Sleepless in Palo Alto — Challenging the Criminalization of Homelessness

On June 19, 2014, the Ninth Circuit released an opinion in Desertrain v. City of Los Angeles, striking down the City's vehicle dwelling law as unconstitutionally vague. For those who have followed the development of a similar law in Palo Alto over the last couple of years, the Palo Alto ordinance is functionally identical to the Los Angeles law.

On June 19, 2014, a federal court of appeals struck down a Los Angeles city ordinance which criminalized vehicle dwelling.  The court held that the law, which banned the use of a vehicle as “living quarters”, was unconstitutionally vague and subject to arbitrary, discriminatory enforcement.  This may seem like a Los Angeles problem, but to those immersed in Peninsula politics, it sounds eerily familiar.

Unconstitutional vagueness is a funny concept.  It sounds like a linguistic problem – tighten up the language and the law will be fine.  Yet, this decision recognizes that laws cannot be fundamentally unclear.  If you and I cannot tell what is illegal, and neither can the police, then how can enforcement ever be reasonable?  The answer, said the Ninth Circuit Court of Appeals, is that it cannot.  If the police arbitrarily decide who to enforce against, then there is no equality of justice, and the law becomes reminiscent of “English feudal poor laws designed to prevent the physical movement and economic ascension of the lower class.”

Why is this a Palo Alto issue?  Because the Palo Alto vehicle habitation ordinance (VHO) is identical in every important way.  Both laws criminalize living in a car, but leave important questions wide open.  The Palo Alto law attempts to define “human habitation” as “the use of a vehicle for a dwelling place, including but not limited to, sleeping, eating or resting”, but if anything, this just makes things less clear.

In response to this ambiguity, many have asked me what conduct is prohibited by Palo Alto’s new ordinance.  The problem is, nobody knows.  If Grandma and Grandpa take a trip from Seattle down to San Diego, and they pass through Palo Alto, they are dwelling in their RV.  Are they violating the law?  If I grab a burger from a drive through, and consume it in my car, am I “dwelling” in my vehicle?

The answer is “yes” to both questions, but wait!  Are we really going to arrest Grandma and Grandpa, with the possibility of up to six months in jail, for driving through the City in a mobile home?  Of course not.  And therein lies the problem.  My clients, who have been driven out of house and home, are using their vehicles as a last place of refuge.  And they will be prosecuted.

As I read the court’s decision, I was struck by the similarities between the Los Angeles plaintiffs and my own clients.  Catastrophic medical problems or sudden income disruption are common causes of homelessness.  Yet, when the citizens of Palo Alto asked their Council for a solution, they did not call for a better safety net or more shelter beds, but instead for prosecution of the unhoused.

This is exactly what Los Angeles tried, and the federal court invalidated the law.  Palo Alto can expect the same result if it begins enforcement, because I can personally guarantee that the law will be challenged, and not only for vagueness.  The Council might even try to write a better version of the law, and eliminate ambiguity.  However, the law is unconstitutional on other grounds.  The courts have long recognized that laws criminalizing basic human necessities, such as eating and sleeping, are fundamentally unfair.  Since someone who owns no private property cannot be expected to sleep and eat in a private place, we cannot punish them for doing so in public.  The Los Angeles plaintiffs picked one potential challenge to their ordinance, but there are others.

In the end, though, this is not a legal problem, but a moral one.  If we continue to look for ways to end homelessness by outlawing it, then we will continue to punish people for being unhoused, instead of addressing the root causes of poverty.  These are not nameless, faceless vagrants, worthy of our contempt.  They are our neighbors, our fellow citizens, and my clients – and I will not allow them to be punished for their status or run out of town as undesirable.

William Safford is a criminal defense lawyer in Palo Alto and founder of Homeless Criminal Defense.  The full text of the Ninth Circuit’s decision in Desertrain v. City of Los Angeles and other information can be found at http://www.HomelessCD.com.  Enforcement of the Palo Alto law has been temporarily suspended, but the City Attorney’s office has stated that it will be advising the Council of the meaning of Desertrain before the end of the year.

If you are unhoused, and you need help with a criminal charge or a ticket related to your status, visit www.HomelessCD.com and click on “Contact”.  It may not be possible to provide representation in every case, but if your case is accepted, representation will be pro bono (free of charge).

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