A sign displayed in protest at the Berkeley City Council shows how little space the poor would be allowed for personal belongings.  Carol Denney photo
A sign displayed in protest at the Berkeley City Council shows how little space the poor would be allowed for personal belongings. Carol Denney photo


by Carol Denney

The hearing on Berkeley’s new anti-homeless ordinances was finally booted over to another day at 1:00 a.m. on Wednesday, July 1, when even a City Council majority couldn’t convince Mayor Tom Bates that it was perfectly okay to hold a public hearing in the middle of the night.
City Councilmember Linda Maio, now the sole sponsor of the Downtown Berkeley Association’s (DBA) proposal for more anti-homeless laws, unveiled her latest unilateral changes to the proposal after midnight, at about 12:30 a.m. Her lengthy list of alterations was clearly an effort to deflect some of the criticism she’s weathered since the introduction of the original proposal on March 17.
The public and the other members of the council had never seen them before.
Any discussion of her brand-new changes to the proposed ordinance would have sent the hearing, which Maio steadfastly insisted she still wanted to have that night, well into 2:00 or 3:00 a.m. The bleary-eyed but dedicated public — about a hundred strong — was still waiting for a chance to speak out even at that late hour.
City Councilmember Max Anderson declared, “I have no intention of participating in this charade,” calling the late-night sleight-of-hand a “backdoor rear-guard action designed to circumvent” the clear vote in 2012 against a proposed anti-sitting law.
“How low can you get,” Anderson observed, quickly noting the danger in noting a low bar before a council majority so willing to go even lower.
Councilmembers Kriss Worthington and Jesse Arreguin objected as well.
A council chamber overflowing into the street had weathered four public hearings already that night: budget hearings about cutting already starved nonprofits; lively SEIU union contract issues; issues regarding a delay of the second phase of the Tillman Mason report on discrimination; a hearing on the loss of a local neighborhood view; as well as an appeal of the refusal of the Landmarks Preservation Commission to landmark the iconic Campanile Way (which the council blandly rejected); and the fresh contracts of all the PBIDs, property-based business improvement districts which garnered some inspired opposition in the wake of the viral video of the DBA “ambassadors” assaulting two homeless men on March 19 when they thought no one was watching.
The overlap between all these issues was not lost on the public, which swelled each hearing with mutual supporters. But Mayor Bates finally agreed to send the anti-homeless proposals back to the agenda committee meeting in late August with Maio’s amendments, after initially resisting Worthington’s motion to reschedule.
No doubt, the mayor finally recognized that attempting to continue the marathon meeting ran the risk of obligating not just the council but the city employees helping run it to watch the sunrise together.
Four people were there in support of the anti-homeless laws: two from the Downtown Berkeley Association which wrote the original proposals, one from the Telegraph Merchants Association, and Chamber of Commerce President Polly Armstrong. They looked pretty small compared to the hundreds who had rallied against the anti-homeless proposals on the steps of old City Hall with speeches, prayers and song.
But those four are enough. They clearly have the votes to pass the proposal, since the Berkeley City Council majority seems unmoved by moral, legal and even practical arguments. The next steps for a community dedicated to protecting human rights are unclear.

Berkeley’s New Anti-Poor Laws

Berkeley City Manager Christine Daniel re-tooled the original anti-homeless proposals and dialed back some of the DBA’s more extreme suggestions. She even pointed out that they are currently enforcing laws against behavior which is perfectly legal, but obediently developed some new recommendations on behalf of merchant groups hostile to sharing public space with poor, homeless and transient people.
The recommendations are:

  1. Adopt first reading of an Ordinance amending Berkeley Municipal Code Section 13.37.020 to add a provision that it is unlawful for any person to solicit another who is making a payment at a parking meter.
  2. Adopt first reading of an Ordinance adding Section 13.36.040 to the Berkeley Municipal Code Regulating Lying in City-Owned Planters.
  3. Adopt first reading of an Ordinance amending Berkeley Municipal Code Chapter 14.48 to ensure that public streets, and especially sidewalks, are fully accessible and usable for the purposes for which they were constructed and are intended, specifically the movement of pedestrian and vehicular traffic and goods.
  4. Adopt first reading of an Ordinance adding Section 13.36.085 to the Berkeley Municipal Code prohibiting urination and defecation in public places.

The first provision expands the current prohibition on panhandling within ten feet of an ATM to include a prohibition on soliciting anyone in the act of making a payment at a parking meter.
The second provision expands the prohibition on lying on the sidewalk to include lying on the walls and interior of downtown planters unless there is a medical emergency.
The third provision has detailed provisions prohibiting anyone from putting anything on the sidewalk which exceeds two square feet for more than one hour unless the person gets a permit from the traffic engineer, a measure clearly aimed at the people who traditionally share their artwork, crafts, or political materials and collect donations along the streets.
The fourth provision makes it a crime to urinate or defecate in a public place (this is already prohibited under California law) or any place “exposed to public view.” This is more inclusive language and would cover private property near a public area such as an alley or doorway without creating any additional access to bathrooms. In fact, the DBA is on record recommending against adding a public bathroom to the BART Plaza redesign on the grounds that it would constitute “an attractive nuisance.”

What It All Really Means

The City Manager’s assumption in the third and possibly most problematic provision is that the First Amendment rights of artists, signature collectors at tables, people with political displays, etc., have to be “balanced” with concerns about “economic vitality” which is presumed to be negatively affected by the presence of First Amendment activity.
The words “vital” or “vitality” appear eight times in the document. The words “aesthetic” or “aesthetically” appear six times, with additional phrases which work overtime to avoid stating overtly the crisis of having some scruffy guy or annoying signature collector spoiling “an aesthetically pleasing streetscape.”
It’s worth noting that the ordinance Daniel is attempting to re-word was born in the 1950s as an effort to curb problematic merchant behavior on behalf of pedestrians, who were tired of trying to navigate through streets cluttered with chairs, tables, signs, and displays of goods blocking the public right of way.
It was dusted off in the early 1990s by Chief of Police Dash Butler for use only against poor and homeless people until civil rights advocates brought the pattern and practice of its discriminatory application to the attention of — of all people — Councilmember Linda Maio, who had the clarity of mind in those days to call for a halt to the obvious discrimination.
But times have changed. The city now creates special permits for the permanent acquisition of public space by merchants adjacent to sidewalks.
And the struggling kid with the hand-painted patches hoping to raise enough through donations to make it through the week can just go fish.

Mansour Id-Deen of the Berkeley NAACP speaks at the rally before the City Council hearing on the proposed anti-homeless laws. Carol Denney photo
Mansour Id-Deen of the Berkeley NAACP speaks at the rally before the City Council hearing on the proposed anti-homeless laws. Carol Denney photo


Lies, Damn Lies, and Surveys

A survey conducted last year “on behalf of the Downtown Berkeley Association” which gave people an option to indicate they would like to “reduce homelessness” was cited by the City Manager as foundation for the necessity of more anti-homeless laws.
This is a crucial point. The well-intended people who took this survey, including myself, did not clamor for ineffective and expensive anti-homeless laws which reduce the footprint of one’s possessions to two square feet. They just couldn’t help but prioritize people who are struggling to stay alive while sleeping on the streets, an absurdity in a town with one of the largest income disparities in the nation.
I took that survey, and I want to “reduce homelessness,” which seems like something any reasonable person would say. The survey had a couple questions which conflated homelessness with “problematic street behavior,” an intentionally ambiguous phrase used as code in the DBA and city planning circles to mean the people we don’t like and all the things they do.
The study seemed designed to force anyone with a concern about homelessness, which is simply a concern about the low-income housing crisis, to run the risk of having their concern abused as support for repressive new efforts to dog the vulnerable people who are struggling on the streets, the mentally ill in a moment of crisis, the troubles of transient travelers with canine companions, and so forth.
Survey takers probably wondered what I wondered: would people’s natural concern about people in need be distorted to support more repressive anti-poor ordinances? The answer is yes, yes, yes. If you wave your hand in Berkeley and say, “people shouldn’t have to sleep on the streets” the City Manager and a majority of the City Council has decided you mean that they should all be in jail.
They should be ticketed to death over a bevy of infractions and misdemeanors which essentially mean the courts have to sort out who is crazy, who is cogent but already behind the judicial eight ball and has to spend some time in jail — the modern equivalent of the poorhouse — working off their debt to society.
Anti-homeless laws make the eight ball bigger. None of the survey takers were asked, “Would you like to make life even harder for homeless people?” or “Would you like to drum homeless and poor people out of town?” or “Would you like to jail the mentally ill?” If these questions had been asked, the DBA would have gotten more clarity about the concern they and apparently a willing City Manager are attempting to distort.

The Real Survey Was the Election

The real survey was the 2012 election, in which an anti-sitting law was resoundingly defeated by Berkeley voters despite being draped in extra funding and services for the poor. Berkeley knows its civil rights like it knows its farmers market tomatoes, which is why the crafty abuse of an ambiguous survey deserves a resounding objection.
Bob Offer-Westort, one of the volunteers for the Streets Are For Everyone (SAFE) campaign, said, “The process for this bill has been tragicomic from the beginning. The City of Berkeley has commissions specifically to ensure that members of the council — who can’t be experts on everything they legislate — are informed by broader expertise. At no point has council sought input from its commissions or from any of the city’s homeless service providers. Not a single person who could be considered to have any expertise on homelessness has been consulted.
“Every organization in Berkeley that knows anything at all about homelessness has opposed these proposals, but council has not sought their feedback. The relevant commissions have opposed the legislation, but council has not made space for their feedback. And now, less than ten hours before the City Council meeting, we’re seeing that there are going to be massive changes, but we don’t fully know what they’re going to be. This undermines the purpose of a public legislative process.”
Osha Neumann, an attorney with the East Bay Community Law Center, noted that specific changes mentioned by Maio would create free speech protections after 10 p.m. and implies charges would be dismissed if those cited were to enter counseling and housing services “in good faith.”
“This isn’t meaningful,” said Neumann, who provides legal defense on infraction citations. “Who’s to determine whether people are in good faith? Do they take a lie detector test? Administered by the police? If there is no housing available, how long do they have to wait to prove good faith?
“And what’s the mechanism for implementation? Do the police keep a database so they know when to dismiss a ticket? The proposed laws need to go back to the drawing board. Trying to correct mistakes on the fly just leads to more mistakes.”

Restrictions on Free Speech

The worst aspect of the proposed ordinances is #3, the part which in the clipped agenda language sounds as though it simply makes sure the streets are passable, but in the real text of the ordinance is pages and pages of instructions about the literal square footage of personal belongings (two feet) and the literal distance they need to be from a planter, a bench, a curb, a wall, a street tree, a tree well, all of which may be different; five feet from this, three feet from that, a numbing stream of requirements no reasonable person could possibly keep straight.
Neumann’s observations about the ordinance’s restrictions on personal belongings and free speech indicate matters which need to be studied by Berkeley’s citizen commissions.
“These new laws are actually worse than I anticipated, particularly the one about obstructing the sidewalk,” he said. “You won’t be able to have any possessions larger than two feet square any time of the day or night. We should ask the councilmembers how big their beds are.
“I’m also amazed by the restrictions on free-speech-related activity. It won’t be legal to sit on a milk crate while selling Street Spirit without first getting a permit five days in advance. And most places in our commercial corridors you won’t be able to sit at all. That’s pretty outrageous.”

What Can We Do?

The Berkeley City Council is not entirely impervious to reason, which Mayor Bates proved by finally calling a halt to the idea of a middle-of-the-night hearing as June 30 became July 1. For starters, we need to insist that the lengthy alterations to the original proposal get a chance to be evaluated by all the relevant city commissions, including the Peace and Justice Commission, the Commission on Homelessness, the Human Welfare and Community Action Commission, the Youth Commission, the Community Health Commission, and the Police Review Commission.
This is more meaningful than it might seem. When our city leaders consider, even for a minute, prioritizing the aesthetic perceptions of a handful of wealthy property owners and developers over the very real needs of the poorest, most vulnerable people in town, it is because they are not hearing enough from their citizenry. They hear from us directly from time to time, but the record of what they hear from our representative commissions has, or should have, legal and moral gravity.
Our commission system was designed to make room for citizen concerns, to absorb special expertise on singular issues, to design opportunities to sort out and perhaps toss out an idea that might have seemed sensible at 1:00 a.m. but looks pretty stupid in the light of day.
Before we tinker with our own human rights, we should make sure Maio’s bizarre proposals are well vetted in the sober light of a commission or two. Because it isn’t just poor and homeless people who have a broad target painted on their backs by this Berkeley City Council. We may have elected them, but none of us are in any part of this City Council’s vision of the future.