Judge Carter’s Decision and Order in LA Alliance for Human Rights v. City of LA

On April 20, 2021, Judge David Carter issued a Decision and Order in LA Alliance for Human Rights et al. v. City of Los Angeles, LA County, et al.[1], the case challenging the city and county’s failure to adequately address homelessness in LA.  The judge issued a preliminary injunction, ordering the city and county of LA to both report back to the Court on numerous financial issues and to take a range of actions, especially to offer either shelter or housing to currently unhoused individuals living in Skid Row.

The decision explicitly calls out the long history of structural racism that got us to this point, and that any resolution must be explicitly anti-racist. Yet the Order itself uses the offer of temporary shelter to Skid Row residents as a solution to homelessness, and then provides a path for the city to ban those remaining on the sidewalks. The decision also fails to mention the crisis for older adults experiencing homelessness, particularly older Black Angelenos, and offers no solutions that address their particular needs. Both the city and county have appealed this decision and requested a stay.

The Decision

In a lengthy opinion that begins with the legacy of slavery and quotes from Lincoln’s Emancipation Proclamation, Judge Carter situates LA’s current homelessness crisis in the historical context of this country’s racism, “I want to be very clear,” said LAHSA Director Heidi Marston, “homelessness is a byproduct of racism.”  The decision recounts a chronology of racist housing practices in LA that included exclusion, redlining, racial covenants, outright land theft, and urban renewal/highway development that targeted black neighborhoods. When the racial wealth and housing gap created disproportionate numbers of black people experiencing homelessness, the city’s response was to create a “containment zone” on Skid Row, becoming:

… a place where the homeless, discharged patients with mental disabilities, and parolees came—or in some instances, were bussed and dropped—to find services. General Dogon, a Skid Row community organizer, describes the containment as a “warehouse zone”—“a warehouse is where you store shit. So the idea was to push all of Los Angeles’s unfavorable citizens into one area.”[2]

The judge criticized LA’s track record of attempts to build affordable housing, noting that the Low-Income Housing Tax Credit (LIHTC) program has been a boondoggle for developers and not truly affordable to low-income renters, with expiring use reverting these buildings to market rate rents at a pace that exceeds the ability to create new affordable units.[t]he housing policies of Los Angeles County and City exacerbate these structural inequalities by investing in affordable housing designed for a limited period of 30 years and targeting the higher tiers of eligible residents— leaving those in the lowest tier of eligibility with scarce options.[3]

After detailing a history of governmental inaction, corruption, bureaucratic indifference and lack of accountability, he pointed to LA’s response to COVID and its implementation of Project Roomkey as a wasted opportunity. Noting that although LA laid out a goal of 15,000 hotel rooms for unhoused, at-risk Angelenos, at its peak it housed 4,177 persons and “despite these state-led efforts [and funds], at least 1,383 people experiencing homelessness died on the streets” of LA in 2020.  He then condemned the public health and safety emergency created by this failure to act, concluding “this Court cannot idly bear witness to preventable deaths.”

The Court’s Decision on the Legal Claims

Without holding a specific hearing on the preliminary injunction, the Court finds that all of the criteria for its issuance are met.

First, the Court finds that plaintiffs are likely to succeed on their equal protection claims based on racially discriminatory acts and inaction by the City and County, and on its substantive due process claims that the government’s inactions have resulted in a state-created danger. While recognizing the limits on a state’s affirmative obligations, the Court interprets the equal protection clause as imposing “an affirmative obligation on the government to not only to [sic] treat citizens equally, but to protect from private violations of law that undermine[e] their right to equality…” and that “a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation.”

He also finds that the defendants have violated their duty to provide life-preserving, medically necessary services to the homeless. “Even outside of its inaction and inertia on the housing and shelter front, the County has also failed to meet its minimal duties to provide direct medical care that is “reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain.” Cal. Welf. & Inst. Code § 14059.5(a).

Plaintiffs are also likely to succeed on the merits of their ADA claim – not by denying equal access to shelter for unhoused, disabled individuals, but by blocking sidewalks of disabled persons trying to use public sidewalks. He also finds a violation of the California Housing Element. He finds that the violation of constitutional rights and the loss of life are indisputably irreparable harm, and that the balance of harms tips decidedly in plaintiffs’ favor.

Relief Ordered and Provisions of the Preliminary Injunction

Accountability:  The Court ordered that $1 Billion of the city budget be placed in escrow[i]; within 90 days conduct an independent audit of all funds received from local, state and federal entities to aid in homelessness, and emergency relief. The Court also orders a report on all developers receiving funds from Proposition HHH to prevent future misuse of funds, and an independent audit of mental health and substance use disorder funds.

Actions: Within 30 days, city controller will oversee a report on all potentially land available for housing or sheltering in each district.

i.                    Effective immediately, cease sale/transfer lease of the more than 14,000 city properties pending controller’s report to the court.

ii.                   Report back by LA City Council Homelessness & Poverty committee on structural barriers that cause racial disparities in housing, homelessness, etc.

iii.                 Within 7 days, report by Garcetti and BOS Chair Hilda Solis on why emergency declaration hasn’t been issued

iv.                 Within 30 days, report on status of Projects Homekey and Roomkey, with a specific  focus on the geographic and racial distribution of project sites and beneficiaries

v.                   Within 30 days, report on progress toward establishing 1,508 new sub-acute MH and SUD beds.

Skid Row Actions:

i.                    Within 90 days, City and County must offer, and if accepted provide, shelter or housing immediately to all unaccompanied women and children living in Skid Row; within 120 days to families; within 180 days, to everyone else in Skid Row.

ii.                   Within 90 days, County shall offer and if accepted provide placement to all those in need of special mental health, housing and treatment.

iii.                 County shall provide or fund 3rd parties to provide support services to all homeless residents who accept housing offer.

iv.                 City and county shall prepare plan for uplifting Skid Row without involuntarily displacing residents.

Other Actions:

i.                    Once adequate shelter is offered to all, Court will let stand any constitutional sidewalk ordinance consistent with Boise and Mitchell.

ii.                   Appointment of special master/monitor Michele Martinez, with city/county splitting her costs.

Drafted by Patti Prunhuber

Senior Housing Attorney

Justice in Aging

April 21, 2021, updated 4/26/21

[1] The Preliminary Injunction Provisions start on p. 105 of the Decision.

[2] The Containment Plan, 99% INVISIBLE (JAN. 10, 2017), https://99percentinvisible.org/episode/the-containmentplan/

[3] Indeed, with apologies to Sir Winston Churchill, from the perspective of those living on the streets of Los Angeles, it may seem that never have so many spent so much for such little benefit for so few.

[i] The judge has since stayed (delayed) two provisions in the original Order.  He delayed the Order requiring the City to put the $1 Billion in escrow, instead giving the City 60 days to come up with a plan showing how the full $1 Billion would be spent to address homelessness. He also delayed the immediate half of all sales and leasing of City property for housing projects not already in progress.