by Lee K. Fink

Brooke Weitzman is the Executive Director of the Elder Law and Disability Rights Center (ELDR Center), one of the major legal services organizations in Orange County. She graduated from UCI Law School in 2014 and co-founded ELDR Center in 2017. Within a few months, Weitzman and others filed a federal lawsuit against the County of Orange over its treatment of the unhoused population, and sought a federal injunction to prevent Orange County from seizing and destroying the property of people living in encampments along the Santa Ana River Trail. Judge David O. Carter granted that injunction, and later settlements of related cases reserved the court’s jurisdiction to monitor compliance with legal requirements. That litigation, and follow-on litigation against various cities in Orange County, and similar litigation in Los Angeles, has changed the way that Orange County leaders and residents view and deal with the housing crisis and the people affected by it.

I caught up with Brooke about the status of the litigation, how issues of housing are inextricably tied with homelessness, and which policy—and litigation—comes next to address Orange County (or, the County) housing and homelessness. Our conversation has been edited for length and content.

Question: What is the status of the homeless litigation here in Orange County?
Brooke: The settlements prohibit the County and cities from criminalizing homelessness, meaning that cities could not cite, arrest, or hassle people who are sitting, sleeping, or lying down, or other unavoidable behaviors, in public places simply because they had nowhere else to go. As a result, local governments began working to create adequate, available, and appropriate places for people to go. Part of that was creation of congregate shelters. Another part is creation of a system of care for people who need more support—including those with severe mental health conditions—to be matched to the right provider rather than being placed in a setting that will exacerbate their medical needs.

As part of the settlement, the parties created a “Standard of Care” and approved the ELDR Center to monitor compliance. The settlement also allows parties to bring disputes directly to Judge Carter. The standard ensures basic due process rights, monitors conditions, and ensures disability accommodations for shelter residents. Most recently, the Court’s jurisdiction over those disputes with the County of Orange was extended until 2025.

Have the County and the cities created those shelters and outreach programs?

Most of the cities that were individually named in the lawsuit have developed some congregate shelter. But those shelters are full, so we do not consider that adequate, nor is it appropriate to allow for enforcement of various anti-camping and loitering laws when people have nowhere else to go. The County has created shelters in the North and the Central Service Planning Areas (or SPA), but it has not created a shelter in the South SPA.

How does the litigation about shelter for the unhoused relate to Orange County’s housing problem?
Really, the litigation took place against the background that there simply was not enough housing available in Orange County. There was no shelter and no door to walk in for help. What we learned is that the County’s response to inadequate housing had been either criminalization (i.e., it is illegal to sit, sleep, or rest in public spaces) so that people could be arrested, or simply ignoring those people.

When we talked to the people who were living (and dying) in the riverbed and the Santa Ana Civic Center, we asked what would make their lives a little easier. The answers were simple. They needed not to be arrested, not to have their personal property seized and destroyed while they were at a doctor’s appointment or even the bathroom. And most importantly, they needed a path to housing.

The problem was that the County’s view—and the dominant narrative at the time—was that “those people” simply did not want help. Unhoused people were considered “service-resistant.” There was a perception—or even a policy—that if people did not want to be unhoused, they would not be.

But the litigation totally changed that perception. As the County and cities began to open shelters, it busted this myth. As shelters opened, a huge swell of people tried to get in. Even when the very first shelter opened—the bus terminal in Santa Ana, with no walls, no internal plumbing, porta potties for restrooms, and cots for beds—they were immediately filled. People lingered outside of those shelters just clamoring to get help.

As they built these emergency congregant shelters, the County and cities realized they did not solve the underlying problem. Building these emergency shelters really only shined a light on how much larger the problem is. And now cities are looking at the next steps to solve the real problem—the lack of safe, stable, and affordable housing where families, older adults, veterans, and people with disabilities can live with dignity.

I think for most members of the Bar, their closest or most frequent encounter with the unhoused population was the encampment that formed at the Civic Center. So where did all of these folks come from?
The reality is that there are a lot of folks who are able to stay out of sight, who know the stigmatism that will come if their co-workers find out that they sleep in cars, or parks, or from couch-to-couch with friends. So the people who are most visible are the people who are less able to hide. People struggling with severe mental health conditions, compound disabilities, or substance use disorders are often more visible in Orange County. The people we see the most are struggling the most because they lack the resources or friends to stay hidden.

But, every day, there are people who keep their belongings in a storage unit and shower at a 24-Hour Fitness. They show up at the gym at times when people they know are not likely to be there, so that they will not be caught showering in the gym every day. They sleep in their car in the neighborhood where they used to live because it is less likely to be noticed or seen as out of place. They have built a whole system to hide the fact that they don’t have a safe place to sleep at night.

Data show that mental health and substance abuse are not driving causes of homelessness. It really is the opposite. What we have seen is that people who become unhoused often initially live in their cars. When a person can no longer maintain in their car, they try to get into a shelter, but often end up outside. And people living outside are vulnerable—particularly women, especially older women, who are alone. They often become survivors of assault. And sometimes they turn to substance use hoping to stay awake at night for fear of another assault. It is safer to sleep during daylight but harder to get help overnight.

Especially in the riverbed litigation, it was not uncommon for Judge Carter to ask people with substance use disorder about their history. While this affected the minority of the unhoused community, the Judge wanted to understand how substance use started. Often the response was, “you know I started carrying a weapon or tried meth because I couldn’t risk falling asleep, and I couldn’t afford a motel to keep me safe.” At the time, they were not thinking that they would end up with this compound substance use disorder; every day was simply about survival to the next day.

So, if cities are building shelters for the unhoused, why hasn’t this solved the problem?
Because getting from unhoused to housed still remains incredibly difficult. Many of my clients—many of the named plaintiffs from the 2017 and 2018 cases—are just now getting matched with housing opportunities five or six years later.

The big question that Orange County is grappling with is how do we make this very fractured system of care that has started to develop over the last few years work cohesively. We have a county system that is run by the Continuum of Care board, and then each city has its own system. And each system has its own rules. For instance, the County has rules like requiring clients to check in once a week to stay active on the waitlist. I’m sure you can imagine how an unhoused seventy-five-year-old woman who sleeps in her car and doesn’t have a place to charge her phone would find it an insurmountable challenge to find her case manager once a week—especially where there is no office to visit.

Meanwhile, the shelters are full, and people who should be there thirty days or less are lingering there for months, sometimes years. And that creates a huge problem of its own. There is a bottleneck of people trying to get into a shelter. But simply being in a congregant shelter is itself traumatic. Imagine an OCBA event. Now imagine all the other people in the room. Then imagine if you had to stay in that room all day, every day, for month after month. You could not have a single moment of privacy because not even the bathroom is a single stall room. There is no quiet place because some of the people there may have trauma and mental health conditions, some people just want to talk, and some people have to be up at different hours for work. And every single day, when you leave the building, you have to be searched by security. So it creates enormous harm to the people who were really meant to be in the congregant shelter for a short term. But there simply is not the housing available for them.

We know that a “housing first” model is critically important. But many people—maybe the majority of people—really do need housing only. Once they are able to get basic assistance, all they really need is a safe and stable place that is within their income limits. That is particularly true of seniors and people on disabilities on a fixed income. So until we solve the affordable housing problem, we will not be able to solve homelessness.

Is there any upcoming litigation to address these underlying housing issues?
There is pending litigation that goes to this. The housing element clearly establishes a minimum requirement for zoning and requires cities to take steps to support the development of housing: to affirmatively further fair housing, to reduce segregation in housing, and to increase affordable housing.

There is no clear right to housing in California yet. But we have already seen that when cities lose the ability to target the poorest, most vulnerable members of their communities—when they cannot conflate poverty with “crime”—governments start to look at real solutions. The cities that were involved in this litigation—Costa Mesa, Santa Ana, Anaheim—are now the cities that have not only developed shelters, but are working on or have approved housing elements. These cities are working on affordable housing, including trying to get state-funded housing (HomeKey) in their cities. The cities that no longer have the ability to use the criminal system are recognizing that congregate shelters are full and people need housing to get out of this cycle. Those cities appear to be working on developing plans to get closer to adequate housing and non-congregate shelters. The only solution to homelessness is housing. And the sooner our community comes together on this reality, the sooner we can prioritize real evidence-based solutions to healthcare and housing.

Lee K. Fink is Chair of Business Litigation at Brower Law Group, APC, and Co-Chair of the OCBA Pro Bono Committee. He can be reached at Lee@BrowerLawGroup.com.