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Homeless advocates, city officials and community activists applauded a Berkeley judge’s decision to rule, in the case of Ken Moshesh, that a law that makes sleeping outside a misdemeanor is unconstitutional. 

Moshesh is a homeless activist who was arrested for sleeping outdoors January 18. He is also an award-winning filmmaker and a former associate professor at UC Berkeley who currently writes for Poor Magazine. 

“We have just had another victory in the struggle to decriminalize homelessness,” said Darren Noy, Building Opportunities for Self Sufficiency community organizer, at a press conference Wednesday. “Ken’s case has really underscored that not only this is something we politically don’t want to be doing. We legally shouldn’t be doing that.” 

Alameda County Court Judge Carol Brosnahan’s ruling on July 12 was the last step of a legal action that started in January, when Moshesh was arrested for the second time and incarcerated for violating the California Penal Code 647j.  

The code, also called “lodging law,” gives police jurisdiction to cite and arrest homeless people sleeping in public property such as parks and on private property such as abandoned buildings. Moshesh challenged the constitutionality of the legislation.  

Community Defense Incorporated attorney Osha Neumann said, who assessed Moshesh through the legal process, Brosnahan decided to rule the code unconstitutional in this specific case, he said, “because it is a cruel and unusual punishment to make a crime out of a human act that human do out of necessity.” 

Public Defender Greg Serin, who represented Moshesh’ interests in the case was not available for comment Wednesday afternoon. 

The ruling, Moshesh said, is a step forward toward a more serious resolution of the problem of homelessness. 

“Hopefully this will start not only a legal precedent but a precedent of genuine conversation and discussion as to the real cause of homelessness and the real conditions of homelessness in Berkeley,” he said. He added that government officials should work on providing affordable housing and that police shouldn’t be involved in homelessness issues. 

The lodging law, Neumann said, has indeed done nothing but favor police harassment and discrimination against homeless people. 

“Our contention is that laws that are that vague don’t allow people to know if they’re violating [it] or not. And also they are an invitation to selective enforcement,” he said. Many people, he added, rest on campus during the day but don’t get arrested. 

In the past few years, the presence of about 1,000 homeless people on Berkeley streets has been a problem for some business owners. Berkeley Police Lt. Russell Lopes said he regularly receives complaints. 

Business owners haven’t officially reacted to the ruling yet, but some employees working in businesses on Telegraph Street said allowing homeless to sleep outdoors is not a solution.  

“Right now things are in a balance point but we think there could be improvement,” said John McBride, a clerk at Moe’s Books and member of Berkeley’s Human Welfare commission. “There need to be some proper shelters and facilities.” 

Brosnahan’s decision is not the first battle homeless advocates have won in their ongoing battle to protect homeless people’s rights. In April, their activism led the City Council to pass a Homeless Human and Civil Rights resolution that made the enforcement of the lodging law a low priority in Berkeley. 

But Councilmember Kriss Worthington, who sponsored the resolution, said that Brosnahan’s ruling is particularly valuable in setting an example for the rest of the state. 

“I think that when other judges look at this they will be compelled to make similar decisions to Judge Brosnahan and find it unconstitutional, and hopefully we can eliminate this entire statute,” he said. “It will probably take a few more cases ... but I think that eventually we will win at writing out law 647j.”