Appeals court vacates order to house those on L.A. skid row

Sept. 23, 2021 Updated 4:45 PM PT

A federal appeals court on Thursday unanimously overturned a judge’s decision that would have required Los Angeles to offer some form of shelter or housing to the entire homeless population of skid row by October.

A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that U.S. District Judge David O. Carter, who issued the homelessness order in the spring, failed to follow basic legal requirements. It was a sharp rebuke of Carter, who has focused intently on homelessness, regularly venturing into encampments at all hours of the day, engaging with a wide array of officials responding to the crisis and issuing rulings on the subject in both Los Angeles and in Orange County, where he lives.

The ruling Thursday applied to only one slice of the sprawling lawsuit — the order to clear skid row of tents — but it called into question its broader underpinnings.

The panel said most of those who sued the city and county of L.A. had no legal right, or standing, to bring the case. Carter deployed “novel” legal theories that no one had argued, and ruled on claims that no one had alleged and on evidence that was not before him, the 9th Circuit said.

“The district court relied on hundreds of facts contained in various publications for their truth, and a significant number of facts directly [underpinning the order] are subject to reasonable dispute,” wrote Judge Jacqueline H. Nguyen, who was appointed by President Obama.

Carter’s order, which sent shock waves through local government, stemmed from a lawsuit brought by a coalition of downtown business owners, residents and some formerly homeless people. The city and county of Los Angeles appealed.

The 9th Circuit noted that Carter, appointed by President Clinton, based his decision on racial discrimination, though the lawsuit by the L.A. Alliance for Human Rights did not allege racism was a factor.

“Because plaintiffs brought no race-based claims, they did not allege or present any evidence that any individual plaintiff or LA Alliance member is Black — much less Black and unhoused, a parent, or at risk of losing their children,” Nguyen wrote.

Moreover, the 9th Circuit said, there was no evidence that any plaintiff was Black, risked family disruption or was confined to skid row.

“The district court undoubtedly has broad equitable power to remedy legal violations that have contributed to the complex problem of homelessness in Los Angeles,” wrote Nguyen, who was joined by two other Obama appointees. “But that power must be exercised consistent” with the law.

The panel did find that two plaintiffs who alleged disability discrimination had standing but said Carter had not collected enough evidence to rule in their favor.

Matthew Umhofer, an attorney representing the plaintiffs, said his team is already working on an amended complaint to correct what he called procedural issues raised in the decision. He said there likely will be new plaintiffs and evidence added to the case to make their points.

He also said the plaintiffs would incorporate some of Carter’s arguments, which served as the basis for his order but had not been made by the L.A. Alliance.

“The 9th Circuit said if there’s this much distance between the original complaint and the judicial order, that gap has to be closed. We now have the opportunity to close that gap,” Umhofer said. “I think we’ll be able to do that and I think we’ll be able to lay a very strong evidentiary foundation.... So this is totally fixable from my perspective and we’re already working on the solution.”

The case began in March 2020 just as the seriousness of the pandemic came into full focus, and there was a scramble to protect homeless people from COVID-19.

Carter’s unconventional nature, desire for quick solutions to help people in need and willingness to venture down to skid row made him popular. Mayor Eric Garcetti regularly mentioned that he was a member of the “Judge Carter Fan Club, Los Angeles chapter,” and litigation in the case was suspended as all the parties strove to hash out a settlement.

The judge’s court hearings became a clearinghouse for information about the city and county’s response to homeless people during the pandemic. They also veered off into areas that surprised local officials. For example, Carter became fixated on the plight of people who were living under or near freeways.

In May 2020, he ordered the city and county to find shelter for the thousands of people living near freeway overpasses, underpasses and ramps. That decision was eventually vacated when the city and county agreed to construct new forms of shelter for 6,000 people within 18 months, and fund homeless services for the people who ended up staying in these locations after they were built. (The City reported constructing just over 6,000 new beds as of late August.)

The case continued to drag through last fall and into this year as the city negotiated with the plaintiffs in an effort to reach a settlement in which enough shelte r over the next five years would be created for 60% of the homeless people in each city council district. Those talks haven’t yet led to an agreement.

Then, in April, Carter unexpectedly ordered the city to offer some form of shelter or housing to the entire homeless population of skid row in 180 days. About 2,000 people were living on the streets of skid row as of early 2020. Quickly, both the city and county appealed and much of the goodwill between the parties and patience for Carter dissipated.

Hilda Solis, chair of the County Board of Supervisors, declined to comment about the 9th Circuit order. But Skip Miller, outside counsel for Los Angeles County on the case, said that though the county appreciated Carter’s efforts to help unhoused people, it applauded Thursday’s decision.

“We are grateful the 9th Circuit has ruled in our favor by vacating the district court’s sweeping injunction based on an abuse of judicial discretion,” Miller said. “Nevertheless, the county will continue with its massive efforts to address homelessness as it has all along.”

Much of the city’s and county’s arguments against the skid row order focused on how much work they already were doing to resolve the homelessness crisis in the region. In recent months, local officials had complained quietly to The Times that Carter’s hearings, which often stretched for hours with little conclusive resolution, were ponderous and his remedies to the crisis were counterproductive.

Garcetti praised the 9th Circuit decision, saying in a prepared statement that the city intends to spend more than $1 billion during the current fiscal year on programs aimed at reducing homelessness.

“This decision is the right one, and I am pleased to see it,” he said. “Now we can continue moving forward with our strategic, comprehensive plan to confront homelessness across Los Angeles and bring more people indoors as quickly as possible.”

Similarly, City Atty. Mike Feuer, who is running for mayor, called Thursday’s ruling “an important victory” but also argued that government officials need to share Carter’s “intense sense of urgency,”

The order to clear out skid row, he said, was “an overreach by a judge whose passion I have tremendous respect for.”

“We do have a crisis and it should be treated like that,” Feuer said in an interview. “But an unelected judge shouldn’t be making sweeping public policy, taking control of a billion dollars of public funds.”

Feuer said he remains open to the idea of settling with the plaintiffs, if it results in “real solutions” to the city’s homelessness crisis.

A group of intervenors in the case, the Los Angeles Community Action Network, a skid row nonprofit that works with unhoused people, said it welcomed the rejection of Carter’s order.

“This court case is worse than a waste of time. It has the potential to undermine the long-fought-for rights of unhoused folks in skid row and throughout the city,” the group’s attorney, Shayla Myers, said. “The 9th Circuit’s ruling makes it clear that that is not appropriate and we are pleased with the results.”

It’s hard to know how exactly the pandemic has affected the homeless population in Los Angeles. The 2021 point-in-time count was canceled and the 2020 homeless census, which found 66,436 people without homes in Los Angeles County, occurred before the true extent of the epidemic was known. Still, over the last 18 months, the county and city have gone to great lengths to shelter and house people in hotels, while also constructing “tiny home” villages and safe sleep sites.

The ease with which the virus spreads and the need to stay indoors meant volunteers, outreach workers and homeless services providers were limited in their ability to deliver much-needed help to people living on the streets, and the suspension of laws restricting where people could sit, sleep and lie fueled the growth of large encampments in parks, on beaches and in underpasses.

The crisis animates the city’s politics and discourse perhaps now more than ever. It will be the most important issue in next year’s mayoral campaign. For all the work of getting people off the street, many still lack a safe and secure place to rest their heads.

City Councilman Mark Ridley-Thomas, who heads the council committee on homelessness, said the alliance lawsuit was too narrow and too parochial to deal with the crisis.

“The homelessness crisis in the city of Los Angeles is not limited to skid row,” he said. “And to the extent that we want to be effective in our efforts to address this crisis, we need to be in every corner of the city where we find encampments, whether it’s in Echo Park or on Venice Beach, in Koreatown or Leimert Park.”

City Councilman Kevin de León, whose downtown district includes skid row and is running for mayor, said the ruling does not “change anything for unhoused Angelenos struggling to survive on our streets.”

“They’re still victims of a litigation merry-go-round that does nothing to put a roof over their heads,” said De León.