injured visitors to their establishments do have a duty to get those victims medical care.

[iii] McCain v. Dinkins, 639 N.E.2d 1132 (N.Y. 1994). This case culminated the series of cases about temporarily housing people in the Emergency Assistance Unit offices. It summarizes the cases leading up to it.

[iv] Id. at 1136.

[v] Mixon v. Grinker, 669 N.E.2d 819 (N.Y. 1996).

[vi] Id. at 820.

[vii] List of state and local health departments http://www.cdc.gov/mmwr/international/relres.html. If this Web address changes, go to http://www.cdc.gov/ and use its search box to find the most recent list.

[viii] The shelter health manual is at http://www.nhchc.org/resources/clinical/tools-and-support/shelter-health/.














Here are some sample weather emergency plans for homeless populations:



















