Housing Blog Essay

The Role of Courts in Addressing the Homelessness Crisis

Amid the record-breaking global temperatures this summer, the heat ticked ever higher in Sacramento between the District Attorney’s office and City Hall. In a series of steely letters, District Attorney Thien Ho chastised city leaders for their failure to take action to rectify the city’s homelessness crisis. Included in his first letter were eighteen requests directing the City to, among other things, set up Safe Ground locations for unsheltered individuals, implement a citywide daytime camping ban, and bolster its enforcement of ordinances. The Mayor’s Office shot back: “Mr. District Attorney, prosecuting violators, respectfully, that is your job.” (See the letters here and here.)

The saga culminated in a lawsuit last month. On September 19, 2023, Ho filed a complaint in state court against the City, alleging that the sprawling tent encampments of unsheltered persons across the city, enabled by the City’s inaction, constitute a public and private nuisance as well as a regulatory taking of the adjacent private property. The City, according to the complaint, was “aware of the nuisance and blight but chose to ignore it . . . despite years of notice and information as to the deteriorating conditions . . . based upon the express or implied directives/policies” of city leaders. 

A puzzling feature of the complaint is that its requested relief is rather unclear. Ho seeks no monetary damages, only an injunction for the City to “enforce its laws.” Though the complaint references several of the eighteen points in Ho’s original letter, it does not explicitly name the laws it seeks to enforce. Only a few paragraphs in the introduction explain that the Sacramento Police Department was “not issuing citations” to unhoused individuals. As proof, the complaint cites an email the City sent to the DA’s office asking for help in “encourag[ing] the police in ‘becoming more comfortable in issuing citations.'” This letter, according to the complaint, was “a shocking admission of liability that the City has failed to enforce the law.” But what would it mean for a court to enjoin the City to “enforce its laws”? 

A narrow reading of Ho’s complaint might be that police officers should issue more citations to unsheltered individuals. A broader reading might be that Sacramento City Hall needs to get itself together and address the homelessness crisis. Setting aside for now the moral and policy arguments against encouraging police officers to issue more citations to the unsheltered, a historical survey of the homelessness crisis in America helps demonstrate why neither reading of Ho’s complaint is likely to accomplish its objective.

The homelessness crisis has been a huge policy issue across U.S. cities for years, particularly in west coast urban centers like Sacramento. As Ho’s complaint acknowledges, the crisis stems from decades and layers of interlocking causes. For example, exclusionary local zoning ordinances (and, closely related, redlining) have notoriously exacerbated the dearth of affordable housing in various localities across the United States. Under these ordinances, local governments restrict the types of housing that can be built on a parcel of land, such as allowing only single-family homes. The ordinances drive up the cost of housing by suppressing supply and preclude the development of mixed-income housing, which is key for municipal supportive housing programs for the unhoused. More complicated obstacles to the homelessness crisis include state laws like California’s Proposition 13, which severely hamstring the ability of local governments to raise revenue from property taxes and fund public programs.

Despite these countless public, private, local, state, and national causes, the burden of policing homelessness has largely been placed on municipalities. For their part, cities have attempted solutions like “housing first” programs and the expansion of social services. But given the complexity of the underlying causes of the homelessness crisis, these programs have been palliative at best. Municipal spending for addressing homelessness broke records in the past five years, but overall homelessness across the United States improved by only ten percent. In short, few are satisfied with the result.

Enter lawsuits like Ho’s. Indeed, Ho’s complaint is only the latest in a string of lawsuits since 2020 across west coast cities like Phoenix, San Francisco, and Los Angeles, as litigants turn to courts out of frustration with the political branches. But are courts even the appropriate actors to be tackling this problem? Will they be any better than City Hall at handling all the interlocking complexities described above?

Reality suggests that the answer is no. On one hand, narrow, single-issue injunctions like ordering police officers to issue more citations to unhoused individuals may tighten one thread by temporarily clearing tents from the premises of property owners. But when stitched together, the injunctions across these lawsuits illustrate the dizzying Catch-22 facing municipalities: They must issue more police citations to unhoused individuals and thus clear encampments, but they cannot do so unless they provide adequate alternative shelter to the unhoused — in cities that already have some of the most expensive real estate in the world. Further, they must accomplish all this in timelines as short as four months, but they cannot evade due process requirements such as public hearings and adequate notice to the unhoused — all of which, by design, delay relief. One might begin to see how these lawsuits leave city officials at an impasse.

But the broader reading of Ho’s requested relief — an injunction for the City to “do a better job” at solving homelessness — is equally unpromising. Namely, it runs into redressability issues. Law students may be familiar with the refrain that courts typically do not order the executive branch to simply change its enforcement practices. While the Sacramento lawsuit is in state rather than federal court and so Article III standing does not directly apply, the problems with court-ordered solutions to complex systemic issues like homelessness are not simply an abstract theory of judicial restraint. Even for state courts, there are practical problems with just telling the executive to “do better.” As the Ninth Circuit in Juliana v. United States explained, nonexpert courts usually aren’t competent to “order, design, supervise, or implement” remedial plans for societal problems like the homelessness crisis, as such decisions are better left to the political branches. Even if the court left the “details of implementation” to executive discretion, an injunction would still require “pass[ing] judgment on the sufficiency of the government’s response to the order, which necessarily would entail a broad range of policymaking” that courts are ill-suited to assess. Further, the homelessness crisis isn’t entirely due to official incompetence or apathy — there are a host of deeper state- and national-level factors that city officials are largely powerless to remedy.

My point here is not to suggest that these lawsuits are useless; indeed, Ho’s complaint brings public attention to and vindicates real harms suffered by both unhoused individuals and property owners. But to be maximally effective, litigants and courts must ensure that they are crafting effective solutions in ways that don’t exacerbate the problem by either tying the hands of city officials or promising more than courts are competent to deliver. For example, if the problem truly is that city officials are kicking the homelessness crisis down the road and eschewing responsibility, then perhaps the focus of litigation should be on the process rather than the remedy. Instead of issuing preliminary injunctions, courts can use other managerial powers of the trial process to keep city officials accountable. In a recent 2022 article, Professor Payvand Ahdout describes some of these mechanisms available in a judge’s toolbox, such as using discovery to force public transparency or setting court-monitored scheduling orders to prevent city officials from missing deadlines with no ramifications.

All this to say, the homelessness crisis is a chronic, systemic issue that a single city, in isolation, cannot resolve. But likely no one thing can. Indeed, a viable short-term solution may not even exist given the deep-seated nature of the underlying inequities coupled with the need to respect unsheltered individuals’ due process rights. But maybe litigants and judges can think about different and creative ways to approach the problem of city official accountability. Even if this wouldn’t necessarily solve the entire homelessness crisis, at least this way, courts can provide some breathing room for city officials to experiment with various policies while still holding them accountable in subtle ways.