Homelessness on trial: Legal challenge may finally put Sacramento’s camping ban before a jury

Plaintiffs prepare to argue that local law against sleeping outside is unfairly enforced against those without homes

This is an extended version of a story that appeared in the October 12, 2017, issue.

After close to a decade, Sacramento’s anti-camping law is headed for what could be a historic trial.

Civil rights attorney Mark Merin said his long-gestating legal challenge, Allen v. City of Sacramento, is tentatively scheduled to go before a jury on October 23.

The civil lawsuit originated in late 2009, after Merin allowed nearly two dozen homeless people to take up residence on a vacant piece of property he owned in a light-industrial area of the city, according to appellate court documents and a phone interview with Merin. Merin gave them his written permission, brought in portable latrines and two service providers to offer care within the confines of the fenced lot. The deal was that Merin’s 22 guests could stay until they qualified for shelter.

Police officers enforcing the city’s ban on urban camping rousted the camp’s occupants with citations and the confiscation of their gear, which included tents and bed rolls. The campers returned, only to be cited again. The third time they came back, they were arrested.

Merin filed the lawsuit on behalf of his homeless guests, one of whom the suit was named for—Matthew Raymond Allen. Allen v. City of Sacramento alleged the city violated the homeless plaintiffs’ constitutional rights to sleep and due process.

A Sacramento Superior Court judge determined that Merin’s side failed to establish why his homeless clients lacked shelter and dismissed the case. Merin then filed an appeal to the state’s Third District Court of Appeals, which upheld most of the lower court’s ruling, except for one critical aspect: Merin and his clients could move forward with a request for declatory relief based on the argument that the city’s anti-camping law was being selectively enforced against homeless people.

More than two years after that February 2015 ruling, that’s what Merin aims to do. “We’re going to show that non-homeless people are routinely allowed to camp,” Merin said.

That’s certainly been the experience of Jeremy Robert Nevis, a 29-year-old collector who told SN&R he has frequently camped out overnight in front of local stores in anticipation of Nintendo product launches and never been approached by law enforcement.

In a Facebook comment thread, Nevis wrote that he had been engaging in the practice in various neighborhoods for three years, with groups big and small, and never received “so much as a bad look from an officer.” He added: “apparently this kind of camping is always acceptable?”

That’s Merin’s contention. He says the city and its attorneys will have the burden of proving otherwise. “I’d be shocked if they could produce anybody,” Merin said.

By contrast, Merin says, the Tommy Clinkenbeard Legal Clinic at Loaves & Fishes welcomes 50 to 60 homeless people a month seeking free legal counsel for infractions and misdemeanors connected with their inability to find housing.

An SN&R review of jail logs showed that 95 bookings for unlawful camping occurred throughout Sacramento County this year through October 3. (Actual prosecutions are much higher, as the superior court recorded nearly 800 violations of just the city’s law during a shorter span of time.) In 70 of the 95 cases reviewed by SN&R, no addresses were listed for the persons given the citations or their addresses were listed as “homeless” or “transient.”

Even the cases with addresses don’t necessarily indicate someone is housed. At least four unlawful camping tickets were issued to people who gave 400 Bannon Street, in Sacramento, as their home address. That’s the address for the Union Gospel Mission, a homeless shelter.

Merin’s is just one of the lawsuits around the country that have challenged the arrests and citations of people without shelter as violating the Eighth Amendment’s ban on cruel and unusual punishment. Judicial precedent has tipped in recent years toward the view that local governments violate the rights of their most vulnerable residents when enforcing laws against sleeping outside.

Both the U.S. Department of Justice and Ninth Circuit Court of Appeals hold that it’s cruel and unusual to make it a crime to sleep outside if there isn’t enough shelter.

“If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless,” the DOJ’s Civil Rights Division concluded in an August 2015 statement of interest that stands today. The statement went on to call such enforcement “unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.”

As the Third District Court noted in its February 2015 ruling, one of Merin’s clients “died while sleeping outdoors.”

Mayor Darrell Steinberg acknowledged the lack of shelter to accommodate the growing homeless population. But he disputed the characterization that the city law was applied unfairly.

“I’ve always believed and continue to believe that we should not criminalize homelessness and I know that we do not criminalize homelessness,” he told SN&R in July.

Merin, who also plans to file a companion lawsuit in federal court, expects the upcoming trial to open people’s eyes.

“We’re going to really describe what it’s like to be homeless in the city,” the barrister said. “It’s gong to be a public event.”