Sacramento DA’s lawsuit is ‘utterly without legal merit’ and should be dismissed | Opinion

Whenever the Superior Court of California will hear oral arguments on the City of Sacramento’s motion to dismiss the unprecedented lawsuit brought by Sacramento County District Attorney Thien Ho concerning homelessness in the city, it is utterly without legal merit and should be dismissed by the court.

Ho is correct that homelessness is an enormous problem in Sacramento and in cities across the country. The City of Sacramento, of course, does not deny this. In its brief to the court, the City declares: “Homelessness is a humanitarian, political, and economic crisis. Thousands of people are struggling on the street, many of them with mental health and substance abuse challenges.”

Ho’s 49-page amended complaint — 193 pages counting the appendices — is almost entirely a description of the problems posed by the unhoused in Sacramento. But that is not the legal issue before the court. The question is whether a district attorney whose primary responsibility is enforcing criminal laws can bring a civil suit about homelessness and whether a city can be sued at all for failing to adequately solve the problem of homelessness.

Opinion

More important, there is a question of separation of powers: Can a court order a government to adopt laws and create new programs?

It is hard to overstate how unusual it is for an elected district attorney to bring a civil suit against a city. In part, this goes back to how a district attorney’s primary responsibility is enforcing criminal laws. The district attorney lacks the authority to initiate such a civil action, especially on behalf of others, such as property owners in the city.

But even if Ho had the authority to initiate this lawsuit, California law makes the city completely immune from liability for its failure to adopt adequate policies. Government Code Section 818.2 states: “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Section 820.2 states: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” These provisions reflect the reality that city governments will often fail to find solutions to problems, and it is not desirable to have courts micromanaging their policies.

That reflects a central flaw of this lawsuit: What remedy could the court provide? Sacramento has already taken many actions to try and lessen the problem of homelessness, including creating shelter spaces, establishing a Department of Community Resources that responds to problem encampments, adopting a sidewalk obstruction ordinance and implementing a citywide homeless response protocol.

Certainly, there is more that can and should be done, but the Superior Court is ill-equipped to decide how to solve the problems of homelessness in Sacramento and decide what actions should be taken by the city. In fact, Ho’s complaint gives no indication of what he wants to see happen. At the end of his complaint, all Ho asks for is “(i)njunctive/equitable relief requiring the city to take such action as is necessary so that it no longer suffers a nuisance on its own property.”

Inevitably, to give a remedy, the court would have to order the city to adopt new laws and programs — a significant overstepping of the judicial role and an unconstitutional intrusion onto the discretion of city officials.

Moreover, any solution is limited by decisions of the U.S. Court of Appeals for the 9th Circuit — which Ho’s lawsuit does not acknowledge — which hold that cities cannot make it a crime or public nuisance for people to be homeless when there is not adequate shelter space. In Martin v. City of Boise, the Ninth Circuit ruled that the Eighth Amendment, which outlaws cruel and unusual punishment, “prohibits the imposition of criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter.”

In 2023, Johnson v. City of Grants Pass reaffirmed this, again holding that the government cannot punish people for being unhoused.

Meaningful solutions to homelessness are not going to emerge from a suit by a district attorney against a city. The City of Sacramento got it exactly right in its motion to dismiss when it stated: “Sacramento County District Attorney Thien Ho’s Complaint is as surprising as it is novel. But those are not admirable qualities when they lead to a waste of government and judicial resources.”

Erwin Chemerinsky is dean of the UC Berkeley School of Law.