SAN FRANCISCO (CN) – A federal judge on Thursday appeared flabbergasted by the suggestion that an enclave of liberal political thought like Berkeley, California, has unconstitutionally persecuted its homeless.
"You're saying even the most progressive city in America is violating the Constitution day in and day out," U.S. District Judge William Alsup said. "You want me to adopt a constitutional theory that would go that far?"
Alsup was referring to a class action filed against Berkeley by a group of homeless people evicted from a South Berkeley encampment last fall. Both sides appeared in court Thursday to hear a motion to dismiss.
The plaintiffs want a court order requiring the city to halt camp evictions and set aside open space for homeless people to sleep in cars and tents.
Alsup said if he orders Berkeley to start converting soccer fields to homeless camps, it could turn the city into a magnet that would attract more homeless people to the Bay Area.
"How many people could come to Berkeley sidewalks and say, 'Until you give us a decent place to live, we're going to camp out on the sidewalks,'" Alsup asked.
The judge said while he has sympathy for the homeless, he doesn't think it's fair to make Berkeley taxpayers, some of whom work hard just to make ends meet, shoulder the cost of sheltering every homeless person that decides to settle in the city.
"Now you're saying in addition to paying your own rent, you have to pay for all the people from Indiana and Ohio who don't want to live in the cold weather and come to live in Berkeley," Alsup said.
Mike Zint, co-founder of First They Came For The Homeless, which has organized multiple drug-free encampments in Berkeley, rejected the judge's premise that stopping the criminalization of homelessness and displacement would draw more homeless people to Berkeley.
"Homeless people don't generally leave," Zint said in a phone interview after the hearing.
The political activist and formerly homeless man, who now lives in Oakland, added that despite Berkeley's reputation as a liberal bastion, those who control the city's levers of power tend to favor developers and the status quo over affordable housing and human compassion.
"If it was progressive, there would not be a homeless problem," Zint said. " They can sit there and be liberal and progressive all they want, but they don't have humanity.”
The plaintiffs claim the city has deprived them of liberty, property, and due process while subjecting them to cruel and unusual punishment in the form of persecution for being homeless. They also claim the city targeted one specific group for its political activism and outspokenness about issues of affordable housing and homelessness.
Berkeley says it respects the rights of homeless people, giving 72 hours’ notice before any eviction deemed necessary for public health and safety and holding property seized during evictions for up to 90 days.
But civil rights attorney EmilyRose Johns, of Siegel Yee & Brunner in Oakland, said the city doesn't always give sufficient notice before displacing homeless campers. People involved with First They Came For The Homeless also describe having lost all of their possessions in past raids.
In November, Alsup ordered the city to submit a plan to "shelter substantially" all of its estimated 974 homeless residents this winter. The city replied with a declaration stating that it lacks the resources needed to house most of the estimated 664 people who lack shelter on any given night in Berkeley. That's despite the city spending $3.8 million annually to tackle homelessness.
Co-defendant Bay Area Rapid Transit asked the judge to dismiss it as a defendant in the suit because the plaintiffs were already removed from a piece of BART-owned property in South Berkeley.
In late October, Alsup denied the plaintiffs' motion for an injunction to block their removal from a South Berkeley encampment near the Ashby BART station.
Alsup indicated on Thursday that if he grants the city of Berkley's motion to dismiss, he will likely do so with leave to amend.
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