Burning Bushes

Originally published at National Review by Paul Rosenzwieg and Trent England | 12/8/03

Law gets out of hand.

Palo Alto means “tall tree” in Spanish, but Kay Leibrand knows that tall trees can be a crime in the California city. Leibrand, a 61-year old grandmother, breast-cancer survivor, and former software engineer, was arrested and nearly went to jail because her hedge of xylosma bushes was more than two-feet tall.

#ad#As part of a “visibility project,” Palo Alto has a law making it a misdemeanor to have plants more than two feet tall in the strip between the curb and the sidewalk. The city almost never enforces this ordinance. In fact, Leibrand is the only person ever arrested for it, despite the fact that her well-pruned hedge left visibility unimpeded along her street. Meanwhile, numerous wrongful rhododendrons and criminal crabapples can be spotted around the city.

Leibrand and her husband 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 especially enjoyed her gardening. There were neither complaints about visibility nor any accidents at their intersection. Still, in September 2001, the Leibrands received a “Notification of Violation” from the city. They were told to cut back the bushes or pay a $500 fine (presumably to the city’s hedge fund). Mrs. Leibrand quickly responded with her pruning shears.

The next month, a certified letter informed Mrs. Leibrand that the bushes remained in violation of the city’s municipal code. She had to chop the plants to two-feet tall or face “enforcement action.”

Mrs. Leibrand didn’t want to be a scofflaw. But she also didn’t want to mow down her hedge. So she made sure the hedge and the rest of her plants were neatly pruned. Leibrand carefully checked the visibility at the intersection and found it unimpeded by the plants. She contacted the code enforcement officer and asked him to come verify the bushes posed no threat to visibility or safety. The officer refused. He told her to chop down her bushes or else.

In a series of letters, Leibrand tried in vain to negotiate and reason with city officials. But to the city, apparently, the green-thumbed grandmother was just another garden-variety crook. On April 3, 2002, the city dispatched two police officers to arrest Leibrand in her home.

Eventually, Palo Alto settled with Leibrand rather than take the case to a jury. To avoid going to jail, Leibrand made a donation to a local tree-planting organization. Now, instead of an attractive row of bushes along Waverly Street, there are little clumps of xylosma stumps.

Mrs. Leibrand’s case highlights a troubling trend: the expansion of criminal law far beyond its historically accepted limits. Throughout English and American legal history, criminal laws were 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 areas beyond the reach of the criminal law, civil law remained free to protect people from negligence and nuisances.

The tendency to criminalize all kinds of activity also overburdens our criminal-justice system. Making trivial offenses, such as “felony failure to garden,” into criminal acts further strains an already overworked system. Police officers who are dutifully arresting grandma for inadequate pruning aren’t available to track down car thieves or investigate homicides.

Overcriminalization also leads to selective enforcement and unfair prosecution. Police and prosecutors generally exercise their discretion to focus resources on enforcing more serious and reasonable criminal laws. But selective enforcement of bad laws leaves the problem festering beneath the surface until some disgruntled neighbor or overzealous prosecutor decides to ruin someone’s life. And Leibrand’s case is hardly unique: More examples are on the website overcriminalized.com.

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. This kind of enforcement, empowering single anonymous complainers, inevitably results in biased, vindictive prosecution.

That’s what happened to Leibrand. Her battle is over; the xylosma bushes are gone. While she won her fight with cancer, she couldn’t prevail over city hall. She shouldn’t have even had to try.

–Paul Rosenzweig is a senior legal research fellow and Trent England is a legal-policy analyst in the Center for Legal and Judicial Studies at the Heritage Foundation.