Palo Alto Weekly

News - June 27, 2014

Ruling could jeopardize Palo Alto car-camping law

Judges strike down ordinance similar to Palo Alto's ban on people living in cars

by Sue Dremann

The U.S. District Court of Appeals has ruled against a Los Angeles vehicle-habitation law similar to Palo Alto's, saying that it opens the door to discriminatory enforcement against the homeless and the poor.

Ninth Circuit Court Judges Harry Pregerson, Marsha Berzon and Morgan Christen filed their ruling on June 19, with Pregerson writing the opinion in Cheyenne Desertrain v. City of Los Angeles. The court found the car-camping law violates the due process clause of the Fourteenth Amendment by being unconstitutionally vague.

The City of Palo Alto in December postponed implementing its controversial vehicle-habitation ordinance, approved the prior August, because of the pending Desertrain case.

Now, Palo Alto officials are faced with figuring out their next steps in the wake of this week's ruling. City Attorney Molly Stump said her office is reviewing the Desertrain ruling and that staff will make its recommendations to the City Council sometime between August and the end of the year.

The Desertrain case took aim at the 1983 City of Los Angeles municipal code, which was being used to arrest homeless vehicle dwellers in Venice. Officers of the Venice Homelessness Task Force were to arrest people using their automobiles as "living quarters" and to give them information concerning social services and shelter providers.

An individual did not need to be sleeping in the vehicle to be arrested; officers were to look for cars with items normally found in a home: food, bedding, clothing, medicine and basic necessities. Officers gave a warning the first time, a citation the second and arrested the person the third time, according to the court opinion.

The four plaintiffs in Desertrain were variously subjected to harassment and arrest and had their vehicles impounded, according to the court. They had to sleep on the street in the rain, come up with money to get their vehicles out of impoundment and put their belongings in a rented storage locker to avoid being further cited or arrested.

The plaintiffs include a woman with epilepsy who had suffered a significant head injury and could no longer work, a man with congestive heart failure that caused fluid buildup in his legs that prevented him from walking long distances and a former businessman who lost his firm and home after the 2007 economic downturn and subsequently suffered from severe anxiety and depression.

The Los Angeles statute is vague, the appeals judges found, and it may authorize or encourage arbitrary and discriminatory enforcement.

The statute "offers no guidance as to what conduct it prohibits," the court noted. Instead, the plaintiffs are left guessing as to what behavior would subject them to citation or arrest, the court said.

"Is it permissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain? These are all actions plaintiffs were taking when arrested for violation of the ordinance, all of which are otherwise perfectly legal," Pregerson wrote. "And despite the plaintiffs' repeated attempts to comply with (the law), there appears to be nothing they can do to avoid violating the statute short of discarding all of their possessions or their vehicles, or leaving Los Angeles entirely.

"All in all, this broad and cryptic statute criminalizes innocent behavior, making it impossible for citizens to know how to keep their conduct within the pale."

The Los Angeles ordinance presented the same vagueness concerns as an anti-loitering ordinance held unconstitutional by the U.S. Supreme Court in 1999, the court wrote.

"It is difficult to imagine how anyone loading up his or her car with personal belongings, perhaps to go on a camping trip or to donate household wares to the Salvation Army, and parking briefly on a Los Angeles street, would know if he or she was violating the statute.

"What's worse, even avoiding parking does not seem to be sufficient," the court noted, referring to one plaintiff who was pulled over and cited while driving her RV through Venice.

Palo Alto's ban closely mirrors that of Los Angeles in its vagueness, said William Safford of Palo Alto law firm Safford Legal.

The Los Angeles law states that "no person shall use a vehicle parked or standing on any city street, or upon any parking lot owned by the City of Los Angeles ... as living quarters either overnight, day-by-day, or otherwise."

Palo Alto's ordinance states, "It is unlawful for any person to use, occupy, or permit the use or occupancy of, any vehicle for human habitation on or in any street, park, alley, public parking lot or other public way."

It further prohibits "the use of a vehicle for a dwelling place, including but not limited to, sleeping, eating or resting, either single or in groups."

William Abrams — managing partner of the Palo Alto law office of Steptoe & Johnson and a consulting professor at Stanford University who represents Palo Alto car campers — said he was heartened by the ruling.

"I think (the ruling) will apply completely if we were to have to go to court," he said. "We would invalidate the Palo Alto law by the reasoning of Judge Pregerson and his opinion."

He added that he hopes to avoid litigation and will be talking with Stump in the coming days about the ruling.

The statute is objectionable because it doesn't criminalize behavior, but rather status, Abrams said. The police power of the local government has laws in place to address disturbances, health-related issues or threats — one's conduct — but that does not include one's status, he said.

Safford also said one aspect of the judges' ruling jumped out to him: that the Los Angeles law promotes arbitrary enforcement that targets the homeless.

In the Desertrain case, the judges wrote: "Arbitrary and discriminatory enforcement is exactly what has occurred here. The law is broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle. Yet it appears to be applied only to the homeless."

Safford agreed.

"When grandma and grandpa are traveling to Seattle in their RV and they pass through Palo Alto, they will be violating the law," he said. "When I stop to get a cheeseburger and eat in my car, I'm violating the law. But the reality is that grandma and grandpa are not going to be prosecuted."

Chuck Jagoda, a man who has lived in his car, said Palo Alto police have been kind and have avoided hassling homeless people, unlike police in some other local cities.

But he opposes the ordinance.

"A ban puts people who are already in financial peril only more so, as the court has pointed out.

"Subtracting resources from the situation is evidence of a lack of understanding of the on-the-ground reality or such strong fear as to react madly — without forethought or consideration," he said.

The Palo Alto City Council "deserves credit for their restraint in staying the enforcement of the dreaded and draconian vehicle-habitation ban they passed 7-2 last Aug. 5," he added. But Jagoda would have liked the council to not have enacted the ordinance in the first place, he said.

"As the Desertrain decision makes clear, it would be discriminatory to enforce rules against homeless people that are not enforced against home dwellers," Jagoda said.

Owen Byrd, a former planning commissioner and board member of the nonprofit Downtown Streets Team, offered his reaction to the ruling.

"Discrimination against any group — especially the poor — has no place in Palo Alto. I hope this legal decision has policy impacts and persuades the City Council to remove the vehicle-habitation ordinance from our municipal code," he said.

Los Angeles City Attorney Mike Feuer said the city won't continue litigation over its ordinance.

Staff Writer Sue Dremann can be emailed at sdremann@paweekly.com.

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