9th Circuit tosses judge's order requiring LA to house homeless people in Skid Row

ABA Journal, Sept. 27, 2021

By Debra Cassens Weiss


A federal appeals court has vacated a federal judge’s injunction requiring the county and city of Los Angeles to provide shelter to homeless people living in Skid Row, an area encompassing more than 50 blocks in the city’s downtown area.


The San Francisco-based 9th U.S. Circuit Court of Appeals said Judge David Carter of Santa Ana, California, largely based his order on “unpled claims and theories,” and he abused his discretion, report Courthouse News Service, the Associated Press and NBC.


The appeals court ruled on Sept. 23 against the eight individual plaintiffs and the LA Alliance for Human Rights, a coalition of Los Angeles residents that includes business and property owners, landlords and formerly homeless Skid Row residents.


Carter had ordered the county and city of Los Angeles to escrow $1 billion to address the homeless crisis and to offer shelter to all homeless individuals in Skid Row within six months.


Carter had premised his order on a finding that the driving force behind the homeless crisis was structural racism, including discriminatory lending, discriminatory real-estate covenants, redlining, exclusionary zoning and unequal access to shelter.


The appeals court said none of the plaintiffs’ claims were based on racial discrimination, and Carter didn’t have the authority to base an injunction on claim that was never pleaded. The court also said Carter “impermissibly resorted to independent research and extra-record evidence” to support his order.


Carter had taken lawyers on a Skid Row tour and held one hearing at a homeless shelter. But the appeals court cited a different problem: Carter relied on hundreds of facts in various publications for their truth, even though a significant number of facts underlying his injunction were subject to reasonable dispute.


The judge “granted relief based on claims that plaintiffs did not allege, supported by novel legal theories that plaintiffs did not argue, or against defendants against whom the claim was not pled,” the appeals court said in an opinion by Judge Jacqueline Nguyen.


Skip Miller, the lawyer representing the county of Los Angeles, told NBC that his client “will continue with its massive efforts to address homelessness, as it has all along.”


The LA Alliance for Human Rights said in a statement that the court issued a narrow ruling “focused on procedural steps in the case but not the underlying law.” The group said the issues can be quickly addressed, and it looks forward to returning to the judge’s courtroom.

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