A Complicated, Important Court Case That Will Decide LA's Path To Ending Homelessness
After decades of failure from lawmakers and executives, can federal court force a change?
The officials began arriving at the north corner of 5th and San Pedro Street just before 10 a.m on February 4. There, on a fenced-in parking lot owned by the City of Los Angeles, assembled a collection of powerful politicians, organizers, bureaucrats, and legal firepower to discuss the human crisis unfolding a few feet away on the other side of the fence.
They were there on the invitation of U.S. District of Judge David Carter, who is presiding over the case L.A. Alliance for Human Rights v. City & County of Los Angeles. Since it was filed last March, the case and Judge Carter’s hearings have become an agenda-setting force driving public discussion on how government in Los Angeles is failing to adequately address unsheltered homelessness.
Joining Carter in the parking lot on Thursday were Los Angeles County Supervisors Kathryn Barger and Hilda Solis, the board chair; L.A. City Councilmembers Mike Bonin and Kevin de León; Los Angeles City Attorney Mike Feuer; Heidi Marston, the executive director of the Los Angeles Homeless Services Authority (LAHSA); Pete White, director of the L.A. Community Action Network (LA CAN), and a myriad of others who have gravitated to the federal judge’s orbit over the last eleven months. (Notably absent was Los Angeles Mayor Eric Garcetti.)1
At the onset of the hearing, Carter explained how the discussion on Skid Row that Thursday was not supposed to be about the approaching deadline—the one by which L.A. had agreed to expand emergency shelter and housing infrastructure. Instead, Carter wanted to explore “the outer limits” of his position as a federal district judge to compel “any and all equitable remedies” to mass homelessness in Los Angeles.
For now, what the “outer limits” of court authority are obscure. At the very least, it could mean a consent decree, a type of legal settlement where Los Angeles would consent to judicial oversight from Carter’s court as it attempts to meet agreed-upon goals related to alleviating mass homelessness.
As Carter called people to speak during the hearing, several advocates for the unhoused embraced judicial intervention. But, the only elected official to openly agree was Councilmember Mike Bonin, who noted that Judge Carter could likely do much more than just a consent decree if L.A. fails to act. By contrast, Councilmember de León, Supervisor Solis, and City Attorney Feuer all encouraged Judge Carter to pump the brakes, and as Feuer said in so many words: leave addressing homelessness to the elected officials.
Ironically, Councilmember de León was an elected official who had, during the last rainstorm, worked with Judge Carter to try and create new shelter options. The phrase “what happened on Friday” was repeated several times in that parking lot.
The clearest description of what happened on the rainy Friday (January 29) came from anti-poverty activist Susie Shannon, who carefully read into the federal court record her personal account of an ad-hoc effort where ostensibly powerful officials were blocked and blocked again from keeping a small number of unsheltered women on Skid Row dry.
Their first attempt was to commandeer a city-owned parking lot used by the Downtown Women’s Center (DWC) for staff, and spring up a couple of large all-weather tents, like those for outdoor dining. Their second was to make use of 120 hotel rooms apparently promised available to Kevin de León.
Neither effort was successful. The first, Shannon said, because of “stonewalling” on the part of the DWC and officials from the Mayor’s office, which lead to Judge Carter, Shannon, and others being forced to leave the parking lot where they were working when DWC staff left to go home for the day.** The hotel rooms similarly failed to materialize that evening due to more bureaucratic snarling, leaving Judge Carter and City Councilmember de León to pay out-of-pocket for several hotel rooms for unsheltered women to spend the night.
(You can and should read Shannon’s full testimony over in the Twitter feed of Benjamin Oreskes, a reporter with the L.A. Times who also covered this hearing. Moreover, General Jeff Page reported on Saturday that the tents on the parking lot had disappeared.)
In a court order issued two days later, Judge Carter made it clear he was unhappy with what had transpired:
“These conditions cannot be allowed to continue! It is the Court’s concern that despite seven months of promises, conferences, plans and meetings, nothing substantial has been done to remediate the appalling and dangerous conditions in Los Angeles’ Skid Row for the homeless population.”
It was with this order that Carter convened the meeting at 5th and San Pedro. But the order also hints at some potential big plans in the coming months—much bigger than anything most in local government officials think possible.
At the hearing on Skid Row, Carter made clear multiple times he wanted to answer two questions: What is the theoretical maximum use of emergency power the city and county can invoke to immediately bring unsheltered people off the street and indoors? And, what role can his court play in compelling local executives and lawmakers to fully engage that maximum use of emergency power?
In his January 31 order, Carter referenced a pair of landmark court cases that grapple with similar questions: Brown v. Board of Education, which paved the way for the judiciary to compel local school districts to desegregate; and Brown v. Plata, where the judiciary compelled the State of California to reduce its prison population because overcrowding amounted to a violation of the 8th Amendment.
Carter placed a mid-February deadline for parties to file legal briefs on the authority of his federal court to circumvent “the paralysis of the political process” that endangers the lives of unhoused people. He also invited interested third parties not currently involved in the case for comment, driving rumors that so-called “biglaw” firms are now interested in the matter.
While white-shoe law firms have mostly stayed away from issuing perspectives on homeless issues in Los Angeles, there was great interest by some when it came to persuading (ultimately unsuccessfully) the U.S. Supreme Court to hear the Martin V. Boise case. SCOTUS declined to hear Martin, leaving the 9th Circuit’s clear but not-so-clear standing in place.2 But, as those closely watching the L.A. Alliance case have learned, clarifying what constitutes “shelter,” and where “enforcement” is appropriate, are crucial but arguably unanswered questions.
In their presentations to Judge Carter on February 4, staffers for the City of L.A. relied on the word “intervention” instead of “shelter” to describe their efforts to meet an agreement to create 6,700 “beds” for people living within 500-feet of a freeway bridge or ramp.3
But the reality is, few among the myriad of parties involved in this case have a consistent definition of “intervention” or “bed” as it relates to providing a meaningful end for an individual’s homelessness.
The story of the homeless services world—its beds and interventions and “innovative scalable solutions”—is a system that often fails to consider the humanity of the end-user of “homeless services.” The end-user—the unhoused person—is a body to be “sheltered” by authorities who often give little real consideration to the material conditions of “shelter,” and what it would be like to actually live in such an environment.
Consider the “tiny homes" the City of Los Angeles unveiled in North Hollywood this past week. The tiny homes L.A. is erecting all over the city (to fulfill its aforementioned 6,700 bed goal) are just 64-square-feet in size, and intended to shelter two people each. There is no kitchen, and there is no bathroom.
Maybe such a situation is palatable for a short period of time. But the reality of L.A.’s homeless service system is that anyone who enters an emergency shelter is likely going to stay there for a very long time. Many return to the street after promises of permanent housing evaporate following months of “languishing,” the word used by attorney for LA CAN, Shayla Myers, to describe life in emergency shelter with no real option to exit.
It points to a situation where, if a federal court (or anyone) wants to actually end mass homelessness, the focus needs to be on producing housing units and other permanent options that people with extremely low incomes can actually afford; not just a '“bed” in a “shelter” with a case manager who shows up once a week to help the client sign up for “services.”
How Los Angeles (and America) actually ends homelessness almost certainly must involve the federal government, which has far greater resources than cities and counties with their finite budgets and precarious financial situations.
Perhaps a starting point could be the Biden Administration’s recent commitment to reimburse 100% of what local governments spend to shelter homeless people in hotels until September alongside any emergency powers afforded to local officials.
When the hearing on Skid Row concluded, the group of about 40 people who had gathered to listen just outside the fence began to chant: “whose streets? Our streets!”
Then, a man named D.J. began speaking to those gathered: “This is not one specific person’s fight. This is all of our fights. People are dying on the street each and every day. That’s why we are here. We don’t want those that constantly put it off every day to decide. We need to decide, and that’s why we say: ‘While we’re here, housing now!’”
The crowd repeated the words back to him. “While we’re here, housing now!”
A little farther away, an older dark-skinned woman named Marie stood watching the suits exit the hearing and walk along the tent-lined sidewalk. She described how if she hadn’t found her current living situation when she did—a single room in a large building a few blocks away—she worries she would have died on the street.
“Like so many angels I have known.”
**Correction, 2/8/2021: A previous version of this article said several unhoused women were forced to leave the parking lot, at 5th and San Pedro Street, when DWC staff left for the day on Friday Jan. 29. In reality, no women were ever allowed on to the parking lot in the first place, and it was District Judge Carter, Special Master Michele Martinez, Susie Shannon, General Jeff, Pastor Don, and Don Garza who were asked to leave.
Notably absent on Skid Row was Los Angeles Mayor Eric Garcetti, whose public schedule that day (coincidentally his 50th birthday) listed a videoconference meeting for the Southern California Association of Governments (SCAG). Judge Carter knew when the day started that Garcetti wasn’t planning to show up, but it didn’t stop Carter from calling for Garcetti to speak just after 10 a.m. The silence that followed was deafening.
However, the SCAG meeting Garcetti planned to join didn’t begin until 12:30 p.m., meaning if Garcetti wanted to, he likely could have attended Carter’s hearing without conflict. It leaves the question, did Eric Garcetti really skip Skid Row because he didn’t want to see or hear his vocally dissatisfied constituents in the company of other elected officials?
The Martin V. Boise decision holds that: “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”
But it also holds, in note #8 on page 32: “Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. See Jones, 444 F.3d at 1123… Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes. Id.at 1136.”
Determining what “might well be constitutionally permissible” appears to be what’s happening in Judge Carter’s court.