The city clears out an encampment at Old City Hall in 2015. Some homeless individuals are suing the city for allegedly targeting their group because of their political views. Photo: Ted Friedman

The city of Berkeley will go to trial over accusations that it unfairly targeted a homeless group because of its members’ political views, a federal judge ruled last week.

But in his April 19 order, U.S. District Court Judge William Alsup granted Berkeley’s request for summary judgement on other pieces of the case, saying there was not enough evidence that Berkeley violated homeless people’s constitutional rights by taking their belongings.

The order is the latest development in a case that started in 2017. Members of the “First They Came for the Homeless” encampment and protest group sued Berkeley after getting kicked out of their campsites more than a dozen times around the end of 2016.

The group is arguing that the city repeatedly came after the First They Came for the Homeless encampment specifically, because of the group’s political expression. The campers, who have also called themselves the “Poor Tour,” have tried to call attention to the city’s treatment of unhoused residents. During the period in question they often set up camp by city offices or in other highly public places.

Group members Adam Bredenberg, Benjamin Royer and Clark Sullivan are being represented by the Oakland law firm Siegel, Yee, Brunner & Mehta in the case against the city of Berkeley.

The city has argued that camping does not constitute protected speech, and that the homeless group has falsely called its existence a “protest” in order to “immunize unlawful behavior,” Alsup wrote in his order.

But the judge said that line of argument “ignores” political actions the campers have taken beyond simply living in tents.

Bredenberg “spoke at Berkeley City Council meetings, wrote an ‘Op-ed,’ read a Bible verse to the City’s code enforcement officer, and drew ‘abstract images,’ on the sidewalk,” the judge wrote.

The city was also well aware that the group considered itself a protest camp, and staff and police often used the “First They Came for the Homeless” name in official reports, Alsup said.

The judge also questioned the city’s claims that officials would have removed the camp regardless of its political expression, saying that “remains disputed,” and noting that Berkeley cleared out this encampment a dozen times in three months while leaving others intact. The city has said it focused on the First They Came for the Homeless camp because the group set up, deliberately, in “more disruptive locations.” Officials have often said that they received complaints about health and safety conditions around the camp.

The “protest camp” First They Came for the Homeless during a stint in front of Old City Hall. Photo: Natalie Orenstein
The “protest camp” First They Came for the Homeless during a stint in front of Old City Hall. Photo: Natalie Orenstein

Some of the original group members and many other people have now been camping for months by the “Here There” sign on Adeline Street. The group has also drawn praise at times from the mayor and other leaders for its behavior.

A pre-trial hearing for the First Amendment case has been set for May 13, and jury selection is scheduled for May 20.

Judge dismisses claims about unfair property removal

Alsup’s order, however, mostly quashes other aspects of the group’s case against the city.

The three men at the center of the lawsuit said that, during the encampment removals, the city illegally took their personal belongings, like a tent, sleeping bag and a “therapy tool,” without providing sufficient notice or storage. Their lawyers argued that these actions violated homeless residents’ Fourth and Fourteenth amendment rights.

In 2018, Alsup granted the plaintiffs class status on these Fourth and Fourteenth Amendment claims, meaning that if he ended up ruling in their favor, the decision would have affected all Berkeley homeless people. However, he dismissed most of those charges in the new order.

The camp was typically given 72-hour notice — though sometimes less — before the city swooped in to remove anything, Alsup wrote. Even if they had more time, the judge said, there’s no indication they would have used it to protect their belongings.

“The undisputed facts demonstrate that even when homeless encampments received notice that they needed to move, they remained in place until the police returned to force them out,” Alsup wrote. “Plaintiffs may not sit on their hands and then be heard to complain when the City enforces its laws and, in so doing, places their property into storage for collection at a later date.”

He wrote that the city “has a legitimate interest in enforcing its penal and municipal codes.”

According to the judge, the sort of notice the city has provided before removing encampments or belongings has changed multiple times in recent years. In 2016, when the removals referenced in the lawsuit occurred, homeless camps were given warning notices that included the laws that were violated and a list of homelessness services the city offers.

In late 2017 and 2018, the city began specifically warning, in these violation notices, that unattended property could be removed. The notices included information about where someone could call or go to find out how to retrieve the taken items, Alsup wrote.

Because the cases described in the lawsuit occurred before the notices included specific information about property retrieval, the judge allowed the three plaintiffs to continue pursuing individual damages.

Attorney Dan Siegel speaks with homeless residents and supporters outside a courtroom during an earlier phase of the case in 2017. Photo: Natalie Orenstein

Previously, in 2018, the judge also dismissed the plaintiffs’ claims that the city violated their Eighth Amendment rights, and threw out the group’s allegations against BART.

The same judge also ruled in favor of the city of Berkeley earlier this month in a separate but related case. Alsup concluded that Berkeley police officers used “minimal” force that was “reasonable” when they arrested several people who protested or resisted arrest during one of the First They Came for the Homeless removals in 2016.

Berkeleyside has asked the city for a comment on Alsup’s order.

Order coincides with new sidewalk rules

“I’m pleased that the judge is allowing us to litigate the First Amendment claims on behalf of these individuals who were targeted for enforcement by the city,” said lawyer EmilyRose Johns, of Siegel, Yee, Brunner & Mehta, in a phone interview Friday. “They really suffered during that period of time.”

But the attorney said she is “disappointed” that Alsup “was not able to see the impacts of the city’s previous policy.”

Johns noted that the judge’s order came just as the city has started enforcing new controversial regulations on objects kept on sidewalks.

The new rules, passed by the City Council in October 2018, prohibit objects on the sidewalk in residential districts, unless they’re in transit, for sale or used for mobility. In commercial and manufacturing areas, they cannot be left unattended for more than two hours or block access to driveways, crosswalks, transit stops and other public features. In some areas, sidewalk objects are prohibited between 10 p.m. and 7 a.m.

A text-heavy paper notice is taped to a tree. In the background is a tarp covering an unidentified object or set of large objects.
The city has posted notices warning that objects left on sidewalks are in violation of new rules. Photo: Natalie Orenstein

Proponents of the rules say they are necessary to ensure access and safety on public routes.

Officers can issue citations to people who don’t comply, take their belongings to storage, dispose of some items, or tell people to reduce the space they occupy to a 9-square-foot area. Enforcement lagged because city employees were undergoing training on the new rules, said Berkeley spokesman Matthai Chakko, but staffers have begun alerting encampment residents about the policy, and warning some who are in violation, this month.

“We want interactions to be as thoughtful, as compassionate, as lawful as possible. That’s why we want to train staff,” Chakko said in a phone interview. “We want to make sure people know the rules and what’s required of them. We want to answer questions. Our goal is to get voluntary compliance.” The Daily Cal reported Thursday that 20 violation notices have been handed out at 11 sites around downtown Berkeley as well. Berkeleyside has asked the city for confirmation, but spotted one of the notices posted on Shattuck Avenue on Friday. The notice warns the owner that the items in question violated the policy, and says they might be stored temporarily or trashed if not removed. The notice provides information about how to retrieve stored items, but says certain objects — including bedding, personal hygiene products and shopping carts — will be thrown out. Johns said she’s already gotten several anxious phone calls from people affected by the new rules. “I have clients living on the streets who call me three times a day because they were visited by police,” she said. The attorney said the restrictions are a big burden on homeless people who have jobs, who now have to take down, store, and reassemble their sleeping structures before and after work. “It’s not that people necessarily don’t want to comply, it’s that they can’t comply,” she said. “It’s not practical. They want homeless people to be ostensibly invisible during the daytime.” The city has said no citations have been issued so far. Frances Dinkelspiel contributed reporting to this story.
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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,...