Tuesday Talk*: Enjoined, For Their Own Good

One might reasonably believe with all the passion one can muster that no rational person would choose to be homeless, to live under a freeway overpass, to risk contracting coronavirus and to prefer their own choices to being compelled by the state to live in a shelter. And indeed, many, if not most, would take a roof over their heads.

But would all? Would they want to be marched at the end of a gun if they tell the cop, “Why thank you officer, but I’m fine right here. Have a nice day”? Who represents their interests?

Therefore, to protect the homeless individuals camping near freeway overpasses, underpasses, and ramps—and the general public—the Court hereby ORDERS that these individuals be humanely relocated away from such areas. As part of this humane relocation effort, and to promote the underlying public health and safety goals, the City of Los Angeles and County of Los Angeles shall provide shelter—or alternative housing options, such as safe parking sites, or hotel and motel rooms contracted under Project Roomkey—to individuals experiencing  homelessness.

As shelters are established and homeless camps are relocated away from freeway overpasses, underpasses, and ramps, the following criteria, at a minimum, must be satisfied to ensure the process remains humane and serves the best interests of the affected individuals experiencing homelessness.

The injunction issued by Judge David Carter in the Central District of California was, no doubt, done with the best of intentions and the greatest of sensitivity and concern for the welfare of the homeless. Nonetheless, it involves the use of force to compel the homeless to do what the plaintiff, LA Alliance for Human Rights, believes is in their best interests. As B.McLeod noted when he sent this to me:

A survey of these people has not been taken, but an “alliance” has appointed itself to speak for them, assuming that they would and should all want to be forced out of their current living arrangements to public “shelters” (which tend to have rules and other inconveniences disfavored by many homeless).

Beyond the federal court usurping legislative functions in the guise of a “preliminary injunction,” the conduct in this instance appears to be the sort of forced relocation of civilian populations that constitutes a Crime Against Humanity under the Principles of Nuremberg and Article 12 of the International Covenant on Civil and Political Rights.

Putting aside the Nuremberg reference preferred by those on the cutting edge of tin foil chapeaus. McLeod’s got a point. Had the injunction been limited to requiring Los Angeles County to make shelter space available to all who desired it, it would have been one thing. Even then, the court inserted itself into the nuts and bolts of what the shelter was required to offer.

(1) All shelters and alternative housing options must be configured with adequate physical space to allow the sheltered individuals to maintain the minimum recommended social distance of six feet to mitigate the transmission of SARS-CoV-2.
(2) All shelters and alternative housing options must have adequate hygiene facilities, such as handwashing stations and showers.
(3) All shelters and alternative housing options must have nursing staff who, upon intake, can test each homeless individual for communicable diseases and other health conditions. The Court may consider revising this aspect of the preliminary injunction in the future, depending on the state of the COVID-19 pandemic.
(4) All shelters and alternative housing options must be staffed by security as necessary to ensure the safety of the homeless persons sheltered therein.

Each of these things involves a public expense and a bureaucracy to manage it. With the requirement that there be sufficient social distancing room, it could prove rather difficult to relocate about 7000 people overnight.

It also suffers from the maxim “expressio unius est exclusio alterius.” Must they provide soap and towels, for example? Sheets, blankets and pillows? What hygiene facilities are “adequate”? Had the court left it to the County to figure it out, that would be one thing, but the court included some express conditions for not others. Does that mean they’re not required?

And what of the people who don’t want to be forcibly relocated “for their own good”? Do we pretend they don’t exist? Do they? Who speaks for them? In the world of the well-intended, no reasonable person would refuse a roof over their head to live under a freeway.

(6) Before beginning the process of clearing freeway overpasses, underpasses, and ramps, all homeless individuals living in the vicinity must be given advance notice; such notice shall include information about nearby shelters and alternative housing options.
(7) After such notice is given, and after the City of Los Angeles and/or County of Los Angeles provide adequate alternative shelter for individuals experiencing homelessness living in the vicinity of a freeway, the City of Los Angeles and County of Los Angeles will be allowed to enforce anti-camping laws in the vicinity of freeways to ensure that these individuals are moved to a safer location. (That is, while an individual experiencing homelessness could not be ordered to enter a shelter facility, they could be ordered to relocate an adequate distance away from freeway locations.)

The court’s injunction recognizes that not every homeless person wants to be forcibly moved into a shelter, but rejects the possibility that it’s their choice to live beneath the freeway overpass in favor of “a safer location.” It might strike you as a terrific thing that a court has taken action to help the homeless, even as LA County has not.

But what about those nice folks whose rights and interests differ from the solutions their saviors have decided are better than their own choices? Is the road to hell paved with good intentions?

*Tuesday Talk rules apply.


23 thoughts on “Tuesday Talk*: Enjoined, For Their Own Good

  1. B. McLeod

    It’s remarkable, really. No public comment period, no amendment to the HUD comprehensive plan. Just go forth and do, City and County of Los Angeles. In the middle of a pandemic. 6,500 to 7,000 people. Make sure you can also transport and house their property. You figure out the sanitary concerns. It is so ordered.

    1. SHG Post author

      Judges don’t entertain public comment, which is part of the reason why judges should only insert themselves into matters to the extent judicial humility requires.

      1. B. McLeod

        Typically they don’t, and that circumvented normal regulatory processes in this case. The numbers at issue represent over 11% of the total estimated homeless population of Los Angeles County, and the housing initiative legislated by the court will work a substantial de facto change in the county’s public housing authority plan. Under HUD regulations, that would ordinarily entail notice and public comment on the proposed changes, submission of the amendment to HUD, and a 75-day review by HUD (part of which entails examination of any civil rights issues raised by the proposed amendment). That isn’t going to happen here, where the court ignored the role of the agency, ignored civil rights concerns, and provided for its “preliminary injunction” to take effect in only seven (7) days.

        To clarify as to the international authorities, the United States never adopted the Nuremberg Principles (for a series of reasons that would have made that problematic through the mid-1970s at least). I mention them only because they were a conceptual root of notions eventually fleshed out in Article 12 of the International Covenant on Civil and Political Rights. The United States did ratify that treaty on June 8, 1992, and remains a party today, and the standards and obligations of Article 12 are a part of the supreme law of our land.

  2. Jim Majkowski

    COVID-19 might add more to American jurisprudence even than prevention and termination of human reproduction.

  3. Jake

    “At present I do not feel that I have seen more than the fringe of poverty. Still, I can point to one or two things I have definitely learned by being hard up. I shall never again think that all tramps are drunken scoundrels, nor expect a beggar to be grateful when I give him a penny, nor be surprised if men out of work lack energy, nor subscribe to the Salvation Army, nor pawn my clothes, nor refuse a handbill, nor enjoy a meal at a smart restaurant. That is a beginning.” -George Orwell, Down and Out in Paris and London

  4. Glenn Brockman

    In Perth, Western Australia, 20 homeless people were provided with 5-star hotel accommodation for one month…

    (Quoting from news article)
    Coronavirus pandemic homeless program Hotels with Heart abandoned in Perth after ‘setbacks’.

    “Eleven participants left the pilot very early on.
    Their reasons for leaving included struggling with the quarantine period, being confined to the hotel, not being able to smoke when they wanted to, alcohol and drug use and family pressures.
    You can’t put 20 of the most vulnerable chronic rough sleepers into a hotel and expect there to be no setbacks. We won’t be continuing the program at this stage.”

    Whether you can round up the homeless is one issue, but getting them to stay put might be an even bigger one.

    1. SHG Post author

      No matter what the assumptions of the well-intended, some people just won’t do what the well-intended want them to do.

      1. Skink

        Assumptions. They’re built-in to the bringing of the petition, the decision and even your reaction: that it’s being done for their good. Forgive my usual disbelief, but isn’t it far more likely the impetus, regardless of the stated, was to not see or interact with them on the way to the office?

        It’s within constitutional norms to have ordinances forbidding living under bridges, even if the reason is “we don’t want to see you in the Beemer windshield.” As you point out, it’s a whole together another thing to force the homeless into internment motels. Lawyers see the basis for the injunction as immaterial to issuance so long as there is a legal basis. Usually in these cases, it’s hygiene laws or something else that’s unused in other cases.

        But this has to be sold to the unlawyerly, so it’s “for their good.”

        1. SHG Post author

          I wouldn’t question the good intentions of the woke movants, their BMWs in the parking lot notwithstanding.

  5. Jerry

    > And what of the people who don’t want to be forcibly relocated “for their own good”? Do we pretend they don’t exist? Do they? Who speaks for them? In the world of the well-intended, no reasonable person would refuse a roof over their head to live under a freeway.

    My layman understanding is the 9th Circuit spoke for them with a solid “maybe”?


    > In a move that will dictate how Bay Area cities respond to the homeless crisis, the U.S. Supreme Court is leaving intact a major ruling that upholds the right of residents to sleep outside if they have no other option.

    > A Sept. 4, 2018 ruling from the Court of Appeals for the Ninth Circuit held that penalizing homeless residents for sleeping outdoors on public property — if there is no other shelter available — violates the Eighth Amendment’s ban on cruel and unusual punishment. On Monday, the high court declined to take up the case, leaving in place a ruling that already has started to change how Bay Area cities deal with sprawling homeless encampments and other outdoor shelters.

    > The ruling stemmed from a Boise case challenging two city ordinances that banned camping on streets, sidewalks, parks and other public places. The case made its way to the Ninth Circuit, where a panel of appellate judges issued a ruling that immediately had a sweeping impact across western states — including California.

    > “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” Judge Marsha Berzon wrote.

    > Shortly after, the city of Berkeley killed a proposal that would have banned lying down and camping at the new downtown BART station plaza.

    > The Ninth Circuit judges specified that cities may, in certain circumstances, be able to criminalize sleeping outside — to bar the obstruction of public rights of way, for example. And the ruling only applies if there are no other options available.

    And because the cities can’t find shelter space, San Francisco, Berkeley, and Oakland are now filled with encampments in city parks, along median strips, at freeway onramps, pretty much everywhere in ways that are a far cry from anything I’ve seen in the past, that is people are not “tucked under a freeway overpass” where it might be safe if not noisy, but people are literally sleeping on the 6′ median strip dividing major streets with lots of traffic (see Division Street in SF) which can’t be safe or healthy.

    I am a bit surprised their was no court facilitated agreement with Gavin Newsom’s operation roomkey, where Governor Newsom arranged with underused motels to house up to 15,000 of our homeless statewide for some duration of the pandemic

    (Apologies if this comment is far too long)

    1. SHG Post author

      It’s long (which is fine as long as it’s worth the bandwidth) and you included a link, which is generally against the rules here, except for Tuesday Talk comments. Please bear in mind when discussing caselaw that this is a law blog, for lawyers and judges. This comment, by the way, was worth the length.

  6. El_Suerte

    Not surprisingly, the judge in this case got tossed off a similar case last year in Orange County (just south of Los Angeles County) for being over zealous. He’s got a track record for being a showboating crusader on homelessness.

    Does the part of the preliminary injunction in II A, where he starts off with “A district court may order injunctive relief on its own motion and is not restricted to ordering the relief requested by a party. ” mean that neither party asked for this?

    1. SHG Post author

      I often wonder, when someone asks a question like that and we’ve both read the same order, why?

      1. El_Suerte

        Happens when somebody recognizes their own limitations and doesn’t mind asking stupid questions.

        1. SHG Post author

          Self-awareness is a wonderful trait. I bet there’s a subreddit dedicated to extolling its virtue where they give passionate tummy rubs to people who are brave enough to ask stupid questions.

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