Separate and unequal: Jury hears of disparate enforcement in trial of Sacramento’s anti-camping law

Homeless people were cited while Boys Scouts, Black Friday shoppers and church groups were allowed to camp with impunity, witnesses testify

Attorney Mark Merin stretches his legs during a break in the jury trial over Sacramento’s anti-camping ordinance.

Attorney Mark Merin stretches his legs during a break in the jury trial over Sacramento’s anti-camping ordinance.

Photo by Raheem F. Hosseini

This is an extended version of a story that appears in the November 1, 2017, issue.

Sister Libby Fernandez sat in the witness box reflecting on that time a nun got duped by a politician.

This was back in September 2009. Fernandez was the head of Sacramento Loaves & Fishes, a local homeless charity. Kevin Johnson was less than a year into his first term as the city’s mayor. Days earlier, the Police Department, under orders from City Hall, forcibly cleared a large homeless encampment from a private lot on C Street.

Along with other faith-based advocates, Fernandez, who helped organize the encampment and was led away by officers when it was cleared, returned to the scene of her civil disobedience to show that the mission wasn’t over.

That’s when Mayor Johnson came to offer a deal, Fernandez recalled last week.

According to her testimony, Johnson promised he would deliver a city-approved safe ground by the end of the fall, some place where people without access to shelter could legally be without violating the city’s camping ban.

“I was led to believe he was an honest person,” Fernandez told the jury. “We chose to leave as a group.”

Safe ground never happened.

Nearly a decade later, the surviving occupants of that raided encampment are challenging a city law they say is applied only to people without shelter.

Since the trial began October 25, plaintiffs’ attorney Mark Merin has presented more than a dozen witnesses and exhibits advancing a portrait of a separate-and-unequal system, in which thousands of homeless people are ticketed for having nowhere to go—while Boy Scouts, Black Friday shoppers and others are permitted to violate the city’s camping prohibition without penalty.

Senior deputy city attorney Chance L. Trimm, who called his last witness Tuesday, denies the anti-camping law is unfairly applied, and accuses plaintiffs of concocting their legal challenge.

A verdict, which could come as early as this week, has the potential to reverberate far beyond the state capital.

Annie Thomas has camped out for Black Friday deals in Sacramento in three of the last six years.

On October 30, the Wheatland resident testified that she pitched a tent in front of a local Best Buy during the Thanksgiving weeks of 2012, 2014 and 2016. Last year, she camped in front of the electronics store for a full four days, along with 15 to 20 others. Testifying that she never received any prior permission from the city to camp on private property, she told the court that nearby residents and other shoppers complained about the Black Friday shoppers’ presence. “But the police did nothing about it,” she testified.

That disproportionate police response was revealed during cross-examination by Trimm, whose case hinges on making the jury believe the opposite. Also threatening his defense were the current and former directors of a local Boy Scouts chapter, the Sacramento Valley Conservancy and Fairytale Town, all of whom testified that they allowed or organized extended campouts without special authorization—or citations—from the city.

The jury also heard testimony from Janine Mapurunga, a photographer who didn’t realize she was breaking the law when she and dozens of other working artists camped outside in Midtown to apply for subsidized units at the just-built Warehouse Artist Lots on R Street.

“I really wanted to be first in line because I really wanted to get in,” Mapurunga explained.

She also wasn’t ticketed, a point Merin underlined in his opening statement.

“It is standard practice to camp in many places,” said Merin, who told the jury he wasn’t picking on organizations like Fairytale Town. “There’s nothing wrong with it. I support it.”

But, he stated, “You can’t discriminate against a disfavored group in society because you don’t like them.”

As he spoke, a tower of approximately 4,000 citations covering almost a decade under the anti-camping law loomed on the table behind him. All those tickets, he said, had been written to people without homes.

This could have been a far different trial. Prior to its start, Trimm fired off several motions intended to strip the subject of homelessness from the plaintiffs’ case.

Appearing for a pretrial hearing on October 23, Trimm asked the court to prevent testimony regarding “the plight of the homeless,” homelessness in general, the number of homeless people in particular, the vulnerabilities they face, and the resources and services available to them, including the number of shelter beds.

That was all in one motion.

“Having this kind of information in front of the jury is a clear attempt, I think, to garner sympathy,” Trimm said. “I just think it’s totally unrelated to any legal issues in this case.”

Judge Christopher E. Krueger disagreed, dismissing that motion and five others.

Additionally, Trimm lost his bid to put Merin on the stand as a material witness. Merin was the one who invited approximately 30 homeless individuals to take up indefinite residence on a fenced lot he owned in 2009. Trimm said Merin’s testimony would be critical to showing that his lawsuit was premeditated.

The judge’s response? So what.

“Many civil rights challenges involve some sort of pre-action,” Krueger told Trimm. “I don’t think that’s inherently improper at all. I think it happens all the time in one form or another.”

The jury will have to come to that conclusion on its own. But Merin has tried to get them there with an extensive witness list that charts every consequence of citing the homeless.

Two volunteers at the Loaves & Fishes legal clinic testified that their homeless clients either had to agree to perform forced labor in the form of community service, or risked ending up with criminal records that made it difficult for them to find jobs or housing.

Michael Meek, a board-certified psychiatrist who treated upward of 800 homeless patients through Loaves & Fishes, testified that just the fear of being cited often caused sleep deprivation, which is a big contributor to all sorts of physical and mental ailments.

Bob Erlenbusch, founder of the Sacramento Regional Coalition to End Homelessness, testified that approximately 570 homeless people have died prematurely since 2007. He also said the county only has enough shelter to house less than half of the known homeless population.

Two homeless campers spoke of their inability to access shelter, resulting in them getting tickets for having to sleep outdoors.

“I was put on this earth,” testified Milton Harris, a plumber who became homeless during the recession. “I’m gonna sleep somewhere.”

By contrast, Trimm, the city’s defense attorney, called few witnesses, hiding the actions of City Hall behind two well-liked police officers known for their compassionate engagement with the homeless community.

One of those officers, Michael Cooper, is now a deputy with the Sacramento County Sheriff’s Department. But back in 2009, he was part of a two-man street team known by homeless people as “Batman and Robin.”

Even Cooper testified that he would often urge homeless individuals to move to “less conspicuous” areas to avoid citing them, telling the jury he thought the tickets made it harder to escape homelessness. He also acknowledged that he couldn’t think of a time he ticketed a housed person for camping until 2009, when advocates joined the C Street safe ground stand.

One of those housed allies was Sister Fernandez, who recently left Loaves & Fishes to form a different charity. On the stand, she said she hoped the city would have recognized by now the Catch-22 it creates for homeless people by making it illegal to exist outside.

“We really believe this law … is discriminatory,” she testified last Thursday. “It only seems to pick on homeless people.”

It’s now up to the jury to decide whether that’s true.