Left in limbo: Sacramento jury rules it’s OK to keep ticketing homeless people for being outside

Attorney mulls federal challenge as new report shows 71 homeless people died last year

Juror No. 8 explains to the media why a majority of his fellow jurors ruled that the city of Sacramento applies its anti-camping ordinance fairly.

Juror No. 8 explains to the media why a majority of his fellow jurors ruled that the city of Sacramento applies its anti-camping ordinance fairly.

Photo by Raheem F. Hosseini

This is an extended version of a story that appears in the November 9, 2017, issue.

After the verdict had been read and the courtroom had mostly emptied, she drifted down the center aisle, in the tie-dyed shirt and headband she wore through most of the trial.

“I’m appalled,” Tracie Rice-Bailey whispered to no one in particular. “I’m appalled.”

On November 2, a jury concluded that the city of Sacramento doesn’t punish homeless people by enforcing a law against sleeping outside. The 9-3 decision came after less than a day of deliberations in a case that was nearly a decade in the offing. For Rice-Bailey and a handful of others who rushed to the courtroom to witness this moment, it felt like a stunning rejection of their right to exist.

“It is what it is,” Rice-Bailey said.

Back in the fall of 2009, dozens of homeless people who had been chased off riverbanks, fields and sidewalks accepted attorney Mark Merin’s invitation to establish a so-called “safe ground” on a rugged private lot downtown. Rules against drugs and violence were established. Tents and public restrooms went up. Religious advocates arrived in solidarity.

Together, they called themselves the “Safe Ground Pioneers.”

The city called them criminals.

Milton Henry Harris was one of the plaintiffs at the center of the dispute.

On October 26, Harris testified that he came to Merin’s property after the recession and drugs left him newly homeless. The military veteran and journeyman plumber spent two years on Sacramento’s hard streets. He says he would have clawed his way back indoors sooner, if not for the camping tickets he received.

Following his testimony, Harris paused in the milk-white hall outside of Department 1 to reflect on his journey. “I’d never been homeless,” Harris told SN&R. “But let me tell you, those two years were the worst two years of my life. And I could’ve been off [the streets] six months sooner if they weren’t standing on my back.”

Merin layered his case with such testimonials to show that the city only applies its anti-camping law to homeless people, not others who violate the ordinance.

Senior deputy city attorney Chance L. Trimm responded with a minimalist campaign—objecting rarely and presenting few witnesses. Two were retired police officers renowned for their compassionate approach to homelessness-related complaints. The jury was invited to believe that law enforcement always applied such discretion.

But Trimm did his best work before the jury ever appeared for duty.

Previous rulings had already whittled down the case to a narrow legal challenge over how the city’s ordinance was applied, not whether the law itself was unconstitutional.

Heading into trial, Merin said he and his co-counsel (and wife), Cathleen Williams, were “never optimistic” about winning outright. But Merin says he did view the trial as an opportunity to publicly litigate Sacramento’s treatment of the homeless. “We got to talk about the issues of homelessness,” he said. “We got our basic issue out, about a need for a place where they’re allowed to be.”

That sense of catharsis permeated the trial.

When Merin made his opening statement, Sister Libby Ferrnandez, a plaintiff and longtime crusader for homeless rights, discreetly golf-clapped in her lap. When plaintiffs like Harris and Thomas Ashmore testified about what it was like to be outlaws because they had nowhere to go, they received congratulatory handshakes from those who felt the witnesses spoke for them, too.

Pacing in the lobby before last Friday’s verdict was announced, Rice-Bailey asked for prayers that the jury heard these stories. Her oldest son shared a July birthday with the start of the safe ground campaign, she said.

“I don’t want people to camp all over the street, but we should be allowed somewhere,” she added.

Referring to the two people who drew their last breaths just outside City Hall earlier this year, Rice-Bailey said it was a question of life and death.

Seventy-one homeless people died in Sacramento County last year, according to an annual compilation of coroner data by the Sacramento Regional Coalition to End Homelessness. Homelessness-related deaths experienced a sustained increase over the past three years, contributing to a 15-year toll of 776 deaths—or about one person every week.

Less than half of the people who perished last year were connected to services, coalition founder Bob Erlenbusch noted. Some defenders of the anti-camping ordinance have argued that it allows police to refer homeless people to services. But those who work with homeless populations say the bottleneck for available resources is so great that those referrals are essentially meaningless.

Erlenbusch and other advocates cited the stark mortality report on Tuesday to convince the Sacramento County Board of Supervisors to invest $44 million in a city-devised plan to move thousands of homeless people indoors over the next three years. The money will come from a $127 million war chest of use-it-or-lose-it funding from the Mental Health Services Act, which Sacramento Mayor Darrell Steinberg authored when he was in the state legislature.

In the meantime, homeless people and their advocates continue pressing local officials for answers about where they can legally stay until these long-term plans come to fruition.

Steinberg has repeatedly said he’s not in favor of repealing his city’s anti-camping law, which he initially opposed as a City Council member in 1995.

Merin says he isn’t done forcing the issue in the courts.

He’s working with Clinkenbeard Legal Clinic, run out of Loaves & Fishes, to find what he calls ideal plaintiffs—disabled homeless individuals, forced outside and “tyrannized by the cops”—for a federal lawsuit. Given recent federal court opinions that find it unconstitutional to penalize homeless people for lacking shelter, Merin says he believes such a case would fare well if and when it reaches California’s ninth circuit appeals court.

“This [law] really prohibits homeless people from being in the city,” he said.

Joe Kaonai Liow was one of three jurors who agreed with that assessment. Identified as Juror No. 4 during trial, Liow said he was convinced the city discriminates against its homeless residents.

“Because you knew these people didn’t have anywhere else to go,” Liow said after the verdict. “And yet you kept going to their camps and telling them to move from place to place. To me, that’s not applying the law equally.”

Then, turning to Merin, he added, “I’m sorry, I wish I could have done more. I wish there was more of us.”