Attorney Dan Siegel (left) addresses “Here There” encampment residents and supporters outside the courtroom. Photo: Natalie Orenstein

The homeless encampment at the “Here There” sculpture in South Berkeley could be disbanded later this week, per a Tuesday federal court order. Judge William Alsup in San Francisco denied the encampment’s request for immediate protection from eviction, but ruled that BART, which owns the land, must give the group a 72-hour warning before kicking the campers out.

The order came a couple hours after the Tuesday morning hearing, but Alsup indicated in court that he would deny the motion for preliminary injunction.

“Judges are sworn to uphold the law,” he said, apologetically, to the homeless residents and supporters in the room. “I wish sometimes the law was more generous to the poor than it already is.”

Although initial relief was not granted, the “Here There” group’s lawsuit, which alleges that BART and the city of Berkeley are violating the campers’ civil rights by forcing them onto the streets, will go forward. Alsup asked both parties to provide him with more information about the campers’ backgrounds and the other options available to them in Berkeley.

The case stems from trespassing notices posted by BART police at the “Here There” homeless camp, as well as at another camp on the eastern side of the BART tracks, earlier this month. BART gave the camps 72 hours to clear out, and evicted the remaining residents at the east-side homeless encampment last Wednesday.

But the “Here There” camp, which has existed at the site for 10 months, successfully received a temporary restraining order against the transit agency last Tuesday, Oct. 24. At that hearing, Alsup granted the group a week longer to remain at the site and asked both sides to provide more contextual information and return to court a week later.

During the week between the hearings, the “Here There” encampment sued both BART and the city of Berkeley. They asked for both preliminary injunctive relief, allowing the camp to remain at the “Here There” site until the case went to trial, and permanent relief, restraining BART and the city from evicting the camp or removing campers’ belongings in the long term.

“In the absence of a preliminary injunction, our clients will suffer irreparable harm to the point of risking their safety, health and life,” Dan Siegel, a lawyer representing the homeless camp, told Alsup in court Tuesday morning. He argued that kicking the members of the camp off the property without providing them alternative shelter could violate their Eighth Amendment rights. (The Eighth Amendment prohibits cruel and unusual punishment.)

In the legal complaint, the group also argued that previous evictions by the city of Berkeley, from other locations, violated the campers’ Fourth and Fourteenth Amendment rights, since campers’ belongings were seized, and because the evictions were based on complaints from neighbors and did not allow the campers due process. (The Fourth Amendment prohibits unreasonable searches and seizures, and the Fourteenth Amendment requires due process.) The judge ultimately ruled Tuesday that the city’s actions against previous encampments were not enough to grant the camp preliminary relief.

Speaking at the hearing, Siegel, a longtime social-justice attorney based in Oakland, said: “These folks will be pushed off the place where they’ve been located for 10 months now. They’ll have to find another place to put up their tents. Or a set of doorways on Shattuck Avenue. That’ll become intolerable to officials or persons in the neighborhood, and they’ll be pushed off again and again and again.”

BART argued in court that it has no obligation or capacity to allow the camp to remain on its property.

“BART is enforcing state trespassing laws,” an attorney for BART told the judge. “There are fundamental differences between a transit district and the city. The city of Berkeley has resources available to address homelessness. BART does not have an independent department dedicated to issues of homelessness.” The land by the tracks is “not suitable for long-term habitation,” she said.

The city has argued that it should not be included in the case at all. In court documents, attorneys for the city wrote that the homeless residents were not specific enough about which actions of the city’s they oppose. The idea that the city will help BART evict the homeless camp is speculation and not basis for injunctive relief, they wrote.

The protest camp has expanded since it set up at the Berkeley-Oakland border in early 2017. Photo: Kelly Sullivan

At the Tuesday hearing, Alsup told both parties that the case has brought up questions for him about the members of the camp and the other options they have. Regardless of the initial order on the immediate fate of the camp, he told them, he would like to receive more information as the lawsuit progresses.

To deputy city attorney Savith Iyengar, Alsup said he questions what what the city is doing to support its homeless residents.

“What is the full scope of benefits available in Berkeley?” Alsup asked. The judge told Iyengar he had been under the false impression that Berkeley paid all homeless residents “welfare checks” regularly.

“Berkeley acknowledges that homelessness is a crisis — a regional crisis,” Iyengar told the judge. “Berkeley tries to solve that crisis through the provision of services.” He told the judge he did not “know the specifics” of Berkeley’s offerings beyond the shelter beds it provides and its ad-hoc committee on homelessness, but said Berkeley “strives” to support its homeless residents and spends millions of dollars a year doing so. He noted that the city gave the judge more information in documents provided to the court this past week.

In the documents, Paul Buddenhagen, Berkeley’s director of Health, Housing and Community Services, elaborated some on the city’s approach to addressing homelessness, explaining how the HUB, the city’s coordinated entry system, works.

Alsup told Iyengar he should run for office because he provided a smooth “non-answer” to the judge’s question about Berkeley’s efforts to support the homeless.

“I’m struggling with what I could order the city to do,” Alsup said. “Could I say that the nice plaza across from the post office, that you’re going to put up tents there?” While it might be an abuse of authority, Alsup said, he could order the city to take grander steps to solve the problem. “Why can’t you shut down some of your parks and turn them into tent cities?” he asked.

Community members and activists gathered around the “Here There” camp on Oct. 24, celebrating the restraining order against BART and protesting possible eviction. Photo: Natalie Orenstein

The judge told the lawyers for the “Here There” camp that he had questions for them as well. Mainly, he wanted to know more about the demographics of the camp’s residents and whether they were making a personal choice to live on the streets.

“Why would someone choose, or try to live, in the most expensive part of the world?” Alsup asked. “You’re making it sound like they’re employed. Well, there are places in the country where people with jobs can afford to live. If they came here from out of state, they can just as easily move back. If the answer is virtually all of them were born and raised in Berkeley, I can understand.”

Alsup asked whether some of the residents ended up homeless because they became addicted to drugs, and asked whether BART would be liable if any violence occurred at the camp.

At the end of the hearing, which lasted around an hour, Alsup indicated that he would deny the homeless camp’s motion for injunctive relief. However, he said, he would tell BART to give the campers a clear timeline for eviction so they could prepare to move out.

Outside the courtroom after the hearing, Siegel praised the judge’s thoughtfulness.

“I’m pleased we have a judge who’s willing to take a look at these issues in a serious way,” he said. But “I’m not someone who has boundless faith in the ability of the legal system to solve all our problems…I’m asking him to do things no judge has done in the past.”

Adam Bredenberg, who has been part of the First They Came for the Homeless group for about a year, said the judge’s order would at least eliminate the chance of a “worst-case scenario” — a surprise eviction Tuesday, as soon as the temporary restraining order expired.

“In general, the judge seemed to be very fair, but some of his concerns did seem to be based in stereotypes,” he said. “If you say Berkeley is not a city for poor people, that’s almost like creating a ‘no-poor zone.'”

Farimah Brown, the city of Berkeley’s lead attorney, declined to comment after the hearing because the litigation is ongoing.

The eviction of the encampment will end the group’s nearly year-long stint at the Berkeley-Oakland border location. The group has undergone changes in membership and leadership over the months, but the cohort that initially settled at the “Here There” sculpture in January called itself “First They Came for the Homeless” or the “Poor Tour.” The group dates back to 2014, formed on the heels of the Occupy movement to protest the city’s treatment of homeless residents. The campers settled at, and were evicted from, a number of public places in Berkeley over the following years, before coming to the current site.

The “Here There” campers have long called for the city to sanction their encampment, and believe their camp is a model of self-governance. The members live by a set of rules banning alcohol and drug use and loud noise. They have earned the support from a number of neighbors and activists, including the Friends of Adeline group, which pays for a portable toilet near the site.

The encampment members have said they will hold a protest against the upcoming eviction.

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Natalie Orenstein

Natalie Orenstein reports on housing and homelessness for The Oaklandside. Natalie was a Berkeleyside staff reporter from early 2017 to May 2020. She had previously contributed to the site since 2012,...