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Court: Homeless have privacy rights

Washington Court of Appeals rules on case involving homeless man arrested in Vancouver

Homeless tents AmandaCowen TheColumbian

News story in The Columbian newspaper.

By Jessica Prokop, Columbian Courts Reporter and Patty Hastings, Columbian Social Services, Demographics, Faith

Published:

 

A homeless man staying in a makeshift shelter had an expectation of privacy under the Washington state Constitution — just like people in traditional homes — when police peeked inside his dwelling. That’s the finding of a Washington Court of Appeals opinion that was published in part Tuesday and could have broader implications on privacy rights for the homeless.

The decision affirms a Clark County Superior Court judge’s 2015 ruling that Vancouver police officers violated William R. Pippin’s privacy rights when they looked inside his tarp, despite him being camped illegally in downtown Vancouver.

Pippin was subsequently charged with methamphetamine possession, but his case was dismissed after Judge Scott Collier granted the defense’s motion to suppress the drug as evidence, because Pippin’s privacy rights were violated.

However, the appeals court also ruled that Pippin’s case should be remanded to Superior Court after reversing part of Collier’s ruling. In the unpublished portion of the opinion, the appeals court found that Collier used the incorrect legal standard for determining whether exigent circumstances of officer safety justified them looking inside Pippin’s dwelling without a warrant.

Pippin was arrested Nov. 2, 2015, and charged with methamphetamine possession after the officers contacted him about camping in public past the lawful time. Officers had pulled back his tarp entrance to look inside when he didn’t come out right away and heard him rustling around inside. In doing so, they saw some packaged methamphetamine.

Pippin’s defense attorney, Chris Ramsay, argued that although his client was camping illegally, officers still violated his Fourth Amendment rights when they looked inside his dwelling.

Tuesday’s decision does not analyze the Fourth Amendment, which looks at whether an individual’s expectation of privacy is reasonable. The appeals court instead analyzed the state’s constitution on privacy protection.

Ramsay said Pippin is still homeless, and if he’s called to court later, Ramsay has no idea how to reach him.

‘You have rights’

Doug Honig, spokesman for the American Civil Liberties Union of Washington, which weighed in on the case, said the organization is “pleased that the court agreed that the constitution applies to everyone.

“It doesn’t matter whether your home is a tarp and a couple of poles or a huge mansion, you have constitutional rights,” he said.

A pair of attorneys with the ACLU submitted an amicus brief last year addressing the constitutionality of entering and searching someone’s makeshift shelter, as well as the case’s impact on privacy rights for people experiencing homelessness. Seattle University School of Law’s Homeless Rights Advocacy Project, the Seattle-based publication Real Change, and the Vancouver-based homeless advocacy group Outsiders Inn were also named in the brief.

Adam Kravitz of Outsiders Inn was in downtown Vancouver the day police were contacting people camping around Share House, a men’s homeless shelter. Kravitz’s organization later became involved in another lawsuit about seizing homeless people’s personal property. Kravitz said he, too, is pleased to hear that the issue of privacy rights for homeless people is being understood and analyzed.

“This is very good news,” he said. “I think we’re finally making some headway on a really important issue.”

He noted that the decision comes at a time when the nights are getting colder and hundreds of people on the streets are going to need shelter.

“I believe that Washington state can be the leaders on changing homelessness rights,” Kravitz said. “All citizens have rights and we need to help them.”

Broad implications

Adam Gershowitz, a professor at Virginia’s William & Mary Law School, called the issue of privacy protection for the homeless “unchartered territory.”

“I applaud the idea that (the Washington Court of Appeals) found (privacy protection) under the state constitution,” Gershowitz said, adding that “state courts are free to take a more expansive interpretation under their state constitution.”

And although he said he’s no expert on Washington’s Constitution, he’s not surprised that the appeals court interpreted its state constitution on privacy protection more broadly than what the Fourth Amendment provides. But as a matter of the Fourth Amendment, Gershowitz said it’s hard to say if the court’s decision is right.

The homeless may have an expectation to privacy but that doesn’t mean society views it as reasonable, Gershowitz said. If a person doesn’t own or rent the space they are on, he said, then they are not entitled to be there, especially if it’s on public land.

“I wish we had more services for (the homeless),” Gershowitz said. “But at the end of the day, they don’t have a reasonable expectation (to privacy) when they can be moved from the spot by an officer.”

It’s likely that this decision will have broader implications in the state of Washington, Gershowitz said, and it suggests that the homeless have rights in other contexts when they put up quasi-dwellings.

In its opinion, the appeals court found that Pippin’s dwelling afforded him fundamental activities, such as “sleeping under the comfort of a roof and enclosure” and gave him some separation from the rest of the world. The court also found that the “temporary nature of Pippin’s tent does not undermine any privacy interest.

“Nor does the flimsy and vulnerable nature of an improvised structure leave it less worthy of privacy protections. For the homeless, those may often be the only refuge for the private in the world as it is,” the opinion reads.

A previous case cited in the opinion found that “the traditional home is not the only place in which a person should have privacy protection.”

The court determined that Pippin did not voluntarily expose his personal information to public scrutiny but acknowledged that some people may argue he did so by choosing to live in a tent on public land.

“Against this backdrop, to call homelessness voluntary, and thus unworthy of basic privacy protections is to walk blind among the realities around us. Worse, such an argument would strip those on the street of the protections given the rest of us directly because of their poverty. Our constitution means something better,” the panel wrote.

Collier said in a phone interview that under the facts of this case, he felt Pippin had an expectation of privacy and acknowledged there are possible broader implications from the appeals court’s decision.

“It gives some guidance to other courts that may have to wrestle with this issue but is still case-fact specific,” he said.

He declined to go into specifics about the future of the case, regarding the warrantless search and protective sweep element.

‘A solid ruling’

Ramsay, Pippin’s defense attorney, said he is happy that the court sided with Collier on the privacy issue.

“I always knew in my heart of hearts that legally that was a very solid ruling by Judge Collier. The way the transient population is these days just because they’re poor and don’t have anything doesn’t mean they don’t have the same privacy rights as everybody else,” Ramsay said. “They have a right to go into an enclosure for privacy to get a night’s sleep or not have to deal with people.”

Deputy Prosecutor Rachael Probstfeld with the Clark County Prosecuting Attorney’s appellate unit said she does not yet know if the office will seek review of the appeals court’s decision by the state Supreme Court.

‘Trial court erred’

In its brief on appeal, the prosecution argued that “the trial court erred in finding Pippin had a reasonable expectation of privacy in a tarp structure on public property located on the side of a road between a guardrail and the fence of a private property.

“No reasonable person would have an expectation of privacy in a location where he is openly committing a crime on public property during daylight hours,” the prosecution wrote in its brief.

City Prosecutor Kevin McClure reflected on how the ruling would impact the way Vancouver police officers go about entering somebody’s makeshift shelter.

“The court’s decision was pretty clear that it may require a warrant,” McClure said. “I think that’s a fairly narrow situation for most police officers to be in.”

Typically, he said, when police ask to talk with people who are inside tents or tarps, people often just do what the officer says. It’s just like when a police officer knocks on the door of somebody’s house; most times those people just open the door and respond to the officer, McClure said.

Link to original story posted in The Columbian here:

https://www.columbian.com/news/2017/oct/10/court-homeless-have-privacy-rights-man-arrested-vancouver/#

 


 

County found liable for violating homeless campers’ civil rights

 http://clarkcountytoday.com/2016/09/26/county-found-liable-for-violating-homeless-campers-civil-rights/

Date:
in: Featured, News

 

CLARK COUNTY — Clark County leaders are expected to approve a $250,000 settlement agreement this week as restitution for violating homeless campers’ civil rights.

CCToday 28 Sep 16 17

Earlier this month, a federal judge in Tacoma found Clark County liable for violating the constitutional rights of unhoused citizens when county work crews cleared homeless camps, seizing and disposing of the homeless campers’ personal property.

According to the suit, brought on behalf of eight different homeless plaintiffs, county work crews often seized personal belongings — including clothing, tents, sleeping bags, photographs, driver’s licenses, shoes, computers, food, medication, prescription glasses and toiletries — with little to no notice, and then disposed of the items immediately, giving homeless campers no chance to retrieve their belongings.

“It was a clear violation of the law,” says Vancouver attorney Peter Fels of the county’s seizure practices. Fels, along with his co-counsel, Moloy Good, a member of the Portland Human Rights Commission, represented the eight plaintiffs in their case against the county.

On Sept. 16, U.S. District Court Judge Robert Bryan agreed that the county had violated the plaintiffs’ constitutional rights, ruling that the county’s “immediate destruction of the property (rather than holding it for possible return) made the seizure unreasonable under the Fourth Amendment.” Bryan also dismissed the county’s assertion that the work crews were justified in removing and destroying the personal property because campers had violated the county’s illegal camping ordinances.

Quoting a similar case out of Los Angeles that went to the Ninth Circuit Court of Appeals, the highest court in the nation before the U.S. Supreme Court, Judge Bryan ruled that that violation of an ordinance (in this case the illegal camping ordinance) does not nullify a person’s Fourth Amendment rights, which protect citizens from illegal search and seizures of private property.

Read more ...

A response to a blog

On Feb 26, The Columbian posted the blog, ‘The urinating on chairs was bad enough’.  It focused on the Clark County council's revisiting of a plan to make the Public Service Center at 1300 Franklin Street a limited-use facility.  They understand the reason they are doing this is to restrict the homeless in the area from using the needed water and bathroom facilities because they waited until there was an official day center in the city to revisit this plan.  But the problem with that is, the day center is a LONG WALK (20 minutes or more) if you have to use the bathroom while you are in the area of the service center and even feels longer when you "have to go", and when you are walking in the rain with a backpack heavy with your worldly possessions.

This article said the facility has had issues with "some individuals", but yet they are looking to restrict everyone instead of just addressing the problem individuals. They say it is to "give teeth to dealing with troublemakers", however that can most likely be read as "people they deem as potential troublemakers". Now we ask, "how will that clarification be made between a real troublemaker and someone just needing to use the facilities appropriately?" Sadly, more than likely it will be made by "how you are dressed" and "if they look homeless". The facility personnel complains and worries about urine smell on the furniture. Every public place has this problem over time. They are obviously using that statement as an "ick factor" to bring about sympathy from people they are hoping to slide this rule change by. We ask, are they assuming that the smell on furniture comes only from a homeless person, or will they apply that assumption of smell to every 40+ year old woman or man with a bladder control problem? Will they ask / inspect older people if they are wearing their Depends properly? Will they ask disabled persons if they have spina bifida or other physical ailments to not use the chairs? Will they ask parents with children in diapers to not sit on furniture and only stand in the wait area, or not enter all together since their diapers might leak on a chair? -- If they are complaining about furniture being used and smelling, then all those kinds of people an situations need to also be taken into consideration, or this is a unfair burden being put on our county's Unhoused Residents.

In my opinion, I doubt this rule change is anything but one more way to separate the Unhoused from the Housed and to keep the Unhoused Residents of our community from using public facilities such as clean water fountains and bathrooms.   "We maintain a public water fountain outside the building", they might say about the water... but do you see the picture we have included here?  THIS is the condition of the water fountain outside of the building.  It is unacceptable. Clean water and bathrooms are HUMAN RIGHTS.  Clark County and the Public Service building staff needs to be sure they are attending to the needs of EVERYONE, the Unhoused as well as the Housed residents, using this PUBLIC FACILITY.