Under eyes of the law, homeless people lack right to exist

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Ameena Golding/Staff

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We may think that the U.S. Constitution provides us with inalienable rights and equal protection under the law. But the truth, as Judge William Alsup made clear Tuesday in a hearing about evicting homeless people from the otherwise-unused land BART owns in South Berkeley known as “Here There,” is that homeless people have no rights and therefore no recourse through a judicial system that elevates property before people and puts the threat of organizational liability above the threat of injury, illness and death.

The judge writes in his decision: “Indeed, the right to be free from trespass is one of the oldest, and most universally recognized features of the law.”

Nowhere in the decision is a mention of a right to exist. If the homeless cannot “trespass,” then there is not a single square inch of Berkeley where a homeless person can legally locate themselves for a 24-hour period.

The judge does not mention a right to exist because neither our Constitution nor our laws provide for such. In our society, it is only through the securing of property — either by purchase or lease — that one gains the right to have a place to eat, sleep and perform other necessary functions a human body requires. We see this principle in action when the only response authorities have to our question, “Where do you want me to go?” is “Not here. Somewhere else.”

The judge states that the possibility that BART may be sued was a key determinant of his decision because “to force BART to host the encampment would open BART to potential liability for failing to police the activities in the encampment.”

But nowhere does the judge mention that a homeless person is subject to the possibility of, by virtue of being on the street, solitude, disease, assault, exposure, theft of possessions (by both the authorities and criminals), harassment, sleep deprivation and the psychological and physical toll that comes with exposure and uncertainty. And the homeless cannot sue anyone or any entity for any of this.

The judge does not mention these things because our laws are written by and for property owners and corporations who cannot fathom — nor would they care if they could — this state of being.

Not only do the homeless have no rights, but also their chances of securing any rights or recourse is essentially nonexistent. We have just seen that the legal system offers little hope. No politician courts the votes of the homeless, and no voter registration drive targets the unhoused so that they can wield their power in an election.

When homeless people do organize, no one listens to them; housed citizens in opposition who know how to pull at the levers of power have their voices heard. When the homeless attempt civil disobedience because no one has listened, they are arrested and often jailed, their meager belongings seized and sometimes destroyed. If there are any homeless people in elected office, I am unaware.

For the homeless, there really is no THERE, THERE.

James P. Massar is a long-time ally and contributor to First They Came for the Homeless.