Bench Memos

Law & the Courts

Federal Judge Seizes Power as L.A. Homelessness Czar

In an astounding ruling yesterday (in LA Alliance for Human Rights v. City of Los Angeles), federal district judge David O. Carter ordered the City of Los Angeles and the County of Los Angeles to take a broad set of actions to address the area’s homelessness crisis. Among other things, the City must place one billion dollars “in escrow”—i.e., under Carter’s supervision—and the City and the County must “offer and if accepted provide” housing to the “general population living in Skid Row” by mid-October 2021 (with earlier deadlines for subpopulations in Skid Row).

By all accounts, the homelessness situation in the Los Angeles area is indeed a crisis, and nothing in my commentary on Carter’s ruling should be mistaken as minimizing the gravity of the problem.

Some initial observations:

1. The opening sentences of Carter’s 109-page order sound an ominous warning that Carter—a 77-year-old appointed by President Clinton more than two decades ago—is out to make his mark:

In the ebb of afternoon sunlight, young Americans looked at their former compatriots as adversaries as they advanced towards them. Young teenagers carried battle flags to rally upon in the chaos that would soon ensue. There is nothing free about freedom. It is borne from immense pain, suffering, and sacrifice.

2. Carter’s 60-plus page “Introduction” contends that “a legacy of entrenched structural racism” is responsible for the “present crisis of homelessness” and for the fact that “people of color, and Black people in particular, are vastly overrepresented in Los Angeles’s homeless population.” But while he relies heavily on a report issued by the Los Angeles Homeless Services Authority (an agency created by the City and the County), he does little to try to establish a causal connection between past acts of racism on the part of the City and County and current homelessness.

Indeed, these two passages from the LAHSA report that Carter approvingly quotes severely undermine the case for a causal connection:

The impact of institutional and structural racism in education, criminal justice, housing, employment, health care, and access to opportunities cannot be denied: homelessness is a by-product of racism in America.

Racial bias affects every aspect of a Black person’s life, and it is impossible to untangle the pervasive effects of institutional racism from other system failures that together cause a person to experience homelessness.

If “racism in America” generates homelessness, then to what extent can the City and County be held responsible for the homelessness within their borders? How many of the homeless in the Los Angeles area came from other parts of the state or country or world? If Carter ever addresses these questions, I missed it.

By embracing the proposition that “it is impossible to untangle the pervasive effects of institutional racism [whether in Los Angeles or elsewhere] from other system failures that together cause a person to experience homelessness,” Carter is effectively conceding that the plaintiffs can’t prove causation.

3. Carter advances a series of adventuresome legal theories (most or all of which also suffer from the causation problem).

First, he extracts from the “seminal case” of Swann v. Charlotte-Mecklenburg Board of Education (1971) a broad authority to address “a persisting legacy of racially disparate impacts.” (Pp. 67-71.) Swann has rightly been called “one of the most confused and internally contradictory opinions ever issued by the Supreme Court” and the “foundational opinion for those who believe that desegregation requires rather than prohibits the use of race in assigning students to particular schools.” Chief Justice Roberts’s majority opinion in Parents Involved v. Seattle School District (2007) cast aspersions on Swann’s “dicta,” and it is highly doubtful that the Supreme Court would extend Swann to another context.

Second, while acknowledging that the Fourteenth Amendment generally does not confer any affirmative right to governmental aid, Carter contends that the Supreme Court in DeShaney v. Winnebago (1989) “created an exception that imposes a duty to act when the government has created the dangerous conditions.” (Pp. 71-75.) But that is a gross distortion of Chief Justice Rehnquist’s majority opinion in DeShaney. Here is what Rehnquist wrote (citations omitted; emphasis added):

Taken together, [the cases cited by petitioners] stand only for the proposition that, when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing.  The rationale for this principle is simple enough: when the State, by the affirmative exercise of its power, so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.

Third, separately trying to avail himself of the passage I’ve just quoted from DeShaney, Carter contends that it is “strongly likely” that “Los Angeles’s lengthy history of discriminatory policies, aimed at containing homeless people in Skid Row, restrains the personal liberty of L.A.’s homeless population to such an extent as to trigger the state’s affirmative duty.” This strikes me as farfetched. For starters, it appears that Skid Row accounts for only a few thousand of the many tens of thousands of homeless persons in the Los Angeles area. For starters, it appears that only a few thousand of the 100,000 or so homeless persons in the City and the County of Los Angeles. Beyond that, even Carter doesn’t argue that Skid Row residents can’t leave the 50-block area of Skid Row but rather only that they are “disincentiviz[ed]” from doing so.

Fourth, in what he admits goes beyond existing precedent (“The Court acknowledges that this conclusion advances equal protection jurisprudence” (emphasis added)), Carter argues that the inaction by the City and the County “has become so egregious” in “creat[ing] a death rate for Black people so disproportionate to their racial composition in the general population” that it “is strongly likely in violation of the Equal Protection.” (Pp. 77-79.)

Fifth, Carter argues that “structures of discrimination,” which “threaten[] the integrity of Black families in Los Angeles and forc[e] a disproportionate number of Black families to go unhoused,” “likely” constitute violations of substantive due process. (Pp. 79-86.)

Sixth, Carter argues that the City and the County have violated a provision of state law governing support of the indigent. (Pp. 86-90.) From his own account, it appears that the duties he reads into that provision go well beyond what any California court has ever found it to require.

Seventh, Carter holds, as an additional basis for his preliminary injunction, that the plaintiffs are likely to succeed on their claim that the City and County have violated the Americans with Disabilities Act by allowing the homeless to erect tents that obstruct city sidewalks. (Pp. 90-92.) But wouldn’t the remedy for such a violation be to require that the City and County remove the tents?

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