L.A. ban on using vehicle ‘as living quarters either overnight, day-by-day, or otherwise’ unconstitutionally vague

June 19, 2014

From Thursday’s Desertrain v. City of Los Angeles (9th Cir. June 19, 2014):

Section 85.02 offers no guidance as to what conduct it prohibits, inducing … impermissible speculation and uncertainty…. [T]he 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, as [plaintiff] Jacobs-Elstein learned, nor is keeping a plethora of belongings required, as [plaintiff] Taylor learned. But there is no way to know what is required to violate Section 85.02.

Instead, 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. All in all, this broad and cryptic statute criminalizes innocent behavior, making it impossible for citizens to know how to keep their conduct within the pale.

In this respect, Section 85.02 presents the same vagueness concerns as the anti-loitering ordinance held unconstitutional in Morales. There, the Supreme Court found that a Chicago law prohibiting “loitering,” which it defined as “remain[ing] in any one place with no apparent purpose,” lacked fair notice, as it was “difficult to imagine how any citizen … standing in a public place with a group of people would know if he or she had an ‘apparent purpose.’”
So too here. 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.

What’s worse, even avoiding parking does not seem to be sufficient; Plaintiff Warivonchik was not even parked — she was driving her RV through Venice when she was pulled over and issued a warning. So, under the Task Force’s expansive reading of this already amorphous statute, any vacationer who drives through Los Angeles in an RV may be violating Section 85.02. As “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.”

Because Section 85.02 fails to draw a clear line between innocent and criminal conduct, it is void for vagueness….

A statute is also unconstitutionally vague if it encourages arbitrary or discriminatory enforcement. If a statute provides “no standards governing the exercise of … discretion,” it becomes “a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.”

Arbitrary and discriminatory enforcement is exactly what has occurred here. As noted, 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.

The vagueness doctrine is designed specifically to prevent this type of selective enforcement, in which a “‘net [can] be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of the police and prosecution, although not chargeable in any particular offense.’” …

The City argues that its enforcement goals were motivated by legitimate health and safety concerns. It notes that some of the plaintiffs were arrested while in cars with garbage, pets, and their personal belongings, and that it was unsafe for plaintiffs to occupy their cars under these circumstances.

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. As shown by the City’s own documents, the different ways the ordinance was interpreted by members of the police department make it incompatible with the concept of an even-handed administration of the law to the poor and to the rich that is fundamental to a democratic society.

Note that this does not mean that there’s a constitutional right to sleep in a vehicle on city streets; a ban on such sleeping, or sleeping on more than some number of consecutive days, or spending more than some number of hours in a vehicle, would not run afoul of this particular opinion (though of course it might be hard to enforce, given that the police often won’t know whether someone in the back of a camper is sleeping or not). Rather, the opinion focuses on the fact that the prohibition — both as written and as applied — is not well enough defined.

Thanks to How Appealing for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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