By pretending to be homeless, rapper Pras Michel was able to make a powerful documentary about homelessness in Los Angeles. Now that deception could make him liable for invading the privacy of three homeless people depicted in “Skid Row.”

The film, released in August 2007, documents the nine days that Pras (of Fugees fame) spent on Los Angeles' Skid Row, using the alias “New York.” A film crew followed him around and he also used a hidden camera to surreptitiously record his interactions with the homeless.

Asked if he had any ethical conflicts about going undercover, even if it raised awareness about the homeless problem, Pras has said in an interview, “No, because I walked the walk ... It wasn't some Tyra Banks thing, going in there for two hours with no makeup. This was real.”

But Michelle Hassan, Wesley Bolden and Terrell Brown allege that Pras and his producers fraudulently concealed his identity and invaded the privacy of their Skid Row “homes and dwellings,” causing them “ridicule” and “embarrassment” in part because family and relatives “did not know of the full extent” of their living conditions until “Skid Row” was released.

The plaintiffs were living in “tents and other structures” erected on city streets. While they lacked the comforts of a “traditional” home, the suit says, they “did attempt to maintain some privacy in their humble dwellings and lives.”

The outcome of the case may turn on whether, as a matter of law, the plaintiffs had a reasonable expectation of privacy in those dwellings and, if so, whether Pras's undercover ruse would be “highly offensive to a reasonable person.”

On the privacy issue, a California appeals court found a police search of a homeless man's “residence” -- a cardboard box located on a sidewalk -– lawful under the Fourth Amendment because he was occupying public property without permission. People v. Thomas, 38 Cal.App.4th 1331 (1995).

The “Skid Row” plaintiffs' attorney, Sanford Jossen of Manhattan Beach, says that Thomas does not apply to an intrusion on homeless people by a private individual. “It doesn't mean you or I can simply go down to Skid Row and walk in on these people,” he tells On Point.

The issue of offensiveness may be a trickier one for the plaintiffs. Jossen sees the case as analogous to Sanders v. ABC, 20 Cal.4th 907 (1999), in which the California Supreme Court found a broadcaster liable for surreptitiously recording office employees in the workplace with hidden cameras.

“Pras used a ruse and deception,” he argues. “Based upon their reliance on this deceit, [the plaintiffs] provided information and made themselves accessible.”

In Dietemann v. Time, Inc., 449 F.2d 245 (1971), the 9th U.S. Circuit Court of Appeals said that “The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office.” The case involved Life magazine employees who used a subterfuge to enter the plaintiff's home.

But in determining offensiveness, courts also take into consideration “the intruder's motives and objectives.” Sanders held that a media defendant may “attempt[ ] to show ... that the claimed intrusion, even if it infringed on a reasonable expectation of privacy, was 'justified by the legitimate motive of gathering the news.'”

Pras's very worthy objective of raising awareness of homelessness could be enough to justify his devious means for achieving that end.

By Matthew Heller
3/19/09