Following extensive on-the-ground action including personal tours of homeless encampments and one-on-one meetings with politicians, U.S. District Judge David O. Carter is now approaching the case from a traditional judging position
BY MEGHANN CUNIFF
When the 9th Circuit Court of Appeals vacated U.S. District Judge David O. Carter’s court-ordered revamp of Los Angeles’ approach to homelessness and housing, the lawyers behind the lawsuit praised the decision as giving them a clear path forward to secure another seismic order about systemic racism from a judge who’s vowed never to let up.
But six months later, their efforts appear to have lost a key supporter: the judge himself.
After nearly a year of on-the-ground action that included personal tours of homeless encampments and one-on-one meetings with politicians, Carter is now approaching the case from a traditional judging position that generally doesn’t allow for such freewheeling. He’s also made clear he wants a resolution, and, rather than ruling on the city and county’s dismissal motions, he’s ordered settlement discussions that continued March 1 at the First Street Courthouse in downtown Los Angeles.
Mayor Eric Garcetti and City Council President Nury Martinez showed up at the judge’s invitation, and the City Council spent more than two hours discussing the lawsuit in closed session the next day. Then this Tuesday, the Los Angeles County Board of Supervisors met for the sole purpose of discussing the case.
The county issued a statement Tuesday saying the city and Alliance “have reached a settlement over conditions on Skid Row in downtown Los Angeles, over which the city has primary jurisdiction.”
“We welcome such a settlement and hope that it truly addresses the humanitarian crisis on Skid Row and supports a path for the City of Los Angeles’ most vulnerable residents to finally have a place to permanently call home,” according to the statement.
But the L.A. Alliance
The negotiations are a stark change from the April 2021 injunction reversed by the 9th Circuit, which required the city to offer housing to all residents of Skid Row within six months while ordering extensive audits and property inventories for more shelters and housing. It’s unclear what a deal could look like, but Carter has referenced a settlement proposal leaked to reporters last April that called for the number of shelter beds to increase enough to accommodate 60 percent of the homeless population, with oversight by Carter or another judge for five years.
Lawyers for the plaintiff’s group L.A. Alliance for Human Rights said the focus right now is not the terms of the agreement, but the parties involved.
“The city and the county have a lot of history on this issue, and these discussions are not immune from that,” said Matthew Umhofer, a partner with Spertus, Landes & Umhofer, LLP in Los Angeles. “So right now, we’re just trying to figure out who’s on board and who’s not. But we’re hopeful.”
They later slammed the county for commenting on the city’s settlement talks, calling it “pointless” and “preemptive” and saying the board’s failure “ to address the most pressing crisis of our day is both unfathomable and unacceptable.”
Meanwhile, Los Angeles County Sheriff Alex Villanueva has positioned himself in the last year as the region’s top anti-homeless crusader, organizing high-profile outreach efforts and sweeps of the Venice boardwalk, Westchester Park and the Olvera Street. He’s never been involved in the lawsuit, and he made clear in an interview with Los Angeles Magazine he’s motivated not by a court ruling but by the residents who have been asking for his help.
Still, the sheriff told the Pacific Palisades Residents Association last month: “For the record, I have reached out to the court to Judge Carter and said I am more than happy to volunteer to be the one who gets it all done.”
Umhofer’s law partner Elizabeth Mitchell replied, “I may be calling you to testify.”
The Feb. 24 meeting featured a 90-minute discussion about homelessness and ways to reduce it between Villanueva, Mitchell and Paul Webster, a former housing policy advisor in the Trump administration who started as the L.A. Alliance’s executive director last November. Villanueva introduced property owner Izek Shomoff and his son Jimmy, saying they recently made “a very generous” donation to homeless outreach services, as well as Bill Taormina, an Anaheim businessman who has assisted with shelter efforts in Orange County.
“We have people at the table who want to get things done. We need politicians who want to get things done,” Villanueva said.
For Mitchell, the appearance was part of a public outreach campaign the L.A. Alliance is undertaking, with paid Facebook advertisements that include a video captioned, “When will the chaos end on the streets of Los Angeles? Join the L.A. Alliance as we push for safe streets.” She told the crowd that, after a year of fighting with the city and county, “We’re back in settlement negotiations because they’re going to lose. Because we’re on the right side.”
“Can I tell you there’s stuff I can’t tell you? Isn’t that exciting?” Mitchell said.
Mitchell didn’t mention the pending dismissal motions, which attorneys for the city and county argued before Carter in Jan. 24 Zoom hearing. They were joined by Shayla Myers, senior attorney for the Legal Aid Foundation of Los Angeles, which is representing the Los Angeles Community Action Network as an intervenor in the lawsuit, though Myers said she didn’t join the dismissal motions “on any particular matters.”
Still, Myers reiterated what she’s long told Carter, that the lawsuit is an attempt by property owners to clear Skid Row of unhoused people and will lead to the displacement and further criminalization of unhoused residents at a time when the City and the County need to be investing in long-term solutions.”
LACAN praised the 9th Circuit’s ruling in September, writing on Twitter that the L.A. Alliance “was never by the people, for the people.” Myers quoted the tweet and added, “Even seeing the full name of the group in @LACANetwork’s feed leaves me full of rage.”
Mitchell told the Pacific Palisades meeting that LA Alliance does not consist only of property owners, saying it started as “a small group of pissed-off people” and has since grown into “frankly, a big group of pissed-off people.” She also downplayed the 9th Circuit ruling, telling the crowd the court “overturned Judge Carter’s order on procedural grounds.”
“I think a lot of people thought the 9th Circuit kicked us out. They did not,” Mitchell said. “We have a lot of novel legal arguments, there’s no doubt about that. But they’re good legal arguments. They’re valid legal arguments.”
The ruling was written by the liberal Judge Jacqeline Nguyen, who’s a former federal bench colleague of Carter and friend of his mentor, the late Senior U.S. District Judge Manuel Real. It said Carter’s “almost exclusive reliance on extra-record evidence” was an “overarching problem” and commented on the “extraordinary amount of time and effort” Carter put into understanding the case and encouraging settlement.
It also said the lawsuit failed to suggest reasonable accommodations short of “the wholesale clearing of 50-plus blocks followed by criminal enforcement of anti-camping and related ordinances.”
Still, Mitchell and Umhofer said the 9th’s ruling gave them a clear path to seek another injunction based on the city’s systemic racism. The ruling said the members of the L.A. Alliance couldn’t legally argue the points in Carter’s order about racism, service deprivation and split families, so the group filed the new version of the lawsuit after adding as a plaintiff a Black man who’s homeless on Skid Row.
At first, the judge appeared on board. Before the 9th ruling was issued, he’d warned attorneys they could be held in contempt if the 9th upheld his audit orders and they missed the deadlines, and he promised them: “The court’s going to stay diligent and involved. I’m telling you that and I’m not budging on that.” He also threatened to reinstate an order directing the city and county to house people living on freeway underpasses and overpasses.
But Carter took a different approach during a Jan. 24 hearing in the dismissal motions, in which he ordered the current settlement talks and said he’d have U.S. District Andre Birotte lead them.
The judge said then that the case “cries out” for a settlement “or decision by the court simply ending the case or going forward with litigation.”
“Eventually, my belief is the same as yours, Mr. Miller. Somehow this has to eventually resolved,” Carter told Los Angeles County’s private counsel, Louis “Skip” Miller of Miller Barondess LLP, adding that he and Los Angeles senior assistant city attorney Scott Marcus “really hold the keys to this matter.”
One major change has been the city’s enactment of anti-camping ordinances. Carter’s injunction said he would allow for the enforcement of such ordinances if the city fulfilled its duties such as the housing offers and audits, but the City Council enacted the ordinances, anyway, and the city has been enforcing them since Sept. 3 without Carter’s involvement.
Garcetti told Los Angeles Magazine on his way into the courthouse last week that he’s always hoped for a settlement and believes one is within reach. Does he want to avoid another injunction like the one the 9th Circuit vacated last fall?
“Sometimes injunctions have been healthy in the past,” Garcetti replied.
The mayor and future U.S. ambassador to India made it clear he didn’t agree with Carter’s injunction when it was issued last April, lamenting among other things its negative affects on housing projects the judge had previously personally endorsed. But he and the judge appear to have talked since, with Garcetti asking Carter about his recent work overseas as Carter greeted him in the courthouse lobby and escorted him to the courtroom. That touches on a key difference in Carter’s current schedule compared to his schedule in the height of the lawsuit’s headline-grabbing public hearings in 2020: He’s traveling internationally again, after the pandemic kept him in the United States for about a year.
For the judge, the domestic grounding was a major change: He’s spent nearly a quarter of his time since 2015 overseas for conferences and other United Nations, U.S. Department of Justice and Department of State judicial and counterterrorism work, including 13 international trips over 76 days in 2019. He’d already been gone 21 days in January and February 2020, to Sri Lanki and the Republic of Maldives and twice to Tunisia, when the pandemic halted several planned trips, and he didn’t fly internationally the rest of the year. The trips are all-expenses paid, so Carter is required to report them each year on his federal financial disclosure forms, which the Free Law Project posted online last year.
The judge often referenced his overseas experiences in the approximately 12 hearings he presided over in 2020 and early 2021, including an outdoor hearing held in the parking lot of the Downtown Women’s Center in Skid Row. He’d also show photographs from his travels, and he’d frequently take his own photographs of homeless encampments when walking around Los Angeles County. He visited places throughout the city at all hours of the day, sometimes by himself but other times joining activists like the late Skid Row hip hop pioneer “General” Jeff Page, who LACAN leader Pete White told a Los Angeles Times columnist after Page’s death last November was “thick as thieves” with the judge while advising him on the case. He’d also accompany politicians such as City Councilman Mike Bonin in Venice and City Councilman Bob Blumenfield in the San Fernando Valley on walks through their districts and visits to specific encampments.
“It was amazing. We’d start at 6:30 a.m. Some nights he’d be out until late, and the workers are complaining about wanting to go home and after a while it’s just him and me walking the streets,” Blumenfield told Los Angeles Magazine. “One time he seemed so tired I was questioning whether he should be driving home back to Orange County.”
Some worried about the judge exposing himself to COVID – an April 2020 L.A. Times profile was headlined “This judge is risking his life for homeless people” – but Carter never worried much himself, later shrugging off COVID protocols in his courtroom once in-person hearings resumed, including violating a courthouse-wide mask policy for two months. His approach to COVID prevention generally consisted of handing lawyers a bottle of disinfectant after their hearings and asking them to please wipe down their areas so his staff didn’t have to do it, and he once told a unmasked lawyers in court for a jury trial, “I’ve made you totally responsible for the area you sit in, therefore if you get COVID, congratulations. You are totally responsible. I’m not joking.” He’s since started complying with the restrictions, however, and even requiring masks in his courtroom for a week after the courthouse-wide requirement ended.
In a way, Carter is a kindred spirit with Villanueva in how they talk about what they see as the city and county’s wasteful approach to homeless services, and in their straightforward approach to illustrating the crisis through their own photography. Carter regularly showed slideshows of photos from his tours during the 2020 hearings, including once displaying a photo of a pile of human feces, while Villanueva showed the Pacific Palisades meeting several photographs he’d taken of a tent outside a restaurant on South Fairfax Avenue near Wilshire Boulevard and camps at the Santa Monica promenade, including a man camped near a window with the message, “Rainbow shades & brighter days.”
“I took the photo only because the advertisement in the window and the individual experiencing homelessness on the sidewalk was quite a contrast in messaging,” Villanueva said.
Villanueva told Los Angeles Magazine he was inundated with complaints about homeless encampments, so he “greatly expanded” the department’s Homeless Outreach Services Team, “and then we let them loose” with an approach he said has included zero arrests in five years.
“If I had 90 days and completely cooperative city and county, we could get shelter for all 83,000 homeless and clean up all the streets”
But Villanueva is widely disliked in county government – the Board of Supervisors asked him to resign in 2020 – and criticized for lax oversight of his department and failure to implement critical reforms, so it’s unlikely he’ll enjoy an influx of support and resources. Protestors also show up at most of his public appearances, and several were escorted from the Pacific Palisades’ meeting after confronting him about fatal deputy shootings.
Carol Sobel, another lawyer representing an intervening advocacy group in the L.A. Alliance lawsuit, questioned whether Villanueva’s efforts have truly succeeded.
“He just shifted people to another area. Isn’t that always the challenge when you use temporary measures and criminalization and never address the root issue that cause homelessness for most people and then cause the numbers to increase dramatically each year?” Sobel said. “As far as I can tell, Villanueva is just replicating the mistakes of the past, not building solutions.”
Villanueva told Los Angeles Magazine he hopes Carter “finds a solution that will get the city and the county to the table, because they spent all that money fighting his order instead of trying to make it a reality.”
“The judge is well aware that we’re actually going to make things happen. Our department? That’s our DNA. Get shit done. You saw it in Venice. You saw it in Westchester Park and all the other places we’ve been cleaning up encampments,” Villanueva said.
Meanwhile, Carter is hugely busy with other cases, including a lawsuit from President Donald Trump’s lawyer John Eastman over subpoenas from the Jan. 6 Committee that erupted into national news last week when the committee revealed a possible criminal case against Trump.
In addition to traveling internationally again, he’s described his caseload as “a living nightmare” and is facing a massive trial backlog because of the federal court’s ban on jury trials. His chambers are also different than when he issued the injunction: He gets two new law clerks every summer, and the two who worked on the injunction are gone, along with the three externs he enlisted to help. He’s also moving courtrooms this month after 20 years in the same spot, taking over a much larger courtroom being vacated by U.S. District Judge Josephine Staton, who’s relocating to Los Angeles.
Still, Carter has a long-earned reputation as being unpredictable, and he showed in the Jan. 24 dismissal hearing that he’s still thinking big when it comes to homelessness in Los Angeles, telling the attorneys after ordering the settlement talks to let him know if they’d like him to invite Gov. Gavin Newsom.
“In other words, if we’re really talking about regionalization, let’s really reach out. Let’s be bold,” the judge said.
Meghann M. Cuniff is a legal affairs journalist in Southern California. She’s on Twitter @meghanncuniff.
SOURCE: LOS ANGELES MAGAZINE
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