Berkeley homelessness policy in question after federal ruling

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A federal court ruling that the criminalization of homeless people “sitting, sleeping, or lying outside” is unconstitutional has resulted in immediate consequences for the city of Berkeley’s homelessness policy.

Mayor Jesse Arreguín recently withdrew a proposal that would prohibit lying and camping near the Downtown Berkeley BART Station in light of the Martin v. City of Boise ruling by the U.S. Court of Appeals for the Ninth Circuit on Sept. 4. His reasoning to increase regulation around the BART station was to make the plaza safe and “welcoming.” But fear that enforcement may prove to be unconstitutional under the appeals court ruling resulted in the discontinuation of the policy proposal.

“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,’ ” Judge Marsha Berzon wrote in the Martin v. Boise opinion. “We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”

Attorney with the Lawyers’ Committee for Civil Rights Elisa Della-Piana said to the East Bay Express that laws against basic human needs such as sleeping, lying down or camping do not constitute solutions to homelessness. Della-Piana added that the Martin v. Boise decision should be examined to see whether it can be applied to Bay Area policies.

According to Berkeley City Councilmember Kriss Worthington, while Arreguín’s controversial proposal has been withdrawn in light of the Martin v. Boise case, Worthington’s main objective remains securing permanent housing for the current homeless residents of Berkeley.

“We could have a lot more people off the street,” Worthington said. “Why are we not moving forward with a full-fledged emergency site?”

EmilyRose Johns, an associate at Siegel & Yee, commented that the Idaho case is “a real victory” for the homeless population. Johns is working on a separate lawsuit against the city of Berkeley — referred to as the “Sullivan case” — which is currently under litigation.

The Sullivan case alleges a violation of the Fourth and Fourteenth Amendments by the city of Berkeley, calling the city’s possession of homeless individuals’ property unconstitutional. The plaintiffs initially alleged Eighth Amendment violations as well — similar to Martin v. Boise. The judge, however, dismissed this claim in the Sullivan case both because no arrests of homeless individuals had been made in Berkeley and because there was “no clear law” against the arrest of the homeless before the Martin decision, according to Johns.

“The city of Berkeley, like many cities in the Bay Area, has a humanitarian crisis in its hands,” Johns said. “The solution is not to push people out, around, or to marginalize our homeless residents, and it’s certainly not to deprive our homeless residents of their belongings.”

Contact Julie Madsen at [email protected] and follow her on Twitter at @Julie_Madsen_.