Berkeley Can’t Duck Homeless Activists’ Retaliation Claims

SAN FRANCISCO (CN) – The city of Berkeley can’t dodge claims it tried to stifle homeless activists’ First Amendment rights by repeatedly evicting them from makeshift tent camps, a federal judge ruled Friday.

Founded in 2015, a group called First They Came for the Homeless organized multiple drug-free encampments in prominent spots around Berkeley to raise awareness about homelessness and affordable housing issues.

In a 12-page ruling, U.S. District Judge William Alsup found the plaintiffs adequately alleged the city targeted them with evictions from 12 locations during harsh winter months from October 2016 to January 2017 because of their political speech and activities.

EmilyRose Johns, a civil rights attorney with Siegel Yee & Brunner in Oakland, said this ruling will allow the plaintiffs to seek discovery on policies and practices that impact the city’s homeless population.

“We want the city to stop violating our clients’ civil rights,” Johns said in a phone interview. “The practical steps the city needs to take in order to do that is something I think we could articulate more clearly once we understand through the discovery process what policies are in place, who’s directing these practices, and what those changes might look like.”

Beyond advancing the plaintiffs’ First Amendment claims, the judge also refused to dismiss claims the city unlawfully seized property during evictions and failed to give sufficient notice before removing tent camps.

However, he dismissed claims the city violated the Americans with Disabilities Act and the Eighth Amendment’s prohibition on cruel and unusual punishment.

Johns said the plaintiffs have not yet decided whether to ask to amend their complaint, but she believes her clients can plead stronger allegations that would survive a motion to dismiss.

“There are people who have been arrested and suffered severe consequences as a result of arrest and being cited and threatened with arrest,” Johns said. “As a result, I think at the judge’s invitation we are likely to plead that with more specificity and request an opportunity to amend.”

During a hearing earlier this month, Alsup suggested that if he orders the city to turn its soccer fields into homeless camps, it could attract more homeless people to Berkeley from across the country and burden city taxpayers.

On Friday, Johns said she while she understands that concern, she also believes it is based on an “uninformed fear.”

“People want to stay in their communities,” Johns said. “A lot of people who find themselves unsheltered now have the hope that they will be able to get their lives back on track. They don’t want to do that in a foreign place. They want to do that in their home.”

In an email, Berkeley spokesman Matthai Chakko noted the judge has not yet granted the plaintiffs class certification and that no evidence has been presented in the case yet.

“The city is confident that once the facts are presented, it will prevail on plaintiffs’ remaining claims regarding unlawful seizure of property and First Amendment retaliation,” Chakko said.

Lead plaintiff Clark Sullivan sued the city of Berkeley and Bay Area Rapid Transit, or BART, in October 2017 to block the group’s eviction from a South Berkeley encampment. Alsup denied the group’s request for an injunction, but ordered the city to submit plans to “shelter substantially” all of its approximately 1,000 homeless residents this winter.

The city replied in November that it lacks the resources to house most of the estimated 664 individuals that lack shelter on any given night in Berkeley.

Because the plaintiffs were already evicted from BART property in early November, Alsup dismissed the transit agency as a defendant in the case on Friday.

The judge gave the plaintiffs until Feb. 9 to file a request to amend their complaint.



%d bloggers like this: