The Legal Issues Surrounding Homelessness

Episode Notes

Transcript

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Breanne Schuster: I think a lot of studies have come out in individual jurisdictions, in states across the country about what we need to do and it’s not — I hate to say it’s not rocket science, but in many ways it’s not and it’s just a choice of whether or not we want to dedicate funds and resources and make changes in that way, but it hasn’t always looked like this and it doesn’t have to and I hope we get the motivation as a state and as a country to really make meaningful change and get people off the streets.

Gary Blasi: It’s so much easier to keep people housed than it is to get them into housing once they’ve lost that stability and that place of refuge.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams coming to you from Southern California. I write a blog named May It Please The Court, and have two books out titled How To Get Sued and The Sled. When cities across our nation, homelessness is an ongoing problem. According to the 2020 Annual Homeless Assessment Report to Congress completed by the Department of Housing and Urban Development before COVID struck, roughly about 580,000 people were experiencing homelessness in the United States on a single night in 2020. This number represented the fourth consecutive year in which homelessness increased nationwide. While the severity of this problem has led to some high-profile conflicts on how to address this crisis, in April of this year, Federal District Court Judge David Carter issued a 109-page Order necessitating the City and County of Los Angeles to find shelter for all unhoused residents of Skid Row, as well as requiring an audit of any spending related to the homeless.

Alleging that Judge Carter’s ruling is a violation of the separation of powers, the city and county appealed the matter to the Ninth Circuit who heard arguments last week earlier this month. So how do we combat homelessness? And is enough being done by city officials? Well today on Lawyer 2 Lawyer, we’ll be discussing these legal issues and everything surrounding homelessness. We’ll take a look at how it’s been approached in the courts, the current legislation, what’s being done to combat this national problem and to do that, we’ve got a great show for you today. Our first guest is Professor Gary Blasi from UCLA School of Law and

founding and core faculty of the law school’s unique David J. Epstein Program in Public Interest Law and Policy. He is an expert on public policy and the law with an emphasis on the homeless and poor. Blasi has researched extensively and written about the advocacy on behalf of children in substandard schools, homeless families and individuals including homeless veterans, low income tenants, low waged workers and victims of discrimination. He’s also conducted studies on the effect of law enforcement programs and activities on homelessness in downtown Los Angeles apt to our discussion today. Welcome to the show, Gary.

Gary Blasi: Very glad to be here.

J. Craig Williams: And next up we have Breanne Schuster. She is the staff attorney with the

American Civil Liberties Union of Washington Foundation, and she works on a wide range of civil rights issues including the housing crisis and economic justice fighting to protect and advance the civil rights of Washingtonians. Welcome to the show Breanne.

Breanne Schuster: Thanks so much for having me.

J. Craig Williams: Gary, as we get started, David Carter in his Order included a little bit of

history about How Los Angeles has treated homelessness over the decades. Can you give us a little bit of background about Judge Carter’s Order and that history?

Gary Blasi: Sure, Judge Carter has been in Los Angeles looking at the terrible homelessness problem that we have in a litigation that was brought mostly by property owners in the downtown area which is adjacent to Los Angeles’ Skid Row which is the highest concentration

of unhoused and homeless people. After months and months of talking to everybody who knew anything, he issued at the request of the plaintiffs a preliminary injunction that ran on to 109 pages and basically covered the history of homelessness in Los Angeles and particularly the role of systemic structural racism in that process. And at the end of the Order, he directed the City of Los Angeles and the County of Los Angeles to find housing for all of the homeless people in Skid Row in a matter of months and some additional Orders initially, for example to

sequester — for the city to sequester a billion dollars so that they would have the resources to do that and many other things.

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J. Craig Williams: Breanne just for a moment, I’d like to jump back to my civil procedure class in law school and if I remember correctly, mandatory injunctions are frowned upon, prohibitory injunctions are encouraged. This seems like a lot more than a mandatory injunction.

Breanne Schuster: Yeah and I’ll have to defer to Gary on some of the inner workings of the Order which I assure you I’ve read, but it is quite lengthy. But to your point, it is and it is kind of an unprecedented Order in a lot of ways and I know that many advocates were really

excited about at least the first part of it, but I know there are also concerns about some of the unintended consequences of what the Order might actually mean for folks that are houseless in Los Angeles.

J. Craig Williams: Gary, what’s gist of the Order here and what’s been the discussion at the Ninth Circuit about it?

Gary Blasi: The gist of the Order is that city and the county have to find shelter, not housing, but shelter sort of undefined and that’s one thing that does concern advocates because we’ve got a lot of bad experience with bad shelters and that’s one of the reasons we have so many

people on the street, is that the shelter system is in their view, inferior to living in a tent on a sidewalk. The gist is basically that of all of the problems in Los Angeles related to homelessness, they should focus on Skid Row. Now Skid Row has a small percentage of the 66,000 unhoused people in Los Angeles County of whom 48,000 black shelter and there are maybe about 4,000 people in Skid Row who are homeless. So the objection from the city and the county has been it’s not really the place of a federal judge to decide how to allocate resources and prioritize things and he’s really overstepped his bounds and they made that point before a panel of the Ninth Circuit on an appeal from the preliminary injunction, the hearing on which was — last week, there were three and what the odds are now in the Ninth Circuit, but they’re not great. Three Obama appointees who heard it and I watched the argument. They seemed to be quite understanding of the motivation of Judge Carter as am I. He’s looking at a terrible situation and trying to do something about it, but as you mentioned, Craig, we do have things like the Federal Rules of Civil Procedure and case law about equity power of the jurisdiction of judges and so on and so that I think is where the — we’re just going to probably fall down and not be sustained.

J. Craig Williams: Right, and I was surprised. I mean, Eric Garcetti in one day announces that he’s going to invest a billion dollars into homelessness and then shortly thereafter out comes an Order from Judge Carter that says that billion dollars goes into escrow. That’s pretty amazing.

Gary Blasi: Yeah, I think that’s amazing and again, my sympathies are with Judge Carter because I know what he’s trying to do, but that’s just not something that a federal judge has any business doing quite frankly. That’s the kind of decision that’s classically reserved to the political branches as inefficient and troubling as they may be, that’s what we have.

J. Craig Williams: Well Breanne, Judge Carter’s frustration is certainly bubbling over justifiably and I understand that there’s been some similar situations in Seattle and in Washington?

Breanne Schuster: Yes, absolutely. I mean Washington has also one of the worst housing crises and rates of homelessness in the country and Seattle as well as a city that has one of the highest rates as well, and so these issues are certainly popping up. We have a few cases — well a few is an underrepresentation, but a number of cases here that have been brought. We do it with respect to how government entities are treating folks that are forced to live outside generally due to no fault of their own. We haven’t yet seen a court order city to affirmatively provide shelter or affirmatively provide housing, but I wouldn’t be surprised if that’s sort of the direction in which courts are going to have to start taking as we see more and more cities criminalizing the existence of folks that are living on public property and have nowhere else to go. We’re seeing more and more Orders ordering them to not do that and political bodies are not listening. So I understand and empathize as well with the frustration of Judge Carter of that there are limitations to each branch of power, but at the same time you can’t be violating and trampling on people’s constitutional rights. So there has to be some sort of remedy.

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J. Craig Williams: There certainly does and let’s talk about that criminalization that you mentioned. That’s a buzzword as I understand it in homelessness and there’s a gradient of

criminalization. Does it mean when a cop comes along or policeman comes along to a person who’s homeless sleeping on the sidewalk and rustles them and says, “Move along.” Is that criminalization? Where does that standard — where does bright line fall?

Gary Blasi: Well the Ninth Circuit in Boise versus Martin, which is the law of course in California that governs where Judge Carter is, basically has said that so long as there is really no alternative to sleeping on public property, then you can’t arrest people for doing what human beings have to do, which is that human beings can’t stand up and walk around all day.

They have to lay down at some point and the rules of property and of gravity mean that

the surface of the earth in the United States is divided between private and public property. Private property is off because of trespass laws and so you can’t make any other horizontal space that’s public off-limits to people. So that’s the kind of simple logic of the Ninth Circuit’s decision, but they did leave a lot of room to say that local governments can make decisions about time and place and so long as there is some adequate alternative — adequate and available is the term that they used, then they can enforce laws against sleeping on the sidewalk. In fact, I should have explained in Judge Carter’s Order, he basically said, “Once you do this, you can start enforcing all the laws against us from sitting, sleeping or lying on the sidewalk in Skid Row.”

J. Craig Williams: As long as you provide enough shelter?

Gary Blasi: Right.

J. Craig Williams: Right and then the question is what constitutes shelter, whether it’s housing or shelter? As I understood it too, the Ninth Circuit framed this in a constitutional standpoint and said that it is cruel and unusual punishment to criminalize people for sleeping on public spaces?

Gary Blasi: Well the basic underlying principle is that it’s cruel and unusual to punish people for the inevitable consequences of being a human being. If people literally don’t have any choice but to do what they’re doing, then it is cruel and unusual because they’re not in a position where they are able to comply with those laws and survive according to the simple biology of the situation.

J. Craig Williams: And Breanne, the nimbies, the not in my backyard and the real estate property owners have always lashed out against homelessness because they allege that there’s crimes, drugs and all other types of nefarious activities going on in homelessness,

and to some degree from what we’ve recently seen in Venice Beach, California where the homeless have taken over the boardwalk and the city is struggling with how to deal with that,

there is certainly some validity of that argument. What’s the response?

Breanne Schuster: That’s a great question. It is certainly one we hear a lot and I think the first thing that I would say is that a lot of people in the US use drugs and a lot of people commit crimes and that happens whether you’re housed or you’re unhoused and whether you’re living on the streets or you live in a mansion, so that’s not a unique issue to folks that are experiencing homelessness, it’s just that we treat it differently because it’s more visible to us. I think there’s a lot of inherent fear and a misperception and misconception that folks that are poor or that are visibly homeless commit more crimes or are more likely to have behavioral health issues or use substances. I mean that’s actually just patently false. So there’s instead a lot of research that shows that people who are experiencing homelessness are far more likely to be victims of hate crimes and other violent crimes than our other populations. But with respect to how we deal with those issues, I think it’s the same as every other person, we need to be making sure that people have the resources and the services and support that they need to be thriving, whether that’s mental health, whether that’s support with education or et cetera, and it’s also super clear that everyone needs and deserves a roof over their head and that the more that we’re able to provide housing for folks, it often

takes care of a lot of their other needs in life and they’re able to better access treatment if they so need it. If they’re able to gain more stable employment, if that’s a barrier currently for them and so on.

J. Craig Williams: Gary, what are we talking about here in terms of public policy and where

does this fall into the wave that seems to be crossing America of the so-called Defund the Police which really means, I think as most people say, “Let’s see if we can address non-violent issues in the public with social services rather than the police.” Where does public policy play into all of this?

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Gary Blasi: Well, Craig you mentioned Venice Beach and we’ve sort of had an experiment in Los Angeles with two really big encampments, one in Echo Park in the near the downtown area, and one on the Beach. In Echo Park, massive number of police used really aggressive force unannounced in the middle of the night to basically get people out and that caused — there were a lot of injuries both to unhoused people and to protesters who showed up on short notice. In Venice, by contrast, they did it more systematically. Rather than sending the police to talk to people, they sent people from a wonderful non-profit called the St. Joseph Center and they basically re-housed people over a period of some weeks primarily in motel rooms and other short-term interim housing. But basically the boardwalk is now virtually empty of encampments, nobody has been arrested and no violence has occurred. So that, I think sort of demonstrates the value of having people who don’t carry a gun and aren’t untrained and dealing with folks catch the responsibility as often. I mean the police are charged with trying to solve problems that society has ignored for a long time and they’re just not capable of doing it. The only thing the police have ever been able to do with regard to encampments anywhere is to move people from one place to another. No police officer ever housed anyone with maybe a handful of extraordinary exceptions, but it’s really not the way to go about it.

The other thing is that there’s a big structural issue behind all this. Breanne mentioned the fact that most addicts and most people with severe mental health issues are housed, not homeless, it’s the combination of poverty and those kinds of disabilities that put a lot of people on the street and you have to solve them both. So until people have enough income to pay rent or the rent is cheap enough, that somebody for example in Los Angeles who gets the basic welfare grant of $221 a month until they can buy housing with that, they’re going to be homeless. So we have to sort of step back from the individual cases and look at the sort of obvious structural things that are causing people to fall into homelessness and then stay there.

J. Craig Williams: Breanne, is the solution just money? Governor Newsom just signed a homelessness package of 12 billion over the next two years, what is the solution and how does the ACLU look at this?

Breanne Schuster: Yeah. I mean money is always good. No. I mean I think we really believe in evidence-based solutions and what every sort of piece of evidence has shown thus far is that the solution really is as simple as affordable housing. Does that require money? Yes. I think there are also other pieces in Judge Carter’s opinion and I think there’s a lot of studies showing similar issues here in Washington which is we have all these systems of oppression. We have all of these racist housing laws. We have zoning laws. I mean there are a lot of other things that we need to be upending that are not just building massive — to ensure that housing is not built in a way that’s continuing segregation, that’s continuing all of these problematic systems that have contributed to homelessness in the first place, and that we’re not forcing people into situations that are unsafe or unstable or inadequate and don’t meet their needs,

but we just don’t have to look at them anymore. So I think for many jurisdictions, increasing

housing is kind of the top priority and that does cost money, but there are other systemic

challenges, I think some of which Gary mentioned as well that do need to be addressed and

they’re not unique necessarily to homelessness, but impact all of our systems from the carousel system to other issues.

J. Craig Williams: Gary let’s dive in a little bit deeper to the distinction between shelter and housing. It’s obvious, the shelter kind of open stadium style place where you have COTS on the floor and individual housing whether it be tiny housing or motel rooms or hotel rooms. How does all of that play into the issues that we’re facing here?

Gary Blasi: Well you really have to look at it from the perspective of unhoused people and the difference that they see.

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A shelter means you have a place to sleep for one night. It doesn’t get you off the street. You

have to get up and get out at a particular time. You have no expectation of being able to be there for any period of time. You can have in Los Angeles, maybe two cubic feet of possessions, everything else you have to give up and so on. So that’s not a very attractive thing and they’re also often operated in ways that treat adults as if they were troublesome potential juvenile delinquents or something and there’s no real respect for people’s privacy or autonomy or dignity. When we talk about housing or at least when I talk about housing, I’m not talking about anything fancy, I’m talking about a very small apartment that has the ingredient of having some privacy, being able to lock the door, stay 24 hours and hopefully a window. Again, we’re running these natural experiments but there’s significant evidence. I know in Washington and Oregon and now in California that people in encampments do seem to prefer these tiny homes even though they really don’t qualify as housing and they’re certainly not a long-term solution. But I’ve come down to the position that if you want to know what people need, you have to ask them.

J. Craig Williams: That makes sense, and what level of dignity are we affording? I mean has the Ninth Circuit kind of laid into this and given any indication where the line on cruel and unusual punishment lies?

Gary Blasi: Not that I can see. I mean they have not gone very far down this path. They have said, “You can’t arrest people if there’s no place for them to lay down, if they lay down in public or in public property.” So there is language in the opinion that talks about adequate and available shelter. So one could presumably litigate the meaning of adequate over a number of years. It does boil down to whether it’s, I think, acceptable in a civilized society to consign people to places that we would think were untenable in third world countries.

J. Craig Williams: Right.

Breanne Schuster: I would just add to that too and I think that’s spot on that there isn’t a

definition of what adequate means. Although I think the court in Martin v. Boise somewhat touched upon what adequate is not and so there are — I think it’s clear that if somebody has for example a disability and the only option for them is laying on a mat in the floor, like that’s not necessarily an adequate or accessible shelter to them. Similarly, if a shelter has to — if you have to meet certain religious requirements or practice a particular religion or to access it, there is I think — the court in Martin v. Boise and other courts have affirmed that that is not an adequate and accessible shelter for people that don’t choose to practice religion. So there are confines of what is not adequate or accessible, but what the actual sort of right is. I’m not aware that that has been clarified.

J. Craig Williams: Breanne, speaking of religion, it reminds me of a famous phrase that there will always be poor in the world. You could substitute homeless for poor and are we ever really going to be able to solve this problem or will there always be people on the streets?

Breanne Schuster: I hope so. I mean I think one of the things that is hard to sort of remember now that we’ve been down this path for so long is that homelessness as it exists in the country wasn’t always like this and it certainly has increased over the past decade or so. In Washington, I know it sort of fluctuated a little bit differently in different states, but it really is about how we invest resources and how we choose to treat people in our states. So I think a lot of studies have come out in individual jurisdictions, in states across the country about what we need to do and it’s not — I hate to say it’s not rocket science, but in many ways it’s not and it’s just a choice of whether or not we want to dedicate funds and resources

and make changes in that way, but it hasn’t always looked like this and it doesn’t have to and I hope we get the motivation as a state and as a country to really make meaningful change and get people off the streets.

J. Craig Williams: And Gary, what Breanne says reminds me and I’ll give away some of my age here, of something that I saw as a young child that there were a lot of men that rode the rails, I think that there was — if we look back at the old Mayberry RFTs and people who lived in rural areas, I think hobos were somewhat idealized. What’s happened?

Gary Blasi: Well, I think what’s happened is that they’re no longer out where the tracks are and they’re not. That was always quite inaccurate, the Romanization, it wasn’t exactly a great life. What’s really changed I think is the visibility of people, especially as encampments have

proliferated.

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J. Craig Williams: Is that just volume? Is that just in the number of homeless?

Gary Blasi: It really is just both the volume. Well it is the volume, the numbers of people. I started working, representing my first homeless client in 1983 and at that time, maybe the year or two before that, there were maybe 600, almost all white elderly alcoholics on Skid Row, and homelessness wasn’t even a word that was used in reference to this problem until the early ‘80s. So we certainly have not gotten poorer as a country since then. Speaking of rocket science, I understand that Jeff Bezos spending a billion dollars a year on his space tourism enterprise and I think it’s not paying very many taxes. So I think we should be able to find some money in some places.

J. Craig Williams: It looks like there’s plenty of opportunities. Breanne, Gray raised the concept of how homelessness occurs and what the makeup of homeless people are. What are you seeing out on the streets these days?

Breanne Schuster: I mean the primary driver of homelessness, at least here in Washington

is a lack of affordable housing. So what often happens is for a variety of reasons, mostly because housing price –the housing prices are much higher than wages and there may be other sort of coupled barriers that folks are experiencing that due to that, they get pushed out of — that they’re never able to purchase a home or they get pushed out of their home are forced to rent and then they’re evicted and put on the streets. So it’s a very diverse sect of folks that are experiencing homelessness, disproportionately people of color and disproportionately youth who are LGBTQ and other marginalized groups are definitely experiencing homelessness or are more impacted by homelessness in part because of all of these systems that have driven and fueled homelessness in the first place in addition to the

fact that housing is simply so unaffordable here for so many people. It’s not by accident that Washington and Seattle has some of the highest rates of rent and housing in the country and that correlates with much higher rates of folks that are experiencing homelessness.

J. Craig Williams: Gary, we’re currently in a moratorium on evictions?

Gary Blasi: Yes.

J. Craig Williams: COVID has caused some issues. There have been a lot of people who have decided not to work. So when this is all over and that plug gets pulled, what’s going to happen?

Gary Blasi: Well this is actually what I’ve been working on for the last year as a sort of homeless prevention anti-eviction process. Right now the census estimated as of two weeks ago, there were a million people in California behind on their rent and another million-and-a-half who didn’t think they could make rent in the next month or two. So we have some money coming from the federal government and from the state, but it’s really not reaching either landlords or tenants at a very rapid clip right now. So we are sort of facing a cliff unless things improve both in terms of the availability of resources, but also just the operation of these programs. Just to give you an idea and to emphasize something Breanne said, even before COVID, in Los Angeles County, there were 600,000 people in families that were spending 90% of their income on rent and all of those people were poised on the precipice of homelessness. Every month, about 20,000 of them were falling off and some of them stayed there. So I worry that the fallout here is going to make our problem so much worse. It’s so much easier to keep people housed than it is to get them into housing once they’ve lost that stability and that place of refuge.

J. Craig Williams: Gary, I know we’ve been talking extensively about California and Breanne, Washington, but can we take what we’ve just talked about and put it in any city in America?

Gary Blasi: I think so. I mean I think Breanne is right that the West Coast in particular has

tremendously tight housing market and has done a very bad job of producing housing at the low end of the market. But I think what we’re talking about exists in every location and we’re beginning to see cases and controversies like Boise versus Martin in Tennessee, in Oklahoma, in Texas and all over the country. This controversy may be most intense on the West Coast, but it’s a national issue.

Breanne Schuster: Building off of something that that we talked about a little bit earlier too, I think one of the reasons that this controversy around homelessness, I think is so prominent on places like the West Coast is because of its increased visibility and other — I’m thinking of like New York for example also has a fairly significant homelessness population but a lot of

folks are forced into shelter. I think as we’re seeing and that’s not necessarily a good solution either.

(00:30:20) 

So in many ways, yes, it can be applied across the country and how it looks might be a little bit different as far as whether somebody is on a sidewalk or in a temporary shelter for a night. I think it’ll be interesting and I think we have a duty particularly with seeing the consequences of climate change and all of these — the West Coast being more covered in smoke and having more dramatic weather of really this need to be coming up with a solution to get folks into stable housing.

J. Craig Williams: Well it looks like we’ve just about reached the end of our program. So I’d like to take this opportunity to invite both Gary and Breanne to share their final thoughts and contact information. Breanne let’s start with you.

Breanne Schuster: Yeah, thank you. No, this has been a great discussion and I’m happy to

talk with anyone. Our website is www.aclu-wa.org and we have contact information on there for both me and if folks have any issues that they’re facing in Washington, contact for our intake line as well.

J. Craig Williams: Great. Thank you. Gary?

Gary Blasi: My contact information is an anagram of ACLU, it’s UCLA. At the law school, it’s just my last name at law.ucla.edu and happy to hear folk’s thoughts and in terms of a last thought, one thing I would like to emphasize is it is well within our capacity to solve this problem. It really is just a matter of will and resources and priorities. We do not have to live in a country that has the problem that we have now.

J. Craig Williams: Great. Well thank you and I’d like to take this opportunity as well to thank

both Professor Gary Blasi and Breanne Schuster for joining us today. It was a pleasure having both of you on the show.

Gary Blasi: Really enjoyed the conversation. Thank you, Craig.

Breanne Schuster: Yes, absolutely. Thank you.

J. Craig Williams: And for our listeners, if you like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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