Friday, November 2, 2018

City of Los Angeles Misinterpreting 9th District Boise Decision to Support Siting Bridge Housing on MTA Lot

City Claim that Bridge Housing Must Be within Walking Distance of Encampments Is a Myth, VSA Attorney Finds....

Councilmember Mike Bonin
Council District 11
200 N. Spring Street #475
Los Angeles, CA 90012

Re:   Use of Ninth Circuit Decision in Martin v. Boise to Justify Venice Homeless Shelter

Dear Councilmember Bonin:

I represent the Venice Stakeholders Association, a non-profit organization committed to civic improvement in the Venice neighborhood of Los Angeles. This is to follow up on our June 11, 2018, letter to you concerning the proposed construction of a temporary homeless shelter facility known as “Bridge Housing” at the 3-acre lot at 100 E. Sunset Ave. between Pacific Avenue and Main Street, which your office favors.  We understand that in recent weeks, City officials, including the Mayor and the Chief of Police, have been citing to Martin v. Boise, a decision of the Ninth Circuit Court of Appeals, to support their efforts to site this shelter in Venice at this particular site.  This case does not support their position.

As you know, both public safety and quality of life are jeopardized by the presence of approximately 1,000 homeless persons on the streets, sidewalks, alleys and parks of Venice.  Although VSA does not categorically oppose homeless shelters, either “temporary” or permanent, they are also not a fail-safe solution to the homeless crisis.  Indeed, even the Mayor has said that his Bridge Housing program is an experiment.  Accordingly, shelters should be sited with extreme caution, and not near residences and schools.

VSA believes the primary cause of the burden now faced by residents in the many areas where homeless persons congregate is the City’s failure to enforce its own ordinances, and especially Los Angeles Municipal Code section 41.18(d), which prohibits sitting, lying and sleeping in public streets, sidewalks and public ways.  By not enforcing this ordinance 24 hours a  day in and around residential areas, the City has encouraged a significant number of homeless persons and "travelers" to remain on the street despite the fact that numerous alternatives are available to them, including shelter beds, housing vouchers, permanent housing placements in facilities such as those operated by the Self-Help And Recovery Exchange (SHARE), and/or a bus ticket to relatives in their place of origin (so-called "family reunification").  This is especially true in Venice, where many transients are people who are simply camping out while traveling the country, and thus do not want housing.

 VSA favors a regime in which section 41.18(d) is enforced 24 hours a day, provided that before issuing a citation the police officer (or a social worker) makes a credible, documented offer to the violator of housing in some form and transportation to reach the housing.  Such an offer can easily be made by Los Angeles Police Department officers patrolling in Venice, as it was for several years by the Venice LAPD Homeless Task Force headed by Chaplains Steve and Regina Weller.  There are several non-profit homeless service providers operating within the City of Los Angeles which have beds available on a daily basis.  As just one example, SHARE, Inc. operates several facilities which generally have available beds.  The necessary transportation to these shelter beds could be provided either by LAPD, the Los Angeles Homeless Services Authority (LAHSA), or any one of the many non-profit homeless service providers operating in Los Angeles.

Some proponents of the Venice MTA site, including the Mayor and Chief of Police, appear to believe that the offer of housing, and transportation to it, are not sufficient to protect the rights of those who violate section 41.18(d).  They argue instead that in order for the police to cite a violator of section 41.18(d), a shelter with available beds must be located in close proximity to the violator.  The implication of this argument is that homeless shelters must be built close to every concentration of homeless persons in the entire City, which is of course untenable for financial and many other reasons.  In Venice, this siting philosophy has resulted in the misguided proposal to place a 154-bed shelter two blocks from the beach, on the site of a former bus maintenance yard that is surrounded on four sides by residences and is within a block and a half from an elementary school and four pre-schools.

To support their argument for the Venice site, proponents of the Bridge Housing program have cited to the so-called “Jones Settlement,” which the City voluntarily entered into in 2007.  In Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), homeless persons sued the City in federal court for issuing citations under section 41.18(d).  The City secured a voluntary dismissal of the litigation by entering into a settlement, in which it agreed not to enforce section 41.18(d) between 9 p.m. and 6 a.m., except within 10 feet of entrances, driveways and loading docks, “until an additional 1250 units of permanent supportive housing are constructed within the City of Los Angeles, at least 50 per cent of which are located in Skid Row and/or greater downtown Los Angeles.”  

The Jones Settlement did not require that shelter beds be available within a particular distance from the violator, in order to justify enforcement of section 41.18(d), or that transportation be provided to such shelters.  The settlement also did not require that shelter beds be constructed throughout the City in order to enforce section 41.18(d); it merely required the construction of 1250 units of housing in the entire City of Los Angeles, which consists of 512 square miles, with half (or 625 units) within “greater downtown Los Angeles” and the rest anywhere else in the City.

Whatever it may provide, the Jones Settlement no longer binds the City, as Mayor Garcetti acknowledged earlier this year, because the City has long since constructed 1,250 units of permanent supportive housing, with at least 50 percent of the units in downtown Los Angeles.   Nonetheless, the City continues to behave as though the Jones Settlement were in effect.  Attorneys for the Jones plaintiffs have threatened to resume litigation against the City if section 41.18(d) is enforced at night, on the ground that the homeless problem has worsened substantially since 2007, and many more units of housing are necessary to satisfy the demand.  The City has given in to these threats, and continues to refrain from enforcing section 41.18(d) at night across the City.

There is just one small ray of hope for a few residents of the City:  Chief Moore has recently indicated that the city will return to selective enforcement of section 41.18(d) 24 hours a day near new Bridge Housing facilities, on the ground that the existence of Bridge Housing would be legally sufficient to justify enforcement in the immediate vicinity.  

In their argument for enforcement only near Bridge Housing facilities, Chief Moore, Mayor Garcetti and other Bridge Housing proponents have cited to a recent decision by the Ninth Circuit Court of Appeals in Martin v. Boise (Case No. No. 15-35845).  However, that case holds, at most, that shelter beds must be available somewhere in the City before an ordinance like section 41.18(d) can be enforced.

In Martin, the City of Boise had a program in which the three homeless shelters in the city each self-reported to the city whether they were full each day.  If they weren’t, the police were free to issue citations to people sleeping on public property.  A group of homeless persons sued the city, contending that even though one of the shelters had routinely reported that it had free beds, in fact these beds were not available to some offenders, either because of restrictions on length of stay, limited check-in times, or a requirement to participate in religious programs. Under these circumstances, the court noted that there was evidence that despite the self-reporting of the shelters, shelter beds were not actually available to violators.  On that basis the court denied the city’s request to dismiss the case and allowed it to proceed.

The City of Boise is approximately 9 miles by 9 miles in size, making up over 82 square miles.  The average low temperature in December and January is 23 degrees.  Yet the Martin court said nothing about the distance between the homeless persons to be cited and the available shelter beds; much less did it set any minimum requirement for that distance.  Nor did the court even imply that the city was obligated to offer an actual shelter bed to a violator, or to transport the violator to a shelter, as a precondition of issuing a citation.  Instead, the court merely found that in order to cite an offender, a shelter bed must be available somewhere in the city.  

In sum, the City of Los Angeles is basing its Bridge Housing siting practices upon a myth – namely, that the Jones Settlement, and/or the Martin decision, requires that shelter beds must be in close proximity to the violator in order to allow enforcement of section 41.18(d). 

In fact, there is nothing in the Jones Settlement or the Martin decision that precludes the City from pursuing the model favored by VSA, in which police officers themselves (or social workers working in tandem with them)  make credible, documented offers of housing and transportation, and then, when such offers are rejected, proceed to enforce section 41.18(d).  

We request that you ask the City Attorney, the Mayor, the Chief of Police, and your fellow City Council members to carefully re-examine the Martin decision, and then seriously consider VSA’s proposal to recommence enforcement of LAMC section 41.18(d) in and around residential areas of the city at night.  

Thank you for considering my client’s views on this important subject.  

Very truly yours,

John A. Henning, Jr.

cc: Mayor Eric Garcetti 
      Michael Moore, Chief of Police
      Michael Feuer, City Attorney 
      Herb Wesson, City Council President