JURIST Guest Columnist Linda Tashbook of the University of Pittsburgh School of Law discusses the constitutionality of the Los Angeles law prohibiting the use of a vehicle for living quarters…

Nothing offends constitutional sensibilities quite like a local ordinance that sets police against poor people as a way of cleaning-up litter. Yet Section 85.02 [PDF]of the Los Angeles Municipal Code, which was enacted in 1983 and prohibits the use of a vehicle for living quarters, was lifted out of obscurity four years ago, having not been enforced over the years, for the express purpose of responding to “the illegal dumping of trash and human waste on city streets that was endangering public health.”

Note that the dumping was already illegal. The litter ordinance or even the disorderly conduct ordinance, if necessary, could have been invoked against that behavior. But the city dredged up this old anti-homeless law because neighbors claimed that it was homeless folks who were dumping the trash and waste. Here is the entire text of the ordinance:

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.

It doesn’t say anything about dumping trash or waste.

And so it came to pass that a small group of people, Desertrain et al, who had each been arrested under this ordinance brought a federal lawsuit against Los Angeles asserting that the law was unconstitutional. On June 19, 2014, the US Court of Appeals for the Ninth Circuit published a clear and artful decision in the case Desertrain v. City of Los Angeles [PDF]—artful because rather than weighing the city’s purpose against the irrelevant effects of the law, the court succinctly eviscerated the ordinance for being so vague that neither the public nor the police knew exactly which aspects of “living” were not allowed to be done in a vehicle:

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. And despite Plaintiffs’ repeated attempts to comply with Section 85.02, there appears to be nothing they can do to avoid violating the statute short of discarding all of their possessions or their vehicles, or leaving Los Angeles entirely.

The police confusion about the ordinance resulted in “arbitrary and discriminatory enforcement.” Said 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.”

Had the Desertrain court opined more about the law’s lack of applicability to the littering problem that it was supposed to resolve, the decision would have been all about the city administration: politics, governance, narrow tailoring … And it would not have been nearly as useful to homeless advocates. By focusing its entire decision on the law’s failure to clearly guide the police and the public, the court got to expound on the purpose of due process.

Writing about the ways that the US Supreme Court has declared vagueness to violate the Due Process clause, Judge Harry Pregerson, writing for the Ninth Circuit in this Desertrain case, brought-up great leading cases about laws impacting homeless life. He pointed to Chicago v. Morales, which struck down Chicago’s anti-loitering ordinance because it entitled police to guess whether people who were outside “remain[ed] in any one place with no apparent purpose.”

He quoted long sections of Papachristou v. Jacksonville, which invalidated Jacksonville, Florida’s vagrancy law because it empowered the police to arbitrarily decide who could stand in a particular place and how long they could stay there. Referring to Papachristou, in this Los Angeles vehicle dwelling case, Judge Pregerson even summarized Papachristou’s review of the common law history of “poor laws” that were “designed to prevent the physical movement and economic ascension of the lower class.”

This is powerful messaging from the bench. Judge Pregerson was not merely showing what vagueness meant, he was reminding all readers and all city governments that people who live in vehicles are poor and exposed, functioning at the mercy and whims police officers. “It is difficult to imagine how anyone loading up his or her car with personal belongings, perhaps to go on a camping trip or 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,” he wrote in subtle irony after referencing the Supreme Court cases.

Vacationers and generous donors were not cited or jailed pursuant to Section 85.02. Homeless people were. This is why police need better instructions—not better instructions about how to keep people from living in their cars. They need instructions in the form of ordinances that enable them to fulfill the real mission behind police work: to protect and serve.

What would happen if a city ordinance required police to provide safety patrols at encampments and parking areas where homeless people live? The homeless population would be more secure. Those could be straightforward routine-setting rules that don’t rely on discretion at all. Better yet, the city could even designate public parking lots as legitimate places for vehicle dwellers to park for free during non-business hours. By designating such places for this use, a city could efficiently provide related services that it generally makes available to the population: public restrooms and trash receptacles, for instance.

Cities typically have ordinances about the presence and management of trash receptacles in parks and business districts, but those ordinances are made in consideration of minor visitor usage; they could expanded to accommodate users who do not merely visit outdoors but who actually live there.

The Desertrain decision mentioned human waste dumping. It is easy to imagine why that happens; public buildings with restrooms are locked-up overnight. City and county health ordinances can provide for free-standing outdoor restroom facilities. Some parks already have them. Cities can figure out ways to implement them more widely.

The final paragraph of the Desertrain decision leaves no doubt about the Ninth Circuit’s opinion of Section 85.02. “For many homeless persons, their automobile may be their last major possession—the means by which they can look for work and seek social services.” In closing, the court demands unequivocally that the city provide better public service: “The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.”

Desertrain is such a perfect allegorical title for this case. Of course, it is the last name of one of the Plaintiffs, a disabled woman who was supposed to be exempt from tickets related to parking. How fitting that it also evokes the image of refreshing and renewing parched ground.

Linda Tashbook is a homeless advocate, author of The Homeless Law Blog, and a librarian at the University of Pittsburgh School of Law. She thanks Bill Hale, a great homeless advocate in Marin County, California for making her aware of the Desertrain case decision.

Suggested citation: Linda Tashbook, Living in a Vehicle, JURIST – Dateline, Jun. 26 2014, http://jurist.org/dateline/2014/06/Linda-Tashbook-homeless-ordinance.php.

This article was prepared for publication by Endia Vereen, a Senior Editor for JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org