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OPINION: A focus on mental health, not more court orders, key to curbing homelessness

Orange County Register - 2/6/2021

Feb. 6—U.S. District Judge David Carter is frustrated with the homelessness crisis. As the judge overseeing a lawsuit over L.A.'s failure to provide housing for downtown homeless residents, he has held a number of high-profile hearings at which he has attempted to pressure local officials to take action.

Recently Carter visited the Skid Row area during a rainstorm and then issued a blistering order declaring that the conditions he saw were "appalling and dangerous." On Thursday he held another hearing, this time in a tent in a Skid Row parking lot to reflect his concern that elected officials are "not seeing and feeling" the problem.

Carter warned that if city and county officials don't come up with solutions, the federal courts may have to take action the way they did in the 1950s with the Brown v. Board of Education decision, which ordered an end to racial segregation in schools.

That's an outrageous comparison for many reasons, including this one: In Brown v. Board of Education, federal judges tried to solve a problem caused by the states; in the homelessness crisis, states are trying to solve a problem caused by federal judges.

Consider the 1972 case of Papachristou v. City of Jacksonville, in which the U.S. Supreme Court threw out Jacksonville's vagrancy ordinance. The ordinance rather specifically defined "vagrants" as: "Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children."

The U.S. Supreme Court called this ordinance "unconstitutionally vague." Justice William O. Douglas noted that "sleepless people often walk at night" to relax. He wrote that poets including Walt Whitman and Vachel Lindsay had extolled the virtues of "wandering or strolling."

Poetry aside, the decision invited the federal courts to substitute their judgment for the judgment of local elected officials in matters concerning basic health and safety on the public streets. And that's exactly what happened.

In 2007, the city of Los Angeles settled a lawsuit over Municipal Code section 41.18(d), which said, "No person shall sit, lie or sleep in or upon any street, sidewalk or other public way," unless they were attending a parade. Under the terms of the settlement in Jones v. Los Angeles, the city agreed not to enforce section 41.18(d) anywhere in the city between the hours of 9:00 p.m. and 6:00 a.m. until another 1,250 units of housing for the chronically homeless were constructed, including 625 in the Skid Row area. The housing was built. Enforcement never resumed.

That's how all of Los Angeles became Skid Row.

In 2019, the city settled another lawsuit, Mitchell v. Los Angeles, agreeing that homeless people have the right to store an unlimited amount of personal property on the sidewalks.

Meanwhile, in a ruling that is binding on nine western states including California, the Ninth Circuit Court of Appeals halted Boise's enforcement of its camping and disorderly conduct ordinances. Boise appealed to the U.S. Supreme Court, but the justices refused to hear the case.

Under the supervision of the federal courts, sidewalk tent encampments have proliferated and become effectively permanent. Even if cities offer shelter to homeless residents, they have no power to force anyone to accept it.

Judge Carter has floated the idea that cities in L.A. County may be permitted to enforce an anti-camping ordinance if they provide enough housing for local homeless residents. It's his prodding that has local officials turning parks, parking lots and other public spaces into fenced camps of "tiny houses" and rushing the purchase of hotels and motels for conversion to "supportive housing." The expense is astronomical.

Yet the sidewalk encampments may never be prohibited. The federal courts have robbed communities of the most basic right of all, the right to be governed by the consent of the governed.

The path to the real solution begins with a realistic assessment of the problem. It's not only about housing.

In 1965, the Medicare and Medicaid Act signed by President Lyndon Johnson excluded "Institutions for Mental Disease" (IMD) from receiving reimbursements under the program. This stripped away financial support for state hospitals that provided in-patient care for mental health patients.

States may apply for waivers. California is one of the states that has a received a "Section 1115 waiver" for substance use disorder (SUD) services.

In 2018, the federal government issued new guidance allowing states to obtain Section 1115 waivers of the federal IMD payment exclusion for services for individuals with serious mental health conditions. As of January 26, only Washington, Vermont, Utah, Oklahoma, Indiana, Idaho and the District of Columbia had applied for and received IMD waivers. An application from Massachusetts is pending.

California should be on that list. Instead of throwing money at hotel purchases, we should be building out a network of high-quality state hospitals to provide mental health care that is desperately needed, as well as residential treatment for substance use disorder.

The federal courts can help by recognizing that cities and states have a compelling reason for laws against public camping and disorderly conduct. Other than that, they should probably stop helping.

Susan Shelley is an editorial writer and columnist for the Southern California News Group. Susan@SusanShelley.com. Twitter: @Susan_Shelley

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