The “First they Came for the Homeless” group had been camping at the Berkeley/Oakland border near the “Here/There” sculpture from about December 2016 to October 2017. On October 21 2017, BART, which owned the property where the homeless were camping, posted notices stating that the campers must vacate the premises:
Notice of Trespass. To all persons using these premises: You are
trespassing on private property in violation of California Penal Code
602(m) and are hereby ordered to vacate the premises and
PERMANENTLY remove all of your property. All items not removed wtihin 72 hrs of the date of this notice will be removed by BART.
The campers then sued both the City of Berkeley and BART, requesting an injunction that block the city and/or BART from removing them from the premises. On October 23, three pro se plaintiffs, Clark Sullivan, James Blair, and Toan Nguyen filed this the formal legal complaint, and as the Federal Judge overseeing the case later summarized, they “moved for a temporary restraining order to enjoin their removal — initially scheduled to take place on October 24 — from the west side encampment (Dkt. Nos. 1, 2). A hearing on the TRO was set for October 24. At the hearing, attorneys Dan Siegel, and Emilyrose Johns appeared on behalf of our plaintiffs. The court temporarily enjoined the removal of the west side encampment in order to give counsel for both plaintiffs and defendants an opportunity to brief the issues, and set a new hearing for October 31, candidly acknowledging it was doing so without a showing of probability of success on the merits or even a showing that there were serious questions going to the merits (Dkt. Nos. 11, 13).”
This is a PDF document of the First Amended Complaint:
Judge William Alsup, hearing this case, initially allowed the campers to stay for an additional week on the site. After that point they were required to vacate.
Judge Alsup denied their motion for a preliminary injunction with this order:
In denying plaintiff’s request for a preliminary injunction, Alsup said:
BART’s actions, however, do not amount to the criminalization of plaintiffs’ status as homeless. Rather, BART has reasonably invoked California’s trespass statute, which prohibits people from “entering and occupying real property . . . without the consent of the owner” to prevent people from camping on its land. Cal. Pen. Code § 602(m). Indeed, the right to be free from trespass is one of the oldest, and most universally recognized features of the law.
The judge also pointed out what many of us without any legal education would be able to see just through the lens of common sense. Namely it’s a wholly different thing for a city to say (as Los Angeles had tried to in its former policy, later held unconstitutional) that homeless cannot sleep anywhere in the city, versus saying that people must vacate a specific place.
Here we are confronted with circumstances different from any of the decisions cited by plaintiffs. Plaintiffs want to maintain a city within a city, to reside and to camp, day and night, on BART’s property over its objection. Plaintiffs do not seek the narrow dispensation from a total ban on any sleeping, lying, or sitting as in Jones. The relief plaintiffs now seek — court approval to settle indefinitely on the land of a municipal transportation district — would be unprecedented. Under these circumstances, they have not shown a likelihood of success or raised serious questions going to the merits of their Eighth Amendment claim.
The plaintiff’s 8th amendment claim stated that it would be “cruel and unusual punishment” to require them to vacate from this campsite — a claim most of us can easily see the absurdity of.
The First They Came homeless also asserted that BART and/or the city would be violating their Fourth and Fourteenth amendment rights against unreasonable search and seizure, by taking their property. Again, most of us can easily see that this claim is ridiculous, which the judge clarifies. The plaintiffs attempted to use a Los Angeles case to support their claim, but the case in Los Angeles was totally diffferent than the situation at Here/There. In Los Angeles, police were routinely confiscating belongings of homeless people which were even momentarily left on any sidewalk. This was very different from the Here/There camp situation. Shame on the attorneys representing the FTC group for such sloppy attempts to stretch case law to cover this situation.
Plaintiffs further contend that there is an imminent threat that BART will seize their property without affording them an adequate opportunity to object to the seizure in violation of the Fourth Amendment’s prohibition on unreasonable seizures and the Fourteenth Amendment’s due process clause. (but….) We deal here with a far different situation. First, our plaintiffs are seeking to prevent a municipal utility from removing their property from BART, not city land. Second, unlike the policy under attack in Lavan, our plaintiffs have been given notice that their property will be seized and 72 hours to make arrangements to move their property. Third, BART maintains a policy of storing personal property that is taken after an encampment is removed and providing notice of the property’s location and an opportunity to recover the property.
Judge Alsup then stated:
While sympathetic to the plight of plaintiffs, and the problem of homelessness, which is ever more severe, the Court must be faithful to the law. The sad fact is that plaintiffs cannot meet the standard required for the drastic relief sought. The relief requested is far broader than any which has been previously approved.
I hope that this case tends to deter any future actions of this type, which are essentially frivolous, wasting City and BART and thus taxpayer’s resources to combat specious and empty claims. The First they Came group was in essence arguing that neither the city nor BART has a right to remove them from the spot they were camping. In essence they were arguing for a right to homestead on this spot, essentially in perpetuity. Even if they did not use such language, this was the essence of their claim. For a judge to grant a right to people to homestead on public property where this is not and has never been allowed, is extremely unlikely. Neither is it in any way reasonable that a group could force a municipality to give free land to them by committing serial nuisance and serial squatting. The right of the homeless to sleep for a night in a perhaps limited area of public property, which the courts have upheld, is a far different right than that sought — to permanently appropriate public property to construct a semi-permanent “city within a city”.
In essence, to my knowledge, the courts have not yet ruled that the homeless have a right to anything more than to lie down in some public places at night and sleep. There has been no ruling that ever allows them to set up a permanent camp, for instance, and stay in the same spot for more than one night, let alone for days, weeks or months at a time. Advocates for the homeless are disingenuously attempting to stretch the right to merely sleep in public places (where no alternate shelter is available) to the right of homeless to seize those public places on a permanent basis, which in essence removes them from public use. Such a stretch defies logic and common sense and I doubt such would be upheld by any court.
More recently, as this case by the First They Came plaintiffs continued in the court, Judge Alsup again threw back some common sense at those who seem to have taken leave of such.
This week, Alsup “appeared flabbergasted by the suggestion that an enclave of liberal political thought like Berkeley, California, has unconstitutionally persecuted its homeless.” He then went on to express the common sense views that many of us have when we consider the homeless quandary in this and any other city:
“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.
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.
This supplemental order was also issued by Judge Alsup on this case:
The most recent court action in this case, is the Judge’s Order Re Motion to Dismiss, which fully dismisses the FTC’s complaint against BART, according to BART’s Motion to Dismiss request, and partially dismisses but partially upholds the City of Berkeley’s Motion to Dismiss:
There is an article about this ruling here:
The part of Berkeley’s motion that was granted, was the FTC’s allegation that Berkeley violated the ADA by not providing special care when evicting a camp, for one of the camp dwellers who was in a wheelchair.
The Judge’s statement goes on to deny the City of Berkeley’s effort to dismiss 4th and 14th Amendment claims about unlawful seizure of property, but only in the case of 2 individuals, Sullivan and Bredenberg. As well, the Judge denied Berkeley’s effort to dismiss claims it retaliated against protected First AMendment speech, but only against Sullivan and Bredenberg, not in the case of others.
Significantly, however, the Judge also granted Berkeley’s request to dismiss the 8th Amendment complaint against their actions in evicting homeless camps. This is quite important, because FTC and other homeless activists have in essence been arguing for their right to camp anywhere, claiming that removal of any camp whatsoever, is a violation of 8th Amendment protections against cruel and unusual punishment, eg, punishes them for the very status of being homeless. Common sense tells us that being removed from one or even many places, is not the same as being prohibited to sleep anywhere.
The attorneys for FTC must prepare an amended complaint and file it within 21 days from January 19 2018, to address the remaining issues that the Judge has not granted dismissal of, namely those effecting First, Fourth and Fourteenth amendment claims.
If the judge ultimately upholds any of these of Plaintiff’s complaints, the result could be that:
(1) Homeless people could find a “loophole” in laws preventing them from camping in various places, by claiming that they are engaged in a “protest” which has First Amendment protections. Berkeley and all other cities have to be careful not to seem to be retaliating against “protesters.” One way of avoiding the allegation of retaliation, would be to simply create a practical set of laws pertaining to camping in public places, and apply those laws equally to everyone. This points up the basic problem regarding the “homeless quandary” in most every municipality: the thought and policy around this issue has been so poorly developed, that there are really no useful, practical laws in most cities, which both protect the right of homeless people to sleep in (some, not necessarily all) public places, and also protect the right of communities to abate nuisance and prevent mass appropriation of streets, sidewalks and parks for use as residences.
(2) Berkeley and all other cities have to take adequate care when removing camps and moving property of the homeless, so as not to seize property without notice, nor set up a procedure whereby the seized property can be reclaimed.
Note that the fact that Judge Alsup has not dismissed FTC’s entire complaint, and not upheld the City of Berkeley’s Motion to Dismiss, does NOT mean that FTC has won the case on these points. It simply means that at this point at least, there is not enough information available to dismiss FTC’s allegations, so the case will go on and more will be examined to assess if these complaints have any merit.
Here is a document pertaining to Fourteenth Amendment search and seizure issues, which was published by the San Diego County District Attorney’s office:
On page 614 of this document there is instruction about situations where there is “no expectation of privacy.” Page 807 of the document explores areas where there is a “temporary or impermanent residence” which applies to homeless camps/sites, or in a “Squatter’s community” on public property. Selections from this document indicate that the trend in case law is that there can be no reasonable expectation of privacy and thus no Fourteenth Amendment protections for campsites illegally placed on public land, which is what we have in the case of most homeless encampments.
However, this case law, like much of existing law, fails to account for the existence of homeless people and their needs. At the same time, there are serious problems that could result from giving people the same Fourteenth AMendment protections/rights in illegal camps, as they would have in their own private home on private land. One obvious problem is that there is a slippery slope between using public land for illegal camping, versus using public land for illegally storing one’s belongings, to simply using public land to conveniently dispose of unwanted garbage. How would municipalities draw the line between dumped garbage and property “belonging” to someone?
A defendant has the burden of proving that he had standing to contest a warrantless search. In other words, he must first prove that he had a reasonable expectation of privacy in the areas searched. A person seeking to invoke the protection of the Fourth Amendment must demonstrate both that he harbored a subjective (i.e., in his own mind) expectation of privacy and that the expectation was objectively reasonable. An objectively reasonable expectation of privacy is one that society is willing to recognize as reasonable. Among the factors considered in making this determination are whether a defendant has a possessory interest in the thing seized or place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion; whether he took normal precautions to maintain his privacy; and whether he was legitimately on the premises. (People v. Nishi (2012) 207 Cal.App.4th 954, 959-963; defendant held to not have an expectation of privacy in his tent on public land without a permit, nor the area around his tent.) p. 378
A cardboard box, located on a public sidewalk, in which defendant lived, did not have the same reasonable expectation of privacy, and therefore could be searched without a search warrant. (People v. Thomas (1995) 38 Cal.App.4th 1331, 1333-1335.) p.808
Cardboard boxes belonging to a homeless person, being a place where the homeless person stores his or her most private belongings, may not be searched without a warrant or consent. (United States v. Fultz (9th Cir. 1998) 146 F.3rd 1102.) p. 888
A defendant’s tent, located on Bureau of Land Management
property, exhibited a reasonable expectation of privacy under the
circumstances (purposely hidden), and that it was therefore illegal
to search it without a search warrant. (United States v. Sandoval
(9th Cir. 2000) 200 F.3rd 659.)
The Court found that the tent was more like a house than a car for the purpose of Fourth Amendment. The court held that defendant’s tent was a “nonpublic”
place for the purpose of the Fourth Amendment analysis,
even though the tent was pitched on public property. The Court
further found that defendant had no less of a reasonable
expectation of privacy at a public campground than he would have
at a private campground. (United States v. Gooch (9th Cir. 1993) 6
The Ninth Circuit held, however, that the area immediately around
a tent, at a campsite, which is open to the public and exposed to
public view, did not have an expectation of privacy. (United
States v. Basher (9th Cir. 2011) 629 F.3rd 1161, 1169.)
However, in a Washington States case, a tent set up on public
property was found not to be protected by the Fourth
Amendment. (State v. Cleator (1993) 857 P.2nd 306, 308-309.)
The area around defendant’s tent which he had set up illegally
(having been cited there before for illegal camping) in a public
preserve where camping required a permit, which defendant did
not have, was also not protected by the Fourth Amendment.
(People v. Nishi (2012) 207 Cal.App.4th 954, 957-963; no
legitimate expectation of privacy in the area under a tarp next to
A “squatter’s community” on public property is not protected by the
Fourth Amendment. (Amezquita v. Hernandez-Colon (1st Cir. 1975) 518
F.2nd 8, 11-12.)
On March 30 2018, the plaintiffs filed an Amended Complaint:
As reported on the First they Came for the Homeless Facebook page, these are upcoming dates for this case:
XII. Settlement and ADR
The parties have scheduled a further settlement conference with Magistrate Judge Ryu
for May 7, 2018.
XIII. Narrowing of Issues
The parties will endeavor to narrow issues as demonstrated to be appropriate through
Trial is set for May 20, 2019.