Is Berkeley becoming Scrooge City?

Becky O'Malley
Friday December 23, 2016 - 01:06:00 PM

A couple of days before Christmas, right here in Berkeley, a group of people protesting the city's inadequate provision for homeless residents are being regularly rousted from their tents and sleeping bags in various locations around the city. As readers of this site are well aware, I think this is an expensive and ultimately pointless exercise which serves no genuine public purpose. There’s just no good reason to turn Berkeley into Scrooge City for the holidays, as our city employees appear determined to do. 

This crusade on the part of our city manager and staff has been the subject of heated controversy on the very valuable NextDoor.com website, well worth reading. Important issues have been raised. 

(Yes, I know, some don’t approve of NextDoor because some misguided individuals use it for racial profiling of people they suspect of being criminals, but around here they’re sternly reproved by the rest of us when they do that. The management of the site is also attempting to correct this problem with some success.) 

The homeless encampment situation as discussed there boils down in my mind to analyzing two themes, both of them rooted in the U.S. Constitution. 

First, a variety of recent court cases relying on the 8th Amendment (“cruel and unusual punishment”) pertain to discouraging prosecution of those sleeping/camping in public places if they have no real alternative to doing so. For a full analysis of what’s being talked about, see, for example, this: 


Second, the specific group being repeatedly ousted in Berkeley is loosely organized under the rubric of First They Came for the Homeless. They have clearly enunciated their intent in setting up these camps in order to call attention to the general lack of suitable housing for the sizeable segment of the population who are currently homeless. Because of the political nature of their statements, they can claim 1st Amendment protection for their actions. It’s generally accepted that government can, within reason, regulate the time, place and manner of political expression—so it would be up to a court to decide how this particular situation fits that standard, but it’s an open question.  

What is obvious to me is that the repeated raids and seizure of tents, sleeping bags, etc. are bad public policy. Seattle is well ahead of Berkeley in its efforts to craft a new model--among other things the mayor there has announced that he won’t be rousting people from sites where they’re not doing any damage. Efforts are underway to designate several approved camp sites in Seattle, accompanied by a host of services, all in aid of meeting the 8th Amendment standards under discussion around the country. Permanent small units are also in consideration. 

At the last city council meeting, the new councilmembers took some small steps in the right direction, but much more is needed. It seems to me that the lawn of Berkeley’s Maudelle Shirek building, the Old City Hall, would be a good place for a first approved camp site since bathroom access could be offered there relatively easily, and not much else is going on there at the moment. 

There’s always the chance that protests will continue to take the form of civil disobedience, with the emphasis on the “DIS”, so we might expect that protest sites will be around for the foreseeable future. It’s just plain foolish to continue this cat-and-mouse exercise while better solutions are being planned. More than that, it’s inhumane, sadistic even, to enforce what is believed to be the law by means of dawn raids in cold rainy weather accompanied by seizure of property. 

The city manager has been justifiably praised, notably by Councilmember Worthington, for copying Seattle’s strategy of commandeering a variety of city resources using the Emergency Operations Center structure to expand the number of homeless people who can be accommodated in various day and/or night indoor refuges in the near term. But the total number of individuals who are being accommodated by this strategy is about 200 tops, as compared to a low-estimated 800 homeless population who must eventually be housed in some way for the duration. 

The cynical among us might suggest that all this additional attention at this time amounts to an 8th Amendment CYA maneuver aimed at compliance with recent court opinions, and they wouldn’t be completely wrong. The only glitch in such a strategy would be that offering 1st Amendment protesters shelter per 8th Amendment requirements is not a neat fit.  

Though protest participants might be able to sleep overnight at the North Berkeley Senior Center, they don’t relinquish their right to raise the question of whether all of their homeless colleagues are adequately served by sleeping outside instead. That’s a distinction which at least one progressive- leaning councilmember seems not to be able to grasp.  

Tomorrow is both Christmas Eve and the start of Hanukkah, both feasts associated with light in darkness, a rare confluence which we might hope would enlighten the misguided city staff about the error of their acts. It’s time and past time to for them back off these stupid raids until the City Council meets again in late January to provide clear guidance about what the right policy should be.  

And of course, Happy Holidays, whichever ones you might celebrate, to all of you. 

P.S. A rumor is abroad that City Attorney Zach Cowan will be retiring in April. This might be an opportunity to replace him with an energetic and forward-looking attorney who can help the council find creative solutions to some of these conundrums.