Opinion: The judge, not the mayor, was right about the encampment

In the case, U.S. District Court Judge Edward Chen ruled for the plaintiffs, citing “irreparable injury” if it were closed.

It’s really unfortunate when the mayor of a city blames a judge, who issued an opinion upholding the rights of people with disabilities, for that city’s failure to solve a homeless problem. 

It’s particularly unfortunate when that city is known as the birthplace of the disability rights movement. 

The city, in this case, is Berkeley; the mayor is Jesse Arreguín. On Oct. 14, Jesse published a newsletter touting Berkeley’s response to homelessness. Among the achievements he listed were the opening of a new shelter on Grayson Street (he included a picture of smiling elected officials and administrators at a ribbon-cutting ceremony);  the safe parking lot adjacent to the shelter for people living in RVs; the hotels that had been brought online with state and federal funding to take the people most vulnerable to COVID-19 off the streets (a notable achievement); and the 250 tons of trash and debris the city had collected from encampments. Then came a section, “The Challenges of the Caltrans Encampments.” Here’s where the newsletter went off the rails.

Homeless people have been living in encampments along the Caltrans right-of-way for years. Unwanted as neighbors, they’ve been forced out of Berkeley. They end up next to and underneath the freeway. Any further west, and they’d be treading water. 

Trouble is, they’re not wanted there either. Complaints pour in: Their camps are unsightly. They are dangerous. 

But where can they go? 

In order to justify sweeping away the encampments, the city and Caltrans needed to come up with an answer, or at least the facsimile of an answer. What they came up with is the hyperbolically named Horizon Transitional Village –  a shelter in a converted warehouse consisting of large rooms full with rows of tents not big enough to stand up in. It seems no one bothered to ask the people in the encampments, “Will this work for you?” They were conspicuously absent from the ribbon-cutting ceremony.

So what happened? Horizon opened, the Seabreeze and Downstairs encampments at University Avenue and Interstate 80 were swept, and low and behold, almost nobody from the encampments went into the shelter, preferring in some cases to move to a parcel of Caltrans land west of the freeway at Ashby Avenue that’s even less safe than their previous encampments at the University Avenue interchange.

Enter Where Do We Go Berkeley (WDWGB) and the courts. WDWGB is a grass-roots organization made up of homeless and unhoused people. It has long-standing connections with the encampments along the I-80 corridor. It has provided the people living there with material support to keep them safe while on the street and advocacy to get them into affordable housing. When it was founded in Sept. 2019, approximately 160 people lived in those encampments; since then, some have been housed, some disappeared, some died. Now that number is closer to 30. 

So why wouldn’t those remaining go into a shelter?

WDWGB  takes its lead from the people it serves. It sat with people in the encampment west of the freeway at Ashby. It listened. It heard trauma, vulnerability, and disability. It heard not “I don’t want to go into Horizon,” but rather, “I can’t go into Horizon. It is as inaccessible to me as if I had no legs and it was up five flights of stairs.” And that’s why WDWGB sued Caltrans to stop further evictions until there was a real answer to the question: “Where do we go?

And it’s in responding to that question, the court got it right and the mayor got it wrong. 

The mayor writes: 

The judge effectively ruled that if an unhoused person refuses services, they must be left alone even if shelter is available. This is why the encampments at Ashby/I-80 have not been able to be resolved. 

No, that’s not what the judge “effectively ruled.” Read the court’s 0rder. Unlike the city, the court listened. It listened to wrenching testimony of human beings whose experience of abuse and violence had left them with what the court described as “mental impairments.” U.S. District Court Judge Edward Chen is a careful judge. He wrote in his order, “Although the Court cannot at this juncture definitively conclude that all eleven individual plaintiffs have mental impairments that would preclude staying at Horizon  … a number of them have articulated what on their face appear to be valid concerns.” He goes on to give examples, which are well worth reading, and concludes, “In light of the above, the Court finds that Plaintiffs have sufficiently shown a likelihood of irreparable injury to the individual plaintiffs if the encampments where they are living were to be closed, leaving Horizon as the only alternative.”

Judge Chen did not rule that “if an unhoused person refuses service, they must be left alone.” A disabled person who cannot use a bathroom without handrails or enter a restaurant where the aisles are not wide enough for their wheelchair is not “refusing service.” Neither are the plaintiffs in Where Do We Go Berkeley v. Caltrans who cannot go into Horizon. Berkeley is the birthplace of the disability rights movement, the home of the Center for Independent Living. We shouldn’t need a federal judge to teach us this lesson.

And here’s another thing the judge got right. The city and Caltrans had an alternative. Judge Chen noted in his opinion that the city and Caltrans had been in discussions about setting up a temporary outdoor shelter on the site, now fenced in, where the Seabreeze encampment once stood. On March 10, 2020, the Berkeley City Council had unanimously approved a measure proposed by Mayor Arreguín to enter into a lease with Caltrans to set up just such a shelter, complete with restrooms, hand washing stations and garbage collection. 

Mayor Arreguin’s proposal was an excellent one.  It would have worked for many of the people who didn’t go into Horizon. Why did those discussions falter? The mayor’s newsletter provides no answer, but it’s a question worth asking. What happened to his excellent proposal? Why has it gone nowhere?

The answer might lead beyond blame to real solutions. 

Osha Neumann is one of the attorneys representing the plaintiffs in Where Do We Go Berkeley v. Caltrans. He is on the advisory board of Where Do We Go Berkeley.