autistic boy
© FoxNews
Hearing on discovery motions set for September 22, 2015 9am, San Jose

Dear Bay Area autism families,

We wanted to let you know about an extraordinary, unprecedented lawsuit against a local family that could have profound implications for all of us affected by autism.

In June 2014, two Sunnyvale couples, whose homes on Arlington Court flanked a home occupied by a nine year-old autistic boy and his parents, sued the autism family in Santa Clara County Superior Court, alleging a smattering of incidents that had occurred sporadically over the span of about six years. The incidents sound much like those that happen with many autistic children, and include, for example, that the boy had entered a neighbor's garage, had taken a neighbor's banana, had sought out neighbors' sweets, had kicked a car (no damage), had tossed some objects over a fence, had pulled a child's hair and had on occasion kicked at people (no injuries), and had tossed a bicycle helmet. The boy was between 3 and 9 years of age, and weighed less than 60 pounds, at the time of these alleged actions.

To us, as autism parents, caregivers, and professionals, the alleged incidents seemed relatively unremarkable, a series of minor impulsive acts of a small boy with a significant neurodevelopmental disability, resulting in little, if any, measurable damage. Indeed, no actual damages to property or person are alleged in the Complaint. Moreover, the alleged acts were not so different from those often seen in rough-and-tumble neurotypical boys his age.

But in what some have characterized as a "witch hunt," the neighbor Plaintiffs filed an aggressive lawsuit seeking draconian forms of relief against the autism family, including:

- An injunction against the boy as a "public nuisance." Plaintiffs contend they are entitled to a permanent injunction against the boy and his parents for "abatement" of the nuisance. Based on papers filed in this case, this could include a court order that the autism family be legally prohibited from living in their home, or perhaps, that the boy not be allowed in public spaces outside the home.

- Monetary damages for loss of property value. The Plaintiffs' Complaint alleges that neighborhood "concerns" about the boy "have created an as-yet unquantified chilling effect on the otherwise 'hot' local real estate market" and that "people feel constrained in the marketability of their homes as this issue remains unresolved and the nuisance remains unabated." For this alleged reduction in neighborhood-wide property values, Plaintiffs seek an unspecified sum of money as compensation.

- Damages and injunctive relief based on a litany of other claims, including abatement of private nuisance, negligence, trespass, battery, negligence—parental liability, statutory liability of parents for torts of a minor, and negligent infliction of emotional distress.

- Attorneys' fees and costs. The Plaintiffs also seek attorney fees insofar as they are "seeking to vindicate an important right affecting the public interest."

At great expense and inconvenience, the autism family moved away from the home in September 2014 to escape what they saw as harassment by their neighbors. After an attempt at mediation, the Plaintiffs would not agree to settle the case or drop their lawsuit, even though the autism family no longer resided in the home, of which they retained ownership but rented out. The Plaintiffs have not alleged that any adverse incidents have occurred for much longer than a year now.

Just recently, to support their contention that the young boy's autism behaviors constitute a "public nuisance" that must be "abated," the Plaintiffs issued third-party subpoenas seeking his private disability-related information from a variety of sources including school district records, private therapy records, regional center files (from the San Andreas Regional Center, the agency charged with serving people with developmental disabilities in the county), and even records from a special-needs summer camp and a parent support group.

A hearing on Defendants' motion to quash those highly invasive subpoenas is scheduled for September 22, 2015 at 9am. Details:

Case: Flowers v. Gopal, Santa Clara County Superior Court Case No. 114CV266515
Hearing: Motion to quash third-party subpoenas
Date: Tuesday, Sept 22, 2015
Time: 9:00am
Location: Department 8, Santa Clara County Superior Court, 191 North First Street, San Jose, CA 95113
Presiding Judge: Honorable Maureen A. Folan
[Please note it is unclear when these motion will come up on the court's calendar, it may not be heard until well after 9:00am.]

While a court hearing is obviously not an appropriate place to voice community concerns, community members are free to attend if they would like to learn more about this matter or simply lend moral support for the Defendant autism family.

This legal battle is occurring against the background of dramatically increasing autism cases in our state and within Santa Clara County as well. Santa Clara County in 1990 counted just 147 Department of Developmental Services-eligible autistic individuals, but today has more than 3,200. California cases of more severe forms of autism (DDS-eligible) has soared more than 25-fold since the 1980s, and now surpass 80,000 individuals. Autism is now found in all our neighborhoods. But if discriminatory lawsuits like this—where community members can sue autism families for autism-related behaviors (particularly where the $25k jurisdictional threshold is clearly not met)—proliferate, the result could be profound:
- Autism families could be driven to homelessness and bankruptcy while they defend themselves against such suits.

- Almost any person with autism who displays aberrant behaviors (and that's most of the DDS autism population) could be declared a "public nuisance" based on neighbor complaints, and barred from living in the community.

- Autism families would lose their rights to privacy, as any community member who feels aggrieved by autism behaviors could seek the disabled child's most personal and private medical, therapy, school and disability records.

- It could empower a new breed of "private prosecutors" against the developmentally disabled. In this case, before filing their Complaint, the Plaintiff neighbors had asked the local police and Child Protective Services to intervene against the autism family. Those authorities declined to take action against them, as they found nothing warranting such action.

- Lawsuits like this could essentially nullify California's nascent efforts to foster increased community-based, integrated housing for the developmentally disabled, including those with autism. Federal policy requires that individuals with developmental disabilities have full access to the community and that communities may not discriminate against them; the California Government Code mandates that municipalities plan for inclusive community housing for citizens with developmental disabilities; and the state's Lanterman Act provides that individuals with developmental disabilities have a right to live in the community like any non-disabled person. Facile lawsuits such as this, if allowed to stand, could easily kill efforts to create more autism and disability housing in our communities.

- If permanent injunctive relief such as that sought by the Plaintiffs is awarded, it could turn autism families into criminals for minor behaviors of their children. Court-ordered mandates prohibiting a broad array of child behaviors means autism parents and caregivers would live in constant fear that "one false move" by their significantly disabled charges could turn them, literally, into criminals subject to contempt of court punishments, including imprisonment.
Finally, we would like to commend the autism family targeted by this lawsuit. They have handled this attack with incredible strength as well as a sense of responsibility to the entire autism community, knowing what is at stake.