Opinion: A measure to police the new Downtown Berkeley BART station will criminalize the homeless

The City Council will consider whether to prioritize the policing of disorderly conduct crimes, like sleeping or putting stuff on the sidewalk, at the newly renovated BART Plaza.

On Sept. 13, the City Council will consider setting enforcement priorities for the newly-remodeled Downtown Berkeley BART Station Plaza.  The measure put forward by Mayor Jesse Arreguín would direct the city manager to prioritize policing people who are sleeping or camping illegally on private property (without the permission of the owner), who are lying on the sidewalk and who have spread their stuff out on the sidewalk. The measure offers no guidance as to whether police should issue an infraction for the crimes or charge people with a misdemeanor.

This is the latest in a years-long attempt by the City Council and the Downtown Berkeley Business Association to criminalize homelessness.

Selective enforcement of California Penal Code Section 647(e) and Berkeley Municipal Code Sections 14.48.02 and 13.36, in a place and manner which will guarantee enforcement against the most vulnerable members of our community, lacks compassion. It is a clear indication that Berkeley values aesthetics over people. There are nearly 700 people staying in Berkeley in a place not fit for habitation on any given night, and another 300 people in shelters. Yet, the council is asked to provide an “out of sight out of mind” solution at the entry point to Downtown Berkeley.  This is misguided. Prioritizing enforcement this way is a waste of limited police resources, impedes progress toward long-term solutions to homelessness, is unconstitutional, and requires money that could be better put toward those long-term solutions. But it is also, at its core, not what this community wants to be. The discomfort of the privileged does not trump the rights of the underprivileged to exist.

Enforcement has already been increased: In response to a public records request, the city of Berkeley indicated that in 2016, 11 people were cited with violation of Penal Code 647(e), given out for illegal camping.  In 2017, that number was 347 — nearly one person per day — an increase of more than 3000%.  Citations under Berkeley Municipal Code 13.36 for blocking the sidewalk, drinking in public and other “disorderly conduct,” remained in the single digits both years, with numbers too small to show any trends.  It is clear that enforcement of these codes for maximum punishment effect is already a priority.

Effect on police resources:  Recently the Berkeley police department has complained that it is understaffed and unsupported by the City Council.  Billboards along Sacramento Street put up by the police union asked the question, “Where’s my Berkeley cop?” This perceived shortage of police has sparked concerns of increased violent and property crime, as well as slow response times.  Surely if this is the case, it is better to use our limited resources to address violent crime and property crime, not harass those without permanent homes.

Effect on homeless people:  Although receiving a citation – or even a misdemeanor charge – does not necessarily result in jail time, there is a common trajectory for tickets given to people who are homeless.  If a person does not show up for an initial court date — which happens often when you lack transportation, a stable mailing address, money — they end up with a bench warrant, which often means the next time they interact with law enforcement for any reason, they get arrested.  Since someone who is on the streets is unlikely to have money to pay a fine, no money is recovered from issuing tickets, and many times, they go unresolved or result in a series of warrants for failure to appear.

When a citation results in a court appearance, the cost increases exponentially.  In addition to police time, litigation of a misdemeanor involves paying a public defender, a prosecutor, a judge, and court staff.  If the person charged ends up in jail, it costs money to keep them there, as well.

Prior iterations of these regulations attempted to ban sitting on the sidewalk within 100 feet of an entrance to BART.  To anyone who has followed the progression of this discussion, it is obvious that “prioritizing enforcement” is meant to be a de facto sweep of people without homes from the BART plaza, and from much of the downtown area. Prioritizing enforcement at the BART plaza means increasing police contacts for groups that are already over-policed.

Every two years, Alameda County conducts a point-in-time count of people who are homeless, as directed by the Department of Housing and Urban Development.  The most recent count was done in January 2017.   That count showed that only although about 8% of the population of Berkeley is black, 50% of those who are homeless in Berkeley are black. Questions have been raised about the Berkeley police department and the racial disparities of the people they stop: officers are more likely to stop, question, and detain people of color, specifically black men.  Further, a significant number of homeless people have mental illnesses, many of them untreated.  At the time of the most 43% of people self-reported mental illness.  Given the stigma associated with mental illness, in all likelihood this number is low.  A study by the Treatment Advocacy Center has shown that people with untreated mental illness are sixteen times more likely to be killed in an interaction with police than people who are not mentally ill, despite the fact that they are no more likely to have been committing crimes. In short, an increase in enforcement would not only have a disparate impact on vulnerable populations, it would actively put them in danger.

Setting this enforcement priority would punish people who are homeless while doing nothing to solve homelessness in Berkeley. Further criminalization of homelessness makes it even more difficult ultimately to get people off the street.  At the time of the last point-in-time homeless count, it was estimated that there were 972 people without homes on any given night in Berkeley.  Of those, just 308 were sheltered; the rest were staying on the streets, in cars, or in other places not meant for habitation.  The way to solve homelessness, quite simply, is to create housing.  Although Berkeley is working on this, it is a long-term project.  The Bay Area is in the middle of a housing crisis.  Not only is there very limited housing for people with low incomes, many people with reasonable, steady incomes – incomes that in other parts of the country are considered high – are unable to find housing.  At a time like this, when there are no alternatives for people who find themselves on the street, it is unreasonable to punish them for being there.

Violation of the 8th Amendment:  On September 4th, the Ninth Circuit Court of Appeals, which includes California, decided that imposing a similar ordinance under similar circumstances was a violation of the 8th Amendment.  In Martin v. City of Boise, a panel of Ninth Circuit judges found that “criminal penalties may not be imposed upon a person for being in a condition he is powerless to change” and thus held that this principle compelled a finding that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on property for homeless individuals who cannot obtain shelter.”  Slip opinion at 31.  This resolution seeks to do exactly that.  There are more people who are homeless in Berkeley than there are shelter beds, yet the city seeks to prioritize punishing them.  This is, according to the Ninth Circuit, cruel and unusual.  In light of this recent legal precedent, it is unconscionable to proceed with this item, and it should be withdrawn from the council’s agenda.

This is not who we want to be:  This resolution is not put forward under the guise of taking steps to solve homelessness. It is, very clearly, an attempt to put people who are homeless out of sight.  Ironically, this short-term “solution” will ultimately make it more difficult for people on the streets to take advantage of services and become housed, making progress toward ending homelessness.  If being homeless is criminalized, people who are homeless are less likely to trust city services that may be able to help them out of homelessness. With a criminal record, it is even more difficult to find housing. While in jail, benefits like food stamps, General Assistance, or SSI may be cut off. A person may need help to regain them, or, if they can not, will require even more help from food banks, free meals, shelters, and other services.

Walking by a homeless person does not take years off your life. Being homeless does. The City Council should withdraw this resolution from the agenda, reject this attempt to further punish homelessness, and use our limited resources to take steps toward real solutions.

Mary Gilg is the deputy director of the Homeless Action Center, which has offices in Berkeley and Oakland. Mary lives with her family in South Berkeley.