Essay: “Anthony Lehr et al v. City of Sacramento” by Ronald Blubaugh
“The Unlikely Constitutional Theorist”
by Ronald Blubaugh
We stood on the 14th floor of the federal courthouse in Sacramento, free-spirited Traci and I, looking at the city below. The Sacramento River, swollen by a hard winter of rain, was to our right and the California Capitol to our left. It was but a few minutes before a jury would begin to consider the evidence in a lawsuit officially known as Anthony Lehr et al. v. City of Sacramento, a case that might more descriptively have been called “Homeless People versus the Cops.” Just before it was time to re-enter the courtroom, Traci turned toward me but speaking to no one in particular said, “This is for Gremlin; this is for Gremlin.”
To me, he was Michael Tinius and when I met him, he was 46 years old and had been living outside for 18 years, much of that time along the banks of the American River, where it flows through an urban wilderness park just north of downtown Sacramento. Michael had a shock of fiery red hair that I always thought of as an Irish Afro. He was about 5 feet 4, but was not one to be pushed around. It was his red hair and short stature that led to his nickname, “Gremlin,” a name that only his closest friends were permitted to use.
Like most of the hard core homeless, Michael looked much older than his age. The bewhiskered skin on his face spoke of too much sun and too much wind. When he talked, the words tumbled out of the side of his mouth like someone whose jaw had been broken but not properly re-set. If his hands ever held a bar of soap in the year that I knew him, I could not detect it.
Although I had seen Michael many times, I did not get to know him until one of the many occasions when he decided to stand up for his rights. In the winter of 2007, the County of Sacramento parks department conducted one of its regular clean-up sweeps through the American River Parkway. Anger among the homeless ran hot and when they appealed for help, a group of Sacramento attorneys decided to file a lawsuit on their behalf against the County of Sacramento and the City of Sacramento. Michael was one of the plaintiffs and I was one of the lawyers.
Cleanup sweeps are very hard on homeless people. Sometimes the police provide advance notice that property not removed by a certain date will be confiscated. Usually, they provide no notice. Occasionally, city cleanup crews bag the property and take it to a warehouse where homeless people can theoretically reclaim it. More frequently the cleanup crews throw the property immediately into the trash. What is lost is everything a person needs to live outdoors: tents, tarps, sleeping bags, blankets, flashlights, clothing, radios, tools. But the homeless also lose more personal things: driver’s licenses and identity cards, photographs of family members, medications, eyeglasses, court records, military discharge records, even the stored ashes of a loved one.
People have been camping along the American River for as long as humans have lived in what is now California. Native American grinding rocks that long pre-date modern civilization can be found at several places along the river. The gold miners who followed them also have left evidence of their presence. Nowadays, as during The Depression, the banks of the American River are a favorite spot for the homeless. For years, the annual late January census of homeless people in Sacramento has found at least 1,000 persons, including children and seniors, sleeping unsheltered along the riverbank or in alleys and flowerbeds. But nobody knows the real number in Sacramento or anywhere else in America. Most homeless people work at being hidden.
It is a myth that homeless people can always find a bed at a shelter. In Sacramento, all of the year-round shelters have waiting lists. They also have time limits for length of residency. At the end of the time limit, a homeless resident who has not found permanent housing must return to the street. Many homeless shelters also have religious programs which, if not required, are strongly encouraged. The two primary shelters in Sacramento have no provision for spouses to stay together and do not permit pets.
When I interviewed Michael in preparation for the filing of the lawsuit, I made the mistake of characterizing him as “homeless.” “I’m not homeless,” he stated. “Where is your home?” I asked him. “Along the American River,” he replied. In Michael’s view, it was impossible for anyone to be homeless. Your home is where you stay, he said. He stayed on the parkway and so that was his home. Moreover, Michael continued, he was not “unemployed” as I had described him. He had a job, collecting aluminum and plastic and recycling it. Whether a person has a job is not dictated by how much one earns, he told me. A person has a job if he works and, Michael stated, he worked.
As we completed our interview, Michael pulled from his bag a well-worn copy of the United States Constitution. He turned the pages to the 14th Amendment on which he had underlined the words, “nor shall any State deprive any person of life, liberty or property, without due process of law.” “I think you should be able to use this,” he said. “They took my property without due process of law.” “You have a very good point, Michael,” I replied. “We will use that.”
Michael was known among homeless people as one who would help others. He would teach the newly homeless how to survive. And he was known for coming to the aid of others. A friend of Michael’s once described how Michael had coaxed a “civilian” off the light rail tracks just before a train came past. The man, who was not homeless, had chosen an unfortunate place to rest after coming out of a nearby tavern. Michael invited the man to his campsite where he promised they could have a drink and talk. In the end, it was Michael’s compassion for others that led to his death. On April 30, 2008, Michael was stabbed to death at age 47. Sacramento Police said he had intervened on behalf of a friend who was being assaulted. It was Michael who took the fatal blows. The friend also was stabbed but recovered.
As is the custom at Loaves & Fishes, a memorial service was held for Michael, two weeks after his death. Through tears, many spoke of how Michael had helped them survive out of doors. Reverend Linda, our chaplain, concluded her remarks by reading from John, 15:13: “This is the greatest love a man can show, that he should lay down his life for his friends.” In time, Michael’s name was carved onto the stone memorial fountain maintained at Loaves & Fishes for guests who have died since Loaves & Fishes was founded in 1983. The memorial already bears some 500 names.
About a year after Michael’s death, the County of Sacramento settled its portion of the lawsuit and in early 2010 more than 300 homeless persons received compensation from the county for their losses. But the City of Sacramento refused to settle and on May 9, 2011, the lawsuit against the city went to trial in the courtroom of United States District Court Judge Morrison England. Mark Merin and Cathleen Williams, the attorneys for the homeless plaintiffs, called 17 homeless or formerly homeless persons who testified that their property had been wrongfully seized and destroyed by Sacramento police officers and other agents of the city. Their testimony was augmented by depositions from five other homeless persons who could not be found during the trial.
On May 24th, the fifth day of deliberation, the jury found that between August 2, 2005, and the date of the verdict, agents of the City of Sacramento had seized and then thrown away or destroyed the property of homeless persons. Moreover, the jury found, it was the longstanding practice that agents of the City of Sacramento failed to give adequate notice to the homeless about how they could retrieve any property that had been stored. And finally, the jury concluded, the City of Sacramento over a long period of time failed to implement appropriate policies concerning the handling of the property of homeless people.
So far, the City of Sacramento has refused to accept the jury’s verdict. It filed, and lost, a motion for judgment in its favor notwithstanding the verdict of the jury. The city also lost its alternative motion, that it be granted a new trial. Failing in those tactics, the city has appealed the decision of the jury to the 9th Circuit Court of Appeals.
Michael Tinius, had he lived, would have been a witness, along with free spirited Traci and the others, in the trial against the City of Sacramento. Ironically, 13 days after Michael’s death, his copy of the United States Constitution was destroyed by a cleanup crew, swept up with all the belongings of one of Michael’s friends. But the legal theory for the lawsuit was precisely that which Michael Tinius had advanced in his interview with me: That by taking and destroying the property of homeless people without proper notice, the City of Sacramento had violated their Fourteenth Amendment rights.
Gremlin, ever the scrapper, had it right from the start.