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Sanctioned Homeless Encampments in Berkeley? Not Likely.

The Homeless Commission in the City of Berkeley had recommended that the city essentially “give land” to the Homeless Group known as “First They Came for the Homeless.” They stated:

Adopt a Resolution that the City of Berkeley provide the First They Came for the
Homeless encampment with a location for a tent city which will not be subject to
removal absent a major legal violation by the entire encampment community, in addition to working on a longer-term, broader policy that impacts other encampments.

FTC At City Hall

See their letter here:

First They Came Homeless Camp Agenda item 38a Feb 13 2018

This approach would be quite foolish. First, it would be bad policy to “give land” to one specific group of homeless persons/political activists, and thus to show bias towards one particular group. This could be viewed as discriminatory and result in legal problems for the city. Second, it would be foolish to “give land” to a group which more than any other group of homeless or homeless activists, has shown a propensity to sue the city. Third, it would be bad policy to in essence “give land” to any group of homeless at all. If the city has trouble “evicting” campers from illegal encampments which have become problematic, imagine the difficulty in evicting the same campers from sites which the city has “given” them.

The city of Albany faced this dilemma with the campers at ALbany Bulb, a place it had for many years directed homeless people to go towards. By leaving campers alone there and letting them camp, by not enforcing no-camping rules at this public park, the problem of “homeless” persons camping there grew and grew, and became a serious problem, to the point where Albany had to shut the camp down. IT was quite expensive to do that and involved a lawsuit and the city having to provide temporary shelter trailers, which were actually barely used, as well as having to make payments to all the campers. This is a good example of what cities should NOT do, and clarifies why it’s dangerous to “give” land to any group of people to camp on, for who knows how long…maybe the rest of their lives?

Fourth, it would seem that the Homeless Commission had no expectations of those given a place to camp, and sought no details about how the camp would be used, rules on how long people would be able to stay. Hence they were fooishly recommending the implementation of a tent city which could quite possibly lead to people moving in and deciding to permanently squat or homestead in this spot indefinitely. Without rules clarifying how long campers could stay, why would they be motivated to not stay indefinitely? We have seen and heard stories of “homeless” in Berkeley who were apparently “homeless” for 6 years, 9 years…what’s to stop people from making “homelessness” in tents a permanent way of life, if the city were to enable this?

Fifth, the establishment of an sanctioned camp, would not necessarily result in an improvement in problems continually found elsewhere all around the city, where people are camping in public places in a variety of areas. Absent any way to compel campers to move from unsanctioned camps to a sanctioned camp, the possibility is very real that a sanctioned camp would not not alleviate or reduce problems of illegal camping in a variety of areas around the city, while creating the new problem of people possibly becoming more entrenched in one particular site. THis issue was raised by Councilmember Droste below.

Sixth, actually when we look at what has been happening in the city, when the city has permissively allowed camps to remain in place a while, we see that tolerance for an encampment, has not resulted in the gradual movement of people out of that encampment and into housing. Nor has tolerance for an encampment meant that other encampments don’t sprout up elsewhere, or that the tolerated camp if it doesn’t grow smaller, at least stays the same size. The city has tolerated the 2nd street encampment and the Seabreeze Encampment, but the fact that those have been allowed to exist for some time, did not apparently remove the need for the First they Came encampment at Here/There Sculpture. WHen that camp was disbanded, several people remained there, but just moved closer to the sidewalk. Others went to City Hall. Both those camps were tolerated, and both grew significantly in size from their original number.

HEnce, the lesson that the city might draw, is that far from sanctioned encampments leading to more people going into housing, actually sanctioned encampments could just lead to larger encampments and the demand among “the homeless” (also sometimes called “landless”) for more encampments.

Seventh, without doing any assessment about just who is staying at any given encampment (in other words having a screening process) you dont’ know if the people there are from Berkeley, or the East Bay, or elsewhere in California, or from out of state. You don’t know if they are “homeless” , or are they perennial squatters and homesteaders who prefer to live outdoors and dont’ intend to ever live in standard housing. Without having a proper process, and leaving the whole thing loosey-goosey, you have a big mess that could just grow bigger.

So there are so many reasons why sanctioned encampments are not good policy, or why, if there is a decision to create one or more, this would need to be very carefully and wisely done.

Hence the City Manager was wise in suggesting that instead, the city focus on developing broader policy on this issue:

FTC Camp Agenda Item 38b Develop Broad Policy

At the Berkeley City Council meeting on Feb 13th 2018, this agenda item was heard. THere were many people from the community speaking up in favor of Berkeley providing a sanctioned camp for the FIrst They Came for the Homeless group, but these people, many of them obviously intelligent (at least a couple attorneys among them) unfortunately seemed to make the extremely simplistic computation: “there are a lot of homeless in Berkeley…therefore…we need sanctioned tent cities.” As Sophie Hahn pointed out best, such “broad brush strokes” dont’ work very well, you need to fill in all the details when you are looking at suggesting major changes to existing law and policy. And Congratulations to Hahn and other Council members (except for Davila, who’s been notoriously dimwitted on so many issues, this one included) in that they clearly see the need to develop detailed policy on this issue.

VIDEO Of the CIty Council meeting:

The 38a issue comes up at 4:27 on the video.
you can get to the start of this issue by clicking on item 38a on the lower left below the video.

It’s difficult to watch the city council meetings because members of the public can be so very rude to the council. They often interrupt, they hiss, they severely scold and disparage the council.


A woman, Trisitia Bauman, an attorney, speaks in favor of giving this space to FTC, citing Seattle as a place where this option worked, and where they are actually expanding and setting up more sanctioned camps. She says that they have studied 187 cities acorss the nation.

Then we have a City Council meeting frequent flyer speaking up against “Fascists.”

Then a woman from the Berkeley Grey Panthers supports the recommendation for a camp to be allowed. She also speaks against “collective punishment” in which she says the whole camp can be removed if there is one person in violation. She asks for a long term broad policy on camps in the city.

Next is a man reading statements from some homeless people. He quotes someone who had a positive experience after being able to camp at Here/There.

Next a person quotes Mike Zint, saying that hours of operation of shelters complicates the life of the homeless.

Next a woman quotes Benjamin Royer of the FTC camp. She severely scolds the Council for throwing out people from City Hall camp.

A young man speaks up saying that he has read the legal issues and says there are steps that can be taken to sanction these camps.

Next a woman speaks up, from Grey Panthers who says she is “bursting with creative ideas”, and hopes that the city will support giving land to the FTC.

A man from Homeless Commission speaks who says we need to look at Seattle, not SF, for a good model. “SEattle has 6 sanctioned camps” (Yes but they probably have a whole lot more available land than Berkeley….)

A woman speaks giving the example of a woman who did much better when she could come out of hiding and live in a camp.

Another woman speaks who says people need to be able to stay in one spot and not be chased around. “We need to sanction other camps too and not chase people around.”

A man says that the city needs to “move beyond” its fear of lawsuits. HE says that setting up encampments will show a “clear path” forward and also address citizens fear of the homeless.

A man associated with Land Action group, describes being homeless for 6 years in Berkeley and “being criminalized” and says there is a contradiction between Berkeley as the “sanctuary city” and Berkeley “terrorizing citizens” by removing camps. He says that city is violating 8th Amendment if it evicts people from a site and does not provide another site. (Not true…not at all…the 8th Amendment does NOT require that people be able to set up permanent encampments, only that they be permitted to sleep in public places at night if they have no other place to sleep)

Ann Fagan Ginger of the Meikeljohn Civil LIberties INstitute. She said that human rights law requires that people have a right to housing. She quotes the “Berkeley Human Rights Ordinance.”

Ann Fagan Ginger is a longtime advocate of homeless, and has even argued before the US Supreme Court, but her views are overtly socialist and she would put the “human rights” of “homeless” above that of property owners. So in essence she takes a position that would support stealing or appropriating property from some people (or from the public as a whole, eg as in public parks) in order to provide for “human rights” of other people. She also may be caught in a bit of a time warp, perhaps stuck in a psychedelic bubble of the 1960’s era. At that time civil rights activism was in full swing, but this was before attitudes of entitlement and and lifestyles of heavy dependency on government handouts had grown into the serious problem we face today. Also, her advocacy for “landless people” lacks any nuance — such as any concern to define who these “landless” people are, what their needs are, how long they plan to be landless, whether they have any plans at all other than to remain perennially dependent on free handouts, and whether simply by declaring oneself “landless” one then immediately gains a right to seize other’s land.

Her Institute had previously written to the City’s Peace and Justice Commission on behalf of “Landless People”, demanding that the city stop evicting homeless campers assciated with the FTCFTH group.
Miekeljohn INstitute Letter to Berkeley re Landless People 1Miekeljohn INstitute Letter to Berkeley re Landless People 2

A woman speaks who helps the homeless, says that without encampments, it is hard to find the homeless. “I find it odd that we legalize marijuana but we are not legalizing encampments.”

A homeless man speaks up who talks about how he was physically assaulted by a “white woman” and says the city is founded on hatred and discrimination. He says California is WORSE than NYC and the Deep South. Truly bizarre and obnoxious person, so ironic the hateful tone in his voice and the hate filled language he uses while scolding others about hate.

Nutty Frequent Flyers, Speaking out Hatefully against Hate Screenshot (3656)

A South BErkeley resident speaks…she asks the city to take the Here/There fence down.


Sophie HahnCouncilmember Hahn speaks, saying she agrees that the situation on our streets is heartbreaking and dire and we need to address it. So she presented a comprehensive plan to address the problem. SHe says that while we have ambitions to do things like SEattle, Oakland., we are a much smaller city and have much less money. That means we can’t do things all at once. THe Pathways project will be implemented over time. One Navigation Center will be implemented to start, and a social service agency will be part of that which provides comprehensive services, so that our homeless will be put on a path towards housing, because “I want to get away from maintenance and really be on a path towards housing.” I’m frustrated that we have not worked quickly but my staff is working to the bone. My first vision of the navigation setting was tentlike structures. That was found to not be the best strategy. I have a vision of satellite settings, you can call them tent cities. WE dont’ have the mothership, so we dont’ have anything to plug things into. We need to find a common vocabulary, tent city, intentional community — I think we may actually have less difference of opinion than we think we do. I would like to move this conversation beyond “I’m for sanctioned camps/I’m against them” and to a common understanding of what we are talking about. Are we talking about no connection to services. Are we talking about infinite duration. I dont’ know what is in other’s minds when they talk about this. I would like to move this forward towards a more detailed vision. LEts talk about details and get a community consensus on how we could move this forward.

MAYOR — we are at 11:07 can we go to 11:30pm.

Kate HarrisonKate Harrison speaks about how she had a town hall a week ago. She said the consensus was taht we need more humane solutions that don’t take as long to get implemented. We have an affordable housing crisis, a crisis of places not being available — 934 rent controlled units are vacant and off the market. I’m not willing to wait long. She says that the chart has details and we need to decide — where would the camp be and how big. “We’re going to have an encampment for this particular group” — I am not comfortable with that. Not just for one group. We need a larger policy. I love FTC, I think they are great, I do not believe in just promoting one group. We need policy that we can get off the ground. There is a government section that allows cities to develop their own housing standards. When we declare a housing emergency we can do that, and are mandated to submit a plan to the government. I sent this back to the Homeless Commission to think more broadly than just about a single group.

Berkeley City Council Candidate Cheryl DavilaDavila speaks (her usual dorkiness) saying that it was ridiculous to move the City Hall camp as they have nowhere to go. Says that ” I dont’ know if any homeless people had any input on this little chart here” (referring to Hahn’s attempt to get specific details involved about what is being proposed for sanctioned camp/s) …”Now they are all in one little space right up against the RR tracks…I don’t know any of us who would want to live there. ” It’s difficult to listen to her nonsense — I feel so sorry for the other City Councilmembers having to put up with this perennial ineptitude. (But they do so, so gloriously gracefully and patiently!)

Lori DrosteDroste says that she does NOT support sanctioned camps, “hiss if you like”, because they do not lead to housing. “I know the pathways is trying to emphasize exits on housing” (eg, moving people to permanent houseing) My feeling is sanctioned camps set up safety concerns, and I will not be supporting sanctioned camps.

Hurray for Lori Droste, sounding like a lone voice of sanity in a city where there can be so much delusional thinking!!

Droste goes on to say…What would be the incentive to people to move to a camp.? Or to move out of one? “Rainbow Village was a catastrophe that many people have not forgotten.” Hurray to someone for being aware of what can go wrong in over idealistic rainbow ideas. She suggests supporting 38b substitute measure.

Hahn pushes for details…”I want to hear in a much finer grained way what the communities thoughts are…not the broad brush stroke.” For those who dont’ like the chart, “this is suggestive…of the questions that we would HAVE TO ADDRESS should we even consider sanctioned camps. These questions would have to be addressed inevitably. In fact the attorney who spoke…the examples of SEattle she gave, those are tied to agencies. They are run by social service agencies. So let’s look at details of what we are talking about. We need conversations with homeless, not just FTC but representatives of the entire community.”

Ben BartlettBartlett — would the city legally be able to give sanctioned camp to one group? He asked the city attorney. The attorney says that you have to go thru a competitive process to dispose of city property, it’s a more involved process. You cannot just “give land” to a certain group.

Kriss WorthingtonWorthington — clearly the city of Berkeley has not fixed the problem of homelessness in the city. We have not come up with a solution. Number 2 various individuals are attacking the mayor as if he has the power to do this. We do not have a strong mayor form of government, he alone cannot decide. It’s on all 9 of us to come up with solutions. The other who gets attacked is the city manager. The city manager is implementing the policy of the city. So if you attack these people you are attacking city policy. We are the people who make the policy as a team. We have to get 5 votes or more for policy, so don’t blame one person. Finally, we have powerful recommendations from Human Welfare commission, Homeless commission, Grey Panthers Peace and Justice commission, we have 5 proposals on the table. I think we can encourage the commissions to have their own meetings, and fundamentally it comes down to us and we need to decide.

OAK-BERKCOUNCIL1-09XXMaio says that “I dont’ think anybody’s fixed the challenge of homelessness…I dont’ think there is will to have a sanctioned encampment here, and I’ll tell you why…because then people from all around the area will come here for it. I am still looking at the informal camp that regulated well. But services have to come into it. I don’t think you can have a standalone thing and do well with it. I was impressed with the informal camp. I would like to figure out some way that we could not be careless in how we interface with people trying to figure out something for themselves. I just dont’ think a sanctioned encampment is doable and I dont’ want to lead people down that path.

Jesse ArreguinMayor — getting people into housing is the solution, and we are spending more than any other city in the county on that. I would like a more robust analysis and input. That doesn’t mean I would vote for a sanctioned camp.

My take on this is that the City Council as a whole (excepting dorky dimwit Davila) is much smarter than the people who somehow think that the simplistic idea of “giving land” to FTC is going to be a great idea to help solve the homeless problem. Sophie Hahn has led the pursuit of reason in this nonsensical endeavor, indicating that “we need details” , and “we need to flesh this out…we need more than broad brush strokes.” I feel embarrassed actually by how many people in Berkeley, even really smart people like the attorney Bauman, are speaking up in favor of something so vague and undefined as just open-endedly “granting land” to one particular group…especially the group that’s been most interested in suing the city. The City Council sees through this and I very much doubt they will be allowing any “sanctioned camp” , especially just for one group. If they do allow a camp at some point in the future, it will not be one run by homeless people, but one run by a service agency, as Hahn pointed out, is the case with all SEattle camps that the speakers were referring to.


Faith Based Approaches to Homelessness

In this article I want to explore the contribution that faith organizations (various religious organizations, not necessarily only Christian) make to helping the homeless.
Religious symbols circle

Some of the assistance is just at the very practical level of churches building homeless shelters and running them. I did not realize it, but 60% of homeless shelter space in the US, is run by faith based groups. 

However, faith based approaches to homelessness have more to offer than just practical help and hands and feet on the ground, or in the dining room serving meals to the poor and needy. Faith organizations can offer something that many nonprofit and government run programs cannot, which is a meaningful worldview, and relationships in a community with a focus beyond the mission to the homeless.Benedict 2 Joseph Labre Patron Saint of Homeless

Given the lack of homeless shelters in the Bay Area, there has been a suggestion that local churches might construct homeless shelters on their property.

So far one shelter has been built, located at West Side Missionary Baptist church. The goal is to have several hundred more, spread throughout the county, by the end of the year.

THis is being called a “Faith Based Solution to Homelessness”

Screenshot (3648)

There is some thought that faith-based approaches to homelessness may be more successful than standard government approaches, as they take a more holistic approach. A study about such approaches can be found here. Another study is here. A very substantial 146 page study is here.

Also see it here:

Institute for Studies of Religion Faith Based approach to Homelessness

Faith based groups are more oriented than government groups to focus on the causes of homelessness, rather than simply treating the symptoms. This is needed for programs to be effective in the longer term, and avoid people simply being circled in and out of housing when people with deeper problems that make them difficult to house end up evicted again when these problems are not treated.

From this article:

These programs are tailored to the core causes of homelessness – including poverty, unemployment, domestic violence, addiction, incarceration, health and affordable housing – rather than its symptoms.

In particular, the value of a faith based approach to homelessness might be in emphasizing the value to all persons, of relationships and community:

“There are many factors that enter into homelessness, such as job loss, physical or mental disability, domestic violence, mental illness, drug and alcohol addiction, and others. But one important factor that is frequently overlooked is the breakdown of relationships and community that occurs when people become homeless. People don’t become homeless when they run out of money, at least not right away. They become homeless when they run out of relationships. And this means that the solution to homelessness necessarily involves a reestablishment of relationships and community.”

The broader and more holistic approach to homeless persons is depicted in this chart showing services provided by the Atlanta Mission, a faith based organization in Atlanta GA:

Screenshot (3650)

A faith based group in Baltimore, MD called the “Helping Up Mission” or HUM discovered in the 1990’s that the best way to help the poor and the homeless was by offering services for drug and alcohol addiction.

“….but by the 1990s it became clear that the best way to help these men was to address the issue of drug and alcohol addiction. In 1995, HUM created the 12-month residential recovery and job readiness (RRJR) program called the Spiritual Recovery Program. “

Though faith based organizations do such widespread and invaluable work with helping the homeless, as I see it, there is a considerable irony in that the considerable spiritual power of these religious groups may not often be deployed in assisting such needy individuals. The faith based groups indeed have the potential to bring a more holistic approach and healing to bear on the lives of these needy, but apparently they have to hold back on the treasures that they possess. The report by the INstitute for Studies of Religion suggests that the spiritual support and whole-lifestyle support offered by the faith based groups is minor in comparison to the practical support offered through homeless shelters, meals, funds made available for rental housing or medical needs, as well as through various forms of lobbying.

The Denver Road Home group stated:

We are not a direct service agency, but we do play four important roles in addressing homelessness in the city. First, we are conveners, utilizing our place within the mayor’s office as a bully pulpit to encourage collective action. Second, we act as advocates for the homeless and their service providers, keeping the problem of homeless in the public eye. Third, we help promote innovation, particularly as it relates to the unique challenges of new types of homeless populations, such as we have seen among families and youth. Fourth, we play an important role in sustaining programs aimed at both serving the homeless with dignity and reducing homelessness altogether. While technically we only serve the city, we really are the only organized city funded effort to address homelessness in the entire metro region.

Homeless on streetThe Denver Rescue Mission made a clearer statement about how they hold back the religion in their approach:

I think that what we are learning is that Bible thumping doesn’t work, and what we need to get better at is developing relationships with the people we are trying to help. What that means, in many instances, is we are planting the seed and ploughing the field, in spiritual terms, and maybe someone else reaps the harvest in the form of a transformed life.

However, they still took a “holistic” approach to the needy whom they served, and in taking this approach they went further than many homeless service agencies which are too exclusively focused only on housing, and not on building up the individual such that they can retain that housing:

The first step in our process to develop outcomes reporting was to determine what success means for someone going through our program. We identified four key outcomes: they (1) provide for their own housing; (2) maintain full-time employment; (3) are connected to a healthy community like a church; and (4) demonstrate success in overcoming destructive habits. Our next challenge was to ensure that all program goals and activities were contributing to the four main outcomes we are trying to achieve.

Homeless lying on streetIN Indianapolis IN, the city government has no homeless shelters, but a faith based organization runs the only homeless shelter available there. A representative of this group said:

Indianapolis holds the distinction of being one of the only major U.S. cities of its size that does not have a municipally-operated shelter. Instead, the city depends primarily on the faith community, especially WMM, toserve as the safety net of all safety nets for homelessness (i.e., emergency shelter)…
my view is that so long as government doesn’t fund religion directly, it (the government)should be able to support social services to which faith-based organizations may add a religious component. That is, if a church runs a homeless shelter with beds paid for by government, it shouldn’t be prevented from asking its guests to pray once a day

Trinity Rescue Mission in Jacksonville FL discovered that 75% of the homeless it attempted to help could not be helped because of addiction issues or lack of very basic self care skills.

Between day 30 and 45 of our beginning program downtown, we typically lose 2/3 of our program participants because they are not ready to take the necessary steps towards self-sufficiency and sobriety.

It seems this also goes to show that, contrary to what many assert, the homeless are not, by and large, “just like you and me.” They are not primarily people who “just” lost their housing. Rather the large majority of them tend to have very serious problems in basic ability to function in the world. Hence, again I have to suggest that using the term “homeless” to refer to all those living on the streets, may be misleading — the old terms “drunk” or “bum” or “derelict”, while problematic in the judgmentalism and denigration involved in such terminology, may nevertheless more accurately describe and point to the deeper problem.

In essence, most though not all homeless are people who did not just “somehow” become homeless, but quite predictably became homeless because they made bad choices and became so heavily involved in drugs and alcohol, that their lives began to go down the toilet. They fell into the gutter. Or down a dark hole. They are spending their days shitfaced.

One of the difficulties in helping the homeless, then, is the necessity to “beat around the bush” to some extent, to avoid being judgmental which is not helpful for those who’ve fallen very deep down a hole. Their sense of self-worth is already very damaged, and so those who would help them cannot risk touching this tender area or wound in the psyche by coming across as judgmental. To be effective in helping these deeply lost souls, requires a careful touch — an art, the right balance of taking a loving and compassionate approach, refraining from judgment, but also not ignoring the fact that people may well have made themselves homeless through their self-destructive behavior. A balance needs to be struck — offering help but also requiring those being helped, that they be willing to change. Appealing to the “better person” inside the lost soul is definitely an art form and a high and noble calling, which we greatly admire any homeless service worker’s ability to do.

A group in Portland called “My Father’s House” has the following approach:

1. Relationships: MFH believes that for families to be successful requires unconditional love and a healthy family relationship with their residents. Trust is essential, and MFH accomplishes this trust through MFH’s relationship with each family member.
2. Responsibility: MFH never does anything for families they can do for themselves. MFH expects each family to be responsible for their own actions. MFH provides encouragement, personal support, and helpful actions that do not undermine a family’s sense of self-worth.
3. Accountability: Expecting families to be responsible can only be accomplished if MFH is also willing to hold them accountable for their behavior, actions, and motivation.

In looking over the report about how faith-based communities help the homeless , it seems that much of what is provided to the homeless by faith-based organizations is not really related to their faith or religious way of life — very practical and basic immediate needs for shelter and food and clothing are addressed. Advocacy for the homeless is done, even to the point of “bullying” city government to do more to address their needs. However, such work is not directly related to faith or a religious way of life. The faithful are themselves experiencing a way to express their principles by caring for others, but if they are not able to effect the spiritual lives of those they help, the assistance is not as faith-rich as it might otherwise be. It is when the faith communities have an opportunity to help these needy persons in a more holistic way and address their deeper problems and self-destructive behaviors– and in essence, their lack of connection to God and spirit — where I think the deeper healing could occur. A writer named Marvin Olasky wrote a book called “The Tragedy of AMerican Compassion” in which he points out that ironically, we “used to do charity better” in the 19th and early 20th century, when we asked those who were helped, to provide something in return. By asking those who received help to give back, we enabled them to build self-respect, a kind of self-respect that is difficult to come by when you live in total dependency upon others and are encouraged in that dependency by standard liberal progressive views that the government “owes” you something, even for the rest of your life.
Tragedy of American Compassion

It is admittedly a difficult balance to find a way to help those who’ve fallen down a deep hole of self-destructive behavior, without either ignoring or minimizing the serious consequences of that behavior on the one hand, or on the other hand coming across as judgmental and putting the person off so that you are not able to help them at all. However, I believe that in order to really to solve this Homeless Quandary, it is vitally necessary to address it in this deeper way, at the cause, rather than shallowly by only looking at the symptoms.
This is the balance that faith communities need to strike, and perhaps they more than any other organizations helping the homeless, are uniquely advantaged to bring this holistic approach to this vexing and growing problem of homelessness and addiction in the US.

Impact of Homeless on Police, BART System. BPD: 75% of our Time Spent On Homeless

Did you know what the Berkeley Police Department spends 75% of all its time on homeless-related issues? I did not, and I’m astonished about how much of precious police resources are apparently being directed to a small population — less than 1% of the total population of the city of Berkeley.  This was mentioned in a recent Berkeleyside article, which highlighted that the Berkeley Police Department is actually in a state of crisis, with 80% of Officers seeking to leave the city.

Police have said previously that mental health calls take up a huge proportion of their time. Lt. Kevin Schofield said Monday that calls relating to homelessness also demand a significant amount of patrol resources.

Schofield oversees the Community Services Bureau, which includes four officers who handle community and neighborhood concerns. He estimated Monday that 75% of their day-to-day work involves homelessness in some capacity.

I was astonished and disturbed to read about the absolutely enormous amount of time taken up by “homeless” issues. Exactly what these issues were was not clarified, and clarification is needed. Residents of the city deserve to know how police are spending their time and clearly the City Council needs this information, as they are facing a mass exodus of police officers who are apparently quite fatigued with this problem, as well as struggling with the lack of support in a progressive city which has commissions and organizations, “Watchdog” committees, often demanding justification from police for their taking action and enforcing the law. If police can choose to work in a city which supports them in enforcing the law, versus one where they are scolded or harshly criticized for doing so, why would they choose the latter? Why would anyone choose to work in a more stressful environment where they are often kept from doing their job effectively? This is one of the questions Berkeley City Council must examine as they work to come up with policy on the homeless issue.

What does it mean that police spend 75% of their time on homeless related issues? Are these issues all related only to lack of housing, or do a large number of them have to do with serious mental illness or substance abuse? We dont’ know but it seems critical to understand what is going on out there.

That police are often prevented from enforcing the law in Berkeley, or instructed not to do so in the case of homeless individuals, is apparent in a recent recommendation made by the Parks and Waterfront Commission in Berkeley. According to Berkeley Municipal Code, these things are currently illegal to do at the Berkeley Marina, and yet all of these things are being done at the Berkeley Marina, and by large numbers of people:

6.20.250 Vehicle or trailer parking in marina areas.

A.    Permission from the Harbormaster must be obtained prior to parking any vehicle, trailer or boat in the parking areas within the marina area for a period exceeding 72 consecutive hours. If permission is not requested or granted, the vehicle, trailer or boat may be cited and removed from the marina area at the owner’s expense.

B.    Any vehicle, trailer, or boat/trailer combination parked in restricted areas, in limited parking areas beyond the allowed time, or in driveways, walks, or breezeways, may be cited and removed from the marina at the owner’s expense.

C.    The use of any vehicle for the sole purpose of storage while parked in the marina area is prohibited.

D.    No person shall perform repairs to a motor vehicle anywhere in the marina except in an emergency.

E.    Use of all bicycles, skateboards, roller skates, roller blades, and motor-driven or sail-propelled vehicles, except wheelchairs for the disabled and City maintenance and police vehicles, is prohibited on any path, sidewalk, pier, dock, float or gangway in the marina, other than on paths so designated for their specific use. The use of any vehicle for eating or sleeping for over four hours per day while parked in the marina is prohibited. (Ord. 6925-NS § 1 (part), 2006: Ord. 6645-NS § 1, 2001)

6.20.255 Vehicle, trailer, heavy duty commercial and over-sized vehicle parking prohibited on public streets in the marina area.

It is unlawful for the operator of any vehicle to stop, stand, park, or leave standing such vehicle, except when necessary to avoid conflict with other traffic or in compliance with the direction of a police officer or other authorized officer, or traffic sign or signal, on Seawall Drive, Spinnaker Way, Marina Boulevard and University Avenue between Frontage Road and Seawall Drive.

A.    Heavy duty commercial or over-sized vehicles are prohibited from parking in the above areas at all times. For purposes of this section a heavy duty commercial or over-sized vehicle is a single vehicle or combination of vehicles, with a commercial license plate, having more than two axels; a single vehicle or combination of vehicles 25 feet or more in length regardless of type of license plate; or a trailer or semi-trailer with commercial license plate or trailer identification plate. Heavy duty commercial vehicle or trailer shall include, but shall not be limited to, truck tractor, semi-trailer, trailer, trailer bus, trailer coach, camp trailer, mobile home, gantry truck, dump truck, moving vans and pole or pipe dollies. Excluded are commercial pickup trucks, tour buses, school buses, public transit buses, and paratransit buses.

B.    All other vehicles and trailers not defined as heavy duty commercial or over-sized vehicles in subsection A above are prohibited from parking in the above areas between the hours of 2:00 a.m. and 6:00 a.m. daily. (Ord. 6925-NS § 1 (part), 2006: Ord. 6803-NS § 1, 2004; Ord. 6711-NS § 1, 2002)

6.20.260 Overnight camping in marina land areas prohibited.

A.    Use of marina land areas for overnight camping or sleeping is prohibited.

B.    Use of campfires in the marina land areas other than in designated areas, without prior written permission of the Harbormaster, is prohibited. (Ord. 6925-NS § 1 (part), 2006: Ord. 6645-NS § 1, 2001)

This Berkeley Municipal Code info is found here:

On a recent outing to the Berkeley Marina, a friend of mine reported seeing 4 separate police vehicles at the Marina, apparently responding to calls.  It must be frustrating to the police to be called out there many times and yet prevented from enforcing the law.

And yet the law is not currently being enforced with regard to any of these sections of Berkeley Municipal Code, so that the Parks Commission recommends this signage be set up at the Marina:
Screenshot (3641)

And the Parks and Waterfront Commission is suggesting communicating with Berkeley City COuncil to request that they enforce the law at the Berkeley Marina. Screenshot (3642)

One person living in an RV at the Marina did get a parking notice, a notice that the vehicle had to be moved within 72 hrs.  This is a relatively weak law (since it only requires people to move every 72 hrs, not to leave the area permanently, and in itself does not prohibit using a vehicle as a residence) but it does seem to be about the only law that is being enforced relative to vehicle dwellers in Berkeley.  Ironically, this vehicle dweller, by expressing anger that the city is noticing her for 72 hr parking, is demonstrating an arrogant entitlement, in assuming that she does not have to follow the same laws which apply to all other people not only in the city but throughout the whole state.  These 72 hr parking laws do apply all over CA.  Screenshot (3645)Nomi Gonzalez 72 hr notice Marina RV

It puts Berkeley Police, and the city, as well as all parkgoers and those recreating at the Berkeley Marina, in a difficult situation when the city allows the Berkeley Marina to be taken over by vehicle dwellers. At last count, there were over 50 vehicle dwellers in parking lots and on roadsides at the Berkeley Marina. I’d like to see Berkeley create a designated area for vehicle dwellers to go, as I believe that vehicle dwelling is a very good option for “homeless” persons and travelers alike. However I also feel that camping in the city should be regulated and allowed for limited periods of time only, as long-term camping out easily becomes permanent squatting or homesteading.

Homeless issues also are increasingly impacting BART.

BART ridership has dropped 4.3 percent in the last year, accompanied by an increase in complaints about filth and odors on trains and platforms, and homeless people lying or sleeping on trains and platforms. BART directors had a recent meeting on this issue and is attempting to address this issue with increased station maintenance and trying to direct the homeless to supportive services.

However, BART was aware of these problems over 6 months ago, as indicated in this earlier article in the SF Chronicle, and  issued statements at that time that they were working on the problem at that time.

BART has issued a statement about the homeless crisis and its approach to working with this issue on its trains and property:

This article includes this statement:

It is understandably frustrating for commuters to be crowded out of trains by persons who are there for reasons other than commuting. BART simply does not have space for people to set up short term residency.  We also need to maintain clear paths in our station hallways for evacuation in the event of an emergency.  Persons lying down in station corridors is a life safety issue for everyone in the station.

BART was also aware of these problems back in March 2016 when this article appeared.

And this article.

And 9 years before that, people were complaining about homeless on BART. An explicit description of the problem is included in this man’s blog:

The title is blunt but I really did not know how to soften it. I really do not like it when I see/encounter homeless people on BART, whether they are using BART as shelter/bed or asking passengers for money.

Why don’t I like it? I think we, as passengers, pay a good amount of money to get to our destinations by BART. We don’t expect BART to be spotless, with great service, or luxurious (we really just expect BART to be on-time, safe and not filthy), but most of us really do not want to be bothered or threatened by unauthorized people like the homeless.

I’m not heartless. I recognize that homelessness is a huge problem in SF and I wholeheartedly support some of the initiatives like SF Homeless Connect. But I don’t want the homeless seeking help/shelter on a BART trian, or even a BART station!

Why not the homeless? Because 99.99% of the time, they smell like alcohol, urine, defecation, trash or sweat…or all of the above. The majority of them that I’ve encountered on BART are mentally unstable. Today, one homeless man somehow snuck onboard and was aggressively asking people seated in my area for “some help”. He didn’t take no for an answer. If you ignored him, he kept on asking you until you look at him. If you said no, he doesn’t leave either and starts to question if you have pennies, nickels, dimes..etc. Even as you say no or you don’t have change, he continues to shake the cup in front of your face. Worst of all, he smelled terrible!!! The fact that he stood next to you and refuses to leave only meant that we had to endure his smell for a long long time. It was bad….I had to breath with my mouth and even then, I was afraid of what type of taste his scent would leave in my mouth. It was an extremely heavy odor.

In short, it’s been a long while that this problem of homeless people living on BART, sleeping and lying on BART trains, has been happening.

Given that BART is now so crowded — trains are packed at all times of day, not just rush hour — and so space is at a premium, it becomes even more problematic when people use trains for sleeping or lying down. The degree of annoyance and problems caused to other passengers increases, the more crowded the train is and the less space available.

There’s even a YELP site specifically for posting about problems on BART.

Such problems on BART are apparently so interminable and vexing, that someone has created a website to document the problems :

Here’s one article on that site about problems created for many by a man lying on the platform.

Title: “When someone asked him to move he was pretty nasty”

Title: “WHo Needs Trivago? Here is the Cheapest Hotel in the Bay Area.”

Person lying on the floor of a crowded BART train: BART homeless person on floor

Others have described their problematic experiences with homeless on BART in other places, eg in this article.

Like the rider who photographed the sleeping homeless man with lice, I take pictures and complain not only to BART police but BART Watch as well. But I only receive the standard lines: “We’re sorry, we’re working on it” or “Do they need assistance? Sleeping on BART is not a crime.”

One individual claims that problems on BART were one of the major reasons he moved out of Oakland:

Update: I should probably state that I moved out of Oakland and a huge reason was BART.

One of the more serious problems associated with the homeless or street people on BART, is the fact that these people may be carrying lice and/or bedbugs. Someone actually uploaded a video on YouTube in which one sees a closeup of many bugs crawling all over a person sleeping on a seat on a BART train. It’s enough to permanently scare one away from riding BART!

THere are other places where “homeless” persons can potentially cause problems, such as city libraries. I use the term “homeless” in quote marks because it’s not really possible to determine if someone is without a home simply by looking at them. Just because a person looks bedraggled or dirty or acts oddly, does not mean they are homeless. However, in articles about this issue, this assumption tends to be made that all these persons are “homeless”.

Problems with homeless in SF city libraries was written about here.

And here is another story about this issue.

Problems with homeless at a library in Santa Ana are explained here.

Inside the building, signs warned people to avoid restrooms where some homeless use sinks and even toilet water to bathe themselves and wash their clothes. Some of Santa Ana’s down-and-out used the study carrels to look for jobs — others shot up drugs, their syringes found discarded in planters and even a box of toilet seat covers.

Security guards carry syringe disposal kits on their tool belts.

The library has been “a great place to hang out. You get something valuable,” said Haley, a 14-year-old high school freshman at USC College Prep. “Now, it’s just uncomfortable.”

“It’s outrageous. The homeless are an epidemic in the city, and it’s preventing families from using our award-winning library,” said Peter Katz, a retired postal worker and 50-year resident of Santa Ana.

Some library staff have been afraid to come to work because of problems caused by homeless or mentally ill persons, as explained in this article.

The problem is so vexing and widespread, there are even scholarly articles on the matter, as here. ANd there are courses on the matter as well.

At the Berkeley Public Library, as this article recounts, a day of craziness ensued as a man pounded on the library door for help and a gunman pursued him into the library. In another case described in the same article , a library worker was assaulted by a homeless woman who was chronically mentally ill.

Helen Harris is a circulation supervisor for the public library system in Berkeley. Earlier this year, she was physically assaulted by one of the hundreds of library users she sees each day. The female attacker was homeless and unstable. Harris, like other library employees, was trained to resist an attack without hitting. Moreover, she didn’t want to escalate the violence by fighting back, even though the woman tried to kick her and punch her face.

“She had come in here before, and every time we asked her to leave she would go into bad and threatening language,” Harris says. “She can be very intimidating. She knows that there’s not much we can do but sit there and look at her and ask her to go out. We can call 911, but if she hits me, I can’t defend myself. So we got a restraining order against her.”

Another Berkeley LIbrarian says she sees about 30 homeless people in the library every day:

Many of the homeless are regular library patrons, and at times they turn to the librarians for help. Some librarians feel they must serve as social workers to help users find shelter, food, and other public services, says Jane Scantlebury, a reference librarian at the main branch in Berkeley, where she sees about 30 homeless people every day.


I Lift My Lamp Beside the Berkeley Pier

The Torch has been passed, from the East Coast to the West. 

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
MOTHER OF EXILES. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

— Emma Lazarus, poem of the Statue of Liberty

Jesse and Torch City Hall FTC final

Jesse et al say no to RV family final

RV people contemplate

Jesse et al say yes

See whole cartoon as a PDF document:

I Lift My Lamp Beside the Berkeley Pier

So is All Public Space Up For Grabs…?

I joked about this with a few friends, but was amazed to find out it really happened.

After a series of homeless camps on street medians began popping up in prominent, central places such as street medians all over Berkeley, I noticed a number of people were concerned that public spaces were now being viewed as a “free for all” where anyone could just plop themselves down and set up a permanent home.  I referred to many of these campers as “homesteaders”, when it became clear that they were actually really comfortable living in tents in street medians or on sidewalks, and were at times refusing available shelter spaces.  For all intents and purposes, their tents were their “homes” and they were homesteaders on public land.  With one small problem….street medians and other public land in cities is not available for homesteading or other permanent private use.  Or is it?



The passivity of the city of Berkeley and Oakland with regard to many of these camps, suggested that some in the city Council were inclined to think people had a right to seize public lands for homesteading.

I joked, that there were other people with other needs in the city.  Others who, perhaps, had homes…but were short on space.  Due perhaps to the increasingly high cost of housing, (or perhaps just due to their own tendency for hoarding) some people were finding themselves with less and less space available for all their “stuff.”   Wouldn’t they too qualify as people with a right to grab public space to appropriate for their private needs?  As far as that goes, is anyone even checking credentials to see if we qualify in any way, when we just grab space for our private use in a park or sidewalk or a street median?  Does one have to “prove” one is homeless, to have the “right” to set up a tent and store one’s things on a sidewalk or in a street median? I have not heard that cities are checking.

So, instead of being called homeless, these people who had run short of storage space in their homes could be called “space-less” people.  And as I saw it,  if public land was now apparently “up for grabs” for anyone who had a need, then they too had a valid claim on public land, just like the homeless-turned-homesteaders did. I then joked with some friends, tongue-in-cheek, saying that we should imitate the homeless-turned- homesteaders and we should set up a tent on a street median and start hauling over some of the things in our garages and backyards that we no longer had space to store, and use these public areas to store our stuff…..since it was clear that public space was up for grabs.

We had a little laugh and then went our ways.

But I had to gasp when I discovered that my joking idea for making a point about the problem with city passivity about public spaces, had actually come real!

I was looking over the 311 website for Oakland reading a couple reports on illegal dumping, when I noticed a report that someone had made for a large pile of items on a sidewalk in the Rockridge area of Oakland.  It turns out that someone, a housed person who was not homeless but had their own apartment, had actually started appropriating a sidewalk in the Rockridge area, to store a large amount of belongings that he could not fit in his own apartment!

See also:

Housed person using public sidewalk to store their belongings Oakland Jan 2018

This led to a controversy in the neighborhood, because as you can see when reading this report, some people actually were defending this person’s “right” to use public space to store his belongings. And by failing to take action on the issue, the city of Oakland was enabling the appropriation of public lands such as sidewalks, street medians or other areas, for private uses, such as personal storage of one’s belongings.

Photo of his things on the public sidewalk:

So…the moral of the story is…that things we think are parodies of the potential results of city passivity, can become real. If cities dont’ start taking control of public spaces, these public spaces may end up increasingly appropriated or grabbed by people for a variety of private uses.

How much public space can people appropriate for their own personal uses? Does one have to be homeless to grab public space for oneself, or might one simply be “space-less”?

Here’s a story about something that posed a similar question in Brooklyn:

In Oakland, city officials noted with concern that some of the more massive homeless camps in that city, had apparently begun to attract illegal dumpers, who viewed the camps as convenient sites to just pitch their unwanted crap.  These city officials expressed some concern/surprise over this, but why? I mean why were they at all surprised that illegal dumpers would not have a light bulb go on in their minds, when they saw that lots of other people were apparently getting away with being allowed to haul in a bunch of garbage onto public spaces like sidewalks or parks.  ideaThat anyone in City Council was surprised by this reveals to me the notable and serious lack of imagination among City Council members.  For me it was rather, why wouldnt’ people dump their garbage at homeless camps.?  They had seen so  clearly that the green light was being given to put one’s private belongings into public space.  When you give people an invitation, regarding something that they have a need for, they are going to take you up on it!  Sprawling, squalid, trash-filled homeless camps are that clear invite that simply screams, “bring your unwanted crap and dump it here!”  What to do about the problem? The city considered.  It foolishly tried to solve the problem by putting large dumpsters at homeless camps.  But, you don’t solve the problem of inadvertently making it seem like you’re begging people to come dump their unwanted stuff, by making it even easier and more welcoming to dump your unwanted stuff.  The dumpsters got filled up or torched.

Illegal dumping is a huge problem in Oakland, and in part I believe that’s due to the broken window effect, where squalor and blight invites more squalor and blight.  It is likely also due to a seriously dysfunctional and anti-social  subculture, wherein people have been schooled by the “soft bigotry” of liberal racism, that they are not responsible for their own actions.  A number of people have been schooled by the liberal racism/bigotry of low expectations for years to believe that they aren’t expected to do like others and advance through their own efforts, but rather, since “there is structural racism” or “there is a fascist system controlling society” and the system is stacked against them, they are entitled just to sit back and hold out their hand,  making little effort on their own behalf, since apparently they have no agency and no power, no free choice, no responsibility. They can just give up,  and remain dependent on  government  to provide them everything they need in life.  And a place to dump their garbage for free would clearly be part of that.  40c0d13d3afa681742fbe9791ad8d435-minimum-cleanses

So if you want to end illegal dumping, we can start by teaching people that they are, in fact, responsible for their own behavior.  As long as we keep preaching that it’s always the “system”  to blame, then it’s the system (eg the city government) which is going to end up having to follow along after the anti-social folks it creates and pick up the trash they keep throwing out their car window.

Feb 3 2018 Update: An article about the appropriation of public space/land for private use has recently appeared in Berkeleyside, see it here:

Making the Invisible, Visible

There’s an organization called “Invisible People” which seeks to do education about homelessness and bring visibility to those who are often “invisible.”  They have several videos on YouTube, like this one:
What I  like about this organization is the effort to allow homeless people to tell their stories.  This to me seems vitally necessary, for many reasons.  Not only can it be healing and very supportive to those who are homeless, but understanding people’s stories and what caused them to be homeless, to me seems central in coming up with solutions for the “Homeless Quandary.”

The man who started this organization says,

I once heard a story about a homeless man on Hollywood Blvd who really thought he was invisible. But one day a kid handed the man a Christian pamphlet. The homeless guy was shocked and amazed, “What! You can see me? How can you see me? I’m invisible!”

It isn’t hard to understand this man’s slow spiral into invisibility. Once on the street, people started to walk past him, ignoring him as if he did not exist… much like they do a piece of trash on the sidewalk. It’s not that people are bad, but if we make eye contact, or engage in conversation, then we have to admit they exist and that we might have a basic human need to care. But it’s so much easier to simply close our eyes and shield our hearts to their existence.

I not only feel their pain, I truly know their pain. I lived their pain. You’d never know it now but I was a homeless person. Seventeen years ago, I lived on Hollywood Blvd. But today, I find myself looking away, ignoring the faces, avoiding their eyes — and I’m ashamed when I realize I’m doing it. But I really can feel their pain, and it is almost unbearable, but it’s just under the surface of my professional exterior.

For years I’ve used the lens of a television camera to tell the stories of homelessness and the organizations which are trying to help. That was part of my job. The reports were produced well and told a story, but the stories you see on this site are much different. These are the real people, telling their own, very real stories… unedited, uncensored and raw.

The purpose of this vlog is to make the invisible visible. I hope these people and their stories will connect with you. I hope that their conversations with me will start a conversation in your circle of friends.”

Homeless on Hollwood Blvd

While the compassion and caring in this approach is beautiful, the man behind this organization is heavily oversimplifying the situation. I believe that the reason most of us “ignore” the homeless on the street, and avoid making eye contact, is actually not that we dont’ care about them. Sometimes, perhaps quite often, we avoid them because we DO care about them, and it hurts us when we open ourselves, in compassion and sincere care, to another human being who seems in need of care, only to find our genuine care be returned with lies, rude impositions and demands, harassment, obscene and foul language, bizarre behavior, or overt and disturbing mental illness.

Of course there are many “normal” people among the homeless, but particularly in large urban centers with huge numbers of homeless, there is a huge percentage who have very serious problems functioning normally. Such people can be disturbing and scary to encounter. They can be very dirty or smelly, covered in filth, surrounded by garbage. Many of us have been “burned” by trying to interact with such disturbed people.

I recall a recent situation where I bought a newspaper from a woman on the street, someone who struck me as a homeless woman. After buying it and walking a few blocks away, I decided to return and talk to her a little more. Unfortunately as soon as I spoke to her again, she looked at me with a glazed-over and blank expression, and cut loose with a “spiel”, a “hard-luck story” that sounded like a broken record which repeats itself ad nauseum.  As I looked into her face, I got the sense of someone with serious mental illness….a situation where “there is no ‘there‘ there”, or in essence, “nothing here to notice: nobody’s home here.”    I got the sense that this woman could not be “moved” if she tried, and she could not come across as authentic if she tried.  Serious mental illness in effect placed very serious obstacles towards her connecting with any other human being, obstacles unlikely to be overcome by the most generous and compassionate of helping hearts.

She stared blankly at me — actually I felt dehumanized in the encounter — and imposed upon me to give her money, using the same fake-sounding, insincere kinds of hard-luck tales of woe that so many street corner and bus stop con-artists use for their daily con job. I was certainly not moved, rather I was heavily put off. This is the kind of problem that faces so many of us who actually are interested in trying to open up or establish connections. It’s not we normal passers-by who create the obstacles to the building of bridges — but serious mental illness, substance abuse and other grave dysfuctionality can certainly create enormous barriers for homeless people.   And this readily leads to them being experienced on the psychic level as energy sucking entities and perpetrators of serial nuisance. In fact viewing them as energy leeches can help understand why people want to avoid all eye contact.  We dont’ want our energy drained away.

As well, in large urban centers particularly, there are just too many homeless everywhere, to reasonably expect that someone is likely to approach one or more to “hear their story.” THere can be “compassion fatigue” if on your way to work you have to routinely walk by 20 homeless beggars, most or all of whom look disturbed or mentally ill, or high on drugs.

Still, while we must acknowledge the many legitimate reasons so many people avoid engaging with people on the street, the work to listen to people and hear their stories is very valuable, and I do believe that we need to hear many more such stories in order to help find better, more effective and more enduring solutions for homelessness.

Lawsuit over Here/There Camp Removal

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:

Here-There Group Sues First Amended Complaint-10-26-17

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:

Order Re Motion for Preliminary Injunction

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 never 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 absolutely 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:

Supplemental Order on case Sullivan et al vs Bay Area Rapid Transit

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:

Berkeley vs FTC Motion-to-Dismiss-Order-1-19-18

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:


Fourteenth Amendment Search and Seizure issues

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
F.3rd 673.)

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
his tent.)

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.)