Thomas Breen photo
Legal aid attorney Amy Marx (right) lobbies Beaver Hills Alder Brian Wingate Monday night.
Legal aid lawyers took two new steps to try to persuade the courts and the local legislature that the city has been, is, and plans to continue staying in the wrong lane when it comes to its lax enforcement of local lead paint laws.
They filed an amendment to a class-action complaint that now accuses the city of violating the civil rights of predominantly black and Hispanic children. And they lobbied members of the Board of Alders to vote against a new, weakened version of the city statute slated to come up for a vote in early December.
Lawyers from the New Haven Legal Assistance Association (NHLAA) took those steps Monday afternoon and evening in the legal advocacy group’s latest efforts to pressure the city to follow existing local law. The current law requires the Health Department to inspect and order lead hazard abatements for all residences housing children who have tested above the local lead poisoning threshold of 5 micrograms per deciliter (μg/dL).
Former legal aid board president Beverly Hodgson and Dixwell Alder Jeannette Morrison.
The alders have scheduled a Dec. 2 vote on a proposed new, weaker version of the city’s lead laws, which clarifies actionable blood lead levels but grants new discretion to the Health Department director on when and how to act on them.
In anticipation of that vote, NHLAA Director of Litigation Shelley White and staff attorney Amy Marx joined former legal aid board President Beverly Hodgson, legal aid attorneys Amy Eppler-Epstein and Yoni Zamir, and legal aid fellow Melissa Marichal on the second floor of City Hall before, during, and after a full Board of Alders meeting Monday night.
They pulled individual local legislators aside into one-on-one conversations in the building’s hallways and in the back of the Aldermanic Chambers as they made their pitches as to why they think the alders should vote down the lead law change.
They handed out a one-pager bearing the title “Proposed Ordinance to Weaken Protections for Children with Lead Poisoning” (which can be read here). They shared letters submitted by city housing authority Executive Director Karen DuBois-Walton, Center for Children’s Advocacy staff attorney Alice Rosenthal, and Fair Haven Community Healthcare primary care provider Amanda DeCew all calling for a delay on an aldermanic vote.
“The City has stated in testimony that it seeks to loosen the protections for children to save money,” reads the legal aid one-pager on the proposed new law. “This is immoral and will cost our city more in the long-run in terms of such things as medical expenses and special education.”
An alder committee recently voted in favor the law. Alders agreed with Harp administration officials that the new version of the law wouldn’t “weaken” it, but rather acknowledge reality: They say the city lacks the resources to catch up with all violations, so it needs the flexibility to prioritize. Legal aid is pushing to improve how the health department enforces the law to have all children covered instead. (In one court hearing, the city admitted that for years it was avoiding computers and trying to keep track of lead-paint cases by hand.)
Legal aid lawyers-turned-temporary-lobyists Amy Eppler-Epstein, Hodgson, legal aid fellow Melissa Marichal, and Marx.
In the courts, White and Marx made their next move in the class action case Nyriel Smith v. City of New Haven by filing an amended complaint Monday afternoon that argues that the city’s lax enforcement of local lead laws from Nov. 2018 on has had a disproportionate impact on local black and Hispanic children.
That’s because those children are more likely than white children to already be lead poisoned, according to legal aid’s analysis of available local public health data.
The legal aid attorneys also argue that black and Hispanic children are more likely than white children to live in rental housing built before 1978, which is when federal law finally prohibited the use of lead-based residential paint.
“Defendants’ policy disproportionately impacts such children by failing to ensure that Black and Hispanic children are protected from the likely source of their lead paint poisoning and the irreversible neurological damage caused by such poisoning,” the amended complaint reads.
Click here to read the amended complaint in full.
White and Marx contend in particular that the city is in violation of Count 6(B) of Connecticut’s Fair Housing Act, which prohibits housing rental or sale discrimination against any person due to a learning, physical, or mental disability.
The amended complaint notes that, according to the most recent publicly available statistics from the Connecticut Department of Public Health, New Haven is home to 314 lead poisoned children, 281 of whom are poisoned at elevated blood lead levels between 5 µg/dL and 15 µg/dL.
While current city law defines lead poisoning as a single blood test of 5 µg/dL, the state threshold for lead poisoning is a single blood test of 20 µg/dL or two blood tests within 90 days of 15 µg/dL.
Of those 300-plus children, the amended complaint reads, at least 70 percent are black or Hispanic. The lawyers argue that, in Connecticut, black children under six years old are two times more likely and Hispanic children under six are 1.5 times more likely to be lead poisoned (i.e., to have EBLs at or above 5 µg/dL) than are white children.
Furthermore, the amended complaint continues, 81 percent of the city’s 37,000 renters live in houses built before 1978 and 47 percent live in housing that was built before 1939 “when the usage of lead paint was most pervasive.”
“The percentage of renters living in such housing is greater in neighborhoods that are predominantly Black and/or Hispanic,” the amended complaint continues. “86% of the renters in the neighborhoods known as the Hill, Newhallville, and Fair Haven live in housing that was built before 1979; 62% of such renters live in housing built before 1939.”
Legal aid filed still another legal motion in the class action complaint Monday afternoon, arguing that state Superior Court Judge Claudia Baio should extend the preliminary injunction that previous housing court Judge John Cordani granted to the case’s two primary child plaintiffs this summer to the entire class of 300-plus children living in New Haven who are under six years old and have a blood lead level above 5 µg/dL.
The preliminary injunction applications asks the court to order the city to conduct full lead paint hazard inspections and then issue subsequent lead hazard abatement orders when necessary.
“To the extent that Defendants have not determined if their homes have lead paint hazards by conducting a comprehensive inspection of their homes,” the motion reads, “and have failed to issue abatement orders to the property owners where such hazards are found to exist, the City is violating its Ordinances, the children in the plaintiff class are suffering irreparable injury and the balance of hardships tips decidedly in favor of the plaintiff class.”
Click here to read that full motion.
Per the filing schedule outlined by the court earlier this month, the city has until December to respond to legal aid’s latest preliminary injunction application.
City-hired attorneys did, however, file a separate surreply on Monday, opposing legal aid’s request that Cordani’s initial class certification from this summer exclude lead-poisoned children living in city housing authority-owned properties.
Click here to read the city’s latest filing.
Previous lead coverage:
• Weakened Lead Law Advances
• City Still Fighting As Lead Case Drags On
• City Lands $5.6M In Federal Lead Grants
• 5 New Lead Inspector Positions Approved
• Outrage Stalls Weakened Lead Law
• Lead Paint Legal Tab Tops $118K
• City Plan Passes On Lead Law
• City Loses Again On Lead
• Judge Denies City’s Motion To Dismiss Lead Suit
• City, Legal Aid Clash In Court On Lead
• New Lead Proposal “Eviscerates” Mandate
• Lead Cleanup Pricetag: $91M?
• Lead Panel’s Advice Rejected
• Lead Paint Chief Retires
• Lead Paint Fight Rejoined
• Harp Switches Gears On Lead
• Motion Accuses City Of Contempt
• City Loses Again On Lead
• Briefs Debate “Lead Poisoning”
• New Haven: Another Flint?
• Harp Administration Admits Relaxing Lead Standard To Save $$
• Class-Action Suit Slams City On Lead
• City, Legal Aid Clash On Lead Paint
• Legal Aid To City: Get Moving On Lead Paint Law
• 100+ Tenants Caught In Lead Limbo
• 2 Agencies, 2 Tacks On Lead Paint
• Chapel Apartments Get 3rd Lead Order
• Lead Sends Family Packing
• Health Officials Grilled On Lead Plans
• Judge Threatens To Find City In Contempt
• Same Mandy House Cited Twice For Lead Paint
• Lead $ Search Advances
• 3 Landlords Hit With New Lead Orders
• Another Judge Rips City On Lead
• Judge To City: Get Moving On Lead
• Health Department Seeks Another $4.1M For Lead Abatement
• City-OK’d Lead Fixes Fail Independent Inspection
• Judge: City Dragged Feet On Lead
• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead
Shame on the alders for proposing to WEAKEN the lead laws. Shame on the city for not making this a priority. One has to wonder what's going on behind the scenes here, given that some of these alders have publicly expressed support for a Green New Deal, and are hypocritically backing down when it comes to actually acting at the local level where they have power. It's inexcusable. Perhaps the New Haven Independent can do some more investigative reporting on what's happening in conversations behind closed doors.