Sacramento DA is investigating city’s homeless efforts, says criminal charges are possible

Fed up with what he says is inaction by the city to address Sacramento’s homeless problem, District Attorney Thien Ho said Tuesday he is launching an investigation that could lead to criminal or civil filings against city officials.

“I have opened an investigation to determine whether or not the City of Sacramento has violated the law,” Ho said in an interview with The Sacramento Bee. “And we’re in the process right now of gathering evidence, and as the district attorney I’m going to follow the facts of the law wherever it takes us...

“What is available to me under the law is both the criminal code and the civil code.”

The move, which Ho said he believes is unprecedented for a prosecutor’s office, follows his request to city officials last month to clear homeless campsites from near the Sacramento Superior Courthouse. City officials have countered that they cannot clear most of the encampments without first opening more shelter beds, for which it lacks funding.

It also signals an escalation by the county’s top prosecutor to force city officials to follow what he says are their own ordinances about keeping sidewalks clear of camps. City ordinances call for at least a 4-foot walkway on sidewalks.

He added that his efforts are not a move against people living on the streets but an attempt to get the city to take action to help them.

“It’s not anti-homeless,” Ho said. “What I am is compassionate for the conditions that they’re living in.

“It’s not compassionate that they are living and dying in those conditions. And what we are doing is not compassionate to them. It’s not compassionate to the community.”

Ho said he is moving to force the city to engage in consistent enforcement of its own ordinances against camping and blocking sidewalks and entrances to businesses.

“People are living in third-world conditions here in the state’s capital,” he said. “We need to show compassion, but we also need to display courage to sometimes do things that are uncomfortable and unpopular.”

Ho said potential criminal charges would stem from violations of California Penal Code 370, which prohibits “public nuisance” and cites “anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood...”

Potential civil violations would be investigated under the portion of the state’s civil code that provides for jail time and/or fines for public nuisances on private property that “endangers a considerable number of other people in the community.”

City, homeless advocates react

City spokesman Tim Swanson did not immediately respond to a request seeking comment on the DA investigation, and Mayor Steinberg declined to comment.

But City Attorney Susana Alcala Wood disagreed that the state public nuisance statute could be used against Sacramento officials.

California law does not expressly place on government agencies “an affirmative obligation to eliminate public nuisances on their property,” she wrote in a letter to Ho on June 30.

Ho’s announcement also generated criticism from a homeless advocate.

“Our community would be better served if all units of government focused on homeless prevention and creating affordable housing and services rather than suing each other, which will only lead to further criminalizing our unhoused neighbors,” said Bob Erlenbusch of the Sacramento Regional Coalition to End Homelessness.

Ho said much of his investigation will stem from a survey he had posted on the District Attorney’s website and distributed to business owners, community groups and residents on Monday. By noon Tuesday, he said, it had elicited more than 500 responses.

“One of the responses involved a mother who could not sleep at night because her children were afraid to play in the park across the street and they can’t use the park,” Ho said. “Another person wrote in their survey about how there was a soccer game at the park and literally they had to stop and postpone the soccer game because there were needles that were found on the playing field.”

The survey identified 16 homeless camps throughout the city and asked respondents to provide information on whether they had suffered threats or harassment nearby or witnessed illegal activity. It also asks for information on whether police responded.

Former DA Anne Marie Schubert last year circulated a similar form to businesses and residents in the area of Fair Oaks Boulevard and Howe Avenue. In that case, under that pressure, the city ended up leasing the property to a private owner for free, clearing the camp and erecting a fence.

But Ho said he plans to use more than just survey results, indicating that his office will gather evidence similar to how it conducts some criminal probes.

“The survey is just one part of it,” he said. “We’re going to be requesting 911 calls, reports, and we’ve already taken photographs of these areas.

“We are going to take additional video evidence as well.”

The DA said the city had responded to his letter last month with a claim that officials are enforcing its ordinances to keep sidewalks clear.

Homeless sweep possible this week

The city last week posted notices to camps along 28th and C streets ordering people to move by Wednesday. The notices indicate they must move because they are blocking the sidewalk and because they are storing personal belongings on public property.

So far, 11 people have moved from those camps to the Miller Park Safe Ground, where they can receive bathrooms, showers and services, said Swanson, the city spokesman. The city has also offered to spots at Miller Park to several people camping around the courthouse.

Tyler Vaneehei, 31, sleeps in a red tent at 28th and C streets. He said he would go to Miller Park, where people get access to drinking water and other services, but he has not been offered transportation. It’s roughly 5 miles away and he does not have a vehicle or bike to move his tent, cart and other belongings.

Swanson said transportation to Miller Park will be offered.

“In the middle of the day it’s so hot, how do you move?” Vaneehei said. National Weather Service forecasts predicted high temperatures of 93 degrees Tuesday and 95 degrees Wednesday. “I have no clue where to go. They could’ve waited another month. It would’ve been a lot cooler.”

Ho contends that there is a lack of enforcement at the Miller Park camp and the nearby area.

“I’m an advocate for having these safe locations, but the emphasis is on the word ‘safe,’” he said. “You can’t have safe if you don’t enforce the rules and the laws.”

And he contends there is no sign that the city is moving people off sidewalks.

“The fact of the matter is, I don’t see it,” he said. “You walk down the street on the corner of Ninth and I street, you make that right in front of what used to be the old post office and the old federal courthouse, and you can’t walk on that sidewalk.”

Ho said he is not making the same threats against the county because he believes Sheriff Jim Cooper is “actually doing enforcement.”

“You have Sheriff Cooper who’s actually doing compliance and enforcement in the unincorporated areas of the county,” he said. “And not only that, the county right now, they estimate that within the next 60 days they should have 150 beds open and another 150 beds open after that within the next month after that...

“The sheriff is out there engaging in compliance, offering services as well with his homeless outreach team, or HOT team.”

He acknowledged that as a result of the county’s actions, “you are seeing a migration of camps moving into the city.”

Ho said the city needs to expand its use of safe spaces for encampments, but also needs to enforce safety at such places, something he says has not been done.

The council on July 25 plans to discuss opening several more Safe Ground sites across the city.

Ho declined to say who, precisely, would be the target of his investigation, whether it be Steinberg, City Manager Howard Chan, council members or other city officials.

“That’s really not a question for me to answer right now,” he said. “I’m in the process of gathering the evidence and asking for people’s input, and the evidence that we gather and the responses that we get and what we find that will lead to wherever it’s going to lead us.”

But he said he expects to collect survey results for the next couple of weeks and move his investigation forward.

“We’re going to continue to have conversations with the city,” Ho said. “But at some point we have to see action.”

The city has roughly 1,100 shelter beds, but they are all typically full, meaning it cannot legally move people off public property, under the city’s interpretation of the 2018 Martin v. Boise U.S. 9th Circuit Court of Appeals ruling. That ruling states cities and counties cannot criminalize homeless people living on public property unless there is a place to take them.

The city has interpreted “criminalize” to mean it cannot tell people in tents on public property to move unless it has a shelter bed or space for them. Even without an available bed, the city does clear tents blocking the sidewalks on critical infrastructure, as well as vehicles that have been in the same spot for more than 72 hours.

There are an estimated 9,300 homeless people living in Sacramento County, according to a federally mandated January 2022 count. The vast majority of them are living outdoors and are within the city limits.

Ho emphasized that his actions are meant to help people living on the streets by moving them into better situations, but added that citizens have had enough.

“People are desperate, they’re fed up,” he said. “And what I’m concerned with is, when people are fed up we lose our compassion.

“It’s easier right now for people to walk down the street and just ignore what they see and the suffering that they see. And that right there is a problem when people find it easier to walk down the street and ignore it.”