Sacramento DA files new complaint against city in homeless lawsuit. Will it be scaled back?
Sacramento District Attorney Thien Ho has filed a new amended complaint against the city of Sacramento — a second attempt to convince a judge to allow his lawsuit to move forward in its entirety.
Ho originally filed the suit in September, alleging the city was causing a public nuisance by allowing homeless camps to exist on public property, and also violating a state law by allowing camps along creeks.
Sacramento Superior Court Judge Jill Talley last month ruled the lawsuit could move forward, but it had to be scaled down to remove the public nuisance claim, due to the separation of powers between the government and the DA. The complaint also claimed the city is violating the state Fish and Game Code by allowing the homeless to pollute creeks — a claim that remains in the amended complaint.
Ho on Wednesday re-filed the lawsuit, again including the public nuisance claim, as well as the Fish and Game Code claim.
“Sacramento is ensnared in a ‘Groundhog Day’ loop where, despite promises and assurances otherwise, nothing changes or improves,” the amended complaint stated. “Encampments continue to occupy and fully block large portions of sidewalks, rendering them unusable and impassable for the general public, including members of the community who are disabled and rely on clear sidewalks to safely navigate from one place to another in wheelchairs or with other mobility aids.”
City spokesman Tim Swanson said the city has received the amended complaint and is in the process of reviewing it.
Longtime former federal defense attorney Mark Reichel said he expects Talley to again rule that the public nuisance claim, a major piece of the lawsuit, must be removed.
“The crux of her ruling is that the law allows discretion for municipalities on how they govern,” Reichel said. “This is just a statement by the DA’s Office that they don’t agree with the policies ... You don’t get to sue the elected leaders to say, ‘I want you to do it this way.’ There’s a strong presumption of this discretion vested in the elected representatives. In extreme cases where you can prove extreme facts, you can go to court and compel those representatives to enforce the law. I don’t think they have shown enough here.”
Ho did not include the allegations about the Fish and Game Code violations in his original lawsuit in September, but added it in an amended complaint in December. The creeks that are on city property, such as Morrison Creek, flow to the Sacramento and American rivers, the lawsuit points out.
The county, which is in charge of large sections of the American River Parkway, where thousands of unhoused people camp on the riverbanks, is not named as a defendant in the complaint.
City officials have disputed the claims, saying under its interpretation of the 2018 U.S. Court of Appeals for the Ninth Circuit Martin v. Boise ruling, the city can’t legally move people off public property unless there’s a shelter bed to offer them. The city’s roughly 1,300 shelter beds are all typically full, with a wait list topping 2,500. The city has cleared people off certain public properties when they have fully blocked sidewalks or fire station entrances, or are near schools — places where its ordinances prohibit camping.
City Attorney Susana Alcala Wood has accused Ho of suing the city because he plans to run for attorney general, possibly against Steinberg — an allegation Ho has denied.
The city will now have a chance to file a response to Ho’s amended complaint, Reichel said. Then Talley will likely rule within two months whether it can move forward in its entirety or will have to be scaled down.
