As Cities Step Up Citations, the Guide Offers Trauma-Informed and Practical Strategies for Lawyers Defending Unhoused Clients
With the criminalization of homeless people ramping up across the nation, the ACLU of Southern California has responded by releasing a guide designed to help legal professionals defend their homeless clients against the citations that are becoming more and more frequent.
The guide is intended to “equip legal services providers, public defenders, and other advocates with a practical introduction to representing unhoused individuals against criminal infraction charges.” It covers best practices for working with both unhoused people and the traffic court system.
Guidance for Working with Unhoused Clients
For those unfamiliar with their unhoused neighbors, the guide offers guidance on best practices for trauma-informed lawyering and client-centered practice. Working with unhoused clients more often than not means working with people who have been, and are currently being, traumatized. It is essential to create a safe environment to avoid retraumatization.
The guide explains that traumatized clients may appear “difficult” or “uncooperative” as a result of that trauma. However, there are ways to manage such situations and create positive working relationships.
Practical tips include:
Identifying Trauma: The first step is to understand that many of your clients will be traumatized and to develop skills to handle clients’ trauma responses. Consider how you will greet the client and make them feel comfortable in the space, as well as how you can establish a good rapport and build trust. This should also include learning about the client’s current daily life, where they stay, and how you can get in touch with them if needed.
Adjusting the Attorney-Client Relationship: Trauma-informed lawyering necessitates a greater level of flexibility than the traditional view of the attorney-client relationship permits. You must be transparent about the strategic options available as well as the limitations of your capabilities. Always follow the client’s agenda and priorities.
Adapting Legal Strategy: While you won’t be able to shield your client from everything, you should be prepared to either appear in court on your client’s behalf or make a clear day-of plan to make them as comfortable and prepared as possible if appearing in court. Walking through all of the details and answering any questions that come up can go a long way.
Preventing Vicarious Trauma: It’s also important to take care of yourself as you are exposed to your clients’ experiences that may trigger your own past trauma. Make a plan for how you will manage your emotional reactions while working with your clients, how you can debrief with colleagues in a similar position, and what you will do for self-care.
Navigating the Traffic Court System
The traffic court system, through which most infraction charges are litigated, has its own unique quirks and procedures. If you’re not yet familiar with that system, the guide offers advice on how to navigate it:
Finding the Citation: Before going to court, gather all the information you can regarding your client’s ticket. If your client does not have a legible copy of the ticket, you should be able to find it through online searches or by calling the clerk. You will want the client present for this process to provide the necessary information.
Determining the Status of the Ticket: Which steps you take next will depend on whether the status of the ticket is Timely, Failure to Appear, Failure to Pay, Sent to Collections, or Bench Warrant. If you find a warrant for your client for a separate offense, the guide recommends referring them to a local public defender to resolve the warrant before appearing in traffic court, as they may be arrested upon arrival.
Adjudicated Cases: In some cases, you may find that your client has already been found guilty, in which case your representation will focus on contesting the client’s ability to pay their fines.
Setting the Arraignment: If your client has never appeared in court for their ticket, you will need to schedule the initial arraignment. This can be done by calling the clerk, making an online reservation, or on a walk-in basis, depending on the location.
The guide contains a wealth of valuable information on entering a plea, what to expect at trial, sentencing, and compliance, so be sure to check out the full guide for access to all of this.
Common Defenses
There are several strategies and defenses for quality of life infractions outlined in the guide. In short, they include:
Dismissal in the Interest of Justice: Penal Code § 1385 allows courts to dismiss charges “in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.” There is a very specific way this needs to be done. Consult the full guide for more information.
Factual Elements: The client did not do what was alleged, or the state can’t prove that they did. Which elements of the specific citation need to be proven in order to get a conviction, and can those be proven beyond a reasonable doubt?
Procedural Strategies: The ticket is facially deficient, or another procedural factor requires the dismissal of the ticket, such as the Racial Justice Act, Failure to Prosecute, or Section 41500.
Necessity Defense: The client’s actions technically violated the law, but were necessary to prevent greater harm to themselves or another person, or they had no adequate legal alternative.
According to the guide, “It is a narrow and fact-dependent defense to tickets for camping, sleeping, or engaging in other life-sustaining conduct in public. In its recent Grants Pass decision striking down a legal protection against a city’s anti-camping law, the Supreme Court noted that necessity may provide a defense against similar laws in some cases.”
Check if you have stronger options before using this defense, since proving elements of it may be impossible to do without admitting to elements of the charged offense.
Vagueness: The ordinance is too unclear for a person to understand what actions are prohibited by it, does not provide fair notice of what is prohibited, or is “so standardless that it authorizes or encourages seriously discriminatory enforcement.”
Ability to Pay Petition: If your client is convicted, they will likely incur a fine for the initial infraction, as well as additional court fees. Submitting an ability-to-pay petition may help to reduce these fines and fees on the basis of financial hardship.
The release of this guide underscores the growing need for legal advocacy as laws punishing survival behaviors multiply. While the courts can provide some relief, advocates stress that the true solution lies in housing, not handcuffs.
