Following the Supreme Court ruling that the CDC’s eviction moratorium is not legally enforceable, Rep. Cori Bush introduced the Keeping Renters Safe Act of 2021. The Act seeks to amend Section 361 of the Public Health Service Act to grant permanent authority to the Department of Health and Human Services to implement a federal eviction moratorium. The Act, if passed, will allow the HHS to maintain a federal eviction moratorium for at least 60 days following the end of the Covid-19 public health emergency.

 

The Act comes after Rep. Bush, who personally experienced homelessness prior to being elected to Congress, led efforts to publicly protest the expiration of the eviction moratorium, which originally ended July 31. The National Low Income Housing Coalition has estimated that 30-40 million people nationwide have become at risk of eviction during the Covid-19 housing and economic crisis.

Moreover, the CDC has acknowledged that people experiencing homelessness face higher risks of contracting Covid-19 because of the need to congregate, a lack of shelter and health care access, and the practical difficulties of administering vaccines to unhoused communities.

The Law Center, along with other organizations and advocates, has signed on as an official supporter of Rep. Bush’s proposed bill.

 

The Law Center, along with 14 other advocacy organizations, penned a letter to the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services encouraging them to pass the Family Stability and Opportunity Vouchers Act.

 

The Act, introduced by Senators Chris Van Hollen and Todd Young, provides $1.35 billion to supplement any investments in Housing Choice Vouchers in the upcoming reconciliation bill. In the letter, the signing organizations note that 1 in 10 U.S. children are living in high-poverty, low-opportunity neighborhoods, and that children who are able to move out of concentrated poverty neighborhoods through programs such as Housing Choice Vouchers are more likely to have better health outcomes, higher earnings, and fewer encounters with the criminal legal system.

 

After finishing work one day and finding that the truck he had been living in was towed, Seattle resident Steven Long sued the city for its enforcement of a parking ordinance that left Mr. Long without his only shelter. On August 12, the Supreme Court of Washington sided with Mr. Long, finding that the fines Seattle had levied against Mr. Long were excessive, and that the ordinance’s provision allowing for Mr. Long’s truck to be auctioned off in the absence of paid fines violated Washington’s homestead act, a frontier-era law forbidding the state from forcibly selling someone’s home. The opinion held that cities can still impose fines on people living in those cars, but ruled that those fines may not be excessively high.

 

The Law Center, along with the Southern Poverty Law Center, succeeded in obtaining a preliminary injunction preventing the Alabama Law Enforcement Agency and the Montgomery County Sheriff’s Department from enforcing anti-panhandling laws. The preliminary injunction, granted by a federal judge in the Middle District of Alabama, is an important affirmation of the free speech rights of people experiencing homelessness in Alabama and nationwide.

 

While the court has yet to make a final ruling on the constitutionality of Montgomery’s anti-panhandling laws, the granting of the preliminary injunction suggests that a favorable outcome is likely. Additionally, the city of Montgomery, originally named as a defendant in the case, settled its portion of the lawsuit back in November of 2020 when it agreed to stop arresting and ticketing homeless individuals for panhandling while the case was pending.

 

Lacey, Washington limits parking in the city to no more than four hours on all city streets – a rule that is prohibitively difficult to abide by for individuals living in their vehicles. The city’s law, enacted in 2019 and sought to target the growing number of RVs in the city, also allows the city to issue fines and impound vehicles in violation of the four hour rule. Its enforcement, Plaintiff Jack Potter argues, runs afoul of the Eighth Amendment by effectively barring all individuals living in their vehicles from residing within city bounds.

 

Although the lower court ruled in favor of Lacey and rejected Mr. Potter’s Eighth Amendment arguments based on Martin v. Boise, the Ninth Circuit is set to hear the appeal following Washington Supreme Court’s favorable ruling in Long v. Seattle, which found that excessive parking fines and impoundment of a vehicle in which Mr. Long resided did violate the Eighth Amendment.

 

On September 2, the Ninth Circuit ruled in Garcia v. Los Angeles that Los Angeles can no longer carry out its policy of discarding “bulky items” stored in public areas and owned by individuals experiencing homelessness. In upholding the preliminary injunction granted by the district court, the Ninth Circuit found that Section 56.11 of the Los Angeles Municipal Code, which restricts storage of personal property in public areas, violates the Fourth Amendment’s protection against unreasonable seizures.

 

The decision reaffirms Lavan v. City of Los Angeles, a 2012 case which similarly upheld a preliminary injunction prohibiting the city of Los Angeles from destroying homeless individuals’ publicly stored personal property. Taken together, Garcia and Lavan make clear the stance of the Ninth Circuit that the Fourth Amendment protects all individuals from unreasonable government seizures of property, even when those individuals are unhoused and even when that property is stored in public areas.

 

Shayla Myers of the Legal Aid Foundation of Los Angeles argued the case, and the Law Center submitted an amicus brief on behalf of the plaintiffs-appellees.

 

In August, a unanimous panel of the Eleventh Circuit handed down its opinion in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, finding that a rule limiting food sharing in Fort Lauderdale parks is unconstitutional as applied to the provision of free vegan meals for people experiencing homelessness. Food Not Bombs, a nonprofit organization that provides free vegan and vegetarian meals to communities in need, brought the case challenging Fort Lauderdale Park Rule 2.2, which required city permission for all food-sharing events in public parks and allowed city officials to charge thousands of dollars to organizations seeking permits.

 

Writing on behalf of a three-judge panel, Senior U.S. Circuit Judge Stanley Marcus stated that the challenged rule runs afoul of the First Amendment because the rule’s construction “amounts to an outright ban on public food sharing in all of Fort Lauderdale’s parks; any exception is subject only to the standardless whims of city permitting officials.” He added, “… The complete lack of any standards allows for arbitrary enforcement and even for discrimination based on viewpoint.”

 

The decision follows an earlier ruling by an Eleventh Circuit panel finding that outdoor food sharing qualifies as expressive conduct protected by the First Amendment, a holding that has the potential to serve as a litigation tool for challenging similar laws and ordinances that effectively discriminate against individuals experiencing homelessness.

 

On September 23, a panel of the Ninth Circuit issued a decision vacating the district court's preliminary injunction in LA Alliance for Human Rights v. LA. The original injunction required the City and County of LA to offer shelter to all unhoused individuals in Skid Row within 180 days, but did not specify the quality or style fo shelter required, and gave a green light to enforce anti-camping laws after any offer was made. 

 

The panel held that the district court abused its discretion in granting the preliminary injunction because the plaintiffs did not have standing, primarily because the district court's order relied largely on unpled calims and theories. Attorneys who have been actively advocating on behalf of the homeless intervenors in the case have made clear that the original injunction granted by the district court was an inappropriate remedy from the start because it would have diverted resources away from permanent housing and into shelter beds and other temporary solutions. 

 

 

In August, the Justice Department launched an official investigation into allegations of excessive use of force against individuals experiencing homelessness by the Phoenix Police Department. The investigation comes after video footage was released earlier this year depicting two Phoenix police officers striking a person at a homeless encampment. The Justice Department has also indicated interest in adding violations of homeless persons’ rights to their ongoing investigations in Minneapolis and Louisville. Local advocates should bring the DOJ’s active interest in the civil rights of homeless persons to the attention of their local elected officials and law enforcement to help prevent abuse. 

 

FEMA announced that it has extended its funding for emergency non-congregate shelter during the COVID-19 pandemic until November 30, 2021. The funding was originally scheduled to end on December 31, 2020 and was previously extended to July 31, 2021. This most recent extension is largely due to the highly-contagious Delta variant.

 

FEMA authorized this funding at the beginning of the pandemic because offering non-congregate shelter is a valuable tool to combat the transmission of COVID-19. On January 21, 2020, FEMA approved waivers of both its 30-day renewal and 25% match requirements after an executive order from President Biden, offering 100% reimbursement funding for non-congregate shelter for the duration of the pandemic.

 

On February 3, 2021, FEMA further expanded its previously issued support for communities using non-congregate housing to combat COVID-19. First, FEMA offered 100% reimbursement for “all work eligible under FEMA’s existing COVID-19 policies, including increasing medical capacity, non-congregate sheltering, and emergency feeding distribution.” Additionally, upon approving a reimbursement request, FEMA will fund the activity retroactively from January 2020 until the revised November 30 deadline.

 

These changes in policy allow communities to offer non-congregate shelter to people experiencing homelessness for the duration of the crisis at no local cost. Communities should rely on non-congregate shelter options, as congregate shelter facilities often lack the recommended social distancing, air circulation, and sanitation necessary to stem the spread of COVID-19. For example, we continue to observe COVID-19 outbreaks in congregate shelter facilities. This is further supported by the CDC, which recommends that communities allow people experiencing homelessness to remain in encampments unless communities can provide individual housing options.

 

The Public Transportation Expansion Act, which will be part of the Budget Reconciliation Bill, seeks to allocate federal funding to public transit projects based on their accessibility to affordable housing. The Act seeks to increase physical and economic mobility for people living in affordable and public housing through the provision of federal grants administered by the Secretary of Housing and Urban Development and the Administrator of the Federal Transit Administration. 

 

In early September, Rep. Maxine Waters introduced the Expediting Assistance to Renters and Landlords Act, which would require that emergency rental assistance (ERA) be available to tenants directly when landlords refuse to participate and would provide protections for tenants in cases where landlords receive assistance without involvement, among other provisions. On September 10, the House Financial Services Committee held a hearing entitled, “Protecting Renters During the Pandemic: Reviewing Reforms to Expedite Emergency Rental Assistance” to consider Rep. Waters’ legislation and other proposed revisions to ERA.  

 

In response to the pressure raised from a  sit-in organized by Representative Cori Bush, the CDC issued a revised eviction moratorium in August “temporarily halt[ing] evictions in counties with heightened levels of community transmission.”. The new order was set to expire on October 3, 2021.

Unfortunately the new CDC order renewed the legal challenges surrounding the old order. On August 26, the Supreme Court ruled 6-3 to vacate the original stay issued by the U.S. District Court for the District of Columbia. The decision to vacate the stay means that the CDC eviction moratorium is “no longer legally enforceable while the case is pending appeal.” Despite the still raging pandemic, landlords can now move to initiate eviction proceedings for tenants. Research has shown that the moratorium reduced evictions. Now, without this protection, vulnerable renters risk losing their homes and face homelessness.

 

 

 

The quarterly Housing Not Handcuffs Web Convening will take place at 2 PM EST/11 AM PST on October 21. The web convening allows HNH endorsers and supporters to share their work and priorities with the Law Center and broader HNH network. Please register here, and reach out to Lily Milwit at [email protected] with questions or agenda items. 

 

Check out the Law Center in the News section of our website to see coverage of our staff and of our work in communities across the country. Additionally, make sure to subscribe to our organizational news letter In Just Times, check out press releases from the Law Center, and follow our social media!