The Universal and Unavoidable Consequences of Being Human, Even in Berkeley

Becky O'Malley
Monday September 17, 2018 - 10:58:00 AM

For the last couple of weeks I’ve been trying to figure out what the City of Berkeley’s policy on homelessness is. I’ve asked a lot of people: a couple of councilmembers, neighborhood activists in the areas with visible homeless populations, those invaluable civic watchdogs who go to all the meetings, some charitable souls who try to minister to the physical needs of those who live on the street with clothing, blankets and food… I’ve gotten the views of some of the thoughtful public citizens who think and then write about such problems, including some on this site. I’ve even been talking to a couple of friends who are part of the outdoor population. And now I’m more confused than ever. 

In general, I get one thing: a lot of Berkeleyans really don’t want to look at people who are obviously homeless. “Anywhere but here” is where homeless people belong, in the eyes of some. For an especially unpleasant demonstration of this, take a look at the nasty comments on a nice upbeat article on a local news site about the addition of some comfortable furniture to Berkeley’s main library. A disgraceful number of writers express fear and loathing at the notion that some homeless people might actually use the public libraries on occasion. 

A sample: “…these are our taxes, MY taxes, and yes, I don't want homeless people on our streets and in our public facilities.” 

If there’s something about the concept of public space that writers like this don’t understand, they need to acquaint themselves with the recent Ninth Circuit decision on the appeal of Martin v. City of Boise 

The opinion notes that “…the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being." 

And therefore “This principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter…whether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human." 

Moreover, any "conduct at issue here is involuntary and inseparable from status — they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping." 

As a result, just as the state may not criminalize the state of being "homeless in public places," the state may not "criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” 

The opinion doesn’t specifically cover access to public libraries, but they are public places too. 

As it happened, the following item was placed on the published agenda for last Thursday’s Berkeley City Council meeting by Mayor Jesse Arreguin: 

Recommendation: Adopt a Resolution setting enforcement priorities for the Downtown Berkeley BART Station Plaza (“BART Plaza”) prohibiting lying and camping and directing the City Manager to enforce Penal Code Section 647(e) at BART Plaza, Berkeley Municipal Code Section 14.48.020 regarding unpermitted objects obstructing sidewalks, and Berkeley Municipal Code Chapter 13.36 relating to lying on public property, in addition to all other applicable laws. 

Why did the Mayor put this item on the agenda? 

From the accompanying explanation: 

“Construction of the new Downtown Berkeley BART Station Plaza, on the west side of Shattuck Avenue between Center Street and Allston Way, is expected to be completed in September 2018. The $7.6 million project is designed to improve both safety and walkability, creating more open space and activating underutilized sidewalk space. The Plaza will serve as the main gateway for many people arriving to Downtown via BART, AC Transit, or UC Berkeley Bear Transit Shuttle, which combined has a total of 30,000 commuters daily at this location. To ensure the safety and promote a plaza that is welcoming to all, enforcement of the following regulations is needed:  

  • California Penal Code Section 647(e): Unpermitted lodging
  • Berkeley Municipal Code Section 14.48.020: Items obstructing sidewalks
  • Berkeley Municipal Code Section 13.36: Persons obstructing sidewalks.”
Really? This obvious boondoggle, those banal little glass houses that they’ve built over the BART entrances, cost the public Seven Point Six Million Dollars? And we need to invoke the Penal Code to evict the homeless from this tacky little plaza? 

Just for comparison, how much affordable housing could have been built with the amount of money that went into this pork project? 

Well, here’s just one example of what could be done: All Souls Episcopal Church is hoping to build 37 affordable housing units for seniors on part of its Oxford Street property. There’s a possible outside source of government funding which could be tapped, but the church needs to demonstrate access to at least $6 million to qualify to compete for the grant. It asked the City of Berkeley to put up that amount, but the city didn’t have the cash at the moment. Disregarding for the moment the merits (or lack of them) of this particular project design, money that could have been leveraged by All Souls to provide needed housing was spent on redecorating the BART plaza. 

And now the Mayor proposes “to promote a plaza that is welcoming to all” by kicking unsightly homeless people out of the public space. 

Where’s Tom Lehrer when we need him? I can almost hear the satirical song he should be writing about this newspeak proposal: 

“Welcome to all, except just not to you!
Don’t think you’re at home, since it just isn’t true.
Don’t lie, camp or sit, don’t doze for a bit.
Or you're sure to end up in the stew…. ” 

Too bad the Ninth Circuit has rained on the parade. The item was pulled from the agenda at the last minute on Thursday, per advice of the city attorney, who referenced Martin v. City of Boise

When I started writing this I’d intended to talk about the ridiculous game of whack-a-mole the city has been playing with people struggling to house themselves on public property in tents and vehicles. 

I’d hoped to discuss the incredible vanishing shelter bed dance imposed on those who don’t even have tents. 

I intended to point out that every locality that I know well sincerely believes that its problems with homelessness are unique, the result of its uniquely generous public services which attract homeless clients from miles around. 

I was going to reminisce about the first homeless family in Ann Arbor, discovered in the late sixties out of work and living under a bridge, who became celebrities and were appointed to city commissions because they were so unusual. 

I recalled the first homeless person in the Elmwood, sometime in the 1970s, a nice guy named John, probably schizophrenic, who had a routine list of addresses he called on for help when needed. 

I thought of our friend Terry, developmentally disabled, dirty and drug addicted when he rang our doorbell in the 80s, who found a group home in Fremont where he could lead a dignified life. 

I remembered wise-cracking crack-damaged Betty Bunton, cheated by Wells Fargo out of part of her SSI check every month, who died of asthma trying to get to the Alta Bates ER. 

But there will be plenty of time to tell all these stories and more, because homelessness has become a permanent national affliction. The Berkeley City Council, like city councils everywhere, will continue to dilly-dally around with various “solutions” which don’t take into account the enormous diversity of those individuals we used to call “street people”. 

They end up on our streets for lots of reasons: mental illness, drugs, no family, no money, no job, but they still have the right to life, a term expropriated to protect fetuses but certainly applicable to full grown humans. 

The Boise opinion gets it right. Sitting, lying, and sleeping are universal and unavoidable consequences of being human and deserve protection as such. Unless the city of Berkeley can provide safe and convenient places for all of our human population to sit, lie and sleep, we don’t have the right to banish some of us from public areas. At the rate we’re going, that won’t happen any time soon.