Jury Must Decide if Berkeley Retaliated Against Homeless for Speech

SAN FRANCISCO (CN) – A jury must decide if the city of Berkeley selectively targeted a group of homeless campers for their political activism, but the city defeated the bulk of a lawsuit claiming it unconstitutionally seized people’s property when clearing encampments.

In a summary judgment ruling issued Friday night, U.S. District Judge William Alsup found the city may have retaliated against a politically active group of campers by targeting them with enforcement while ignoring other camps.

The group, 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.

Evidence shows police cleared the group’s encampments 12 times in three months between October 2016 and January 2017 while leaving other camps in place. A Berkeley police operations plan also established a goal of “deter[ing]” the group “from establishing an illegal encampment on city property.”

Berkeley claims the city targeted the group because it camped in more disruptive locations, not because of its criticism of city policies and politicians. But Alsup concluded that a jury must resolve that factual dispute.

EmilyRose Johns, a civil rights attorney with Siegel Yee & Brunner in Oakland, welcomed Alsup’s decision to advance her clients’ free speech retaliation claims.

“I am really proud that the judge’s order allows us to proceed on our clients’ First Amendment claim,” Johns said. “Protest is foundational to this country, and it is a privilege to use the law to vindicate the rights of some of the city’s most vulnerable residents who stood up for their very right to exist, and who were punished for it.”

A jury trial is scheduled to start May 20.

The judge also advanced claims that the city failed to adequately notify people how to retrieve property seized during two encampment sweeps in November and December 2016.

However, Alsup ruled in favor of the city on class action claims that Berkeley gave short notice before clearing encampments and that it unreasonably seized, damaged or trashed people’s property during camp sweeps.

After reviewing sworn statements and videos of enforcement actions, Alsup concluded that the city mostly followed its policy of providing 72-hours’ notice before clearing camps. The judge also concluded that aside from two isolated incidents of police allegedly crushing a tent and knowingly seizing a person’s bag of clothes, the city gave people adequate time to move their belongings during encampment sweeps.

“These individuals knew that the city would not allow them to keep their property on public property and were on notice that the police would come and require them to move,” Alsup wrote in an 18-page ruling. “Still, they did not timely move the items they wished to keep.”

Johns said she was disappointed that Alsup shot down claims relating to the allegedly unlawful taking of property. An appeal remains an option, she added, but no decision has been made.

Johns also voiced concern about the city’s plan to enforce a new regulation that will prohibit camping on public property between 7 a.m. and 10 p.m. and require campers to keep their property within a 9-cubic-foot area.

The civil rights lawyer said the regulation, set to take effect this month, will make it impossible for disabled homeless people to sleep more than a few hours per night because they can’t quickly pitch or break down tents. She said it would also deny homeless people who work nights the ability to sleep during the day.

“We all know that nobody wants people to live in tents on the side of the road,” Johns said. “Until cities in the Bay Area can provide shelter, housing and meaningful opportunities for homeless individuals, it’s inhumane to enforce regulations like the city is about to enforce.”

The lawsuit started in October 2017 when lead plaintiff Clark Sullivan sued the city 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 during the coming winter.

The city informed the court in November 2017 that it lacked resources to shelter most of its homeless residents, despite spending $3.9 million per year on homeless services.

Berkeley spokesman Matthai Chakko could not be reached for comment Saturday, but he has previously told Courthouse News that the city devotes significant resources to help its homeless population.

The city opened a $2.4 million navigation center in West Berkeley in June 2018, which can house 45 individuals and provides on-site access to mental health counseling and social services. The city has also stated in the past it is working to build an 89-unit affordable housing complex and create another 50-bed shelter with modular buildings.

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