Koh, who now presides in San Jose, was not present in court on Tuesday, March 2, for a pretrial hearing. Frost says he will continue to fight his citations. A four-day jury trial will begin April 19 in Palo Alto.
Frost is a regular fixture with his milk crate and signs in front of Whole Foods Market. He received 12 citations from city police for violating the sit-lie ordinance but Koh reduced the number to six in an earlier ruling.
Frost is allegedly the only person to have refused compliance with the ordinance. Many other persons have been warned and moved on, but Frost stayed put, the city claims.
The ordinance, which was first adopted in 1997 to cover University Avenue and expanded in 2007 to encompass the downtown area, seeks to prevent persons from obstructing the sidewalk in the downtown retail area between peak hours of 11 a.m. to 11 p.m.
The Palo Alto City Council found the area is unusually congested and individuals sitting or lying create a potential safety hazard and significant risk to the free flow of pedestrians.
But Frost provided the court with photographs of restaurants and patrons sitting at outdoor tables who were likewise violating the law and another sidewalk-encroachment ordinance. The city has admitted the law was not being applied by its code enforcement officers, but again took up enforcement when Frost complained.
Deputy Public Defenders Mark Dames and Meghan Piano, argued the uneven enforcement was proof of the city's discriminatory intent against homeless persons and that homelessness is a protected class under the First Amendment.
But Donald Larkin, assistant city attorney, argued the First Amendment challenge was not yet "ripe" because Frost had not yet been convicted or sentenced.
Koh's ruling denied the First Amendment challenge, based on previous state and federal decisions that a case is not ripe as an "applied challenge" if a defendant has not been convicted and sentenced.
Frost's attorneys claimed prosecutorial discrimination because he is homeless and treated to a different standard than wealthy persons.
Higher courts have ruled if criminal prosecution is deliberately based upon a standard such as race or a "discriminated" or "suspect" classification, the case must be dismissed.
But "classifications based on wealth are not suspect," Koh wrote, citing a federal case, Kadrmas vs. Dickinson Public Schools. And Frost's panhandling also does not support his First Amendment right to free expression, Koh wrote.
But Koh did note that affidavits regarding the city's lack of enforcement of its encroachment ordinance against business violators does constitute "some evidence of discriminatory effect."
"The mere showing" of a failure to prosecute, however, doesn't mean Frost's prosecution was prompted by intentional discrimination, she said, citing appellate decisions.
"Even assuming the defendant has proven discriminatory effect, the defense's motion to dismiss for discriminatory prosecution must be denied for failure to prove discriminatory intent," she wrote.
Defense attorneys said the city ordinance violated the state's equal-protection clause, but Koh disagreed.
Frost's case is analogous to a City of Santa Ana ordinance that was supported by the California Supreme Court, she noted.
In the Santa Ana case the ordinance was against camping and storage of personal property in designated public areas. The court supported the law because it banned the use of public property for purposes for which it was not designated.
Likening the case to Frost's, Koh wrote, "Sitting or lying down is not the customary use of the public sidewalks. The declared purpose of the ordinance does not suggest that it is to be enforced solely against the homeless."
In their declarations to the court, Palo Alto Police Lt. Sandra Brown and Sgt. Natasha Powers said they had given many warnings to violators who were not homeless. Powers said she had given 50 warnings and Brown's included businesses, their patrons, high school and college students, nonprofit solicitors and a group of people performing yoga exercises. All complied and were not given citations, they said.
Frost said he is not giving up.
"My main complaint is I'm being fined for myself and the rest of the panhandlers," he said.
Assistant City Attorney Donald Larkin said Frost has a right to a jury trial.
"I'm pleased with Judge Koh's ruling. Overall, she listened to the argument we made and she gave Victor a fair shot. I think it was a good ruling," he said.
He said the First Amendment argument could resurface following Frost's trial.
The city could look at changing some aspects of the encroachment ordinance to the advantage of businesses, he said. Currently, the ordinance requires an 8-foot sidewalk clearance for push carts to pass through. The city doesn't issue push-cart permits anymore, so there could be an allowance for lesser clearance, he said.
Koh's ruling comes as San Francisco wrestles with a contentious sit-lie proposal. Mayor Gavin Newsom is proposing two ordinances to reduce harassment of pedestrians and merchants by so-called street-persons — a citywide ban and a ban along some retail areas. Similar ordinances are in effect in other cities, including Santa Cruz, Seattle, Wash., and Austin, Texas.
This story contains 904 words.
Stories older than 90 days are available only to subscribing members. Please help sustain quality local journalism by becoming a subscribing member today.
If you are already a subscriber, please log in so you can continue to enjoy unlimited access to stories and archives. Subscriptions start at $5 per month and may be cancelled at any time.