How should a city treat one of its long-time, law-abiding citizens if her mature, decades-old hedges offend aggressive new standards set by city bureaucrats? What if this citizen is a 61-year-old grandmother fighting breast cancer? The answer the City of Palo Alto, California, provided to these questions was to send out two police officers to arrest Kay Leibrand in front of her home and neighbors and to charge her as a criminal.
As explained in One Nation Under Arrest, The Heritage Foundation’s new book on overcriminalization, this was an oppressive use of the power to prosecute and punish someone as a criminal – the greatest power any civilized government regularly uses against its own citizens. The City of Palo Alto had numerous other, less oppressive legal options available to it. More and more government officials, however, are using criminal punishment as a brute force weapon for “solving” every problem – regardless of whether that problem is serious or trivial or whether more appropriate and less oppressive options are available.
Kay Leibrand’s “offense” was that her street-side xylosma bushes were more than two feet tall. After this cancer-ridden grandmother had her fingerprints taken, had posed for a mug shot, and was arraigned, she was faced with a criminal fine or jail time. This was all because Palo Alto bureaucrats had suddenly decided to engage in hyper-aggressive enforcement of one of its municipal code provisions and to make an example of dangerous scofflaws like Mrs. Leibrand.
Ever since they moved in to their earth-tone bungalow on a corner lot in 1966, Mrs. Leibrand and her husband had taken pride in gardening with California’s native plants. The xylosma hedges went in a few years later. Before Palo Alto targeted her, the hedges had never generated any complaints and no one ever suggested, for example, that they impaired visibility or played a role in any accident at the intersection.
As a result, Mrs. Leibrand was shocked to receive a “Notification of Violation” from Palo Alto in 2001. Despite being in her eleventh year of battling cancer, she promptly trimmed her hedges. Just a few weeks later, though, the city sent Mrs. Leibrand a second notification. After taking the time to trim her hedges further, Mrs. Leibrand and her husband both inspected the hedges and their intersection and confirmed once again that visibility was unimpaired. Mrs. Leibrand then asked Palo Alto’s Code Enforcement Officer to come to her property to verify that the bushes did not impair visibility or pose a safety hazard.
Remarkably, the Code Enforcement Officer refused. He said that Mrs. Leibrand’s case had become “high profile.” He would not, therefore, exercise his discretion to grant her a waiver from Palo Alto’s unprecedented enforcement action. By the Code Enforcement Officer’s refusal to check the “crime scene,” the city failed to ensure that its enforcement action was fulfilling the spirit and purpose of the ordinance, which was designed to promote greater visibility and public safety.
Mrs. Leibrand then wrote a letter to Palo Alto’s Chief Planning Official explaining the situation and pleading for fairness. Throughout this battle with the city, Mr. and Mrs. Leibrand had provided photographs showing similarly offending shrubs throughout Palo Alto. The city’s response demanded that Mrs. Leibrand essentially chop down her hedges and threatened her with criminal prosecution. Mrs. Leibrand had pruned her bushes twice. For that reason and due to weather and her illness, she said, she would not prune them again. She added, “I am not convinced that the plants are a safety hazard” and noted the numerous “stop sign violations, speed, and cut-through traffic” that occurred at the intersection.
Palo Alto referred the situation to a Special Legal Counsel who apparently recommended that the two Palo Alto police officers be sent to her home to make the arrest. After she was booked, and as an additional indignity before releasing her, the officers demanded a sworn statement that Mrs. Leibrand – a Palo Alto resident for over three decades – would not flee the jurisdiction before trial.
Needless to say, Mrs. Leibrand felt singled out for criminal punishment. She was never even afforded a hearing on her hedge trimming before the city arrested her. When she wrote to the Palo Alto city manager explaining her unfair treatment, city officials demonstrated little decency toward a respectable, long-term resident. Their response was to issue a press release proudly announcing that they had arrested and arraigned this oh-so-dangerous criminal. Palo Alto officials and bureaucrats had used the criminal law to create the public example they needed to “encourage” other residents to conform to the city’s aggressive shrub-pruning regime.
Soon after Mrs. Leibrand pleaded not guilty and her case was set for trial by jury, Palo Alto officials began negotiating with her to settle the charges. To avoid jail time, Mrs. Leibrand agreed to mow her xylosma hedges down to stumps and make a donation to a tree-planting organization.
Sadly, four months after losing her battle for reasonable treatment at the hand of the City of Palo Alto, 61-year-old Kay Leibrand also lost her long-term battle against cancer.
To learn more about overcriminalization, Kay Leibrand, and other victims of overcriminalization, keep tabs on this Foundry series, and order a copy of One Nation Under Arrest.
