On the same day that activists and supporters rallied together for homeless rights at the Safe Ground Jubilee, attorneys for the city of Sacramento were busy filing a motion to appeal a Federal Court decision in a contentious homeless class action lawsuit.

“Our rationale for appeal is based primarily on procedural and evidentiary rulings that came up in the trial,” Brett Witter, supervising deputy city attorney for Sacramento said Thursday.

The motion for appeal was filed Sept. 14 in the Ninth Circuit Court of Appeals by attorney Chance Trimm, on behalf of the city.

According to court documents, the city is appealing a May 24 Federal Court decision that found the city liable on two of six claims by plaintiffs that the city “had a custom and practice of violating (plaintiffs’) constitutional rights concerning their personal property.”

(Read court documents on Lehr v. City of Sacramento HERE.)

“We’re not appealing the jury’s decision,” Witter said, “instead, we’re challenging the way the evidence was presented to the jury.”

Witter said that, among the issues brought up in the city’s appeal is an amendment made to the plaintiffs’ complaint late in the game.

“(The amendment) came literally a couple of weeks before the trial,” Witter said. “We felt the late amendment was inappropriate. That’s just one of the problems (with the trial) we want to discuss.”

Mark Merin, the attorney representing the homeless class action group, said Wednesday that the city has no basis for the motion to appeal.

“An appeal can only happen after a final judgement,” Merin said. “In this case, there hasn’t yet been one.”

Because the jury decided the city is liable but hasn’t set damages yet, Merin explained, the case is not considered “final” or completed.

Merin filed a motion with the court on Sept. 20 to dismiss the appeal for “lack of jurisdiction.”

The homeless class action against the city began in 2007 when Merin, representing homeless individuals, filed suit in Sacramento Federal Court alleging that homeless plaintiffs’ belongings were illegally taken and thrown away by Sacramento police officers between August 2005 and May 2009.

Once the court made its decision in May 2011, Merin said, the next step should be negotiating a claims procedure to compensate individuals for damages and property loss.

“It’s not just compensation for the actual property,” Merin said. “It’s also loss of use of property. The (class action petitioners) are also entitled to damages for the violation of their rights.”

Merin said there isn’t any way to accurately estimate the final amount of damages, but he estimates the amount may be as much as $1 million or more.

“As long as the case is unresolved, it has a real impact on the many homeless people in Sacramento,” Joan Burke, director of advocacy for Loaves & Fishes, said Thursday.

Burke said that more than 1,000 homeless people in the city are forced to sleep outside every night because there is a lack of shelter space available.

“Anyone forced to sleep outside is subject to arrest,” Burke said. “When people are arrested, they have to worry about their stuff.”

Typically what people have with them when they are living outside, Burke said, are “survival items” – such as clothing, eyeglasses or medical prescriptions – or more sentimental items like photographs and family mementos.

“When you have to minimize what you carry around,” Burke said, “you get it down to what is really most important to you.”

In June, the city filed additional motions for summary judgment – to essentially “cancel” the jury decision – as well as a motion for a new trial.

Both actions were denied by Judge Morrison C. England, Jr., the presiding judge of the case, on Aug. 15.

“(The City) has done all they can to delay the reckoning,” Merin said, “and it just won’t work.”

Witter said that, if the appeal is denied, city attorneys will go back to the City Council to get direction on what to do next.

Merin said he expects the court will make a decision on the motion to dismiss by the end of October.

Melissa Corker is a Staff Reporter for The Sacramento Press. Follow her on Twitter @MelissaCorker.