The coalition, led by Carrie LeRoy, is representing on a pro bono basis several homeless residents who will be unable to live in their cars as of 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 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 has spoken publicly against the ban, is also a client. At the Aug. 5 meeting, shortly before the council voted 7-2 for the ban — with Karen Holman and Marc Berman dissenting — 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 the list of people represented by the group may expand as she and her colleagues proceed with their legal opposition. Other attorneys involved 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 public utilities and telecommunications lawyer Nick Selby. The group contends the city's new ban is far too broad and that staff misrepresented other cities' ordinances to the council before the vote.
"There were a number of attorneys who expressed real concerns and had deep reservations over whether this was actually a constitutional ordinance," LaRoy said.
Abrams, whose work has included high-profile cases involving civil-rights intellectual property, called the Palo Alto 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.
Palo Alto's ordinance was approved after nearly two years of community meetings, outreach and persistent criticism from the homeless community. The ordinance makes it illegal for individuals to use "a vehicle for a dwelling place" (it makes exceptions for mobile-home parks and for guests of city residents). The council adopted it largely in response to a growing encampment of homeless people at the Cubberley Community Center in south Palo Alto and the resulting increase in complaints to police about what city officials dubbed a "de facto homeless shelter."
According to police data, the number of complaints about Cubberley dwellers rose from 10 in 2010 to 39 in 2012. An August staff report noted that in some cases, vehicle dwelling resulted in "nuisances or more serious disturbances to residents and businesses." The ordinance states 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 enforcement would be largely based on complaints. The most severe penalty would be a fine of $1,000, Stump told the council.
Critics contend the proposed punishment is not only draconian but illegal.
In recommending the ordinance, staff from the planning department and the city attorney's office cited similar bans in neighboring jurisdictions and noted 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.
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 (vehicle habitation ordinance), 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."
Though Stump said on Aug. 5 that violations would be prosecuted as misdemeanors as a "last resort," Abrams said the assurance is insufficient.
In addition to the ordinance, the council adopted a separate law on Aug. 19 mandating 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 might 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.
Abrams concurred: "Now, we have an ordinance that is illegal, that is unconstitutional and that needs to be stricken down."