Judge allows Berkeley homeless group to sue city, dismisses case against BART

A judge has allowed the “First They Came for the Homeless” group’s case against the city to continue. Photo: Natalie Orenstein

A federal judge said a homeless group has made plausible claims that the city of Berkeley seized some campers’ belongings illegally and suppressed their political expression by evicting them.

In his Friday order, U.S. District Court Judge William Alsup allowed parts of the “First They Came for the Homeless” group’s lawsuit to go forward, but threw out other claims that the city engaged in cruel and unusual punishment and discriminated against people with disabilities. He also dismissed allegations against Bay Area Rapid Transit.

“We are pleased that the judge is allowing us to proceed on a number of claims against the city,” said EmilyRose Johns, a lawyer for the homeless group, in an email to Berkeleyside.

Five members of First They Came for the Homeless, which considers itself an intentional community and protest camp, sued Berkeley and BART in October. BART had just given the campers notice to leave their post by the “Here There” art installation near the Berkeley-Oakland border, where they had been living on BART land for almost a year. The campers’ lawsuit claimed the transit agency was illegally forcing the group onto the streets and alleged that the city of Berkeley had also violated the group’s constitutional rights during a prior series of evictions from other locations on public property in the city.

The judge initially granted the camp a temporary restraining order against BART, then later allowed the agency to evict the group. Since then, many of its members have set up camp on the lawn in front of Old City Hall on Martin Luther King Jr. Way and others have moved to Aquatic Park or stayed near the now fenced-off “Here There” site.

Alsup also made an unusual order at the time, requiring both parties in the lawsuit to come up with a “practical plan” to house all the homeless residents in Berkeley over the winter, attempting to gauge whether the city is doing everything it can to address the homelessness crisis.

On Jan. 19, Alsup dismissed the case against BART because the campers moved off that land and are no longer involved in a controversy there. He also said the campers’ allegations that Berkeley violated their Eighth Amendment rights and targeted campers with disabilities were implausible. Additionally, the plaintiffs who had joined the group after it was already at the “Here There” site could not be victims of the city’s actions during earlier evictions, he wrote in his order.

However, the judge said there are sufficient allegations at this stage that the city violated two campers’ First, Fourth and Fourteenth amendment rights, denying Berkeley’s motion to dismiss the case altogether.

Homeless residents and their supporters threw a musical fundraiser at the Old City Hall site in January. Photo by David Yee, who has been documenting the camp since it moved there.

The complaint “adequately alleges that Berkeley targeted [First They Came for the Homeless] for evictions in harsh winter months based on the content of the group’s speech and its political engagement,” lending credence to a First Amendment claim, Alsup wrote in his order. “In particular, plaintiffs allege that the group publicly opposed Berkeley’s response to the City’s homelessness crisis, including by establishing themselves in prominent places near administrative buildings, writing op-eds, and attending City Council meetings. In response to the group’s criticisms, Berkeley allegedly began an aggressive campaign of evictions that included removing the group from twelve locations between October 2016 and January 2017.”

Berkeley did dismantle a number of campsites established by the First They Came for the Homeless members in 2016 and 2017 while leaving some other homeless encampments alone.

City spokesman Matthai Chakko said Tuesday that the judge’s order was just one step in the process, and that the city has not yet presented its evidence against the plaintiffs’ claims.

“The city’s motion to dismiss was based solely on the plaintiffs’ allegations, and no evidence was presented to the court,” Chakko said in a statement. “The city is confident that once the facts are presented, it will prevail on plaintiffs’ remaining claims regarding unlawful seizure of property and First Amendment retaliation.”

In the past city representatives have said they evicted the campers due to health and safety concerns and complaints, not to quell their protest.

The judge also said allegations that the city took campers’ belongings that could not be carried out during evictions, and both disposed of some and stored others so that they were difficult to retrieve, without due process, were plausible enough for Fourth and Fourteenth amendment claims to continue.

The order also allows the plaintiffs to file an amended complaint, reinstating their dismissed allegations. Johns, with the Oakland firm Siegel, Yee & Brunner, said they are still deciding whether to do so.

One of the plaintiffs, who goes by the name Jim Squatter, said Tuesday that he had been hoping for a more significant vote of confidence from the judge. Comments by Alsup at earlier hearings — including indications that he might require the city to turn public sites into sanctioned encampments — made Squatter optimistic.

“It’s not the sweeping win we had hoped for, but we advance,” Squatter said. “It seems to me that the judge is trying to narrow our approach to this. It doesn’t look to me that he’s going to house all the homeless.”

UN Special Rapporteur Leilani Farha (right, in purple jacket) met First They Came for the Homeless residents and other Bay Area camps last weekend. Photo: David Yee

The First They Came for the Homeless encampment (former members who established the group but who have since found housing have questioned the continued use of that name) was among several in the Bay Area that got visits last weekend from United Nations Special Rapporteur Leilani Farha. She described conditions she observed throughout the region as “cruel” and akin to those in slums she has seen in less developed countries.

First They Came for the Homeless has long argued that the city should permit encampments like theirs, which operate under a strict set of rules on substance use and cleanliness, if no permanent housing is provided instead.

“Intentional communities are the direction to go to,” Squatter said. “They don’t cost the city anything, they’re self governing, self-reliant” and offer homeless residents a sense of dignity, he said.

The city has not taken any steps to evict the growing encampment from the Old City Hall lawn.

“We have a complaint-based system that focuses on the health and safety,” Chakko said. “Health and safety concerns are what drive our enforcement process.” He said the city encourages residents to report concerns through 311.

Earlier this month, a camper at the Old City Hall site knocked over a candle in his lean-to, setting fire to his property and bushes, which firefighters had to cut down. Nobody was injured. According to a neighbor, the man had been living at the site before First They Came for the Homeless arrived. Squatter said all the campers have been more careful since.

Squatter said new people have begun camping next to the group at Old City Hall, trying to replicate their intentional-community model.

This story was updated with comments from the city.