Judge relied on ‘extra-record evidence’ for homeless cleanup order

A U.S. appellate court rebuked a judge in Santa Ana on Wednesday for basing his sweeping order to alleviate Los Angeles homelessness on his own research and novel theories rather than evidence submitted by the plaintiffs.

Judge David O. Carter of the Central District of California said his injunction against the city and county of LA was based largely on what he said was systemic and structural racism, along with deliberate policy decisions that exacerbated homelessness for decades.

"The district court 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 opinion reads. "In doing so, the district court abused its discretion because it only had equitable power to grant relief on 'the merits of the case or controversy before it,' and 'does not have the authority to issue an injunction' based on claims not pled in the complaint."

The unanimous ruling was handed down by three liberal judges -- Jacqueline Nguyen, who wrote the opinion, plus John B. Owens and Michelle T. Friedland, who were appointed by President Barack Obama. The circuit judges vacated the injunction and remanded it for further proceedings consistent with their opinion. LA Alliance for Human Rights v. City of Los Angeles et al., 2:20-CV-02291 (C.D. Cal., filed March 10, 2020).

The reversal largely validated the arguments of city and county officials who had warned Carter for months that he was wading into territory best left to elected officials to address. On Thursday, they stressed, as they had before, that they shared Carter's zeal to solve the homeless crisis and were willing to take steps to get it done.

Skip R. Miller, a partner at Miller Barondess LLP, serves as outside counsel along with J. Mira Hashmall for Los Angeles County. He said he was grateful the 9th Circuit ruled in the county's favor by vacating the injunction.

"Nevertheless, the county will continue with its massive efforts to address homelessness as it has all along," Miller said. "We appreciate where Judge Carter is coming from and look forward to working with him to find a solution to this lawsuit."

City Attorney Mike Feuer said while the city too gained an important victory before the 9th Circuit, much work still lies ahead for Los Angeles' leaders.

"All officials need to share Judge Carter's intense sense of urgency. With today's ruling, the ball is now squarely in the court of elected leaders," Feuer said. "That means deeper collaboration between the city and county, additional state and federal resources, fundamental improvements in engaging people experiencing homelessness and more -- driving to real solutions that reduce street homelessness and make our public spaces once again safe and accessible for everyone."

Thursday's opinion remanded a 110-page injunction Carter issued on April 20, ordering the city and county to house skid row's entire homeless population by October. The city was also ordered, at first, to immediately deposit $1 billion into an escrow account to be monitored by Carter, who wanted to ensure the funds were being appropriately used to address the homeless crisis. That part of the order was lifted later.

Elizabeth A. Mitchell, an attorney with Spertus Landes & Umhofer LLP, represents the LA Alliance, a coalition of businesses, residents and homeless people who filed the lawsuit. She said was pleased the panel identified a pathway to hold the city and county accountable for what she called their failed response to the homeless crisis.

"The court issued a narrow ruling this morning and focused on procedural steps in the case, but not the underlying law," Mitchell said. "We are greatly encouraged because the issues identified can be quickly addressed, and we look forward to returning to Judge Carter's courtroom in the coming weeks. No one disputes the extreme urgency of these matters. With winter approaching, the scale of human misery and degradation will only increase. The city and county must act now."

Even as they rebuked Carter, the circuit judge praised his commitment to solve a problem that many have thought was unsolvable.

"The district court devoted an extraordinary amount of effort toward understanding and encouraging the parties to implement solutions that would improve the lives of unhoused Angelenos," Nguyen wrote.

Carter held several hearings over many months, often on skid row, steps from homeless encampments, and urged all stakeholders, not just the parties in the litigation, to weigh in with proposed solutions. After conducting the hearings, Carter came to a conclusion in his order that public policy choices from zoning laws, containment, eminent domain and more were based on racial distinctions that disproportionately affected unhoused people of color.

The judge's proactive measures were what got him crossways with the 9th Circuit. The appellate judges noted that his opinion rested on independent research, disputable facts and material not subject to judicial notice. The plaintiffs did not allege any race-based claims, nor did they show that any members of their plaintiffs' group were Black, unhoused, or a parent at the risk of losing their children, the 9th Circuit said.

"The mismatch between the six claims underlying the order and plaintiffs' own claims explains a second overarching problem: the district court's almost exclusive reliance on extra-record evidence," Nguyen wrote.