A group of Palo Alto attorneys is threatening to sue the city over a recently adopted ban on vehicle habitation, a law that they claim effectively criminalizes homelessness and that is far more draconian than car-dwelling restrictions in other jurisdiction.
The coalition, led by local attorney Carrie LeRoy, is working pro bono and is representing several homeless residents who will lose the right to live in their cars when the car ban takes effect on Jan. 6. The plaintiffs include James and Suzan Russaw, a couple who the attorneys say wish to stay in the area to be close to their grandchildren. James Russaw, 84, is also receiving regular kidney dialysis and needs to be able to get to his medical appointments, the attorneys said in a letter to City Attorney Molly Stump.
Fred Smith, a homeless man who had spoken publicly against the ban, is also a client. At the Aug. 5 meeting, shortly before the council voted 7-2 with Karen Holman and Marc Berman dissenting to approve the ban, Smith urged the council to reconsider.
"I recently lost my job, my wife and my house. I now live in an RV in a commercial zone. Please don't criminalize me," Smith said, drawing an applause.
LeRoy said in an interview Monday that the list of people represented by the group may further expand as she and her colleagues in the effort proceed with their legal opposition to the ban. Other attorneys involved in challenging the ban are William Abrams and Paul Johnson, both of the firm King & Spalding, Stanford University professors Juliet Brodie and Michele Dauber, Menlo Park-based attorney Jeff Koppelmaa, criminal attorney William Safford and Nick Selby. The group contends that the city's new ban is far too broad and that staff has misrepresented other cities' ordinances to the City Council before the vote.
"There were an number of attorneys who expressed real concerns and had deep reservations over whether this was actually a constitutional ordinance," LaRoy said.
Abrams, a partner at King & Spalding with a long history of pro bono work and high-profile cases involving civil rights intellectual property, called Palo Alto's new ordinance "overbroad." The effect of the law, he said, will be to force homeless individuals who own or lease vehicles to leave Palo Alto or risk arrest. It will target the city's "invisible" population, he said, people who don't have any other options for shelter.
In their letter, the attorneys request a meeting with Stump by Dec. 5. Unless the request is met, the letter states, "We will proceed with filing a complaint in court against Defendants on behalf of the Plaintiffs." The defendants in this case would be the City of Palo Alto, the Palo Alto Police Department and Police Chief Dennis Burns.
The attorneys are challenging an ordinance that the council adopted on Aug. 5 after nearly two years of community meetings, outreach efforts and persistent criticism from the homeless community. The ordinance makes it illegal for individuals to use "a vehicle for a dwelling place" (it makes exception for mobile-home parks and for guests of city residents). The council adopted it largely in response to a growing encampment of homeless residents at the Cubberley Community Center and the resulting increase of police complaints about what city officials dubbed a "de facto homeless shelter."
According to police data, the number of complaints about Cubberley dwellers had risen from 10 in 2010, to 16 in 2011 and to 39 in 2012. An August staff report noted that in some cases, vehicle dwelling has resulted in "nuisances or more serious disturbance to residents and businesses." The passed ordinance states that vehicle habitation causes the city to "incur increased costs for policing, maintenance, sanitation, garbage removal and animal control" and that it "creates a risk to the health, safety, and welfare of those persons in the vehicles, as well as the public at large."
Abrams rejected this argument. The city, he said, already has plenty of ordinances in places for addressing incidents in which people disturb the peace, engage in violent conduct or engage in public drug or alcohol use.
"This is directed toward getting rid of homeless people in Palo Alto," Abrams told the Weekly.
At the Aug. 5 meeting, Stump told the council that violation of the car-dwelling ordinance would in most cases result in an infraction, though it could be turned into a misdemeanor at the city attorney's discretion. Staff noted that enforcement would be largely based on complaints. The most severe penalty would be a fine of $1,000, Stump told the council.
Critics contend that this proposed punishment is not only draconian but illegal. In her letter, LeRoy argues that the new ordinance will "cause the poorest and most vulnerable among us to lose the only protection that they have from exposure to the elements and to ensure some measure of personal safety."
"It cannot be disputed that sleeping in a vehicle affords better protection for homeless persons' health and safety than living or sleeping outdoors on streets, sidewalks, benches, or the ground," LeRoy wrote. "Enforcement of VHO (vehicle habitation ordinance) will exacerbate serious health issues and disabilities prevalent among Plaintiffs, who will be forced out of their vehicles or Palo Alto altogether to avoid criminal liability."
In recommending the vehicle-ban ordinance, staff from the planning department from the city attorneys office cited similar bans in other neighboring jurisdictions and noted that 92 percent of the cities in Santa Clara County (all except Monte Sereno) have restrictions of some sort in place. In San Mateo County, all cities except for Colma, East Palo Alto and Portola Valley regulate vehicle habitation, a report from city staff states. Not having such an ordinance makes Palo Alto a "magnet" for vehicle dwellers, proponents of the ban argued.
Before voting for the ordinance on Aug. 5, Councilman Larry Klein talked about the city's "obligation to protect our neighborhoods." He told his colleagues that he had seen dozens of homeless campers during two recent tours of Cubberley.
"The dramatic increase in homeless in Cubberley sleeping in their vehicles shows that we have inadvertently become a magnet," Klein said. "That has to come to an end."
The attorneys contend that this argument -- other cities have such ordinances and so should Palo Alto is a misrepresentation. While most cities do indeed have restrictions, Palo Alto's new law is both broader and more punitive than those elsewhere, LeRoy said. In Mountain View and Menlo Park, for instance, vehicle bans are limited to residential areas (in Menlo Park, this includes 300 feet within a residential zone). In Los Altos, it is illegal to "stop, stand or park a vehicle" for longer than 30 minutes between 2 and 6 a.m., when a notice is posted on the block. Palo Alto's law, meanwhile, applies to all streets, all the time.
Furthermore, punishment for violating this ordinance in other cities is a parking citation. In Palo Alto, it could potentially be incarceration, LeRoy said. The difference between a parking ticket and possible jail time, is huge, she said. Palo Alto's ordinance, she argued, effectively makes homelessness a crime.
"Cities across our nation have come up with restrictions that may be directed at homeless residents, but include exceptions so as to avoid punishing homeless residents for involuntary acts necessary to human survival, such as the acts of resting or sleeping," her letter stated. "The VHO, on the other hand, is one of the most punitive ordinances in the area and it has the effect of criminalizing the status of homelessness."
In addition to the vehicle-habitation ordinance, the council adopted a separate law on Aug. 19, mandating that all community centers, including Cubberley, be closed between 10:30 p.m. and sunrise.
LeRoy noted in an interview that the council's ban on overnight parking at Cubberley and other community centers already addressed the major problem that the city was trying to solve in banning vehicle habitation. Given the new restriction on community-center hours, the broader ban on vehicle dwelling wasn't tailored to address any legitimate concerns, she said.
"If vehicle dwellers can't be here at night during normal sleeping hours, do you still need to ban vehicle habitation throughout the city?" she asked.
She contended that if the City Council knew that the proposed ordinance goes far beyond those of neighboring cities, it may have been less likely to support the proposed vehicle-habitation ban. She couldn't say Monday what an acceptable alternative ordinance would be, noting that this might be the subject of settlement discussions.
"I think the effort now is to repeal the vehicle ordinance," LeRoy said.
Though Stump said on Aug. 5 that violations would only be prosecuted as misdemeanors as a "last resort," Abrams said the assurance is insufficient. The attorneys may be open at a future date to discuss alternative ordinances, but that's a "different conversation." The goal now is to get the recently passed ordinance off the books.
"Now, we have an ordinance that is illegal, that is unconstitutional and that needs to be stricken down," Abrams said.