NINTH CIRCUIT RULES L.A. MUNI CODE, WHICH PROHIBITS USE OF VEHICLE AS “LIVING QUARTERS,” UNCONSTITUTIONAL
On June 19, 2014, a three judge panel held, in the case of Desertrain et. al. v. City of Los Angeles et. al., that L.A. Municipal Code Section 85.02, which prohibits the use of a vehicle as living quarters, “provides inadequate notice of the unlawful conduct it proscribes, and opens the door to discriminatory enforcement against the homeless and the poor. Accordingly, Section 85.02 violates the Due Process Clause of the Fourteenth Amendment as an unconstitutionally vague statute.”
Plaintiffs are four homeless individuals who parked their vehicles in the Venice area of Los Angeles and were cited and arrested for violating Section 85.02. The Court stated that “Plaintiffs argue that Section 85.02 is unconstitutionally vague on its face because it provides insufficient notice of the conduct it penalizes and promotes arbitrary and discriminatory enforcement. We agree.”
Facts
In 1983, the City of Los Angeles enacted Municipal Code Section 85.02: USE OF STREETS AND PUBLIC PARKING LOTS FOR HABITATION. The Section states that, “No person shall use a vehicle parked or standing upon any City street, or upon any parking lot owned by the City of Los Angeles and under the control of the City of Los Angeles or under control of the Los Angeles County Department of Beaches and Harbors, as living quarters either overnight, day-by-day, or otherwise.”
On September 23, 2010, Los Angeles officials held a community meeting with residents of Venice to address complaints of homeless individuals with vehicles living on local streets in Venice. City officials repeated throughout the meeting that their concern was not homelessness generally, but the illegal dumping of trash and human waste on city streets that was endangering public health.
As a result of that meeting, LAPD created the Venice Homelessness Task Force. The Task Force’s officers were to use Section 85.02 to cite and arrest homeless people who were using their automobiles as “living quarters,” and were also to distribute to such people information concerning shelters and other social services.
“Supervisors instructed officers to look for vehicles containing possessions normally found in a home, such as food, bedding, clothing, medicine, and basic necessities. According to those instructions, an individual need not be sleeping or have slept in the vehicle to violate Section 85.02. Supervisors directed officers to issue a warning and to provide information concerning local shelters on the first instance of a violation, to issue a citation on the second instance, and to make an arrest on the third.”
Beginning in late 2010, the Task Force began enforcing Section 85.02 against homeless individuals. Four such individuals are Plaintiffs in this case. Plaintiffs challenged Section 85.02 under the Fourth, Fifth, and Fourteenth Amendments, various sections of the California Constitution, and several state and federal statutes. Plaintiffs alleged that enforcement of Section 85.02 “violates due process,” but they did not specifically allege that the statute was unconstitutionally vague.
However, after depositions revealed conflicting views among the enforcing officers as to what Section 85.02 means, and the discovery of a memo granting officers discretion in the enforcement of the Section, without any guidelines, Plaintiffs’ attorney told Defense counsel that Plaintiffs would be challenging the constitutionality of Section 85.02 on vagueness grounds.
Motions for summary judgment were filed by both plaintiffs’ and defendants’ and on October 28, 2011, “the district court denied Plaintiffs’ motion for summary judgment and granted Defendants’ motion for summary judgment as to all claims. In a footnote, the district court held that because Plaintiffs failed to raise a vagueness challenge in their First Amended Complaint, ‘Defendants were not on notice that Plaintiffs would challenge the constitutionality of § 85.02 [on vagueness grounds] and such arguments are inappropriate.’” The decision was appealed.
Court of Appeal Discussion
“The district court refused to consider the merits of Plaintiffs’ vagueness challenge because it was not expressly raised in their First Amended Complaint. That ruling was an abuse of discretion: Plaintiffs should have been granted leave to amend their First Amended Complaint to add their new claim.” The Court noted that “Plaintiffs made their vagueness argument both in their motion for summary judgment and in their opposition to Defendants’ motion for summary judgment.”
Furthermore, the Court found, “by the summary judgment stage, Defendants had ample notice of Plaintiffs’ vagueness challenge, and the issue did not require further discovery. Both parties fully argued the vagueness issue in their respective summary judgment briefings. Thus, any claim of surprise or prejudice by Defendants is unpersuasive.”
The Court stated that “a statute fails under the Due Process Clause of the Fourteenth Amendment ‘if it is so vague and standard less that it leaves the public uncertain as to the conduct it prohibits . . . .’”
“Section 85.02 offers no guidance as to what conduct it prohibits, inducing precisely this type of impermissible speculation and uncertainty. It states that no person shall use a vehicle ‘as living quarters either overnight, day-by-day, or otherwise.’ Yet the statute does not define ‘living quarters,’ or specify how long — or when — is ‘otherwise.’ We know that under Defendants’ enforcement practices sleeping in a vehicle is not required to violate Section 85.02, . . . . , nor is keeping a plethora of belongings required, . . . . But there is no way to know what is required to violate Section 85.02.”
For example, “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.”
As such, said the Court, since “the [C]ity cannot conceivably have meant to criminalize each instance a citizen uses a vehicle to store personal property, vagueness about what is covered and what is not ‘dooms this ordinance.’”
In addition, states the Court, “Section 85.02 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.”
As to the issues raised by the City regarding public health, the Court held that, “we do not question the legitimacy of these public health and safety issues, but the record plainly shows that some of the conduct plaintiffs were engaged in when arrested — eating, talking on the phone, or escaping the rain in their vehicles — mimics the everyday conduct of many Los Angeles residents. The health and safety concerns cited by the City do not excuse the basic infirmity of the ordinance: It is so vague that it fails to give notice of the conduct it actually prohibits.”
HOW THIS AFFECTS YOUR AGENCY
It must be recognized that the Court focused on the vagueness of the Los Angeles statute and never addressed other constitutional issues, such as whether limiting the use of city streets for habitation is lawful. As such, it is imperative that cities and counties which currently have such laws review them to insure that they are not, also, found to be so vague that they are unconstitutional.
In addition, the Court noted that the officers responsible for enforcing the statute were provided with inadequate guidance as to how it should be enforced. During depositions, it came out that different officers interpreted the statute differently due, in part, to the failure to provide them with detailed guidelines and direction.
As such, policies which set forth the criteria to be considered by officers must be in place and the policies must be followed by the officers. It is necessary in order to show that unfettered discretion was not given to the officers.
The Court noted further that evidence showed that “Task Force officers had either received ambiguous instructions, or had ignored the explicit directives they had been given.”
Additionally, the Court found that as a result of the way the statute was written, “Plaintiffs are left guessing as to what behavior would subject them to citation and arrest by an officer. Is it impermissible 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.”
We consistently emphasize the need to seek out advice and guidance from your agency’s legal counsel. Each jurisdiction should review its relevant statutes in order to enable the city or county to be able to justify that their statute articulates what behavior is prohibited and that officers received guidance on the enforcement of the statute and that such direction was followed.
As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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