Sympathetic Judge Rules Against Berkeley Homeless Camp

SAN FRANCISCO (CN) — A sympathetic federal judge Tuesday refused to stop the eviction of dozens of homeless people from a 10-month-old camp on the Berkeley-Oakland border.

“Judges are sworn to uphold the law,” U.S. District Judge William Alsup said in court Tuesday. “I wish the law was more generous to the poor than it is, but there are laws that support property owners, and the judge has to honor his oath and cannot just follow his heart. He’s got to follow the law.”

Alsup last week granted a temporary restraining order to stop the removal of a homeless camp near the Here-There sign on a public green space outside the Ashby BART station in South Berkeley.

Residents of the camp and their advocates say the encampment is a model community that prohibits drugs and alcohol, adopts rules by consensus and is supported by the local community.

But Bay Area Rapid Transit, which owns the property, and the city of Berkeley, which maintains it, say the camp has generated numerous complaints about public health concerns, piles of garbage, drug use and public sex. The city and BART say the campers are also violating numerous laws, including trespass laws, which BART cited as the basis for its 72-hour eviction notice on Oct. 21.

Lead plaintiff Clark Sullivan et al. say the impending eviction would violate the Eighth Amendment’s prohibition of cruel and unusual punishment and be an unlawful seizure of property in violation of the Fourth and Fourteenth Amendments.

After a Tuesday morning hearing, Alsup denied the motion for a preliminary injunction.

He found that cases cited by the plaintiffs, such as the 2006 Ninth Circuit ruling in Jones v. City of Los Angeles, involved much broader policies that would have deprived homeless residents of any place to live or perform necessary daily activities.

“Plaintiffs do not seek the narrow dispensation from a total ban on any sleeping, lying, or sitting, as in Jones,” Alsup wrote. “The relief plaintiffs now seek — court approval to settle indefinitely on the land of a municipal transportation district — would be unprecedented.”

Alsup also found the fact that BART gave the homeless campers 72 hours notice and agreed to hold some of their seized possessions for up to 90 days undercut arguments that the eviction would be an unlawful taking of property.

Plaintiff James Blair, who has lived at the camp for 10 months, said being forced to move will cause serious hardships for him and other residents.

“They allow you to cart away what you can carry on your back and throw the rest in the Dumpster,” he said after the Tuesday hearing. “It makes you lose the few possessions you own. I lost my passport in the last eviction.”

For this eviction, Berkeley has agreed to hold all seized property for safekeeping for at least 14 days. It promised to hold items necessary for shelter for 45 days and items that appear to be worth at least $100 for 90 days, according to an eviction notice cited in Alsup’s ruling.

Blair said he rented in Berkeley for 22 years until about a year ago, when rent became too high to afford on his Social Security disability income.

Sullivan, Blair and their co-plaintiffs are represented by Dan Siegel, a civil rights attorney and former Oakland mayoral candidate. Siegel urged Alsup on Tuesday not to let government agencies punish the homeless rather than resolve underlying issues that have led to the housing crisis.

“If the courts take the position of enforcing people’s constitutional rights not to be punished or criminalized for their involuntary status, then the public agencies will have to do something about it,” Siegel said. “They’ll find solutions.”
Thirty-two percent of Berkeley’s 976 homeless people were housed in shelters at the beginning of the year, according to the plaintiffs’ motion for an injunction.

Savith Iyengar, with the Berkeley City Attorney’s Office, told Alsup on Tuesday that the city has 138 shelter beds available for the homeless.

Asked why the city couldn’t create a space for homeless people in a public park, Iyengar said the city is “striving to find locations” to house its homeless, but has an obligation to maintain public parks and spaces for all of its residents.

Iyengar added that the City Council has formed an ad hoc committee to tackle the homelessness problem.

Alsup replied: “It will be cold comfort to them to hear you’ve got a committee” if people are forced to vacate the camp.

When asked why some of the homeless campers can’t move to a less expensive area, Siegel said moving to a new place with no family, friends or support network is not easy for people living on minimum wage or disability income.

“Many people feel rooted here,” Berkeley resident and homeless rights advocate Carole Marasovic said after the hearing. “To them this is their home, even if they are homeless.”

Siegel pleaded with Alsup to grant the injunction so government agencies can work out real solutions to homelessness instead of “kicking it down the road.”

But Alsup said that though he is sympathetic to the plight of those living on the street, he doesn’t see a viable solution coming anytime soon.

“You say we need to come up with a solution,” Alsup said. “If I thought there was one, that would be a more appealing argument, but I don’t see that coming down the road as a practical plan.”

The group that started the camp in December 2016 is called First They Came For The Homeless. Its co-founder Sarah Menefee said the group has been forced to move its camps at least 17 times in the past three years.

The purpose of the “model” encampment that rules by consensus and bars drugs and alcohol is to provide a supportive community for people in a tough situation, she said.

“It’s a chance for them to get stable,” Manefee said.

Manefee, a formerly homeless resident of San Francisco, said the group was able to get a portable toilet and wash station to the Berkeley site without the help of the city.

“If they raid this camp, it will scatter disabled people, people in wheelchairs,” she said. “If this community is broken up once again, all this progress the individuals made will go out the window.”

Alsup ordered BART to issue a new 72-hour eviction notice that will give the campers a chance to appeal his ruling and seek emergency relief from a higher court.

On Wednesday, Alsup ordered Berkeley to submit a plan by Nov. 28 on how it will “shelter substantially all of Berkeley’s homeless” during the coming winter. The judge also asked the plaintiffs to submit an alternate proposal for sheltering the city’s nearly 1,000 homeless residents.

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