CASE STUDIES | Palo Alto v. Liebrand

Gardening Grandma Arrested for Failure to Prune

On April 3, 2002, Kay Leibrand surrendered to the police. She was fingerprinted. They took her mug shots. The 61-year old grandmother and software engineer was told that she had broken the law. She might go to jail or perhaps she would get off with just a fine. On May 30, 2002, she was arraigned. Her crime was allowing street-side xylosma bushes to grow more than two feet high.

Palo Alto, California, decided to bring the full force of this municipal code provision against Mrs. Leibrand as part of a city “visibility project.” Never before in city history had it prosecuted a resident for such horticultural excess. Throughout Leibrand’s legal battle and after, she and her husband continually produced photographs of offending shrubs from around the city that somehow escaped the eye of the Palo Alto Police.

Mr. and Mrs. Leibrand have lived in their earth-toned bungalow on the corner of Waverly Street and El Dorado Avenue since 1966. A few years after moving in, Mrs. Leibrand planted xylosma seedlings between the sidewalk and the Waverly Street curb to beautify the neighborhood and help muffle the road noise. Soon she had a healthy line of neatly pruned bushes with shiny evergreen leaves to shelter her backyard from the sights and sounds of traffic.

The Leibrands enjoyed their corner lot and Mrs. Leibrand took a special interest in gardening with California’s native plants. Neighbors said that the Leibrands always had a well-kept yard. There were neither complaints about visibility nor any accidents at the intersection.

In the 1990s, Mrs. Leibrand began a long fight with cancer. In September 2001, while still fighting for her life, she received a “Notification of Violation” from Palo Alto. The notice, left at her doorstep while she was out of town, indicated that the City had received an anonymous complaint about the Leibrand’s hedge. Mrs. Leibrand was aware that her plants needed a trim and she set about the task. Her work quickly brought the offending xylosma bushes back to their usual well-kept and previously acceptable appearance.

A few weeks later, another Notification of Violation, this time by certified letter, informed the Leibrands that the bushes remained in violation of the city’s municipal code. The cited city ordinance required plants in the strip between the street and the sidewalk to be no more than two feet tall. The Leibrands had to trim the shrubs or face “enforcement action,” including “an administrative citation with a penalty in the amount of $500.”

Mrs. Leibrand did not want to be a scofflaw, but neither did she want to mow down her hedge. After the letter from the city, she made sure that the xylosma bushes at issue, as well as the rest of her plants, were neatly pruned. Mrs. Leibrand carefully checked the visibility at the intersection, which she found completely unimpeded by the plants. She contacted the Code Enforcement Officer and asked him to come and verify that the bushes were not a threat to visibility or safety. The Officer refused, telling her that because the case had become “high-profile” he would not use his statutorily authorized discretion. He told her to chop down her bushes or else.

In a letter to Palo Alto’s Chief Planning Official, Mrs. Leibrand explained the situation and asked for fairness. “If any plant over two feet tall in a planting strip is a safety hazard,” she wrote, “then the city is indeed unsafe with … possibly hundreds of code violations.” Mrs. Leibrand noted that the complaint-based enforcement of the regulation guaranteed unequal and even biased enforcement of the law. This is especially true when the city refuses to use its discretion to ensure that enforcement actions follow the spirit of a law designed to ensure visibility and public safety.

The city’s response to Mrs. Leibrand’s letter claimed that the Code Enforcement Officer had “considered both fairness and safety,” and acknowledged, “the standards are there to protect people from potentially unsafe situations.” Unfortunately, the letter disclaimed any discretion on the part of Palo Alto officials and reaffirmed the city’s dedication to destroying the plants or prosecuting Mrs. Leibrand.

After twice pruning the xylosma bushes and thoroughly checking the visibility along the street, Mrs. Leibrand decided to stand on principle. She refused to do any further pruning. “I am seriously ill and the weather is bad,” she wrote in response to the City’s reply. “I am not convinced that the plants are a safety hazard.” If the City was actually interested in safety, Mrs. Leibrand pointed out that her intersection was plagued with “stop sign violations, speed, and cut-through traffic.”

Palo Alto referred the situation to a Special Legal Counsel, who seemed uninterested in actually speaking with Mrs. Leibrand or answering any of her questions. Like the officials before him, he disregarded the municipal code’s provision for a hearing that might allow Mrs. Leibrand to present her case. Instead, on April 3, 2002, he dispatched two Palo Alto Police Officers to arrest Mrs. Leibrand in her home. They made her provide a thumbprint and swear that she would appear in court.

As a last resort, Mrs. Leibrand wrote to the city manager pointing out the strange way she was singled out and never even offered a hearing. The only response to her letter was a press release celebrating the arrest of the grandmother and announcing her arraignment. On April 17, Mrs. Leibrand was booked at the Palo Alto Police Station. She was arraigned on May 29, in Santa Clara County Superior Court, where she plead “not guilty.” A jury trial was set for February 10, 2003, but was delayed for settlement negotiations.

Eventually, Palo Alto settled with Mrs. Leibrand rather than go before a jury. Instead of a healthy and attractive row of bushes along Waverly Street, there are little clumps of xylosma stumps. The Leibrands made a donation to a tree-planting organization in lieu of a fine or jail time. Palo Alto successfully attacked one of its own citizens with a criminal statute about plant size.

Mrs. Leibrand’s case highlights the troubling trend to expand the scope of criminal law far beyond its historically accepted limits. Throughout Anglo-American legal history, criminal law was limited to intentional acts that caused or attempted to cause real injury. The bad intent (mens rea) and the harmful act (actus reus) were essential, fundamental elements of a crime. In those areas untouched by criminal law, civil law remained free to develop liability principles for things like negligence and nuisance.

The current trend to overcriminalize all kinds of activity creates a huge burden on the criminal justice system. Making trivial offenses, like “felony failure to garden,” into criminal offenses adds another burden to an already overworked system. While the police are dutifully arresting grandma for gardening, they cannot be tracking down car thieves or investigating homicides.

Overcriminalization also leads to legal confusion, selective enforcement, and unfair prosecutions. In fact, the most pernicious effect of overcriminalization is the huge sword of Damocles that these laws dangle over the heads of honest and otherwise law-abiding people. Police and prosecutors generally exercise their discretion to focus resources on enforcing more serious and reasonable criminal laws. This band-aid solution leaves the problem festering beneath the surface until some disgruntled neighbor or over-zealous prosecutor decides to ruin someone’s life.

The City of Palo Alto decided that general enforcement of its hedge height law would be too burdensome, so it created a complaint-based system. As Mrs. Leibrand pointed out in one of her letters to the City, this kind of enforcement, empowering single anonymous complainers, inevitably results in biased, vindictive prosecution. Overbroad laws that cannot be uniformly enforced are thus selectively enforced to the detriment of the “equal protection of the laws” that the Constitution supposedly guarantees.

The battle is over at the corner of Waverley and El Dorado. The xylosma bushes are gone, fatalities in the war on plants more than two feet tall. Mrs. Leibrand, another casualty, notes that her backyard is a little less peaceful and a little noisier. She won her battle with cancer, but could not prevail over city hall. She is left to consider whether her fight was worth the time and toil. The question remains: who will be the next victim of this garden-variety example of overcriminalization?

For more information about this case, see Kay Leibrand's web site.