Did Berkeley go after one homeless group because its members publicly criticized the city?
After four days of trial in federal court, jurors are deliberating whether Berkeley violated homeless people’s First Amendment rights by singling out the First They Came for the Homeless (FTCFTH) protest group for eight back-to-back encampment removals between October 2016 and January 2017.
Lawyers from the firm Siegel, Yee, Brunner & Mehta argued, in front of Judge William Alsup, that the city targeted the vocal group while leaving other encampments alone. The city’s lawyer staunchly disputed that, arguing that serious health and safety issues around the camps necessitated the removals.
First They Came for the Homeless considers itself both an intentional community of unsheltered people and a protest taking aim at unfair city policies and practices around homelessness. Its members regularly set up camp in highly public places and on city property, often reestablishing immediately after getting kicked out by police.
Three plaintiffs, Adam Bredenberg, Benjamin Royer and Clark Sullivan are also seeking damages for personal belongings they say the city seized and lost when employees rousted campers in the wee hours of the morning.
The city has maintained that the campers’ protest activity had nothing to do with why they repeatedly removed their tents —and Deputy City Attorney Lynne Bourgault said the three men in question were barely protesting in the first place.
In order for the homeless group to win the First Amendment claim, the jury will have to find that Berkeley would have let the camps be if members had not been protesting.
Lawyers for the plaintiffs tried to show that city officials and police were familiar with FTCFTH members and what they called their “Poor Tour” throughout Berkeley. Bredenberg testified that he spoke at a City Council meeting, wrote an op-ed and, during one encampment removal, read a bible verse through a megaphone. Sullivan said he live-streamed the encampment removals.
“It’s a homeless-led movement that concentrates on homeless equal rights in our country,” testified Mike Zint, founder of the group. “We’re changing the narrative. Homelessness is not the stereotypes you see in the news.”
The city argued that health and safety issues associated with the camp — including feces smeared on the door of a city building, red paint poured over the steps to city offices, and pro-suicide messages chalked on the sidewalk across from Berkeley High — prompted the removals, not the protests.
“I had no idea what they were protesting or what their message was,” said Berkeley Police Lt. Daniel Montgomery, who was involved in some of the encampment removals. “What I saw was people lodging on city property. The conditions were messy, there was trash.”
FTCFTH members begged to differ, sharing a list of strict rules the encampment lived by, which prohibited drug use and noise, and subjected all aspiring members to a probation period before they were welcomed in. Lawyers showed photos of tidy camps, and juxtaposed them with a photo of a huge trash pile at another encampment they said the city left alone while targeting FTCFTH.
The homeless group met with city leaders and presented a plan for a safe, sanctioned tent city, which officials never pursued, said lawyer Dan Siegel.
He called Bourgault’s — repeated — references to the human excrement smeared on city property “a red herring.”
“There’s no evidence that our clients did it, that First They Came for the Homeless did it,” Siegel told the jury in his closing argument. “It is simply a device to disgust you and leave our clients out in the cold and rain.”
Members of the homeless group admitted the pro-suicide messages came from one of their own, however.
“It was inappropriate, across from the high school,” Zint said. “But I’m not going to kick a suicidal man out of his support network.”
City disputes claims that it lost wheelchair tools and tents
The plaintiffs recalled police coming in the middle of the night to kick them out of their camps.
“They were vile. They were pushy,” said Sullivan. “They started grabbing your stuff. If they showed up, you were lucky to get any of your stuff out of the way. I lost a purple suitcase, a couple of tents.”
Royer, who slept under a tarp at many of the camp sites, said he got wheelchair repair tools taken, as well as a sleeping bag.
“I have a therapy tool that helps me deal with my bipolar, which I lost,” he said.
Bredenberg testified that when he went to the Berkeley Transfer Station, where the city keeps property recovered from these removals, the things he saw were piled on top of one another and “soaking wet.” Others said they didn’t know where to go to pick up their property, couldn’t get there on their own, or couldn’t find all their items when they checked.
If the jury finds that the city violated the campers’ 14th Amendment rights (which prohibits deprivation of property without due process), failing to sufficiently notify them that their belongings had been collected and stored, they will determine the amount the city owes in damages.
The city argued that FTCFTH members were well aware of the West Berkeley storage facility, and had multiple people testify that the camp’s many supporters would make regular trips there to retrieve the group’s belongings.
Berkeley’s longtime homeless outreach worker, Eve Ahmed, said that when homeless people call her to ask about their stuff, she offers them rides to the Transfer Station in her “therapeutic car” if they don’t have transportation. John Hurtado, from the Public Works Department, said he built a roof to protect the storage container from the elements when a thick tarp proved insufficient.
Questioned by Bourgault, Zint acknowledged that the group received notice ahead of the removals, and usually decided to stick around anyway.
“My goal was to break their budget,” Zint said. To show that the city “was playing homeless whack-a-mole.”
“You wanted the cops on the scene as long as possible,” said Bourgault.
“Yes, it’s very expensive,” Zint replied.
However, the city could not produce most of the notices in question.
There is also no evidence that the city issued any such warnings to other camps during the same period when they constantly went after FTCFTH, Siegel said.
During a jury break, Bourgault explained to the judge that the employee who kept records of the notices retired recently, and per the practice of the information technology department, his computer files were “wiped out.”
Alsup told Bourgault that “it’s your fault you threw away the notices.”
“There are a lot of things in this case where the city has the better argument,” the judge said. “In this one, Mr. Siegel does. Nobody in their right mind would throw away those notices.”
Judge: “This is very disjointed”
Early in the trial, lawyers for the plaintiffs had their clients talk about how they ended up homeless in Berkeley.
Royer, 33, shared that he was placed in foster care at age 1. He spent his teenage years in psychiatric care for bipolar disorder, and now suffers from severe sciatica and uses a wheelchair. He came to Berkeley in 2016 following a bad experience with shared housing in Sacramento, and was told by the Hub, Berkeley’s coordinated entry system, that the only immediate option was staying at a shelter, which scared him. The $1,000 SSI check he gets each month couldn’t get him housing either. But he soon found community with FTCFTH.
Bourgault, in turn, noted that none of the plaintiffs had been in Berkeley long at all before they allegedly waged a protest against the city’s policies. Some had testified that they didn’t even try to find housing through the Hub, a target of the protest. She had Bredenberg testify that he had high “executive functioning skills,” which he could have used to find housing, she said. She also noted that he had voluntarily left his mother’s house in Pennsylvania, where he could have returned instead of living on the streets.
During a jury break, the judge chastised both sides for fixating on those “sideshows.”
“This is very disjointed on both sides,” Alsup admonished the lawyers. “OK, he’s got a mom in Philadelphia, good for him.”
In her closing argument, Bourgault said she’d like to “hear the story of every homeless person I see on the streets.”
But “the issue is not whether the city of Berkeley has done or hasn’t done enough to solve the problem of homelessness,” she said. Royer “needed a place to camp with other people where he felt safe. No one, no one can blame him. But now he’s in court seeking damages from the city of Berkeley for his First Amendment activity.”
It was the human waste and suicide messages, not the Bible verses read through megaphones that “were the straws that broke the back of [City Manager] Dee Williams-Ridley, frankly,” Bourgault said.
The city manager testified herself, saying her office received “daily complaints” about several of the encampments. She often made the decision to remove the camps, based on a “combination of things,” from the dangerous location to trash build-up, she said. When the camp set up on medians in North and South Berkeley, “that was an absolute safety hazard for our community.”
I believe we’ve done a tremendous amount to address homelessness in Berkeley and will continue to do so,” she said. “I’ve established basically a winter shelter in the summer. We have vouchers.”
Siegel, in his closing argument, said Williams-Ridley and her staff were probably “good people who do bad things.” He referenced Hannah Arendt’s “Banality of Evil,” and railway workers who nonchalantly laid the tracks that supported the trains that carried Jews to death camps during the Holocaust. His clients, on the other hand, he compared to Rosa Parks.
Outside courtroom after the trial, Williams-Ridley said Siegel’s analogy was “unfair and offensive.”
Otherwise, she said, she felt the trial went well.
“It’s clearly never the experience you want to have around a sensitive issue,” she said of the litigation. “It’s complex. We offer a lot of services to people. There is a large number of service-resistant people, and a large number have health issues. We’ve just got to work really hard in that arena and find ways to support them best.”
She said the current manifestation of the FTCFTH encampment, near Adeline and Alcatraz, was among the many camps that were issued notices by the city recently for failure to comply with new sidewalk rules.
“This isn’t removing people,” she said. “The goal is about voluntary clean-up and condensing.”
The rules prohibit pitching tents during the day or having large piles of items on the sidewalk.
The jury is likely to reach a verdict in the FTCFTH case Friday.