Judge allows homeless claims of retaliation against Berkeley to go to trial

A federal judge ruled a lawsuit claiming the city of Berkeley retaliated against a group of homeless protesters by clearing their encampments and seizing their property could go to trial.

In a ruling late Friday, U.S. District Judge William Alsup of San Francisco denied the city's motion for summary judgment in a suit brought by First They Came for the Homeless, which claims the removals were payback for group members exercising their First Amendment right to free speech.

Alsup wrote the Berkeley Police Department cleared encampments built by the group while ignoring other homeless campsites in late 2016. Sullivan v. City of Berkeley, 17-CV06051 (N.D. Cal., filed Oct. 23, 2017).

"It is undisputed that the City cleared [the group's] encampment at least 12 times in three months while leaving other encampments in place," the judge wrote. "Moreover, the Berkeley police's operation plans included that specific objective of 'deter[ing the group] ... from establishing an illegal encampment on City property."

Alsup also shut down arguments the city did not know the group was made up of homeless protesters and only targeted members because they created "a disruptive environment in the community," he wrote.

According to its Facebook page, First They Came for the Homeless is a collective "of unhoused people who have organized ourselves on the streets of Berkeley both for mutual support and to promote a political message regarding homelessness, homeless people, income inequality and the privatization of the commons in the United States."

"Berkeley police ... understood that members of [the group] 'represented it as a protest encampment related to concerns about homelessness'" and referred to them by name in police reports, the judge wrote.

But Alsup dismissed several other claims that the city unconstitutionally seized and destroyed group members' property during those clearings. Alsup wrote Berkeley police posted notices near the site and gave the group notice "at least 72 hours prior" to removal.

Despite dismissal of the seizure claims, the ruling gives the group a chance to address Berkeley's stringent policies against the homeless, said EmilyRose N. Johns, a civil rights attorney with Siegel, Yee & Brunner in Oakland representing the group.

A trial on the First Amendment claim is set for May 20.

"This group of individuals are homeless but also politically active," Johns said. "Their political advocacy truly involves their mere existence on land in public, in view of the community in which they live because they have nowhere else to go."

Calls to a city of Berkeley spokesman were not answered Monday.

The ruling comes as the city enacted a new policy this week requiring homeless residents to pack and remove property -- including tents -- from city sidewalks between 7 a.m. and 10 p.m. daily. Residents will be given 24 hours' notice before enforcement, according to the ordinance.

Johns said the new ordinance would gravely impact her clients, many of whom use wheelchairs and other mobility devices.

"One of my clients uses a wheelchair," Johns said. "For him, it means that on his best day he'll get six hours of sleep a night because it takes him an hour and a half to lay out his tent and then an hour and a half to pack up."