The lawyer who brought the landmark case that created New York City’s unique “right to shelter” guarantee on Tuesday predicted that Mayor Eric Adams’ emergency request to change the rules in response to the wave of asylum-seekers will transport the city back to the bad old days when the homeless mostly had to fend for themselves.
Last week Adams asked a judge to let him modify a decades-old decree that requires the city to provide shelter to any single adult who requests it. The mayor seeks to create an escape hatch to bypass that requirement if City Hall determines the city does not have the “resources and capacity” to provide sufficient shelter sites.
Speaking with THE CITY on Tuesday, attorney Robert Hayes, who filed the original right-to-shelter case known as Callahan v. Carey in 1979, characterized that loophole as “a request to destroy the right to shelter in New York. It would return us to the status quo of 1979.”
New York City’s shelter system is currently at record occupancy levels, with more than 80,000 individuals staying in city-run shelters this week.
Adams has blamed much of the spike on the wave of asylum-seekers who began arriving here in spring 2022, when Republican governors such as Greg Abbott of Texas began sending busloads of families and adults from the southern border to the Big Apple.
In a letter last week seeking modification of the right-to-shelter rule, city Assistant Corporation Counsel Jonathan Pines claimed that in the last 13 months, 65,000 asylum-seekers have arrived in New York City, of whom 44,000 have been provided some sort of shelter by the city. As a result, the city is now “facing an unprecedented demand on its shelter capacity,” Pines wrote to an administrative judge of Manhattan Supreme Court.
Adams insisted last week that “we are in no way seeking the end of the right to shelter,” defending the requested change as necessary because when the Callahan case was filed years ago, “no one could have contemplated, foresaw or even remotely imagined a mass influx of individuals entering our system.”
But advocates for the homeless say the mayor’s requested modification would completely undercut the purpose of the original agreement.
Hayes also predicted that the mayor’s legal argument would fail in court: “I don’t see this as a close call. The first thing the city would have to show is that they have no other option. I can think of many options right away.”
On Tuesday The Legal Aid Society, which also was involved in the original Callahan case, filed a response to the mayor’s request, charging that City Hall was “using a temporary situation to undermine a right that people in need have relied upon for decades.”
A Constitutional Right
The Callahan case first arrived in a Manhattan court in June 1979 when Hayes sued the city on behalf of Robert Callahan, an alcoholic man he found sleeping on the street in the Bowery. That year a judge ordered New York City to provide temporary shelter to single men who requested it, citing language in the state constitution declaring that “the aid, care and support of the needy are public concerns and shall be provided by the state.”
Callahan died in the street before the city and Legal Aid reached agreement on a consent decree. That agreement spelled out that all shelter applicants would either have to meet the same income requirements welfare recipients must demonstrate, or show their need for temporary shelter was due to a “reason of physical, mental or social dysfunction.”
Since then, both City Hall and Legal Aid have been back to court several times, with Legal Aid trying to get the city to live up to the agreement, and City Hall trying to find ways to reduce its obligations. Over the years, the right to shelter has also been expanded through litigation to apply to homeless women, families and people with AIDS.
In 1999, Mayor Rudy Giuliani sought court approval to kick out shelter residents whom the city felt did not try to find housing or who were deemed to be uncooperative in adhering to shelter rules. A lower court rejected Giuliani’s proposed termination protocols, but an appeals court reversed that court’s ruling.
The city was allowed to enforce this rule but had to notify the Coalition for the Homeless and Legal Aid of each individual case.
In 2011, Mayor Michael Bloomberg tried to impose restrictions on which single men would be eligible for shelter, but a judge ruled the city hadn’t followed proper procedures in imposing the new eligibility requirements and declared the rules “a nullity.”
In Adams’ proposal, the city could ignore the “right to shelter” requirement if the city “lacks the resources and capacity to establish and maintain sufficient shelter sites, staffing and security to provide safe and appropriate shelter.”
Hayes predicted that would become the go-to argument that would let City Hall simply walk away from the Callahan consent decree.
“They’ll say that every year,” he said. “They said that in many of the years that I was litigating these cases and when push comes to shove, there’s an excuse around the corner every week.”
Judge With High-Profile Experience
On Friday Manhattan Supreme Court Justice Erika Edwards was assigned to the case. Edwards likely will set a schedule for both sides to file formal motions outlining their positions in the coming weeks.
In a letter sent Tuesday to Edwards, Legal Aid Society attorney Joshua Goldfein argued that Adams’ proposed rule change “would only obligate the city to provide shelter when there are adequate ‘resources and capacity,’ which City defendants could then assert they are unable to allocate at any time.”
Since the number of asylum-seekers started putting pressure on the shelter system last year, Goldfein wrote, Legal Aid has made several “common-sense recommendations” to City Hall to increase shelter capacity, while also reducing the shelter census by getting more individuals out of shelters and into actual housing.
They suggested that City Hall assign “more robust case management for recent arrivals who may have access to support systems outside of the shelter system,” speed the processing of rental packages for shelter residents who’ve found apartments, and fully staff the unit that goes after landlords who discriminate against tenants who seek to use rental vouchers.
“The city does in fact have both resources and alternatives that it should deploy to address the homelessness crisis in New York City,” Goldfein wrote.
Edwards has presided over several high-profile cases involving city government actions, including a judicial inquiry into the 2014 chokehold death of Eric Garner at the hands of the NYPD.
While the judge rejected a request by Garner’s family to force former Mayor Bill de Blasio and top police officials to testify, she ultimately required the release of thousands of pages of internal NYPD records detailing how Garner’s arrest and subsequent death were mishandled by police.
And in February, Edwards shot down City Hall’s request to dismiss a lawsuit filed by an NYPD sergeant whose request for a religious exemption from the COVID vaccine mandate had been rejected. She reinstated the sergeant’s exemption request.