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While much attention and concern has been rightly directed towards the Bush administration’s erosion of civil liberties, the federal government is not alone. In fact, the City of Berkeley is in the midst of denying a number of its citizens their constitutionally guaranteed due process rights under the law. 

Approximately 35 residents of the West Berkeley live/work artisans residence known as the Drayage have been threatened with immediate eviction and criminal prosecution by the city for simply desiring to live in their homes. These tenants have lived here for over 15 years. These threats are the result of a process—or more accurately, no process—in which one person, the same person, has served the following functions: 

1. Investigator 

2. Witness 

3. Prosecutor 

4. Trial Judge 

5. Jury 

6. Sentencing Judge 

7. Executioner 

The person who has been and continues to perform all these roles is Berkeley Fire Marshal David Orth. The power wielded by the fire marshal is patently overbroad and unconstitutional—anyone with a rudimentary knowledge of due process can see this—except apparently the Berkeley city attorney who has stated publicly that there is no right to a hearing, review or appeal of a fire marshal’s decision.  

Thus, based on the opinion of one person, an entire community is on the verge of losing their homes. And the building owner is being fined an astronomical amount, as well as being deprived of the right to continue renting these units. The city has, in effect, ordered the owner to evict everyone in the building. All this without hearing, or an opportunity to confront the accuser, or to challenge the evidence against them, or to present contrary evidence, or to defend one’s self, or to appeal.  

The United States Supreme Court has long held that “the concept that due process mandates the right to notice and hearing prior to the taking of property has been held applicable even to temporary deprivations of property.” Sniadach v. Family Finance Corp. (1969) 395 U.S. 337; Fuentes v. Shevin (1972) 407 U.S. 67. Yet, in this instance, Berkeley has decided that its citizens are entitled to nothing. Berkeley rewrites, or better, writes off, the Fourteenth Amendment.  

For readers who have not been following this story over the past six weeks, here is an update: The folks living at the Drayage have openly lived in the approximate 25 residential and studio spaces since the early 1980s. They are intelligent people who have taken care of their spaces and have not lived in fear of fire. In mid-March, the fire marshal unceremoniously gave them two weeks to leave their residences, claiming an imminent fire danger. Several items noted by the fire marshal which seemed to be of concern—e.g. the use of propane stove tanks—were immediately removed by the tenants. The residents then installed 50 new smoke detectors and placed 50 functioning fire extinguishers throughout the building and residences—apparently to no avail, as the city continues to pursue an aggressive policy towards these long-term Berkeley residents. The Drayage is not in danger of combusting, spontaneously or otherwise. 

Curiously, in the 1980s, the city Building Department issued permits for construction of 12 units within the building. These units were built out to code by professional contractors. In 1984, when notified that there were people living at the Drayage, the Building Department wrote: “OK for live/work” in response. In the early ‘90s, the then Drayage owner specifically asked the Fire Department by letter if there were any fire code violations at his building. None were noted, despite years of inspections. Now, it appears that everything said before was wrong. 

Ironically, May 1—usually celebrated in these parts as International Workers Day—is also “Law Day,” so consecrated by President Eisenhower during the chilliest cold war era of the ‘50s. It might do the City of Berkeley good to reflect on the Eisenhower version of May 1. Perhaps then, the City Council might consider a resolution acknowledging that the Fourteenth Amendment to the Constitution is applicable within its borders, and guarantees due process of law to all of its citizens, including the residents and owner of the Drayage.  

Jeffrey J. Carter is an attorney and advisor to the Drayage residents.