The Constitutionality of Homeless Encampments

From, and only as editor, by Steve Martinot
Thursday September 06, 2018 - 04:23:00 PM

The issue of homeless encampments keeps coming up. The reason is the insistence on the part of the police of Berkeley on raiding encampments, dispelling the groupings of the homeless, disrupting their comunities, and thereby forcing them to move, to resettle themselves, to figure out new procedures for survival.

During the Obama administration, the Dept. Of Justice formulated an argument for how and why and under what circumstances this practice of raiding and disbanding homeless encampments is unconstitutional, in violation of the 8th Amendment. The 8th Amendment prohibits “cruel and unusual punishment.” It therefore limits what can be punished and what not. In particular, certain conduct can be punished, but mere status cannot be under certain circumstances (such as illness, poverty, unemplyment, etc.). To the extent homelessness is a (involuntary) status, camping cannot be punished unless a city provides an alternative, such as shelter.

What I include below is an edited (by me) version of a writ introduced into a trial in Boise, Idaho, in 2015, on this issue. It was a case in which the homeless of Boise had filed suit against the city, and the US government had filed an amicus brief in favor of the plaintiffs (the homeless). I have redacted the footnotes and references in the interest of length, and to make the text more palable to those who would have trouble wading through all the legal citations and rhetoric. I tried to only leave the meat of the government’s argument there. For those who have no trouble with legalese, and would like to look at the precedents and citations, the name of the case is Bell vs. City of Boise, its trial number is 1:09-cv-00540-REB, held on 08/06/15. And the full text of the government’s writ can be found here – https://www.justice.gov/opa/file/643766/download -more-

Public Comment

What's Happening to 2211 Harold Way?

Kelly Hammargren
Saturday September 01, 2018 - 10:15:00 AM

The sinking Millennium Tower has captivated San Francisco. Is Berkeley sliding toward its own scandal?

Berkeley Planning Director Timothy Burroughs succumbed to City pressure to sign yet another extension for the project planned for 2211 Harold Way, so presumably the developers who carried the project through entitlement and won the CEQA lawsuit can find a buyer to build it and an institution to finance the project.

With a perceived shortage of housing and a captive student rental audience, why has this project been so hard to flip?

The project site consists of interconnected buildings (the Shattuck Hotel Complex) which are divided into three overlapping commercial condominiums: Units A, B and C.

The developers of the Harold Way project own Unit A and Unit B, the Postal Annex, the storefronts along Shattuck Avenue, the Shattuck Cinemas and the basements underneath. Longtime residents recognize these portions as the former Hink’s Department Store.

Unit C includes the operational Shattuck Hotel, the restaurant, the hotel lobby, the basement service area and the hotel rooms, including the hotel rooms along Shattuck Avenue, floors two through five above UNIT A. These are owned by BPR, an independent family operation.

The 2211 Harold Way project as entitled calls for demolition and excavation under the hotel rooms (which the developer does not own) to build the three subterranean movie theaters and a lobby area which are promised under the permit.

It may be possible to properly brace the upper floors of the historic Shattuck Hotel to prevent damage and/or collapse during demolition and excavation for these promised theaters, but if (and some would say when) something goes wrong, who is responsible and what is the cost?

The City of Berkeley approved the project. As San Francisco has been with the Millennium Tower, Berkeley could very likely be pulled into lawsuits along with the developer.

The other question is why any investor group would buy a project which requires demolition and excavation under a building it does not own when there are sites all across the country without this complication and risk. Maybe there is a different plan: an expectation of an easy ride, of dumping the cinemas in the current Harold Way project plan, especially if they start demolition and problems develop.

Over five thousand cinema patrons from all across the Bay Area signed petitions to save Shattuck Cinemas. Just a few spoke in favor of the project, many of whom were vying to be recipients of the project's supposed “community benefits.”

Citizens by the hundreds wrote and testified against this project, objecting to:

  • the lack of inclusionary affordable housing,
  • intrusion into the view from Campanile Way,
  • demolition of Shattuck Cinemas and portions of the landmarked Shattuck Hotel Complex,
  • allowing a seismic report instead of a seismic study with soil borings,
  • location in a school zone impacting approximately 3500 students,
  • a transportation study that challenged common sense with the project parking entrance/exit across from the Central Library on Kittredge and
  • impact on City infrastructure.
It might be a good time for backers with career ambitions to start looking for a different job, before this project goes wrong as predicted by many. -more-

Housing the Homeless

Marcia Poole
Sunday September 02, 2018 - 02:01:00 PM

UPDATE: This morning, at 7 am, displaced homeless from the shelter, FTCFTH, and supporters took city hall. The reason is obvious. 90 out of the old, 60 into the new. The other 30?

The city had plenty of time to make sure no one was displaced. They did not care enough to. These homeless are all disabled. They are seniors. And the city again, did not care about the most vulnerable.

Recently, at a town hall meeting hosted by Berkeley’s Mayor Jesse Arreguin and Vice Mayor Cheryl Davila, the public was asked to think about ways we could house the residents of the soon to be closed Berkeley Emergency Storm Shelter at 9th and University. A number of good possibilities, short and long- term were offered. I would like to lend my support to several of them.

I request that the Mayor’s office to do whatever is necessary to extend the operation of the shelter at its current location. Declare a state of emergency and request the County of Alameda and State of California governments extend the 180 days to whatever time is necessary. Comply with any and all repairs needed. In addition, build several bathrooms on site, add showers and washing machines. The Dorothy Day House does a spectacular job of making this place a well-run center and we should see that the City does everything it can to continue the operation of this good shelter they have created. -more-

Wisdom of the Locals

Jovanka Beckles
Sunday September 02, 2018 - 01:32:00 PM

Every so often a writer produces a phrase that vividly encapsulates the political spirit of the times.

Becky O’Malley, in this space, did this for me when she coined the term “wisdom of the locals,” saying that this is what we need instead of endorsements from outside famous politicians. She named what is now flooding into my race for Assembly District 15.

I’m astonished and humbled. I am the grateful beneficiary of the wisdom of the locals.

Every day I seem to receive another endorsement from local activists, politicians and organizations brimming with expertise and knowledge of our dynamic East Bay and state. These people, together, represent centuries of experience and they know a huge amount about what we need to rectify the abiding problems we’re facing, from climate degradation, to a dysfunctional justice system, to deficient charter schools set up for profit not for children.

Only this week, when I thought there could be no more, more came. I welcome the help of the wise - maybe that’s why they keep coming! -more-

Predictive Work Scheduling Law Is a Must

Harry Brill
Friday August 31, 2018 - 07:13:00 PM

Among the serious problems that working people confront particularly in the retail industries, which include food service establishments, is that their work schedules are subject to change with very short notice. This is problematic for women with children. It poses major hurdles for those who want to advance themselves by attending school or just taking courses they would enjoy.

Also, many workers in the retail industries who work part time need another part time job as well. Without steady and predictable hours, schedule changes make that impossible. For workers generally it makes planning difficult and even at times impossible. Most employees do not complain to avoid the risk of losing their jobs.

Unfortunately, these workers are treated as things that employers can manipulate rather than as real people. There should be a federal law as there is in other countries to protect working people against this abuse. Instead it is up to the states and cities to enact predictive scheduling laws. But very few communities have done so.

Two bay area cities, San Francisco and Emeryville, have each enacted a predictive scheduling law. San Francisco was the first city to enact a scheduling law (2014). The law applies to retail and chain restaurants, which are required to provide two weeks' notice of work schedules. If schedules change in less than seven days employers are subjected to a small penalty. However, there are no heavy fines. Moreover, most workers are not protected. The ordinance covers only those retail establishments that have at least 40 locations worldwide and 20 or more employees in San Francisco. As a result, only a small minority of workers benefit from the law. -more-


Fixing a Failing Flip: 2211 Harold Way Gets Another Pass for Another Year

Becky O'Malley
Saturday September 01, 2018 - 09:57:00 AM

If three trees fall on University Avenue in Berkeley, do they make any noise? Last week three felled redwoods created a reasonably substantial hullaballoo, proving once again that we’re a city of tree huggers. Online stories (Berkeley disciplines developer after redwood trees chopped down, City orders removal of 3 potentially dangerous trees at construction site, City orders redwood removal after trees destabilized at construction site ) prompted an outflow of outraged complaints from the little people, some of whom actually signed their real names, a refreshing contrast to the usual comments from the surly entitled trolls who spend too much time anonymously carping on these news sites.

Lost in the chorus was another disaster waiting to happen, the City of Berkeley Planning Department's surreptitious extension of the entitlements for 2211 Harold Way, a project which threatens to undermine the Shattuck Hotel in much the same way that this small-time developer undermined the redwoods. More about that later. -more-

The Editor's Back Fence

More to Come

Saturday September 01, 2018 - 10:59:00 AM

Since it's Labor Day weekend, I'm taking my time. There are more submissions which I'll be posting at my leisure this weekend--stay tuned -more-


THE PUBLIC EYE: It’s the Corruption, Stupid

Bob Burnett
Saturday September 01, 2018 - 10:50:00 AM

As we head for the November 6th midterm elections, it's worth remembering that Donald Trump was elected President because he promised to "drain the swamp." Instead of doing that, Trump has unleashed a tidal wave of corruption. Over the next two months, Republican corruption is the key topic Democrats must talk about. A 2016 Washington Post/ABC News poll (http://apps.washingtonpost.com/g/page/politics/post-abc-tracking-poll-oct-30-nov-2/2124/ ), released a few days before the presidential election, found that Hillary Clinton had a narrow lead over Trump on all issues except corruption -- where voters trusted Donald to address "corruption in government." In the presidential election exit polls (https://www.cnn.com/election/2016/results/exit-polls ), 39 percent of respondents said the candidate quality that mattered the most was the ability to "bring change;" 82 percent believed Trump was more likely to do this. It can be argued that ending corruption was Trump's key issue. -more-

DISPATCHES FROM THE EDGE: Asia/Pacific’s Shifting Alliances

Conn Hallinan
Sunday September 02, 2018 - 01:53:00 PM

“Boxing the compass” is an old nautical term for locating the points on a magnetic compass in order to set a course. With the erratic winds blowing out of Washington these days, countries all over Asia and the Middle East are boxing the compass and re-evaluating traditional foes and old alliances.

India and Pakistan have fought three wars in the past half-century, and both have nuclear weapons on a hair trigger. But the two countries are now part of a security and trade organization, the Shanghai Cooperation Organization (SCO), along with China, Russia and most of the countries of Central Asia. Following the recent elections in Pakistan, Islamabad’s Foreign Minister, Shah Mehmood Qureshi, has called for an “uninterrupted continued dialogue” with New Delhi to resolve conflicts and establish “peace and stability” in Afghanistan.

Pakistan’s new Prime Minister, Imran Khan, is a critic of the U.S. war in Afghanistan and particularly opposed to the use of U.S. drones to kill insurgents in Pakistan. -more-

ECLECTIC RANT: Labor Day 2018

Ralph E. Stone
Sunday September 02, 2018 - 01:38:00 PM

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country. Labor Day became an official federal holiday in 1894. This year, Labor Day will be celebrated on Monday, September 3.

Corporations did not all of a sudden give workers two days off each week, which we now call weekends, or paid vacations and sick leave, or rights at the workplace, or pensions, or overtime pay. Virtually all the benefits we have at work, whether in the public or private sector, are because unions fought hard and long against big business who did everything they could to prevent giving us these rights. -more-

ON MENTAL ILLNESS: Paranoia as an Obstacle to Treatment

Jack Bragen
Friday August 31, 2018 - 07:10:00 PM

When mental health consumers are paranoid about everything, this can become an obstacle to accepting treatment.

Treatment practitioners generally intend to help us. This makes sense for a number of reasons. If we can get our symptoms under control, it is less likely that we will be a nuisance or a threat to society. In addition, it is cost-effective to treat severe symptoms. Services given to people in crisis are usually much more expensive compared to preventative maintenance.

Thus, it is in society's interest and it is in our own interest to accept treatment. If we accept treatment, it becomes possible to create good lives for ourselves. Without treatment, we are shortchanging ourselves of the possibility of good things. -more-

SMITHEREENS: Reflections on Bits & Pieces

Gar Smith
Sunday September 02, 2018 - 01:43:00 PM

Roll Out the Barrels

Alarmed that pot-puffing might lead to a decline in suds-sucking, beer-brewer Heinekin has announced plans to purchase Petaluma's Lagunitas Brewery Company, a firm that produces non-alcoholic sparkling water infused with THC, the active ingredient in marijuana. (The brewery's "Hop Water" gives new meaning to the phrase "potable water." Remember, kids: It's important to remain HIGH-drated. Presumably these pot-water bottles will be labeled and thirsty customers will need to be carded before making a purchase.)

We're happy to report that the cafe at the Berkeley Bowl in West Berkeley is already a jump ahead of Heinekin. There were four specialty brews on tap at the coffee counter this week including Lavender Lemonade and "Cannabliss." -more-


The Berkeley Activist's Calendar, Sept. 7-9

Kelly Hammargren, Sustainable Berkeley Coalition
Saturday September 01, 2018 - 10:41:00 AM

Worth Noting: -more-

Back Stories



Fixing a Failing Flip: 2211 Harold Way Gets Another Pass for Another Year 09-01-2018

Let's Take Back the Speaker Along with the House 08-28-2018

The Editor's Back Fence

More to Come 09-01-2018

Public Comment

What's Happening to 2211 Harold Way? Kelly Hammargren 09-01-2018

Housing the Homeless Marcia Poole 09-02-2018

Wisdom of the Locals Jovanka Beckles 09-02-2018

Predictive Work Scheduling Law Is a Must Harry Brill 08-31-2018

When Women Are The Main Breadwinners Harry Brill 08-25-2018

Why Should BART Be Offered Zoning Power? Zelda Bronstein 08-25-2018


The Constitutionality of Homeless Encampments From, and only as editor, by Steve Martinot 09-06-2018

Berkeley Campus Gun Scare Was False Alarm Supriya Yelimeli (BCN) 08-29-2018


THE PUBLIC EYE: It’s the Corruption, Stupid Bob Burnett 09-01-2018

DISPATCHES FROM THE EDGE: Asia/Pacific’s Shifting Alliances Conn Hallinan 09-02-2018

ECLECTIC RANT: Labor Day 2018 Ralph E. Stone 09-02-2018

ON MENTAL ILLNESS: Paranoia as an Obstacle to Treatment Jack Bragen 08-31-2018

SMITHEREENS: Reflections on Bits & Pieces Gar Smith 09-02-2018

THE PUBLIC EYE:Elizabeth’s Big Idea Bob Burnett 08-25-2018

ON MENTAL ILLNESS: Acceptance Jack Bragen 08-25-2018

ECLECTIC RANT:Global warming is real and it could become irreversible Ralph E. Stone 08-25-2018

SMITHEREENS: Reflections on Bits & Pieces: Gar Smith 08-25-2018

Arts & Events

The Berkeley Activist's Calendar, Sept. 7-9 Kelly Hammargren, Sustainable Berkeley Coalition 09-01-2018

The Berkeley Activist's Calendar Kelly Hammargren, Sustainable Berkeley Coalition 08-25-2018

Wonderful Recordings of Lute Music Reviewed by James Roy MacBean 08-27-2018

The 2018 Merola Grand Finale Reviewed by James Roy MacBean 08-26-2018