Sacramento officials say private port-a-potties left for homeless could cause ‘chaos’
Sacramento officials are objecting to the placement of two port-a-potties on city property for use by a camp of about 30 homeless residents, saying that allowing the toilets to remain without a permit could “create chaos” and allow anyone to place personal property on city land.
The city’s position, spelled out in newly filed federal court documents, asks U.S. District Judge Kimberly J. Mueller to reject a request from civil rights attorney Mark Merin that she issue a temporary restraining order to stop the city from removing the portable toilets.
The dispute is the latest legal fight for the city as it deals with a crisis over how to handle a growing homeless population in the region, and comes as private citizens have begun taking it upon themselves to provide food and services such as portable toilets to the homeless.
The court fight stems from two Sacramento women, Janice Nakashima and Robin Kristufek, placing a porta-potty against a fence on city land on the 500 block of North B Street in the River District on Jan. 16.
Nakashima, an artist who lives in Pocket, said she and her husband regularly brought water, socks and other supplies to homeless residents and that she came upon the B Street site a some time ago and discovered it includes disabled residents and families with small children.
“I got so tired of hearing myself complain about, ‘Why isn’t anyone doing anything about potties ...,’” she said. “So I just decided I’m going to get them one.”
Kristufek, a longtime friend and retired public health nurse who also regularly helped the homeless, agreed to help and kick in part of the $360-a-month cost of renting the toilets, a figure that friends are also assisting in paying with donations.
“To me, it’s a public health issue,” Kristufek said.
The first toilet lasted nine days before police called the company that owned it and ordered it removed.
“The toilets were observed by Sacramento police not long after their placement,” the city’s legal filings say, and police called the company that owned them and asked for them to be removed because there was no permit for them to be there.
The port-a-potty was removed Jan. 25, but the women arranged for two more to be placed on the property Monday, and recruited Merin, a prominent advocate for the homeless who donated his services.
“I went out there to see what the situation was,” Merin said. “It’s not hurting anybody.”
Merin filed a complaint in federal court asking for a temporary restraining order to keep the city from removing the toilets again, saying the removal is a “cruel, inhumane, illegal and unconstitutional policy.”
The toilets provide “the only sanitary way that a community of homeless persons in the immediate area can dispose of their human waste,” Merin’s filing says, adding that the homeless community had agreed to clean and protect the toilets.
Four of the homeless residents filed declarations with the court saying that the closest available toilets are about a mile away at a McDonalds or Denny’s along Richards Boulevard.
“They are both close to a mile away and I would try to get there when I had to go, but because of the distance and because of the difficulty of getting there at night and in bad weather, I am often required to just go outdoors,” Brandon Eugene Allen Sr., 42, wrote to the court.
Allen said he was “thrilled beyond belief” when the first port-a-potties showed up, and agreed to help maintain it until police ordered it removed.
“Now I am left to use the outdoors as my bathroom even though it is embarrassing and I would rather not have to do that,” Allen wrote. “... Please, judge, give us a little dignity. I know you can’t order the city to give us shelter, but at least let private citizens give us a sense of humanity by allowing the placement and servicing of the port-a-potty.”
The judge has not set a hearing on the request for a temporary restraining order, but the city says allowing the toilets to remain without a permit would subject the city to liability issues, including the possibility of being sued under the Americans with Disabilities Act.
The city filing notes that it currently is facing a lawsuit in federal court over allegations that inaccessible portable toilets were placed at two festivals at the city’s Miller Regional Park. If some of the homeless residents are disabled, the city says it’s worried it may face further liability.
If the restraining order is allowed, the city says, “the city is then faced with the prospect of unpermitted toilets being placed throughout the city” and the “consequential legal liability would be staggering.”
“Granting the TRO and allowing citizens to place personal property wherever they please would create chaos insofar as the city’s ability to regulate land use,” lawyers for the city wrote.
A similar dispute occurred with Sacramento County officials in recent months after a Sacramento engineer placed a port-a-potty near Garden Highway to prevent human waste from being dumped in the Sacramento and American rivers, where numerous homeless camps exist without access to public toilets.
That toilet was removed, but the engineer says he has since received a permit and will place a port-a-potty on county land Friday near Highway 160 and Northgate Boulevard.
A survey a year ago found there are more than 5,570 homeless people in Sacramento County, most of them in the city, and a report by the Sacramento Regional Coalition to End Homelessness found that in 2018 132 homeless men and women died in Sacramento County, the highest number on record.
The city has been targeted with other legal actions, including a 2018 federal lawsuit filed by the coalition, homeless resident James Lee Clark and the Sacramento Homeless Organizing Committee that killed a city ordinance against panhandling.
The city repealed the ordinance, and late Wednesday the plaintiffs in that case filed a motion with the federal court seeking $321,621.33 in attorneys and legal fees.
This story was originally published February 6, 2020 at 10:54 AM.