Trans activist on trial
Six months after she was tazed, arrested and put in the men’s jail, Ebony Harper’s legal battle parallels today’s transgender civil rights struggle
Facing the wall, Ebony Harper made a conscious decision to let the man with the badge do what he was going to do. Outside of the county jail’s windowless booking area, the 38-year-old was a respected activist with a prestigious job at the California Endowment. Inside the jail, however, Harper was just another transgender woman destined for the men’s side of the high-rise lockup.
“By the time I got searched, I already made my peace,” she told SN&R. “I knew where they were putting me.”
On April 12, Harper got caught between police and demonstrators outside of the Sacramento County district attorney’s office, the site of continuing protests over the fatal police shooting of Stephon Clark in March. Harper and one other woman were arrested. The other woman was released without charges. Harper was not.
Harper’s arrest briefly drew public and political concern to the sheriff’s department’s treatment of transgender people inside of its two jails. But the spotlight shifted three weeks later, when the suspected Golden State Killer was captured, an event that garnered national press for Sheriff Scott Jones, who runs the jails, and District Attorney Anne Marie Schubert, whose office is prosecuting Harper. Both were handily reelected in June and Harper’s ordeal largely faded from view.
Six months later, however, Harper’s story isn’t over. Schubert’s office is pressing forward with its criminal case against Harper, who faces misdemeanor counts of refusing to disperse and resisting arrest—charges she denies.
The case has potentially broad implications, say those interviewed by SN&R.
To some attorneys, it’s an example of the DA’s eagerness to prosecute activists who embarrass the establishment. To others, it’s a reminder that Sacramento’s jail system is constantly lagging behind society’s evolving understanding of gender and sexuality. And to politicians standing on the inclusive side of California’s red line against the Trump administration, Harper’s arrest, incarceration and potential trial could sound the wrong echoes:
As the White House threatens to erase transgender people from existence—at least where the federal government is concerned—Harper is just one more member of a marginalized group who faces attack.
“There’s no doubt about that,” said Councilman Steve Hansen, who represents the downtown core where the main jail and DA’s office are located. Schubert, he added, “has an opportunity to send a strong message about how she’s going to handle issues like this.”
Schubert’s critics already feel like she has. Within the local chapter of the National Lawyers Guild, a progressive bar association advocating for the protection of constitutional, human and civil rights, the thinking is that the DA goes hard on high-profile dissenters to send a message to the larger activist community.
“Ebony Harper has been a very peaceful protester,” said Elizabeth Kim, president of the NLG’s Sacramento chapter, which had legal observers at the DA’s office protest. “For her specifically to be arrested [and charged] is indicative of the district attorney’s stance against the activist community as a whole.”
Harper wouldn’t be the first prominent activist the DA’s office tried to make an example of, they said. But Harper may be one of the few capable of turning the tables. And she said she’s ready to put her reputation up against the justice system’s.
“Sometimes we have to go through this to change some things,” she said. “It takes speaking truth to power.”
A disputed arrest, an ongoing problem
Harper said she showed up to the DA’s downtown headquarters that Thursday evening in April as the day’s protest was winding down, wondering if she’d missed the action. Moments later, she was on the ground with her hands behind her back, feeling an officer’s electrified baton singe her arms. (She showed SN&R burn marks along her forearms that she says were caused by the volts.)
Harper had wandered into the middle of a brewing standoff between civilians calling for the prosecution of the two officers who shot an unarmed Clark one month earlier and a row of bicycle officers wading into the small crowd with their bikes held like shields. Harper said she was trying to comply with officers’ orders to disperse when she backed into a car bordering the parking lot and fell. She felt someone take her arms and shout at her to stop resisting. She said she tried to keep her voice calm as she explained that she wasn’t resisting. She ended up in the paddy wagon anyway, along with Marilyn Melisa Price, 37, of Sacramento.
The Sacramento Police Department denied SN&R’s request to review body-worn camera footage of the arrests. Others caught the aftermath.
Elika Bernard said she was driving by the DA’s office when she registered a commotion. The vice president of Black Women United thought she saw a protester get hit and pulled over to “see if everything is cool,” she recalled. She said that’s when Ryan McClinton of Sacramento Area Congregations Together, who was also at the demonstration, told her Harper had been arrested.
“I was instantly very afraid,” she said.
Bernard said the reason has to do with who runs the jail.
“Just based on the leadership of Scott Jones,” she said. “I know he’s not a trans activist.”
Jones isn’t the only sheriff that LGBTQ groups have condemned.
Fifteen years ago, it was then-Sheriff Lou Blanas’ name on the cover page of federal lawsuits regarding the treatment of transgender jail inmates, who described having to choose between solitary confinement or imprisonment with inmates of a different gender—sometimes with horrifying results.
One plaintiff, Kelly McAllister, had been left behind at the downtown jail for an unresolved bench warrant in 2002 when she felt the presence of a man in her cell, her lawsuit alleged. The inmate was Phillip Andrade, a convicted child molester.
McAllister had already informed jail personnel during her initial booking interview that she was a preoperative transgender woman, and had initially been housed separately or in protective custody in a carefully monitored open dormitory setting, her attorneys argued. McAllister said a voice scratching through the intercom ordered her to follow Andrade into another cell. She did. The next afternoon, Andrade raped her, she said.
Following the attack, McAllister was taken to a hospital and then moved to the county’s other jail near Elk Grove, where she was placed on what the sheriff’s department refers to as total separation status. Her attorneys had another term for it.
“After the incident, the County’s response was to effectively blame the transgender inmate and put her in solitary confinement because of the County’s failure to provide safe conditions,” McAllister’s attorneys wrote. After three days of being shackled in a cramped cell without human interaction, attorneys wrote, McAllister “was freed from the Sacramento County jail system, with no further charges or sentencing beyond the horrific time already served.”
McAllister’s lawsuit was settled and the terms are sealed.
All these years later, one of the attorneys who represented McAllister hasn’t forgotten the case, though some of the details—and the issues—feel like they’re stuck in another time.
“Oh yeah, I remember McAllister,” said Kelly T. Smith, who still practices law in Sacramento. “This case was a few years ago, which was almost a world away.”
As a point of reference, the Supreme Court’s historic ruling on gay marriage was still seven years away. But that doesn’t mean progress was static. When the McAllister case was filed, Blanas’ department was already under a federal court decree to root out mistreatment of transgender inmates.
“They were already under orders to fix the problem,” Smith said. “They hadn’t done anything and these inmates were exposed to this kind of danger. They were probably just blowing it off.”
The plaintiff in that earlier ruling, Jackie Tates, had been raped in the jail and forced to walk past male inmates with her chest exposed when she wanted clean clothes. Like McAllister, Tates told SN&R in 2003 that her experience prompted suicidal thoughts. (Read “What’s she doing in the men’s jail?” Feature, February 13, 2003.)
In response to a public records request from SN&R, the sheriff’s department admitted that it doesn’t track sexual assaults on inmates inside either of its jails. A sheriff’s spokesman didn’t respond to a request for comment about the department’s policies regarding transgender inmates. An audit by the U.S. Department of Justice last year revealed that the department doesn’t track inmates who identify as gay, lesbian, bisexual or transgender in its jails.
The 270-page audit, which was released February 2017 as part of the Prison Rape Elimination Act, found improved conditions for transgender inmates compared to what McAllister and Tates experienced the previous decade, though that determination was largely based on interviews with jail deputies and only two transgender inmates. At the time the audit was performed, the jail system’s policy was to house transgender inmates based on their current anatomy—not their gender identification—in single-celled protective custody.
Donna Cox retired as a sheriff’s sergeant working the jail in 2016. In response to an SN&R reporter’s message following Harper’s arrest, Cox left a voice mail explaining the process for booking someone who identifies by a gender different than the one they were assigned at birth.
“Basically, in a nutshell, in the past we just used to say, we’d go by the plumbing,” Cox said. “So basically if someone had a penis then the male officer would obviously pat down that person, that individual.”
Because of Harper, that jailhouse policy was about to reach its cultural expiration date.
‘They dehumanized her’
Once they reached the jail three blocks from where they were handcuffed, Harper said she and Price initially remained together. They navigated a co-ed line of arrestees, but were separated when it came time for the personal searches, which is when Harper realized she wouldn’t be given the same consideration she gets from airport security.
“I get searched often because I travel for work,” Harper said. “I’m always searched by a woman. Most people know what I am.”
If there’s a question, Harper said, TSA workers ask her preference. That’s not what happened here. Harper said a deputy asked her about her genitalia and determined based on her answer that she would be searched by a man. Harper said she informed the deputy that she would be more comfortable being searched by a woman and objected when she was told that wouldn’t happen.
“They had to talk me into getting searched [by a male deputy],” she said.
She described the search as traumatic, but said she did her best to remain calm. She said she was worried her distress could be misconstrued as hostility. Harper said she knows she doesn’t present as traditionally feminine. As a 6-foot-2 person of color, Harper said, working for a progressive enterprise doesn’t insulate her from discrimination. She’s endured laughs and stares. She’s felt judged and disregarded.
“I realize I live in a society that is hostile to my existence,” she said. “Every walk, every talk, I feel it in my cellular grain.”
Bernard was less understanding about what her friend experienced in jail.
“They dehumanized her,” she said.
Outside of the small booking room, where the path forked, Harper said she was led down a corridor that ended in the men’s jail. Harper said she was placed in a cell by herself, in protective custody, where male inmates walked by getting a good look.
“It was uncomfortable,” she said. “If I’m going to be in protective custody, I want to be on the female side.”
Councilman Hansen called Harper’s placement in the men’s jail “very disturbing, but not surprising given the sheriff’s bent.”
Unbeknownst to her, Harper’s friends assumed she was being misgendered inside the jail and were lobbying elected leaders to intervene.
Bernard texted Kelly Fong Rivas, the mayor’s chief of staff, who contacted county Supervisor Phil Serna, who called Bernard and said he would reach out to the sheriff, but could make no promises. Bernard says Serna soon called back and said the sheriff agreed to move Harper.
The mayor’s communications director confirmed Bernard’s sequence of events. Serna was ill and unavailable for comment, but Bernard said she’s grateful for the supervisor’s intervention.
“Phil Serna acted quickly,” Bernard said. “This was the moment when our organization needed to rise to the values of our mission.”
About two hours after she was sequestered in the men’s jail, Harper estimated, she was moved to a single cell in the women’s dormitory. Another two hours passed, and then Harper said a deputy asked for the first time where she preferred to be housed. She said she wanted to stay in the female wing. Harper said she was released around 11:30 p.m., roughly five-and-a-half hours after her arrest.
Harper is philosophical about the experience, saying it’s better that a transgender person of her rarefied social status was jailed over someone who might not have the platform or resources that she does.
“Would I go through this again? Yes. To change some things,” she said. “I’m a boat rocker. Presenting the way society says I shouldn’t be is rocking the boat.”
Harper’s arrest did change things. A week later, the sheriff’s department amended its booking policy and now gives arrestees the option to request being searched and housed in accordance with their gender identity, said Cox, who was running for sheriff at the time. She doesn’t agree with that.
“I don’t think that you should punish the officers—the male or the female officers—and then put them in a liability situation. Because if an individual still has a penis, I don’t believe that a woman should be patting them down,” Cox said in her voice mail, which she left a week after Harper’s release.
The presidents of the Sacramento County Deputy Sheriffs’ Association and California State Sheriffs’ Association didn’t respond to requests for comment.
Three weeks after Harper’s arrest, Sheriff Jones and DA Schubert stood together at a press conference to announce the historic apprehension of Joseph DeAngelo, the suspected Golden State Killer, which helped clinch their reelections. Hansen, who endorsed Milo Fitch, Jones’ reform-minded challenger, can’t help wondering what might have been.
“It just underscores the fact that had we elected another sheriff …” he began.
Hansen didn’t finish the thought.
‘I came to bring the revolution’
Harper was arraigned nearly two months after her arrest, in June. The DA’s office said it filed charges against Harper and not Price because Harper has a criminal record—a misdemeanor petty theft conviction from five years ago. A DA spokeswoman declined further comment on the pending case. Following multiple continuances, Harper’s next scheduled court appearance is in December.
With no budging from either side, Harper’s attorney said the matter could be headed for a jury trial.
“We’re kind of at an impasse right now,” said Yuri Hill of the Choyce Law Firm. “What they’re alleging is not what we see.”
Hill said he reviewed police footage of the altercation and spoke to another person who was present at the protest. He declined to discuss what the footage showed because of the increasing possibility of a trial, but said that he and his client unequivocally dispute the people’s allegations.
“I think the charges are unwarranted,” he said.
Some legal observers said the case is another example of DA Schubert’s pattern of prosecuting the very activists who challenge her willingness to hold officers to the same account.
The National Lawyers Guild’s local chapter said it’s monitoring the legal situations of 13 activists arrested in Sacramento, including one Me Too activist who faces 30 days in jail for graffiti targeting rape culture. Trial looms for 10 Black Lives Matter members as well.
“We can’t help but see the correlation with these protesters being charged,” said Kim, the Sacramento NLG’s president. “We are concerned about that—and the disparity there with how these protesters are charged so quickly and we’re not even getting a statement from the DA on the Stephon Clark shooting.”
Veteran criminal defense attorney Linda Parisi was more circumspect. Parisi has squared off with the DA’s office before in high-profile cases involving activists, including the notorious “lynching” arrest of Maile Hampton and Parisi’s current representation of Michael Williams, an anti-fascist protester charged with assaulting neo-nazis during a summer 2016 riot outside the state Capitol.
Parisi didn’t see a clear pattern of prosecuting dissidents so much as she saw the DA deferring to the desires of her law enforcement partners.
“I don’t know that it’s as systematic,” she said. “What I think is wrong is that there’ll be an event that occurs and I feel like the DA’s office tends to be reactive to the position of the agency that was involved.”
In Harper’s case, the involved agencies are the Sacramento Police Department, which made the arrest, but it’s also the DA’s office, whose doorstep is the site of continuing protests.
Hansen, who was unaware that Harper faced prosecution until he was informed last week by SN&R, said the DA has dropped charges against dissidents in the past and believes that will happen here. He noted that 2018 has been “a year of high emotions,” not just because of the Clark shooting, but because this White House has made a wedge issue out of basic civil rights, staking hostile positions against people of color, immigrants, the LGBTQ community and women.
Harper’s looming case would cross nearly all those fault lines, he added.
“This kind of hits at all of them,” Hansen said. “I think the DA here will do the right thing.”
Whatever her future, Harper said she’s ready for it. She spoke about trying to unify a trans community that isn’t as organized as it could be in Sacramento. She deflected a question about whether she has political aspirations with a coy laugh.
Then, smiling, she said, “I came to bring the revolution, darling.”