City of Sacramento drops charges against Right to Rest organizers—so why are they disappointed?

Protesters wanted to challenge anti-camping ordinance during trial, now consider civil lawsuit

David Andre and James Lee “Faygo” Clark advocate for the “Right to Rest” in front of Sacramento City Hall.

David Andre and James Lee “Faygo” Clark advocate for the “Right to Rest” in front of Sacramento City Hall.


In the first legal showdown between the city of Sacramento and leaders of the Right to Rest movement, it was the city that blinked.

Citing insufficient evidence, the city attorney’s office last Thursday rescinded its charges of unlawful camping against homeless activists James Lee “Faygo” Clark and David Andre, architects of a durable occupation outside of City Hall that lasted nearly three months before spawning a smaller version at the state Capitol. The charges were dismissed April 21, one day before the parties were to begin a trial with broader implications than the relatively minor infractions in question, and two days before the city’s mayoral frontrunners fielded questions on the topic during a televised debate.

Clark, 35, and Andre, 52, were both arrested multiple times while participating in the Right to Rest occupation that began this past December. The occupation was organized to remonstrate the city for enforcing an ordinance that makes it illegal for homeless residents to sleep outdoors or possess survival gear like sleeping bags and blankets.

Violators of the local law face arrest, fines and jail time, as well as the confiscation of their belongings.

While technically the defendants in the case, Clark and Andre viewed it as an opportunity to put the city’s anti-camping ordinance on trial.

“Part of the reason we took this on was to get it repealed during a jury trial or appeal [the ruling] if we lost,” Clark told SN&R. “It’s a case they wouldn’t have been able to win.”

Before the city folded its hand, Clark says the plan was to argue the case on First Amendment grounds. The activists contend they have a protected right to protest against the ordinance, and that their civil disobedience can take the form of sleep since that’s what the law forbids.

And make no mistake—it is sleep that the law targets, which is made clear by Sacramento Police Department documents accompanying the complaints from the city attorney’s office.

According to police reports, officers arrested Clark and Andre during a “camping enforcement” deployment early the morning of February 26, around 3:30 a.m.

In one arresting officer’s report, a man later identified as Andre “was laying on top of a blue blanket and was wrapped in several other blankets.”

“The subject was actively sleeping,” the arresting officer writes. “The subject was utilizing rolled up blankets as a pillow. Around the subject was a removed pair of shoes and a backpack filled with personal items. It was reasonable to believe that the subject was unlawfully camping.”

The second arresting officer’s description of events involving Clark is similar. In his report, he says he observed a white male adult he recognized as Clark “sleeping on top of a green tarp and wrapped in multiple blankets,” and also concludes that the activity amounted to unlawful camping.

Clark has spent the past month recuperating from the effects of an eight-day hunger strike, which he undertook to compel the city to have its subcommittee on homelessness meet with actual homeless residents. The multiple arrests, jail stays, court proceedings and stress of preparing for a trial that never came left both physical and psychological marks, he said. “It’s a heavy toll.”

But Clark and Andre aren’t the only Right to Rest protesters who have been detained multiple times, only to have charges quietly dismissed or not filed at all, says Cres Vellucci, a coordinator for the local chapter of the National Lawyers Guild, which has been monitoring the protest.

His chapter has counted upward of 79 arrests or detentions involving at least 25 separate individuals who were part of the occupation. He says most had their charges dismissed.

SN&R was able to independently verify 21 arrests involving 13 individuals, but only had access to partial booking logs from the Sacramento County Sheriff’s Department, covering January 24 to April 29.

Between those dates, authorities handed out at least 81 citations for unlawful camping, according to an SN&R analysis of records. (Records covering February 3-5 and February 16-18 were unavailable.) The Sacramento Police Department was responsible for 45 of them.

While local activists have long agitated against the two-decade-old ordinance, the movement quickly coalesced last summer, shortly after the U.S. Department of Justice released an opinion condemning local policies that make it illegal to sleep outside in communities without adequate shelter space.

“If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless,” read the DOJ “statement of interest,” in part.

A Sacramento Superior Court spokeswoman told SN&R that the city attorney’s office filed a motion to dismiss the three cases against Clark and Andre “due to insufficient evidence.”

Attorney Mark Merin, who sits on the board of Safe Ground Sacramento and has represented homeless individuals in past civil rights cases, says the city entered that motion after he subpoenaed a dozen officers and all videotape evidence of the two men’s arrests.

He and Vellucci believe the city wanted to avoid a potentially embarrassing trial.

“Officials don’t want the unlawful camping ordinance to be tested in court,” Vellucci said. “If the defendants would have won, it would have made the ordinance moot. If defendants lost, it would be appealed and hopefully eventually tossed out by a higher court.”

Clark told SN&R that his side is considering whether to pursue a civil remedy. “We are looking at other ways to escalate,” he said.

City officials didn’t respond to SN&R’s requests for comment, but the leading candidates to succeed Kevin Johnson as mayor couldn’t dodge the issue during a packed candidates forum on homelessness at Trinity Cathedral on April 23.

Asked whether they favored suspending the anti-camping ordinance until more housing was available, frontrunners Darrell Steinberg and Angelique Ashby offered different takes, but both stopped short of saying “yes.”

Noting that he voted against the original ordinance as a council member in 1995, former state senate leader Steinberg said he “suppose[d]” he would vote the same way if “it came up before me again,” but didn’t say that was an action he would pursue. He largely sidestepped what he described as “a lose-lose proposition” by saying he had the track record to develop more housing capacity.

Ashby, the District 1 councilwoman and Steinberg’s main rival in the June primary, gave a more direct, if less popular, answer.

“I am actually not for removing the ordinance,” she said. She went on to contend that ticketing homeless people provided them with a pathway to services, and said they can get the citations excused if they attend homeless court.

“We’re really not talking about putting people in custody for being homeless, or we shouldn’t be, because that is not the goal,” she added. “The goal of the ordinance should be to connect people with services.”

But homeless residents and a broad coalition of their supporters say that’s a fantasy and have regularly challenged both candidates’ assertions. Suspending the ordinance wouldn’t prevent the city from pursuing long-term solutions, they say, while enforcing it only deepens the hole that struggling people find themselves in.

Repeating that message was Joan Burke, director of advocacy for Sacramento Loaves & Fishes, who addressed the city council’s homeless subcommittee during a special meeting on Tuesday.

“Stop arresting people for camping. Immediately,” she told council members. “Because it’s morally wrong. It’s tremendously expensive. And it’s ineffective in responding to homelessness.”

The city isn’t there yet. According to a draft report from the city council’s homeless subcommittee, which was presented this past Tuesday, the question being asked is whether there are quicker ways to “funnel people with citations related to homelessness … to alternative sentencing?”

This is the wrong question to Merin, who criticizes the way people are being funneled right now.

“The process by which homeless people’s citations are turned into community service is really indentured servitude,” he said. “Homeless people are being pressed into service and it’s involuntary service.”

Merin joined the contingent of city officials and advocates that toured tent encampments in Seattle in February, and expressed frustration that one has yet to be established here. This week he looked to force the issue by saying he would seek a city permit to erect an encampment on land he owns or sue if his application is denied, according to an article in The Sacramento Bee.

The only mayoral candidate who struck an unequivocal stance against the camping ordinance was disability rights activist Russell Rawlings, who just one day later would suspend his campaign and throw his support behind Steinberg.

“For those that think that it’s some sort of blight on the city, trust me, these are people that are struggling to get their voices heard,” Rawlings said of the Right to Rest protesters during the debate. “Their protest is their speech.”