A Month-By-Month Record:
How the Trump Court Eliminates Unhoused Persons’ Human Rights
–And Berkeley Goes Along.
On September 10, 2024, Berkeley City Council passed a policy resolution to expand the City’s ability to close homeless encampments. The new policy takes advantage of the recent Supreme Court decision in Grants Pass v. Johnson, which was issued on June 28, 2024. The Grants Pass decision, enabled by the appointment of three far-right justices by Donald Trump, empowered cities to arrest or cite people for sleeping outside even when there is no available shelter for them.
Here’s how it went down:
June 2024—the Supreme Court allows the outlawing of homelessness.
The Ninth Circuit, preceding the Supreme Court decision, ruled that the city of Grants Pass, Oregon violated the Eighth Amendment – which prohibits cruel and unusual punishment – for the practice of fining homeless people for sleeping in public places. The Supreme Court’s decision reversed this ruling by a 6-3 majority in Grants Pass v. Johnson, upholding that the city has the right to penalize sleeping and camping in public spaces, even if those experiencing homelessness have nowhere else to go.
The majority opinion written by Justice Neil Gorsuch stated that the enforcement of ordinances targeting conduct such as sleeping or camping in public do not constitute cruel and unusual punishment, and this enforcement does not criminalize the status of homelessness. Justice Sonia Sotomayor, in her dissent, argued that the ordinances effectively criminalized homelessness as they penalized individuals for behaviors they could not avoid due to their lack of shelter.
The Western Regional Advocacy Project (WRAP) submitted an Amicus Curiae brief to the case and argued that “rather than eradicating homelessness, governments try to eradicate homeless people” and urged the justices to “deem the criminalization of basic survival unconstitutional” (https://wraphome.org/wp-content/uploads/2024/04/brief-of-the-western-regional-advocacy-project-as-amici-curiae-in-support-of-respondents.pdf). However, this and similar arguments presented to the Court did not sway the majority.
Berkeley is among one of the first cities to publish an updated policy on this matter. In San Francisco, there have been acknowledgments of the ruling made by Mayor London Breed and City Attorney David Chiu, but no policy changes have yet been announced (https://www.sfcityattorney.org/2024/06/28/city-attorney-issues-statement-on-u-s-supreme-court-decision-in-grants-pass/, https://calmatters.org/housing/2024/06/california-homeless-camps-grants-pass-ruling/).
August—the Peace and Justice Commission steps in.
On August 7, the City’s Peace and Justice Commission forwarded to Council an alternative approach titled “Resolution Opposing the Criminalization of Poverty and Homelessness.”
This resolution would commit the City to continuing to “operate under the framework of Martin v. Boise, as permitted under the recent Supreme Court decision in Grants Pass v. Johnson, and [to] refrain from any criminalization or effective prohibition of sleeping while unhoused, including citation or arrest simply for sleeping outside if no adequate shelter is available.”
September—City Council approves aggressive action against the unhoused.
The Berkeley City Council’s policy resolution states:
“…in the event that the City Manager determines that a shelter offer is not practicable, then the City Manager is nonetheless authorized to enforce state and local laws” under certain circumstances including where an encampment poses a fire hazard or emergency condition, an imminent health hazard, a public nuisance, in a dangerous proximity to traffic, where the City has authorized construction or “major or minor encroachments,” tree maintenance and the like.
The resolution goes on to specify two priority areas for enforcement:
The resolution also authorizes the City Manager, after clearing an encampment, to “deter re-encampment” through hardscaping (paving) and enforcement.
The resolution goes on to specify two priority areas for enforcement:
- the Harrison Corridor (Harrison Street between Ninth and Seventh Streets, including Eighth Street north of Harrison); and
- the Second and Cedar area (Second Street between Cedar and Page, Cedar from Eastshore Highway to Fourth, and on Page and Jones Streets west of Fourth).
An earlier draft of the resolution specifically authorized the city management to arrest and cite both during and after clearing encampments. When Council Member Rashi Kesarwani presented the item to the Council on Tuesday night, she replaced the words “arrest and cite” with “enforce state and local laws.” However, the meaning of the old and new phrasing is identical; police enforcement means to arrest or cite.
The Council took hours of public testimony, mostly against but some in favor of the resolution. During Council discussion, three members supported a delay and a somewhat more tempered set of rules for clearing encampments; but when that amendment failed, Council passed the Kesarwani version by 8-0, with only Cecilia Lunaparra dissenting.
The Council did not take the Peace and Justice Commission’s resolution into consideration on September 10.
The new policy is focused on the removal of encampments. While some other cities such as San Diego and San Jose have set aside or “sanctioned” space for groups of homeless people, whether in RVs or in tents, Berkeley has not given permission for such group living. Unhoused people and their advocates explain that they overwhelmingly prefer to live in permanent housing like everyone else; but when that housing is not available, it is much safer to live in groups. Such group living can also make it easier for the government as well as homeless advocates to provide essential services and to address health and safety issues.
What do public health professionals say?
Olivia deBree, a Nurse Practitioner and the Medical Director for Street Medicine at LifeLong Medical Care, has been working out of a medical van for the last 4.5 years at the Harrison and Eighth and the Second & Cedar encampments in West Berkeley taking care of “people experiencing homelessness” (PEH). She is strongly concerned that sweeps will harm the health and safety of residents in the targeted camps, hindering some from obtaining housing and merely replicating their poor living conditions in a different location. Their temporary stability in a camp gets upended and they experience setbacks or even reversals to receiving housing, medical care, and improvements in mental health.
In order to be able to be housed, the individual must have an ID card. It is a difficult and lengthy process for PEH to acquire this documentation and during a sweep it is easily thrown out, which deBree says “[makes] it impossible for that person to get housed in the near-term.” After a sweep, it becomes more difficult to find patients to help them complete their treatment regimen through medicine refills and reminders to take it which creates health risks. Due to the interruption of treatment, viruses and diseases can become transmissible again and patients on life saving addiction medication can go into withdrawal and revert to using opiods. Those with disabilities and acute medical conditions can be physically unable to pick up their possessions and transport them over blocks or miles. The loss of their possessions can induce trauma and mental health emergencies and deBree has “witnessed people with passive suicidal ideation develop active suicidal ideation with a plan due to a sweep.”
The new policy does not provide any additional help addressing the health and safety problems that impelled its author to propose encampment removals as the cure.
The Background section of the resolution refers to past measures to abate negative conditions in the two targeted camps. Those include partial closures for deep cleaning, case management, addressing rodent populations, and basic sanitation; and case meetings including representation from community organizations including Bay Area Community Service (BACS), Homeless Action Center (HAC), East Bay Community Law Center (EBCLC), Where Do We Go (WDWG), and Consider the Homeless.
October—A protest encampment is established.
At the end of September, a protest encampment was established and some 40 tents went up outside the Maudelle Shirek Building, also known as Old City Hall. This was also the site years ago of the “First They Came for the Homeless” encampment. The late Mike Zint led this encampment, calling out to then Mayor Bates, “Just tell us where we can go to be left alone!”
The same call issues from these unhoused persons: “Where Do We Go?” In an interview at the encampment with Berkeley Speaks, protest organizer and attorney Andrea Henson explained its purpose. See the attached short two-part video interview with Andrea; beginning at about 4:44 in Part 1 and continuing through Part 2, Andrea lays out the destructive impact that renewed City sweeps will have on the unhoused. Excerpts from the interview follow.
This is our protest encampment, and why we did this is because it allows individuals a space where they can exercise their First Amendment rights to free speech. It’s a public space. Typically when individuals are unhoused and they want to express their voice they’re retaliated against, their personal belongings are taken, and they are swept. So this provides a space where people can exercise their First Amendment rights. It brings together housed and unhoused. This is intentional. And it brings a lot of awareness to what’s happening around us, San Francisco, Oakland, Berkeley especially, as well as what the governor is doing. We’re able to talk to the media in a central space.
But also it has evolved into a very safe space where the most vulnerable can come, and feel safe, and be fed; we have free clothing, free hygiene products, we have literature; it’s a safe place where people can sleep and not feel like they’re going to be assaulted or attacked; we have games, we have books. People can feel safe and also feel empowered. That’s the goal of it.
If people want to help, we need clothes. A lot of clothes, we’re running low. Men’s clothes, women’s clothes. Boxers, socks, undergarments, bath wipes. Clean clothes! For food, fire is a big issue so we don’t want to have any open flames. So we ask people to bring pop-top cans. If you can cook something–community members bring by platters of spaghetti, soup, even sandwiches are welcome. We feed people throughout the night. Water, ice, we welcome all of it. Chairs; canopies provide a lot of protection, they provide community spaces; tents, sleeping bags, all that.
October 24 is Coming—Scary Times Ahead for the Unhoused
The new ordinance will go into effect 30 days after its passage on second reading, so, on or about October 24. We asked Attorney Henson what will happen then.
The resolution focuses on our two biggest encampments, Harrison Street and Second Street. They’ve already said that they’re going to target Harrison Street first, and after that, Second Street, which the Governor said he just gave the City of Berkeley $5.2 million for, to clear the encampment.
They’re supposed to put people in housing. When they passed the item, Councilmember [Cecilia] Lunaparra asked, at that time, if you’re going to sweep everyone, how many rooms are available? Peter Radu [Assistant to the City Manager – Neighborhood Services] said, “well, there are five.” Five rooms.
A lot of folks [caught up in previous sweeps] who have been placed into temporary housing and removed, are now at Harrison.
We are having very cooperative conversations with the City. The problem is, they won’t tell us where to go.
We want to find a safe space for Harrison Street people. You know, there is [former racetrack] Golden Gate Fields, that’s been rejected; the Marina’s been rejected. We’re looking for a space. We could move that entire encampment, literally. People don’t want to be harassed. They know that they’re in a place where businesses have brought lawsuits. They know that people don’t want them there. But at the same time, with the targeting that Berkeley is doing…Find a space! Where could they go? That’s the question…Where Do We Go?
Berkeley Speaks: what messages do you hope constituents need to bring to their legislators?
A.M.: “Where do we go?” They’re going to sweep so many people during the winter. Where do they go? Homeless people understand—they don’t want to be arrested or cited. They don’t want to go into neighborhoods because they understand the tension. They understand what business owners are saying about them. But there is nowhere to go. So we need to be realistic about what’s happening.
Demand accountability. Ask how many rooms are available. Now, the business owners brought this lawsuit when they could have used their resources and to actually solve problems. They said homeless individuals are a nuisance, and they blamed that on advocates. No—you have all this political power as a business in Berkeley. You pay taxes. Demand accountability. Ask why are there no mental health clinicians, I mean an actual M.D., why are they not coming out to the encampments? Where is the money going? Who have you hired? What are the success metrics?
In Part 2 of the video interview with Andrea Henson, starting at about 7:50 she goes deeper into the City’s failings in providing mental health services to homeless encampments.