Above Photo: By Garrett MacLean for the Guardian
They risked jail to seek justice because to live without water means no bath time for your kids, no cooking and no usable toilets. As the city of Detroit cut water to 83,000 homes since 2014, nine activists put their bodies on the line to protest
In 1964, while still in her early twenties, Marian Kramer sat at a lunch counter in Monroe, Louisiana, and was served a tuna fish sandwich and a glass of dishwater.
A committed civil rights activist, Kramer would regularly participate in integrated lunch counter sit-ins, organize picket lines and register black people to vote. For this, both the Ku Klux Klan and the police were after her.
The first time Kramer drove an automobile was because of the KKK, in fact. While being chased by the hate group, the original driver of the vehicle had lost her nerve and Kramer, never one to give up, took the wheel and drove to the house of a black farmer, where they were hidden.
When the owner of a local store shot at a young black man, Kramer helped organize a picket line, a full-on boycott. For her trouble in facilitating the sea change of human rights for African Americans in the 20th century, the police threw her into a recently emptied garbage truck, the walls dripping with the sludge from the trash of a nation. She was placed in jail and, alongside other leaders, spent eight days and nights in solitary confinement. She was charged with disorderly conduct.
But that’s ancient history. Isn’t it?
More than 50 years and the turn of a century later, Kramer, now 73, sat in a chintzy Detroit courtroom charged with the exact same offense. Her co-defendant, an ordained Methodist minister named Bill Wylie-Kellermann, sat next to her.
Kellerman had a similar record, having stopped counting at 50 how many times he had been arrested for acts of civil disobedience (he no longer kept track because he saw it as “a form of idolatry”). Over the years, he had been dragged out of government meetings limp, had used his own blood as a prop in demonstrations, and had broken into military institutions on Easter to protest atomic weapons – all of this while preaching in some of the oldest churches in the US.
Together, they made a near complete picture of American activism in the 20th century.
This time, they had been arrested for blocking private water shutoff trucks in their hometown of Detroit. Along with seven others and a host of onlookers, Kramer and Kellerman linked arms, sang songs and prayed while obstructing the only entrance to Homrich Inc, the private company hired to perform the deed. Only a handful of shutoffs were performed that sweltering summer day, compared to the usual 400 or so.
In 2016, more than one in six Detroit households had their water cut off, 83,000homes over the past three years. In defiance of the status quo, the group that would come to be known as the Homrich 9 would use their bodies and lives as the collateral for the sins of a nation.
And after nearly two years, they were finally receiving their day in front of a jury for their actions.
When reporters come to places like Detroit, their articles often read as simple catalogues of misery – records of the mute suffering of the poor and dispossessed. While it’s true Detroit has no shortage of wretchedness, taken together these stories paint the picture of helpless people who are acted upon, people with no agency.
Spend some time here, and a different narrative emerges.
This story could be about Jamie Brown, whose water was shut off this year during the 80-degree days of June. A sleazy landlord had lost the home to foreclosure but was still collecting rent from an unknowing Brown (a common story in Detroit), and the water was shut off. She undertook her own small act of disobedience and had the water turned back on illegally (which is why her name is changed here). She has two children, seven and 10, their birthday cards hanging on the mantel in her modest bungalow. If the state discovers children are being raised in a home without running water, it is grounds to take them.
This story could be about Nicole Hill (her real name), who was cut off in 2014 because of a clerical error. A squatter had lived in her home before her, amassing a $5,000 bill which Hill was now responsible for, although she didn’t know it. Her water was shut off and she lived without it for weeks, flushing the toilet with dishwater, filling up drinking jugs at the homes of relatives and sending her children to live elsewhere, lest the state take them. Soon after, she began working with Kramer to help others in the same situation.
This story could also be about Nicole Cannon (her real name, now deceased), an elderly woman on a fixed income of $700 a month, whose water bill became inflated by a leak in her public housing home that the landlord didn’t repair. The bill followed her as she moved, and she was required to pay an unaffordable $260 a month – almost 40% of her income – before her tap went dry. She agreed to tell her story in testimony to the US Congress.
This could be a story about water shutoffs and the misery of a city. It is not. This is a story about a group of people who saw an injustice and did something about it, who put their bodies and freedom on the line for an idea. This is a story about people who put the system on trial – one that, despite being located in the wealthiest nation the world has ever seen, is shutting off water to pregnant women, the elderly, children and those with grave illnesses.
And this is a story about how they won.
By the summer of 2014, the city of Detroit was roiling with water shutoffs – 3,000 every week – and beginning to attract international attention. Sometimes whole blocks were disconnected in “militaristic” fashion to those three months late or $150 overdue.
But when the mass shutoffs began in that year, they were ordered under the direction of an emergency manager, not an elected city government.
The state’s emergency management law provides broad leeway for managers to cut pensions, void union contracts and privatize public assets – every aspect of local government – as well as order running water be cut off to tens of thousands of people. Disposing of every elected official in Detroit, Michigan’s governor appointed Kevin Orr, of the law firm Jones Day, who ordered the shutoffs.
A trial was, as Kellermann put it, “the last vestige of democracy in Detroit”.
Feeling a jury of their peers was the only venue left for Detroiters to cast a vote on the mass shutoffs, the Homrich 9 set out on the morning of 18 July 2014 to get arrested.
Just as the sun was rising over the Great Lakes – the planet’s largest source of freshwater, less than four miles away – Kramer and Kellermann, along with approximately 30 activists, assembled in an industrial area in front of the Homrich Company to pray and use their bodies to trap shutoff trucks inside the fenced parking lot.
Just over a week earlier, nearly a dozen people had been arrested practicing similar civil disobedience in the exact same spot. But charges had been dropped as the arrests were seen as “rough”, and the youngest person arrested, an ordained minister and Kellermann’s wife, was 57 years old at the time.
After seven and a half hours in the July heat, Kramer and Kellermann were arrested with the other seven, still standing in front of the entrance to the company. By then they were surrounded by a group of hundreds holding signs with slogans such as “The measure of a society is how it treats its most vulnerable”, and singing songs of faith and protest.
This time, the police had the courtesy not to place Kramer in a garbage truck. She was cuffed with zip ties and put on a bus headed for Mound correctional facility, where she was released on bail. Three days later, the city’s emergency manager announced a “pause” on water shutoffs that lasted nearly a month, likely bowing to pressure from the Homrich 9 and other activists.
Now, after nearly two years, Kramer and Kellermann sat in front of a prospective jury on the first day of their trial.
In raucous support, a chorus of school board members, clergy in the garments of their faith and silver-haired activists packed the room. Others in the Homrich 9 also sat in the gallery: teachers, a music tutor, a professor, a homemaker, preachers.
The prosecution had fought to try the defendants separately, at an incredible cost to the state – although all nine were on the same police report. The move is seen by the defense as an attempt to foil any political momentum gained by trying all at once.
The prosecution had also dropped charges against Baxter Jones, a high school teacher who suffered a horrific car accident, has a difficult time speaking and is in a wheelchair. The defense guessed this was an attempt to create sympathy with the jury. (The Detroit law department has refused to comment for this story.)
Kramer and Kellermann are to be judged first, by the seven people now seated in the jury box.
One of the prosecuting attorneys asks the jury: “Have any of you had negative experiences with the city?”
Both the jury box and observer’s gallery erupt in laughter.
“Aw man,” one juror responds. “I’m going to be talking all day.”
The final jury reflects the demographics of the city, at more than 83% black. Every member is a person of color, and at least three have had a relative or their own water disconnected.
It also means Kramer’s 1960s activism had a direct hand in ensuring each and every member of the jury, at least on paper, can vote, can use the drinking fountain in the hall (which is not working) and sit as a member of this very body.
When the prosecutors have finished with their opening statement, it’s Kellermann’s turn. He is acting as his own attorney. Both he and Kramer have waived their right to present a defense of “necessity”, meaning they can’t offer evidence to build a case that the water shutoffs presented an immediate danger requiring extraordinary action.
They can, however, finally present evidence of their motive in front of a jury.
“Is there anyone in the group that’s unfamiliar with the tradition of civil disobedience, where people undertake an action even though they might be arrested for it, like in the freedom struggle, or labor movement, or the women’s struggle, or even back to the struggle against slavery?”
The jury answers no.
“I do hope and pray,” said Kellermann, “in fact, that both gospel and law serve justice –”
“Objection!”
In an attempt to stifle momentum and limit the discourse, the prosecution will also object to nearly everything providing context to the day of the protest.
“You’ll hear testimony about a statement from the National Nurses Union that was released the day before, and read –”
“Objection!”
“One of our actions was also to deliver a letter from United Nations indicating that refusal to turn peoples’ water back on, and shut the water off, was a violation of human rights –”
“Your honor, I have to object.”
Many Americans would be alarmed at a water bill that’s $75 a month – nearly twice the national average. Yet that’s exactly what Detroiters are enduring. In the past 10 years, the water rate in the city has doubled.
More than 50% of the citizens effected by the shutoffs have been children, elderly or people with a disability.
Storied civil rights attorney Alice Jennings testified for the defense to this fact, and that although the water department maintained residents were properly notified before shutoff, her meticulous research for testimony requested by the US Congress suggested otherwise.
“None of the plaintiffs [in Lyda] got phone calls or any notice,” Jennings said in court that day.
“Do you know what kind of clothing they wore?” a prosecutor asked, trying to paint residents as spendthrift leeches.
“I would find that offensive.”
“Do you know if they pay for cable?”
“None of my clients had cable, not one of them.”
When asked under oath how she was living without water, Nichole Hill replied: “Like an animal.”
As the shutoffs reached a crisis, “water stations” were set up across the city by volunteers and delivered to the elderly and infirm. Bottled water was donated and trucked in from around the nation, and in some cases internationally.
On the day of the 9’s arrest, protests also filled the streets downtown. The National Nurses Union organized a sister protest decrying the shutoffs, and would eventually be supported by thousands, including the movie star Mark Ruffalo.
Before they were handcuffed, and as protest shook downtown, the 9 presented three letters in an attempt to sway the conscience of the company to stop the disconnections.
The first letter was from the United Nations, written by special rapporteur Catarina de Albuquerque, condemning the water shutoffs as a violation of human rights.
“The people who were being deprived to access to water were people who could not afford to pay,” said De Albuquerque later. “More than 40% of Detroiters live below the federal poverty line – including 60% of children in the city – and Detroit has the highest concentration of poverty in the nation. “That is a violation of human rights.”
She said she had never seen anything approaching the scale of shutoffs in Detroit. “There is no comparison at all. At all,” she said. “Water is a human right, and it was recognized as such by the United Nations, by the UN general assembly, by the human rights council, with the support of the US.”
The second letter was co-written by Kellermann and signed by five bishops, 80 preachers from the city and another 60 from around the US, also condemning the shutoffs. “As religious leaders and communities, we join our voices to say: in the name of humanity, stop the shutoffs.”
And the last was by the National Nurses Union, with a representative present, saying the shutoffs posed a grave health crisis, would increase illness and amount to death.
“We absolutely condemn those shutoffs and we know they are literally putting people’s lives at risk,” said Bonnie Castillo, director of health and safety for the organization, in a telephone interview. “We live in one of the wealthiest industrialized nations in the world where we are denying people a very basic need of water – what does that say about our society and our values?”
What the protesters were not asking for was free water. “None of us were asking for [water] to be free. That has to be paid for by all of us,” testified James Perkinson on the first day of trial, professor at Ecumenical Theological Seminary in Detroit and arrested with the others.
“The protest was asking for a water affordability plan that would correlate the payment of water to income, recognizing that 40% of Detroit is in poverty.”
The water affordability plan was developed in 2003 by the organization Kramer co-founded, Michigan Welfare Rights, in conjunction with experts, members of the Detroit city council, and the staff of US congressman John Conyers. The plan was based on citizen’s ability to pay as a percentage of income and funded by interest gleaned from delinquency fees. This last bit was crucial, as it would avoid complications with Michigan court precedent affirming differing utility rates are effectively a tax, and taxation is the providence solely of the legislature.
The framers of the affordability plan were able to stay on the correct side of the law while also proving the plan increased both collections and revenue. Incidentally, its price, at just over $5m, was almost exactly what the city was paying Homrich to perform water shutoffs.
“So the research that was done showed that the water affordability plan would actually increase the revenues in the city?” Kellerman’s attorney John Royal asked Joanne Watson under oath. (He’s the head of the Michigan chapter of the National Lawyers Guild and, like all other defense attorneys, working pro bono. She’s a former Detroit city councilwoman tasked with developing and passing the plan.)
“That’s exactly right. It was not something that was a giveaway. No one advocated that people be given free water.”
In 2006 the plan was adopted by the Detroit city council, the legislative branch of the city, and partially implemented by the executive branch.
Under emergency management, the plan was completely killed.
During the weeklong trial, the prosecutor would repeatedly ask, rhetorically, who was on trial for disorderly conduct: Kellermann and Kramer for breaking the law, or the city, the water department and emergency management – an attempt to keep the jury focused on the actions of the defendants without context.
“The disorderly conduct was the contractor turning off the water for poor people,” councilwoman Watson answered.
“If I understood you right, Ms Watson,” the prosecutor asked after some rapid sparring, “you say that basically if there’s a good excuse, it’s okay to break the law?”
“I didn’t say that.”
“Well, you just gave the reason why you think it’s OK, right?”
“It used to be the law of the land to catch runaway slaves and black people – should we have followed that law?”
On the final day of testimony, after a week of activists, shutoff citizens, arrestees and other experts testified in favor of Kramer and Kellermann – and just before Kellermann and Kramer both took the stand – the prosecutors asked for a mistrial.
They argued: “It’s our position that the jury has been tainted by all these sympathy stories about people who lost their water.” The motion was flatly denied by Judge Ruth Anne Garrett.
Kellermann took the stand first, but was largely stymied by prosecutorial objections. Kramer was the last witness called. Both agreed their democratic options had been voided by emergency management, and civil disobedience was their final recourse.
“So in our legal system, where we vote, was there any way to have a vote to stop the water shutoffs?” Royal asked.
“No,” Kramer testified.
How could this be?
Michigan’s emergency manager law, PA436, is likely the most permissive financial emergency law in the US, offering managers not just control of financial decisions, but also control of policies that don’t touch finances.
As whispers of what would become the largest municipal bankruptcy in US history began to gain credence, the newly strengthened law allowing emergency managers to be put solely in charge of cities was put to a popular vote by the citizens of Michigan.
It was handily struck down by a vote of the people.
But just a month later, a new law with marginal changes was rammed through the legislature, and this time a financial appropriations rider was attached. The financial rider assured citizens wouldn’t get another chance to vote on the law as the state constitution forbids popular votes on bills that appropriate money, making the law “ballot proof”.
Majority black cities such as Flint, Benton Harbor and Detroit received emergency managers while many majority white communities, ones in comparable or greater financial distress, didn’t see them.
When Detroit received an emergency manager, half of the black population in Michigan had lost the right to elect their local leaders due to the policy, while less than 3% of the white population has been affected. Activists and lawyers argue this uneven application amounts to the subtly subversive disenfranchisement of the Jim Crow era.
This is the crux of the challenge to the law now being considered for review by the US supreme court. Attorneys including Julie Huwitz, representing one of the 9, argue the law has been applied unevenly to black majority cities and school districts across the state, in violation of the Voting Rights Act – the same law Kramer literally fought the KKK for as a young woman.
One of those majority black cities was Flint, where one of the greatest US environmental disaster of the 21st century – the lead water crisis – had emergency management at its root. Two emergency managers from the city, Darnell Earley and Gerald Ambrose, have been charged with various felonies in connection with the disaster, including the charge of involuntary manslaughter for Earley.
Both Kramer and Kellermann were instrumental in organizing against the law.
“It is so ironic to me that Marian Kramer, who started off her career as an activist, as a young person in Louisiana trying to get the right to vote for African American citizens in an era of Jim Crow segregation, and [now] here she is in 2014 and 2015, struggling against a system where her right to vote has been taken away from her,” Royal, Kellerman’s attorney, argued in his closing.
“And here it is we think we’ve outlived segregation, deprivation, right to vote in the past; we’re fighting the same struggles all over again.”
Sprinkled with scripture and citing both Martin Luther King’s Letter from the Birmingham Jail and Spike Lee’s Do the Right Thing, Royal’s legal argument for acquittal rested on the definition of neighborhood, and whether the industrial area where the protest occurred should be considered as such.
But his real argument was about civil disobedience.
“The problem with this case … is what do you do when the established authorities take your rights away?” Royal continued. “These people chose that the appropriate response, in light of their powerlessness to do anything else, was to engage in civil disobedience. And this is civil disobedience.”
The prosecution’s argument rested on, as usual, a strict interpretation of the law, a broad interpretation of the word neighborhood, and a focus on the events of the day without context.
In his closing, Kellerman made a spiritual argument, an appeal to the conscience.
“You heard testimony about the number of water shutoffs that were going on at that time, 3,000 a week they were trying to do. The prosecutor said that’s irrelevant. Those numbers have people, and lives, and houses and children behind them. That’s irrelevant.
“You’ve heard testimony related to registered nurses saying sanitation and health issues in the city are creating a public crisis. The prosecution said that’s irrelevant.
“You’ve heard other things that we tried to do, attempts to change policy. That’s irrelevant.
“You’ve heard that every elected official in the City of Detroit had been replaced by the emergency manager and had no power to respond. That’s irrelevant.”
His hands trembling, he continued.
“There needs to be a record of the history of conscience in this city. The prosecutor said the city of Detroit is not on trial … The Detroit water and sewage department is not on trial. The emergency manager is not on trial. Homrich Inc, and $5.2m to do shutoffs, is not on trial.”
And then, finally:
“I’m on trial. Marian Kramer is on trial. And I submit that at this moment in history in Detroit, all of us are on trial.”
Just moments before the jury was sent to deliberate, a lawyer came running into the courtroom with a document.
At recess, without the defense team’s knowledge, the prosecution had moved for a complete stoppage of the trial from a higher court – one last, final objection. The prosecution argued the jury had been unfairly influenced by testimony providing context to Kellermann and Kramer’s actions.
The defense team surmised it was because the prosecution would likely lose and Kellermann and Kramer acquitted – and it was politically untenable to have a jury enshrine Kramer and Kellerman as defiant heroes.
The stay was granted and lasted for months. Eventually, the case was reassigned to another judge and the jury dismissed.
The people of Detroit would never get the chance to vote on the actions of Kramer and Kellermann or, as they saw it, the water shutoffs.
Incidentally, the stay was just one day shy of the 51st anniversary of Rosa Parks refusing to give her seat on a Montgomery bus to a white man. She had also been charged with disorderly conduct, a fact not lost on the defendants.
In time, the Homrich 9 would effectively be released on a technicality, that their sixth amendment right to a speedy trial had been violated. The ruling was issued less than a month shy of three years from their arrest. Kellermann would become a grandfather twice over during the course of the trial.
At a press conference soon after, Kramer said: “Did we win? We won a step forward in the process of showing this system that we live up under, that lets this type of injustice go down – turning people’s water off – has got to go. They thought they were going to break us. They couldn’t break us without breaking everyone else.”
The water department would only answer questions via email for this story, but says it now offers a payment plan and assistance to those at 150% below the federal poverty line, just over $36,000 for a family of four. They say this has reduced the number of those “close to at being risk” to about 14,000 accounts just this summer. They say there is the potential for more to enter payment plans, and residents are also now notified twice before shutoff.
But a payment plan is not an affordability plan, and the cost of water bills are still unobtainable for thousands of Detroiters, owing to “structural poverty”. In June of this year the board of water commissioners approved another rate hike, at 1.7%.
While Kramer wouldn’t get another chance to testify in court, she was able to testify in a different manner: at the retirement service of Kellermann, on the Sunday after it was announced the 9 were finally free. Both have vowed to continue the practice of civil disobedience if necessary.
Inside the stone and brick buttressed church, underneath the stained glass images of Jesus Christ, and in front of the baptismal font crowded with bottled water for those who have been shut off, Kramer laid hands on the holy man and spoke alongside others.
“On behalf of the beloved community that struggles for justice and mercy and peace in Detroit – this place where the water goes around,” she said. “Your pastoral leadership and comradeship continue among us as we listen, speak, and act in freedom to confront the powers of death and proclaim the right to the tree of life for all”.
Finally, she lifted her head and said, her eyes hard with divine determination:
“Keep troubling the waters until everyone has water.”