On the eve of the first hearing in a lawsuit about Los Angeles’ homelessness crisis in March 2020, U.S. District Judge David O. Carter joined Mayor Eric Garcetti on a conference call with the mayors of California’s nine most populous cities. It was the first step in a groundbreaking approach that Carter said was garnering attention from judicial officials and policymakers in Seattle and Portland, too, and the judge predicted the interest would only grow.
Fifteen months later, that prediction has held true. But instead of accolades, an unprecedented order from the veteran jurist is drawing scrutiny to his work on homelessness like never before, with a broad collection of municipalities supporting the city and county’s bid to overturn it at the U.S. 9th Circuit Court of Appeals.
From the California League of Cities to the League of Oregon Cities and the Association of Washington Cities, the West Coast appears united against Carter’s April 20 injunction, which includes orders for city and county tax audits, housing offers for everyone on Skid Row, and a focus on temporary shelters instead of only long-term housing.
But attorneys for the Los Angeles business owners and residents who filed the lawsuit that led to Carter’s injunction say the official city stances don’t reflect the views of all policymakers.
“There’s the substantive real interest in this process, which could largely solve homelessness as we know it on the West Coast, then there’s procedural objections. I think you have to separate those,” said Elizabeth Mitchell of the Los Angeles law firm Spertus, Landes & Umhofer, LLP.
“We have had people reach out not just from the West Coast but frankly all over the country,” she added.
Mitchell last week filed a 106-page brief responding to the appellate arguments from the city and county as well as the Los Angeles Community Action Network, a poverty advocacy nonprofit that is also appealing Carter’s order. She has two amicus briefs on her side, one from the Hope Street Coalition, an advocacy group for home people who are mentally ill and addicted, and the other from the Texas Public Policy Foundation and the Citygate Network, also known as the Association of Gospel Rescue Missions.
Mitchell’s co-counsel, Matthew Umhofer, will have 20 minutes to argue her case when a three-judge panel convenes in Hawaii on July 7. Attorneys for the city, county and intervenor LACAN Network have 20 minutes apiece, also. (The arguments can be watched on the 9th Circuit’s YouTube channel.)
LACAN’s approach overlaps with the city and county’s, with LACAN citing the city and county’s positions and the accompanying amicus briefs from service providers and developers decrying the injunction’s effects on their plans.
Throughout it all, no one is objecting to the judge’s detailed explanation of how systemic racism caused Los Angeles’ entrenched homeless crisis. Rather, it’s how he used that explanation to justify his orders that’s led to the legal controversy. And most people weighing in disagree with Mitchell’s belief that the approach could solve homelessness.
LACAN’s brief calls Carter’s overall narrative “accurate and damning” but cautions, “the District Court’s recognition of the City’s history of racism does not mean that the order issued by the Court will do anything to actually unravel the decades of racist policies identified by the Court. Nor does it mean that the case itself has anything to do with redressing the City’s racist past.”
The brief says the plaintiffs’ group that brought the lawsuit was founded “by the longtime general counsel of a property owners’ association in Skid Row.”
“Far from seeking to redress the injuries of unhoused people in Skid Row or eradicating the harms of decades of structural racism, the group seeks redress from the harms they allege they have suffered as a result of other people experiencing homelessness,” according to the brief, signed by Shayla Myers, senior attorney at the Legal Aid Foundation of Los Angeles.
The city’s 74-page brief says “a pervasive theme” of the injunction contends that “a government’s failure to solve a serious and complex social problem renders that government legally accountable for the existence of that problem.”
If accepted, the legal theory “would establish a virtual blank check for courts to intervene in addressing social issues not fully resolved to their satisfaction by elected officials,” city attorneys wrote.
Along with the municipal groups in California, Washington, and Oregon, the county and city’s supporters include the Association of Idaho Cities, International Municipal Lawyers Association, the California State Association of Counties, and the Washington State Association of Municipal Attorneys.
LACAN has amicus briefs from Women in Skid Row and United Way of Greater Los Angeles, which also is supporting the city and county.
The 9th Circuit originally stayed Carter’s order until June 15 to allow for a May 27 hearing and subsequent briefing. But the city, county, and LACAN said the hearing brought no clarity, so the 9th extended the stay until after it rules on the full appeal.
Meanwhile, city and county leaders aren’t waiting. While nothing’s happened on Skid Row, homeless people were forced to leave Echo Park in late March, and City Councilman Mike Bonin recently announced an initiative—currently underway—to eradicate encampments in Venice by transitioning people into housing and services. City Councilman Joe Busciano also has made clearing the streets of homeless encampments a hallmark of his mayoral campaign.
On Tuesday, L.A. City Council voted to draft new rules regarding camping near “sensitive facilities,” like schools, parks, and libraries. The initiative, which faces another vote on Thursday, would also prevent tent encampments from blocking sidewalks.
As for Carter, he’s long predicted that the accolades he was initially receiving would dissipate. Attorneys agreed to waive traditional litigation rules and allow him to talk to anyone about the case at any time, even after he warned during the first hearing: “Be certain, because I’m a complete nightmare.”
The case recently returned to traditional litigation amid stalled settlement negotiations and Carter entertaining drastic action.
Keeping with that, the city filed a motion on June 16 to dismiss itself from the entire case, just as the county did in May. Carter isn’t expected to grant the request, however, decisions by trial judges on dismissal motions aren’t immediately appealable to the 9th Circuit, so the case will be with Carter for the foreseeable future as soon as the 9th rules on the injunction.
“They can’t just keep tying this up in the 9th Circuit. We’ll be back in Judge Carter’s courtroom either until the case is dismissed or we win,” Mitchell said.
A settlement still seems out of reach, with Mitchell predicting: “It’s going to get ugly for the next six months.”
Meghann M. Cuniff is a freelance journalist focused on legal affairs. She’s on Twitter @meghanncuniff.
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