Lawsuits related to homeless grip municipalities throughout California

A statewide reckoning has emerged in the wake of the U.S. Supreme Court's decision not to review a politically controversial appellate ruling about homelessness, with municipal turf wars breaking out over a growing public health and humanitarian crisis that's gripping local governments.

The U.S. Department of Housing and Urban Development announced Thursday that while the nation's overall homeless rate dropped, a "significant increase" in West Coast homelessness "offset those nationwide decreases, causing an overall increase in homelessness of 2.7 percent in 2019," according to a news release. Meanwhile, lawsuits related to homelessness continue to proceed across California, and more are expected as cities try to sort through what they can and can't do under existing case law.

For example, as officials in one Orange County city that's long refused to build a shelter announced plans to send homeless people to county-operated armories 30 to 40 miles away, officials in one of the armory's host cities vowed to sue. And as the more urban northern cities continue an unprecedented push to open shelters and expand social services, the Orange County Sheriff's Department is refusing to enforce anti-homeless ordinances in its largely suburban patrol areas, sowing what local officials say is further confusion over an already complex legal issue.

The burgeoning disputes are partly rooted in conflicting views of the 9th U.S. Circuit Court of Appeals' ruling in Martin v. Boise, 2018 DJDAR 8871, which held anti-camping ordinances can't be enforced unless shelter is available. Elected leaders who hoped the nation's high court would reverse the decision are now grappling with how to adhere to it as case law, and they're navigating diverse political landscapes that include opposition to encampments but also opposition to the shelters advocates say are needed to alleviate them.

A 13-month-old lawsuit over a camp in Oakland is proceeding in the Northern District of California, with an amended complaint filed over the city's approach to a closure authorized by U.S. District Judge Haywood S. Gilliam Jr. He sent the case to Chief U.S. Magistrate Judge Joseph C. Spero for a Jan. 15 settlement conference. Miralle et al. v. The City of Oakland et al., CV18-06823 (N.D. Cal., filed Nov. 9, 2018).

In the Central District, the Legal Aid Foundation of Los Angeles is suing to stop a city ordinance that permits the seizure and eventual destruction of homeless people's property, reigniting a fight that's already been to the 9th Circuit. U.S. District Judge Dale S. Fischer is considering a motion to dismiss brought by the Los Angeles city attorney that argues two plaintiff nonprofits lack standing but doesn't challenge five other plaintiffs who are homeless individuals. Garcia et al. v. City of Los Angeles et al., CV19-06182 (C.D. Cal., filed July 18, 2019).

The cases exemplify a traditional litigation approach that a growing number of cities are abandoning in favor of an unprecedented consent decree under U.S. District Judge David O. Carter in Orange County. Orange County Catholic Worker et al. v. Orange County et al., CV18-00155 (C.D. Cal., filed Jan. 29, 2018).

Those cities include Santa Ana, where city leaders and residents feel they've for too long unfairly shouldered the burden of the county's homeless problem. Last week, the city council unanimously agreed to sue any counties and cities transporting people to an armory in the city that's used as a seasonal homeless shelter.

The council also voted to rekindle a counterclaim the city filed in April 2018 to pressure its neighbors into joining Carter's cross-jurisdictional approach. The claims weren't served on most of the defendants at the time, so Santa Ana officials want to now serve those defendant cities that didn't participate.

Meanwhile, the beach city of San Clemente, a likely target in both actions, announced plans to transport homeless people in the city to the county armories in Fullerton and Santa Ana at night, then confronted the Orange County Sheriff's Department about its refusal to enforce anti-camping ordinances.

A Dec. 20 letter to Sheriff Don Barnes summarizes two incidents in which homeless people have declined the city's offer of motel vouchers or a bed at the privately operated Mercy House, but sheriff's deputies won't cite them for violating anti-camping ordinances. Barnes won't enforce the ordinances anywhere in the county, part of a settlement in the Central District case that includes the consent decree with Carter.

The city's letter says the U.S. Supreme Court's certiorari denial in Martin v. Boise "effectively deprives us of greater clarity and understanding of some difficult ambiguities and loose ends in that case that we will be saddled with for the foreseeable future.

"But we are confident that the Ninth Circuit decision, even with its weaknesses, allows enforcement of anti-camping law where an alternative bed is available to a violator, and certainly where publicly provided housing is waiting for his arrival," according to the letter, signed by City Manager James Makshanoff and Mayor Daniel P. Bane.

Bane is a partner in the Costa Mesa office of Sheppard, Mullin, Richter & Hampton LLP, but the firm is not involved in the issue. Instead, the city enlisted Jones Day to fight a lawsuit filed in February 2019 by the same attorneys who initiated the case before Carter, Brooke A. Weitzman of the Elder Law & Disability Center and Santa Monica sole practitioner Carol A. Sobel.

Jones Day filed a motion to recuse Carter that U.S. District Court Judge James V. Selna granted, and the new judge, U.S. District Judge Percy Anderson in Los Angeles eventually dismissed all claims.

Santa Ana's recent vow to serve the 20-month-old counterclaims in the other lawsuit would put any served defendants back before Carter. However, the city was dismissed as a defendant in the case upon settlement in October, so it's unclear if it legally can serve counterclaims now.

The other anticipated litigation regarding the use of the county armory is alluded to in an amicus curiae brief Jones Day filed with the U.S. Supreme Court regarding Martin v. Boise, on behalf of San Clemente and six other Orange County cities. The brief said the 9th Circuit's order "raises an additional puzzle" regarding a city's hypothetical purchase of a building in a neighboring city "in order to operate it as a shelter."

It asked if the city operating a shelter elsewhere would be violating the Eighth Amendment by enforcing anti-camping ordinances and says the 9th Circuit's order in Martin v. Boise "provides no answer -- and no certainty."