City Attorney provides point-by-point response to County DA’s letter regarding homelessness

Sacramento City Attorney Susana Alcala Wood on Sept. 6 provided a formal response to Sacramento County District Attorney Thien Ho’s recent letter to the City regarding the homelessness crisis.

Ho’s letter focused on the City’s ongoing work to address homelessness and contained a number of demands. He requested that the City respond within 30 days.

The City Attorney’s point-by-point response to the DA can be read below. Click here for a PDF of the City’s response letter, which also contains supporting documents.


September 6, 2023

Thien Ho

Sacramento County District Attorney

901 G Street

Sacramento, CA 95814

RE: City’s Formal Response to Your August 8, 2023, letter to the City of Sacramento

Dear Mr. Ho:

This letter is intended as a formal response to your August 8, 2023, letter to the City of Sacramento.

First of all, thank you for having your staff members Scott Triplett and Rochelle Beardsley meet with Supervising Deputy City Attorney Gustavo Martinez on July 28, 2023. As we previously discussed, that was a very productive meeting that covered many important topics including re-invigorating the collaborative approach our two offices have historically employed and agreeing on joint training for law enforcement regarding encampment enforcement at both the state and city level.

Thank you also for meeting with me on August 23, 2023. As you know, I have been reaching out to meet with you since June, but your schedule was apparently unrelenting. It was a very productive meeting which also allowed us to review the Memorandum of Understanding entitled “Prosecution of Misdemeanors and Infractions Arising From Violations of the Sacramento Municipal Code” (hereinafter SacDA MOU) that has existed between our two offices since 2001. Chief Assistant City Attorney Sandra Talbott sent you the agreement on August 24th, because the copy you had did not have signatures and because you did not have the two subsequent amendments signed in 2006 and in 2015. For ease of reference, I am attaching a copy of the SacDA MOU, as amended, to this letter (Attachment 1).

Your August 8, 2023, letter demanded that the City take all of the below compliance actions within 30 days. Accordingly, I have listed them below along with a response:

Compliance Action No 1:

City Attorney’s Office to prosecute city codes and ordinances related to provisions of the Sacramento City Code regarding Critical Infrastructure,· Sidewalk Obstructions and Pedestrian Interference; Park Use Regulations; Storage of Personal Property on Public Property; and Vehicles and Traffic, as well as provisions of the California Vehicle Code applicable to vehicle encampments. While the District Attorney’s Office has jurisdiction over state misdemeanor and felony offenses, the authority to prosecute city codes and ordinances remains in the sole authority of the city to enforce.

The City Attorney’s Office will provide four (4) additional city attorneys for the north, south and east/ central parts of the city, which will be funded by the city. These city attorneys will vertically prosecute violations of city codes and ordinances, and when appropriate provide an individualized diversion program;

Response to Compliance Action No 1:

The authority to prosecute city codes in the downtown core belongs both to the District Attorney and the City Attorney. As we discussed, the purpose of the 2006 amendment to the SacDA MOU was to provide your office ” .. authorization from the City Attorney’s Office for the community prosecutor of the District Attorney’s Office to prosecute misdemeanor and infraction violations of the City Code in a designated geographic area.” (First Amendment to the SacDA MOU, pg. 1). Since 2006 that designated geographic area is the downtown core, more specifically identified on your office’s website as the “Downtown Area – Sac River to 16th Street and H Street to N Street” (Map, Attachment 2). In the downtown core your community prosecutor, Kevin Higgins, has not only the complete “discretion to review, file and prosecute City Code violations” but he also has the ability to prosecute state law violations. (Ibid.)

Furthermore, Sacramento Police Department reported data reveals that of the 20,000 arrests last year, half constituted felony arrests, and one-third of those arrests involved Persons Experiencing Homelessness (PEH). This is a significant figure because PEH account for only 1% of the population within the City. These statistics also indicate that SPD is taking enforcement action against PEHs committing crimes (which crimes constitute over one-third of the crimes that occurred within the City).

In addition, as you know the Sacramento City Attorney’s Office already has a Community Advocacy and Public Safety Division that houses the city prosecutors. Supervising Deputy City Attorney Gustavo Martinez heads that division and has extensive experience in this area and a long history of working collaboratively with your office and your community prosecutors. As the SacDA MOU spells out, “[i]t is the policy of the City Attorney’s Office and the District Attorney’s Office to equitably share responsibility for prosecuting violations of the City Code in order to improve the quality of life in city neighborhoods …. Both parties agree that the interests of justice are best served by exercise of sound and consistent prosecutorial discretion to assure that equal justice is achieved regardless of which prosecuting agency is handling the violations.” (Emphasis added). (SacDA MOU pg. 1).

I think now that I have made you more aware of our long history of collaboration stretching as far back as 2001, and the fact that you in fact do have jurisdiction to prosecute Sacramento City code violations – including unlawful camping violations – in the downtown core, that moving forward we will be in a much better position to “equitably share responsibility for prosecuting violations of the City Code in order to improve the quality of life in city neighborhoods”.

Finally, to facilitate better collaboration between our offices and to better address improving the quality of life for the community, at our meeting on August 23, I provided our “Recommendation for Next Steps” identifying specific actions we need to take to strengthen our collective enforcement efforts. That list of recommendations was developed in the July 28 meeting between our two offices. (I also shared it with you via email on August 7, 2023, which you subsequently shared with the media). For ease of reference, I am attaching the document to this letter (Attachment 3).

I’m pleased to see that in your September 6th email you provided suggestions on establishing innovative programs like your office’s CORE program that provides offenders with 10 citations the option to be enrolled in drug or mental health treatment in lieu of significant jail time. But I’m uncertain why you mention that we need to create a separate City CORE program as your downtown community prosecutor has the ability, today, to prosecute City Code violations and place offenders in your existing CORE program. Why do you see the need to reinvent the wheel with a separate City CORE program? I submit that it would be far more efficient for your office and my office to share the existing CORE program so that we can place offenders in the program today. I wholeheartedly agree with you that placing offenders in this program will “encourage treatment resistant unhoused individuals… struggling with addiction and mental health needs to get the help they sorely need” and further encourage you to direct your downtown community prosecutor to use this program for the benefit of the City’s unhoused cited for City Code violations in the downtown core.

On formulating joint standard offers for similar quality of life crimes by the unhoused you did not provide a suggestion. While we agree that each case is unique, in our existing MOU, we agreed that, “[w]hen the District Attorney is prosecuting City Code violations pursuant to said consent, the District Attorney’s Office shall be guided by the City’s policies, guidelines, and criteria related to criminal prosecutions.” (SacDA MOU, pg. 1; see also same language reaffirmed and restated in First Amendment to the MOU dated January 1, 2006, pg. 1). The purpose of this guidance is to avoid inconsistent standard offers to offenders for the same City Code violation. I know you would agree with me that an offender prosecuted by my office for the same City Code violation in East Sacramento should receive the same standard offer your community prosecutor makes to an offender similarly situated and cited in the downtown core. Doing otherwise is unfair and treats offenders differently depending on the geographic area of the County where the crime occurs or on the prosecuting agency. Accordingly, I respectfully request that you reconsider your position on sharing standard offers with our office so that we honor the commitments in the MOU that seek, “to assure equal justice is achieved regardless of which prosecuting agency is handling the violations.” (Ibid).

Compliance Action No. 2:

Implement compliance protocols that employ three main types of activities: outreach, encampment management/ cleanup, and compliance with state law and the Sacramento City Code through engagement with both law enforcement and non-law enforcement personnel.

Response to Compliance Action No 2:

Given your recent focus on homelessness, I am candidly surprised that you are unaware that the City has a formal policy on outreach, camp management/cleanup, and enforcement of state law and City Code violations through its Citywide Protocols. In fact, on July 25, 2023, the City updated its previous protocols to include the Sacramento Superior Court and District Attorney’s office to its list of Critical Infrastructure locations-something you requested. For more details, attached hereto are the Resolution (Attachment 4) and most recent Citywide Protocols (Attachment 5). Accordingly, Compliance Action No.2 should be a non-issue.

Per the Citywide protocols, the City’s Incident Management Team (“IMT”) ensures that all available resources are being utilized and leveraged in the best manner possible for response to the homelessness crisis. This includes outreach, camp management/ cleanup, and enforcement of state law and City Code violations. The IMT consists of representatives from the City Manager’s Office, the Department of Community Response (outreach), the Sacramento Police Department, the Sacramento Fire Department, Code Enforcement, Public Works, the Office of Emergency Management, Animal Care, and the City Attorney’s Office.

The IMT provides a multi-departmental response that is organized with an Incident Command Structure to utilize resources more effectively and efficiently. IMT holds daily and weekly coordination meetings to ensure outreach and engagement efforts are conducted in coordination with cleanup and enforcement activities in accordance with the Citywide protocols.

Compliance Action No. 3:

Temporary Emergency Shelter Space & Camping Space: Identify, authorize, and establish emergency shelter space and/ or 3 emergency camping space, including but not limited to temporary Safe Ground locations within the City of Sacramento within the next 30 days equal to 75% of the total number of unsheltered individuals estimated to reside in the city pursuant to the last point-in-time (PIT) count conducted by the city,· The city may use any public property, except for city streets, neighborhood parks, or locations within one thousand (1,000) feet of a K-12 school, public library, daycare or preschool facility, or playground, or five hundred (SOO)feet from a stream or river. Ensure strict adherence to the above compliance protocols in and around the above locations to prevent public safety issues in the communities where encampments are located; Employ a professional operator to maintain the emergency shelter or camping space to ensure public safety and adherence to the law including the following: Use of 24-hour security; Removal of garbage,· Use of sanitation equipment. Implement a Good Neighbor Policy: Prohibit and remove all camping within 500 feet of any shelter or Safe Ground location. The emergency shelter and temporary Safe Ground locations should provide adequate protection from the weather and elements; Publicly report on a monthly basis: How many people are moved into the shelter or Safe Ground; How many people from the shelter or Safe Ground are moved into permanent supportive housing,· How many people are moved from permanent supportive housing to non-subsidized housing.

Response to Compliance Action No 3:

Measure O – The Emergency Shelter and Enforcement Act already requires the City to undertake most of these efforts and the City’s responsibilities under this measure are well underway. With respect to your demand to publicly report data related to the number of people from the shelter or safe grounds sites moved into permanent supportive housing, and the number of people moved from permanent supportive housing to non-subsidized housing; I encourage you to direct those questions to the County of Sacramento who bears principal responsibility for providing housing to the PEH.

Compliance Action No. 4:

Access to Real Time Data Related to Shelter Beds and a Refusal to Accept Shelter: Implement a Coordinated Access Program requiring all providers to share information in real time to assist in coordinated service. Require service providers who receive funding from the City of Sacramento to publicly report on a daily basis the number of shelter beds available and the location of those beds; Availability of shelter beds must be input every morning into a shared information platform along with other important assessment information; This information will be collated and sent to different nonprofits and government agencies (including law enforcement) for potential referrals,· This information must be shared on the Homeless Management Information System (HMIS). Implement the following protocols: During the first contact, an unhoused individual who declined the offer of shelter will be given a warning,· During the second contact, a citation will be issued if the unhoused individual rejects the offer for shelter. The citation will later be dismissed after the offer for shelter has been accepted; A third visit with another rejected invitation will result in a transport to the jail where the individual will be cited and released for a misdemeanor. The citation will be dismissed upon acceptance into a shelter.

Response to Compliance Action No 4:

These actions are already covered by the Partnership Agreement Between the City of Sacramento and the County of Sacramento (Attachment 6) as well as the coordinated access system (CAS) administered by Sacramento Steps Forward.

Compliance Action No. 5:

Citywide Daytime Camping Ban: Implement citywide the same ordinance used to prohibit camping at City Hall between 6 am and 9 pm. The city prohibited camping on City Hall property during the day but allowed it in the evening after 9 pm. This policy was implemented after several city employees were assaulted; The prohibition is valid under Martin vs. Boise. Therefore, the City of Sacramento must implement the same ordinance citywide,· Provide safe and secure locations for those who are unsheltered to store their life necessities during the day and retrieve them in the evening to bring to their temporary campsite.

Response to Compliance Action No 5:

The City of Sacramento has been on the forefront of adopting new ordinances. For example, after studying the decision in Martin vs. Boise, we determined that the court decision had left ample room for proactive protection of public spaces that served important governmental functions. As a result, the City of Sacramento adopted the critical infrastructure ordinance in 2019. Thereafter, following the city’s lead, the County and neighboring cities adopted similar ordinances. In fact, I had suggested that you approach the Board of Supervisors about adding your building to its list of critical infrastructure, since doing so would allow the area around your building to be kept free of the nuisance encampment conditions to which you referenced in your letter. You declined to pursue such a step. However, in August the City council added your office and the courthouse to its list of critical infrastructure.

As a result of its proactive approach to designating certain public property as critical infrastructure, the City Hall campus was also so designated since it is the seat of city government operations. Because the bulk of the public access to city hall occurs between the hours of 8:00 a.m. and 8:00 p.m., the Sacramento City Council decided to allow city hall grounds to be used as a safe overnight camping location. Other county and state offices are free to follow the City’s example in this regard.

Thus far, all of the recent ordinances adopted by the City have withstood legal challenges. However, Judge Nunley’s recent decision to not allow the City to enforce its critical infrastructure ordinance during certain times of the year forced the City to appeal his decision to the Ninth Circuit. You asked me to keep you apprised as to the status of that appeal and I will do so.

Compliance Action No. 6

Implementation of Compliance Protocols and Clearing of Identified Encampments: Apply the Compliance Protocols and above listed procedures and clear within the next 30 days the 16 encampments within the city identified by the Sacramento District Attorney’s Office,· Ensure that individuals in those encampments not relocate or migrate to an area within three (3) city blocks of the original encampment location.

Response to Compliance Action No 6:

  1. More information is needed from you before a response is possible: Was there a list of 16 encampments your office prepared? If so, you have not yet provided it despite our requests and so no specific response about such encampments can be provided. In any event, as you know, the City of Sacramento was prohibited from clearing or moving any encampments in the City by Judge Nunley’s order dated August 3, 2023 for a majority of your 30 day time period.
  2. The City has had such a protocol in place since 2020. On August 1, 2023, the Sacramento City Council formally adopted the protocols via Resolution (Attachment 4).
  3. More information needed from you before a response is possible: Please advise what actions your office takes, or the County of Sacramento takes, to ensure that any encampments that are cleared by your office or by the Sheriff do not resurface within 3 blocks of their original location. In the City’s experience encampments cleared by the County end up inside the City – sometimes within a block of the original County location. It is important that the county’s efforts are consistent with the City’s actions in this regard, otherwise the City will continue to be blamed for actions that are actually due to the County Sheriff’s enforcement.

Compliance Action No. 7

Audit money used by the City of Sacramento to address homelessness for the last two (2) years; Publicly file a report identifying the amount of funds spent, each entity using the funds, the activities for which the funds were applied, and the numbers of unhoused individuals moved into permanent non­subsidized housing.

Response to Compliance Action No 7:

The City Auditor’s office already has such an audit currently underway as to the funds used by the City of Sacramento to address homelessness. As to the numbers of unhoused individuals who have been moved into permanent, non-subsidized housing – that question will need to be directed to the County of Sacramento who is responsible for providing permanent housing.

Compliance Action No. 8

Conduct a point-in-time count in July of each year for which the city must pay individuals to conduct the count. Data will be collected as to whether unsheltered individuals lived in Sacramento prior to becoming unhoused.

Response to Compliance Action No 8:

There appears to be some confusion on your part as to how a point in time count is conducted, and who bears the legal responsibility for doing so.

The Continuum of Care (CoC) for Sacramento County, Sacramento Steps Forward (SSF), is responsible for the point in time count. In conjunction with SSF, Sacramento County and the continuum of care partners, the city will continue to participate in the point in time count as scheduled by SSF. Per HUD (housing and urban development) “Continuums of Care (CoCs) are required to conduct a Point-in-Time (PIT) count of people experiencing homelessness at least every other year. CoCs are also required to conduct an annual Housing Inventory Count (HIC), documenting the residential resources in their community dedicated to assisting people experiencing homelessness.” It may also be helpful to this overall effort of getting an accurate count if you/your office were to assist in getting a daily jail count of the PEH who are released from jail, did not live in the City prior to being arrested, yet are released into the City of Sacramento.

While reviewing and responding to your letter, I and my staff realized there are some additional actions that your office can take, and, more importantly ways in which our two offices can collaborate to address nuisance encampments. Now that you have the entire SacDA MOU, you can see that your office has had the ability to prosecute Sacramento city code violations since 2006. Additionally, as we discussed, your office prosecutes the unhoused for the public nuisances that you say exist in the City pursuant to Penal Code Sections 370 and 372. Individuals are cited for all kinds of public nuisances pursuant to these sections, such as urinating in public, operating an open-air drug market, and illegal dumping. As you have previously indicated to the community, your office has all the resources needed to prosecute criminal public nuisances including community prosecutors that are dedicated to prosecuting qualify of life crimes and public nuisances that exist throughout the County. However, I think part of the problem the City is facing is that you only provide one downtown community prosecutor for the whole City of Sacramento – the largest city in the County which serves as the state and county seat and the County and State seat; and this one prosecutor is entirely funded by the City and the Downtown Partnership. The downtown core continues to have all the quality of life crimes that you complain of, despite the community prosecutor and ability to prosecute PEH for public nuisances. Another example of needed collaboration relates to ensuring that unlawful camping cases are consistent throughout the County. Since your office is responsible for such prosecutions in the County, and other cities in the County – something you say you do consistently, I asked you for any statistics you have regarding the prosecution of unlawful camping and related actions that your office has conducted. You said you would have your office compile them and send them to me, but as of the date of this letter I have not received them. We can agree that the more alignment there are between our prosecutions, the less likely that politics will enter into the picture.

Finally, you asked me at our August 23 meeting why I thought that the police department hadn’t issued any unlawful camping citations in the last year. We advised you that is because to date, the police department working in conjunction with DCR had a lot of success with pursuit of voluntary compliance. That, along with the City’s deployment of its coordinated team has allowed it to tackle very large encampments such as those found on Roseville Road and 28th and C Streets in June and July. It was preparing to tackle the large encampment at Alhambra and W Street, when Judge Nunley issued a TRO prohibiting the City from taking any action to move an encampment or disturb an encampment. When the City received notice that the Sacramento Homeless Union was seeking to impose yet another injunction against the City and County to prevent us from addressing encampments during hot weather, my office reached out to your office approximately 4 times for assistance. Twice we asked you to help us preserve the ability to clean encampments by providing my office with information concerning the experiences of your staff who have had to encounter homeless individuals around their workplace or at least a general declaration about the conditions. We believed that such a declaration from the Sacramento District Attorney could hold great weight with the court. Unfortunately, your office declined to get involved. Because we remain in active litigation, I will repeat my request that you consider providing us with a declaration about the courthouse conditions and the conditions surrounding your office.

I have noted your compliance actions/recommendations and provided detailed responses. The City is well represented by its legal office and efforts to undermine its effectiveness by making spurious comments to the media serve only to throw blame around rather than actually partner with my office to solve the issues our community demands of us. The only true approach to resolving the concerns of your office, my office, and the citizens of Sacramento lies in a collaborative approach starting with the District Attorney and the City Attorney communicating in a cooperative manner. I invite your office to collaborate with mine to address the enforcement efforts you have highlighted in your letter and to take ownership of those efforts that are the responsibility of the County.



City Attorney

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