UC Berkeley Law School Dean Calls Sac DA’s Latest Homeless Suit against City of Sacramento ‘Meritless’ and ‘Misguided’

Possessions of a homeless person on Capital Mall Drive in Sacramento on Saturday, September 11, 2021.(Photo by Robert J Hansen)

By The Vanguard Staff

SACRAMENTO, CA – Sacramento District Attorney Thien Ho has again shown he’s no friend of the unhoused, when he “filed a meritless complaint against the city of Sacramento concerning homelessness,” according to an opinion piece this week by Erwin Chemerinsky, dean and professor of law at the UC Berkeley School of Law.

“Ho’s lawsuit does nothing to help the homeless and nothing to help those who are inconvenienced by them. It seems little more than a misguided effort to use the courts to advance Ho’s political agenda,” charged Chemerinsky in an Op-Ed in the Sacramento Bee after Ho’s latest filings.

Chemerinsky noted it is “highly unusual for a district attorney to bring a civil suit,” and maybe unprecedented that a district attorney would civilly sue a city—Ho’s done it several times now even though a superior court judge gave an “adverse” ruling a month ago.

This is Ho’s second suit against the city of Sacramento on the same issue—he filed one nearly a year ago, claiming the city created a “nuisance by not adequately enforcing laws against homeless. In December, he filed an amended complaint alleging that the city violated the state’s Fish and Game Code by allowing debris and trash to end up in area waterways,” wrote Chemerinsky.

In May, the superior court here, added the dean, “correctly dismissed Ho’s nuisance claims against the city as violating principles of separation of powers. 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.’”

Also, 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 are clear that courts cannot oversee a city’s exercise of its discretion, such as in how to deal with a serious problem like homelessness,” commented Chemerinsky in The Bee.

Chemerinsky insists the new complaint is not really different than Ho’s first attempt, because, after a “lengthy description of the problem of homeless in Sacramento, it still has the same three claims, with two based on nuisance and one based on the Fish and Game Code.”

Chemerinsky, in The Bee, did note “Ho has added allegations that unhoused individuals blocking a sidewalk obstruct its use by a person with disabilities. This is a serious concern, but it is baffling how it fits into this lawsuit. The new complaint does not sue the City of Sacramento for violating the Americans with Disabilities Act, and it is highly doubtful that Ho, as district attorney, would have standing to bring such a claim under the federal statute on behalf of those who claim their use of sidewalks is obstructed.”

The Op-Ed argues that “nuisance claims against the city for ‘failing to enforce any law’ are barred by state law,” explaining the court was “explicit that they are precluded by concerns of separation of powers, and adding the discussion of the Americans with Disabilities Act does not change that one iota.

“The central problem with Ho’s lawsuit is that it is beyond the court’s competence to fashion a solution to the problem of the unhoused in Sacramento. The city lacks adequate shelter beds for all who need them. The city’s approximately 1,300 shelter beds are usually full, with a wait list of more than 2,500,” wrote Chemerinsky in The Bee.

The prof and dean added Ho asks the court to “order the city of Sacramento to ‘maintain city sidewalks, parks, roadways and all city property to ensure it is free from obstruction and may be used in the ordinary and customary manner by residents, including residents with disabilities.’

“But no court is equipped to fashion a remedy and then enforce it and has no basis for saying that the city has acted unreasonably,” insists Chemerinsky.

To rule in Ho’s favor, the court needs to order the city to pass new laws, and that “would be a significant overstepping of the judicial role and an unconstitutional intrusion of the discretion of the city and its officials,” said Chemerinsky.

Ho, maintains Chemerinsky in The Bee Op-Ed, “offers no suggestion of a solution to the problem of homelessness. Clearing all the encampments he identifies will not end homelessness. Those without housing have to sleep someplace.”

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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