Public Comment

Berkeley’s Vendetta against an African American family

The following is an attempt to give conceptual coherence to the story of what has happened to Mr. Leonard Powell of 1911 Harmon St. in Berkeley. Mr. Powell is African American, and a veteran of the US military. Since 2015, the city of Berkeley has engaged in a campaign whose essential outcome has been to evict Mr. Powell from the house he owns. Given the heights to which rental levels have risen, driving him out of his home will be tantamount to driving him out of town. What the city has pursued is tantamount to a heartless vendetta. And the story is rife with excesses and procedural misconduct.

When Mr. Powell first purchased the house, in 1974, he had a family, a wife and six children. The house was a duplex, which he transformed into a single-family home, and it fit the family perfectly. Forty years later, when the city of Berkeley first becomes aware of this house, three of the people living in it were in poor health. Mr. Powell’s brother needs continual access to an oxygen machine. One of his daughters has to undergo dialysis every day and did so with a machine in the house. And Mr. Powell himself had very limited energy owing to the fact that he had donated a kidney to his wife, in an effort to save her life. Nevertheless, the city of Berkeley managed to drive these people out of that house, on which they depended, in June of 2017. The city did this by working, over a two-year period, to put the house under receivership. The obsessive steps the city took to accomplish this are clearly spelled out in proceedings in Alameda County Superior Court (Berkeley vs. Powell; all filings referred to here are part of that case).

In the following report, I will focus on three factors in Mr. Powell’s story. The first is a police raid on the house in July 2014. The second is the campaign announced by the city in court filings beginning in March of 2015 to place the house under receivership. And the third has to do with the representation given Mr. Powell by a lawyer he unfortunately retained to assist him in resisting the receivership in April 2017.

I will first give some background to this history, and then address each of these factors in turn. I have read over the Superior Court filings in the case and spoken to Mr. Powell at length about them. I will be drawing certain conclusions as I proceed. These conclusions are mine. They represent what the documents and sequence of events I have encountered in this case tell me. 

 

The background

In 1974, Mr. Powell lived with his wife (a woman he loved very much, now deceased) and their children. His wife had five children when she married him (and whom Mr. Powell embraced as his own) and bore him a sixth child. 

While looking for an apartment, he took a job reconditioning an old duplex on Harmon St. in south Berkeley, a building on “contractor sale.” The building needed work, and for about a month, he worked on it to make it presentable. When the building was put up for sale, no one offered to buy it. After a while, the contractor offered it to Mr. Powell for $16,000. Wells Fargo then gave him a mortgage. In 1997, he succeeded in owning the house free and clear. 

For those who understand how labor establishes a different relation between a person and the land, they will understand how the fact of having worked on the building gave Mr. Powell a special connection to it as more than simply a commodity. 

The building had two apartments, one on the first floor and one on the second floor, and two entrances. To transform this into a single-family home, he boarded up the door to the second-floor stairway, and broke down an interior wall, giving the family interior access to the upper floor. As a single-family home, the building fit the size of his family. 

He lived in this house for 40 years, trouble-free. His children all grew up there. He was employed as a postal worker and retired on a small pension. 

 

The Police Raid

On July 24, 2014, the police raided Mr. Powell’s house. They were looking for his grandson, suspected of drug trafficking. The grandson did not live in that house, though the police report of the raid states that he resided there and gives the location of his "room" in the building. According to Mr. Powell, the grandson did not live in the house. Laura McKinney, Deputy City Attorney for Berkeley, described it differently. She stated in her Superior Court filing in the case, March 16, 2015, that the police were looking for the grandson who was a "guest at the Property." Why the city attorney had a different account from the police and from Mr. Powell was not explained in her filing, though the police report is attached to it. 

On the day in questions, the police found the grandson riding his bicycle down Harmon St. and arrested him at the corner of Adeline. They brought him to the house and interrogated him there. There were three people in the house when the police arrived, Mr. Powell, his ailing brother, and his ailing daughter. The police entered without invitation, on a search warrant obtained that morning. They found a plastic bag of crack cocaine in a potted decorative plant in the upstairs bathroom, and sales paraphernalia in the room they assigned to the grandson. According to the report, the grandson admitted the cocaine was his. When I informed Mr. Powell of his grandson’s admission, Mr. Powell stated that he had never heard about that before, from anyone. No one else was in the room at the time the grandson made this confession to the police. 

Furthermore, according to Mr. Powell, there were no drugs in the house, for the obvious reason. He was not going to put the well-being of his family members at risk. There are thus a number of irregularities or inconsistencies in this police operation, as reported. 

The police arrested the grandson, but released him two weeks later, with no charges. This is strange since he had two prior convictions for drug possession on his record. Having allegedly admitted to ownership of the drug, that would constitute a third offense, for which the police would ordinarily impose harsh penalties (though not a “third strike” charge, since none of his convictions were for violent crimes). One might suppose that there was something wrong with his "confession" at the building. 

Stranger still, the police did not arrest Mr. Powell, nor anyone else in the house, as associated with drug trafficking, though the cocaine was allegedly found in the house by the police. Mr. Powell was not even given a warning. 

Thus, there are grounds to consider the police report somewhat in error. The original warrant was procured using false information. The report claimed to have acquired evidence that would lead to charges against a number of people, though no charges were ever filed on the basis of this raid. 

What the police did accomplish, as a result of this raid, was to "notice" some construction going on in the house, for which they contacted Berkeley Code Enforcement and the Housing Department. Thus, they set in motion the entire process that has led to Mr. Powell being evicted from his own house. Had the police had a valid warrant, and followed constitutional procedure (4^th Amendment), it is possible that Mr. Powell and his family would still be safe and secure in their home. 

The fact that Mr. Powell knew nothing of the grandson’s alleged confession at the time of the arrest suggests that Mr. Powell had not seen this police report, even though it was made public as part of Ms. McKinney’s filing with the court. The "facts" in the police report were nevertheless used as an argument to denigrate Powell as the owner of a “public nuisance” house in Ms. McKinney’s filing, and to further the city’s quest for receivership, a petition for which Zach Cowan, as Berkeley’s City Attorney, filed on that same day (March 16, 2015). 

The fact that Powell now denies the items in the report indicates the Ms. McKinney did not discuss the police report with him before using it in her filing with the court. That means that the city was more intent on bringing this case to court than in mediating or resolving any problems that Powell might have been having, such as the health problems of the building’s residents. The city would have known that there were problems because there were inspections of the house in October and November of 2014, prior to Ms. McKinney’s filing. The city inspector filed a “Substandard Order,” with a list of violations, on Oct. 2, 2014, and gave Mr. Powell 45 days to begin work abating them. 

When Mr. Powell responded to the city’s filings, he did not contest any of the items on the inspector’s list, and indicated he is willing to do the work, and hire contractors. He did however miss his 45-day deadline. And that fact was advanced by the city as another reason for gaining receivership. Powell simply asked the city to work with him and assist in getting funds for doing the work. The city ignored Powell’s desires and requests. In effect, it was creating a situation in which only receivership was possible. 

As this process developed over the next two years, it had all the earmarks of a vendetta. 

 

The City’s Catch-22s

Code Enforcement, called to the house by the police who had entered the house without proper authorization, saw that the house had once been a duplex. Inspection resulted in 4-page list of minor items, most of which were the result of wear and tear, time and use. Mr. Powell told me he prided himself in keeping the house in good condition but fell down on this after his wife’s death in the late 1990s. Among the demands made by the city in its “Substandard Order,” Code Enforcement included returning the house to its former duplex condition. They had discovered that Mr. Powell had not obtained a permit to alter the organization of the building when he originally did so in 1974, 

In its demands, there was no recognition by the city that 40 years had gone by. For 40 years, no one official, and no one in the neighborhood had complained about the single-family status of the building. Yet the city suddenly became concerned. They gave Mr. Powell the option to keep the building a single-family dwelling, but that would mean a different kind of inspection (what the difference would be was unspecified in the inspector’s report). But it informed Mr. Powell that if he did not show progress immediately in abating the violation, the city would press its petition for receivership. There was no concern that Mr. Powell owned the building free and clear, nor that he had been doing work on the building during his entire ownership of it. 

Before Mr. Powell took over the house, it had been rented by some counter-culture group. They had occupied both floors and painted the entire house pink. They were white people, and so the city did not bother them. When they moved out, it is possible that the pinkness of the house scared away buyers. But Mr. Powell and his sons repainted the house, and made it look more like it belonged in the neighborhood. The city had nothing to say about that. But 40 years later, in the midst of a gentrification process, it would readily disregard the labor and love the family had put into the house, in the name of restoring it to being rental property. It would seem that this was more important to the city than the destiny of this family. But in order to accomplish such a goal, Mr. Powell’s ownership would have to be stripped from him. Though the city finally succeeded in moving Mr. Powell out of his own home through the process of receivership, it is important to recognize that the building had never been condemned by the city and had at all times been considered livable. 

Though Mr. Powell agreed to do what work he could, he would need financial assistance to hire contractors. He did get the house’s heater replaced, and some electrical work done. For the rest, he asked the city for help. Gregory Daniel, the Code Enforcement Supervisor for Berkeley, arranged to get a “Home Rehabilitation Loan” (HRL) from the Housing Dept. An interest-free loan, it was originally for $80,000 – raised to $100,000 in July 2016, by City Council. Mr. Powell agreed to the conditions of the loan and signed a Deed of Trust giving the city a lien on the house. 

Yet Mr. Powell never received any of that money from Housing. In his filing of March 16, 2017 (two years after his original petition), Mr. Cowan admits to a problem in what the city arranged for Mr. Powell. As a Housing Dept. loan, the HRL could only be used to rehabilitate a duplex building if the building was in its original duplex condition. 

That means that the HRL money to put the house back into duplex condition could only be used after the house was back in duplex condition. It was a Catch-22. Caught in this circularity, the money was useless, except to use as a cudgel against Powell. They were using this circularity in the loan to throw Powell into a dead-end street. They made demands on him (correcting violations), then made it impossible for him to comply, and then held his non-compliance against him as a reason to put his house in receivership, and himself in impossible debt (all the costs of receivership would devolve back to Powell as owner). 

Mr. Powell had trusted the city and taken their offers for assistance in good faith. He had acted responsibly toward his family and community, taken ownership of a building that was in disrepair and made it serviceable. He had obtained ownership of the building free and clear, and paid his taxes. After having been promised the money from the HRL, he approached several contractors to fix the building as Code Enforcement desired. The estimates all came to around $150,000. The city simply told him that he would have to find another source, on his own, to make up the deficit. But the city had made that difficult, if not impossible, by forcing him to sign a Deed of Trust to the city as collateral for a loan he would not have access to. 

This was a building for which there had been no demand on the real estate market when Mr. Powell took it over. In working on the building, he had added to the social value and the overall local real estate value of the neighborhood. And he had kept himself out of debt. The city decided on its own to turn this man into a debtor and place his house under a lien. This was fraud on the part of the city. 

This was not a way to treat a man who had ailing family members and was unable to work long hours because his body has been injured (in an attempt to save his wife). He had shown himself willing to work with the city, but they obviously had other motivations than to work with him. 

The final trick they played on Mr. Powell was, having taken steps to provide funding for the building’s rehabilitation, which constituted a promise they couldn’t keep, they then argued in their renewed petition for receivership that he hadn’t done any of the work on the house directly ordered by Code Enforcement. Having operated in a way to prevent him from resolving or abating the problems the city declared about the house, they held that against him, and used it to penalize him. It was like breaking a man’s leg and then penalizing him for being unable to walk. 

The hypocrisy of it is that the city sought to transform this man’s social status at will (into a debtor), while refusing to accede to his having transformed the status of the building (from duplex to single family). Just as the police had run rampant over Mr. Powell’s rights in entering his home on a false warrant and starting a process detrimental to him, so the city ran rampant over his civil status by seizing his home (which is what it means that the city took out the loan on it) and saddling him with a debt that the city controlled. 

 

The lawyer’s role

The city’s original filing for receivership on the building was on March 16, 2015. Through a variety of proxies, it subsequently refiled for receivership six times (on 6/25/15, 9/24/15, 1/12/16, 7/14/16, 11/17/16, and 3/16/17). At each time, the petition was rescheduled, and a new motion for receivership filed. That meant that Mr. Powell was rejecting receivership each time. 

It is noteworthy that, during 2015 and 2016, Mr. Powell represented himself in these Case Management Conferences (CMC). The last such CMC in which Mr. Powell represented himself occurred on Nov. 17, 2016. On March 16, 2017, that changed. And the sequence of steps with respect to this respect is very important. 

In preparation for the CMC of March 16, 2017, Mr. Powell, apparently feeling at a disadvantage without legal counsel, acquired the assistance of an attorney. 

On March 4, Mr. Powell signed a fee agreement with the attorney in which he agreed to pay a retainer of $5,000. In that agreement, under the heading of “Scope of Services,” it says, “Client hires Attorney to provide legal services FOR DEFENSE OF A CASE OF RECEIVERSHIP OF THE PROPERTY KNOWN AS 1911 HARMON ST., Berkeley, CA, 94703.” (Emphasis in the original) The rest is about the usual client-attorney relationship. I make note of this sentence because it names the issue, but does so with a strange use of the preposition "of" in the clause “defense of a case.” 

On March 6, 2017, Mr. Powell himself filed a declaration with the Court opposing receivership for his house. In that declaration, he says that he does not want the house returned to duplex status. He also states that he has at no time rented out any portion of the house but has used it solely for housing his family. Finally, he reaffirms his desire for the responsibility for work on the house, which has meant, in his past filings, raising the money, hiring the contractors, and doing some of the work himself. Mr. Powell asks the Court and the City of Berkeley to assist him in putting his house back into compliance with city code, a request he has made consistently over the preceding two years. Thus, he has officially made his desires known to the court. 

In this filing, Mr. Powell also states that staying in the house was very important for health reasons. His brother needed to have oxygen for his ailments. His daughter needed to undergo dialysis every day. And he himself was not able to work as he desired because he had donated a kidney to his wife in an attempt to save her life. 

On March 16, Mr. Powell filed a document with the court in which he appoints his attorney as representative. At the CMC called for that date, the judge (Colwell) presents a "proposed" order granting the city’s petition for receivership, which remained unsigned. 

On April 13, 2017, there was another CMC on this case. At this CMC, Mr. Powell’s attorney was present, but Mr. Powell was not. In this conference, Judge Colwell granted the city’s petition for receivership. And the filing granting that receivership was then signed by Deputy City Attorney Iyengar (for Berkeley), Judge Colwell, and Mr. Powell’s attorney. In other words, in this conference, Mr. Powell’s attorney acted in direct contradiction to Mr. Powell’s position and desires as stated on March 6. 

The receiver had already been chosen by the city and filed an oath with the court the very next day (April 14). 

Then, on June 7, 2017, there was another CMC, at which again Mr. Powell’s attorney was present but Mr. Powell himself was not. At that conference (with the judge), the attorney presented a filing of agreement on Mr. Powell’s part with the granting of receivership. 

The filing made by the attorney states that Mr. Powell “declares his support to the Receiver’s petition, filed on May 16, 2017.” This "petition" is actually an inventory of the work that the receiver had decided needed to be done. The fact of receivership had already been settled on April 13, 2017. 

In this filing, the attorney includes a “Declaration of Leonard F. Powell,” in which Mr. Powell accedes to what the receiver has enumerated. In this declaration, Mr. Powell allegedly states that he has read the petition presented by the receiver, discussed it with his attorney, cooperated with all tasks required, expresses a concern with the money needed to bring this project to fruition, and again requests the court to support his request for an additional $30,000 for rebuilding the house’s foundation. 

I use the term "allegedly" above because, when I read this Declaration to Mr. Powell, he said angrily that he had never made such a statement. He had made no request for any $30,000 of the court or the city, and he was never in agreement with the house going into receivership. 

When I next saw Mr. Powell (April 11, 2018), I showed him a copy of the declaration made in his name, and he said he had never seen it before. He disavowed the signature at the bottom that purported to be his. 

It is strange that the attorney seemed to think that Mr. Powell had to agree to what the receiver was taking steps to accomplish, where he hadn’t needed to state his agreement and acceptance of the fact of receivership itself. That might suggest that the attorney felt insecure concerning his earlier affirmation of the judge’s granting Berkeley receivership of Mr. Powell’s home, in contravention of Mr. Powell’s expressed desire of March 6, 2017. 

 

In conclusion

In sum, there are three levels of irregularity in this case. First, there is the police raid, with an improper warrant and possible falsehoods stated in the police report. Second, there is the city’s double-dealing with Mr. Powell in order to make a case for receivership. And third, there is Mr. Powell’s disavowal of the representation given him by his attorney. 

From a distance, the case looks like a campaign of injustice, a vendetta against Mr. Powell and his family. The city’s motive appears to have been to "evict" the family from the house by putting it in receivership. Powell’s ownership of the building would then be stripped from him through the debt incurred by the receiver in "rehabilitating" the building. The receiver has stated that rehabilitation will cost around $470,000, meaning that Mr. Powell will have to sell the building in order to clear that debt. That will, in all likelihood, result in Powell moving out of the city he has lived in most of his life, since rental housing is now quite beyond his means. 

In effect, the city can be accused of committing the following judicial violations with respect to Mr. Powell: violation of the Fourth Amendment, fraud, violation of the Fifth Amendment (deprivation of property without due process), and illegitimate asset forfeiture. 

It is clear that Berkeley needs more rental property (especially affordable units). But it is also facing the decimation of its African American community, for which housing economics has become a primary factor. Here we have an instance in which the latter, the African American community, is sacrificed for the former (market rate housing), which makes the development process the city has pursued a form of economic and institutional racism. 

Mr. Powell wishes only to get restitution from the city for all the problems it has heaped on him, and all the hardships it has put him through. That would mean being restored to his home, and the debts incurred in his name by the city paid for by the city. 

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EDITOR’S NOTE: This public comment report, written by community member Steve Martinot, is based primarily on his own interpretation of conversations with the subject, Leonard Powell, and his own reading of the court documents in the case. City of Berkeley employees and legal advisors involved could have different perspectives on the facts—if so they are welcome to submit them for publication.