Judge to Jury: Don’t Decide Homeless Protest Case With Your Heart

SAN FRANCISCO (CN) – Wrapping up a four-day trial on claims that Berkeley, California, targeted homeless campers for their speech, a federal judge warned jurors Thursday not to let their compassion cloud their judgment.

“You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy,” U.S. District Judge William Alsup told a jury of seven women and one man before they retired to a back room for deliberations.

Throughout the trial, jurors saw and heard evidence that Berkeley lacks enough shelter beds to house all of its estimated 1,000 homeless residents, but “whether the city of Berkeley has or has not done enough to solve the problem of homelessness” is not the issue to be decided in this case, Alsup said.

Jurors must decide if the city singled out three homeless campers for their political activism and if the city seized and destroyed their property without first providing meaningful notice and an opportunity to be heard.

In closing arguments, civil rights lawyer Dan Siegel, of Siegel, Yee & Brunner in Oakland, showed jurors a photo of a huge pile of garbage in an industrial area of West Berkeley. That photo, he said, shows the city took no action against problematic encampments in West Berkeley as it raided his clients’ camps at least eight times between October 2016 and January 2017.

“We think it’s clear the enforcement was targeted and selective,” Siegel said.

Berkeley Deputy City Attorney Lynne Bourgault countered the photo proves nothing, especially since that location is a frequent target for illegal dumping. Bourgault cited testimony by a city police officer and public works employee who said they cleared other encampments throughout the city during that time.

Bourgault accused the plaintiffs of trying to focus the jury’s attention on a lack of enforcement actions against West Berkeley encampments because their “evidence of First Amendment activity is so thin.”

The three plaintiffs – Clark Sullivan, Adam Bredenberg and Benjamin Royer – were members of a group called First They Came For The Homeless, which organized multiple drug-free encampments in prominent spots around Berkeley to raise awareness about homelessness and affordable housing issues.

Bourgault reminded the jury of their instructions, which state “unlawful conduct,” including illegal camping, “is not excused merely because it is also a protest.”

Siegel noted how his clients chose high-profile places to camp, including on the steps of City Hall, to oppose city leaders’ failure to act on their proposal to establish a sanctioned camp on city property with bathrooms, hand-washing stations and trash pickup services.

Siegel reminded jurors how his clients live-streamed encampment sweeps, made and displayed protest signs, talked to the media, attended and spoke at City Council meetings and wrote published opinion pieces critical of the city government.

According to the jury instructions, the city cannot be held liable if jurors find the city would have taken the same actions against the homeless campers even if they were not protesting.

Bourgault ticked off a long list of reasons why the camps had to be removed, arguing it had nothing to do with the group’s political activism. She said the campers urinated and defecated in public, blocked sidewalks and entrances to buildings, interfered with businesses and generated complaints from residents.

“All these members of the public had to do was not be in inappropriate locations where there were problems with their encampments,” she said.

In his final pitch, Siegel urged jurors to “do the right thing” and “make a difference” not just for people in Berkeley, but for people across the nation.

“We’re not asking you to punish the city of Berkeley,” Siegel said. “We’re asking you to provide a remedy for these plaintiffs.”

He added: “Our hope is this will make the city more responsive. And if the city of Berkeley is more responsive, the city of Oakland may be more responsive. The city of San Francisco may be more responsive, and we can be on our way to finding solutions for the national disgrace that is homelessness in 2019.”

Nearly 2,000 people experience homelessness in Berkeley over the course of a year, according to a data analysis conducted by Berkeley’s Department of Health, Housing and Community Services. The department recommended shifting the city’s shelter system into navigation centers, which would be open 24 hours a day and provide services aimed at getting people into permanent housing.

City staff also recommended investing more money in homelessness prevention programs and changing zoning laws to encourage more housing construction.

Berkeley spent nearly $20 million on homelessness services in fiscal year 2019, including $9.5 million in regional, state and federal grants along with $3.5 million in one-time funds from the state’s Homeless Emergency Aid Program.

Jurors deliberated an hour Thursday and are expected to continue Friday morning.

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