Judge tentatively rules Sacramento DA’s lawsuit against city can move forward, but scaled back

A judge has tentatively rejected a major piece of the district attorney’s lawsuit against the city of Sacramento regarding homeless camps, but the case can still move forward.

The lawsuit, filed in September in Sacramento Superior Court by District Attorney Thien Ho, had alleged the city was creating a public nuisance by allowing homeless camps to exist on public property. The city argued that due to separation of powers between the government and the DA, that piece should be removed. Sacramento Superior Court Judge Jill Talley tentatively sided with the city on that.

“A governmental entity’s decision to enforce laws that are within its authority is a matter of prosecutorial discretion,” Talley wrote in a tentative ruling released Thursday afternoon. “The principle of prosecutorial discretion is ‘rooted in the separation of powers and due process clauses of our Constitution.’”

Talley tentatively ruled that the piece that claims the city is violating the state Fish and Game Code by allowing the homeless to pollute creeks can remain in the suit, meaning the case will proceed on that ground only.

“The city has failed to establish that it is not subject to liability under section 5650.1 (of state law),” the tentative ruling stated.

A hearing on the judge’s tentative ruling is scheduled for Friday morning, during which Talley is expected to issue a final ruling after hearing arguments from both sides.

DA spokeswoman Shelly Orio stated on Thursday, “The District Attorney’s Office believes that the first amended complaint was valid and in full compliance with the law. After the court hearing tomorrow, we will have further comment.”

City spokesman Tim Swanson did not immediately return emails seeking comment on the tentative ruling. Mayor Darrell Steinberg, through a spokeswoman, declined comment until the ruling is final.

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 river banks, 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 2,400. 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.

Ho will now have a chance to amend the complaint, which could mean reintroducing the public nuisance claims in a different way.