The new Downtown Berkeley BART plaza.
(Alastair Boone)
The law targets ‘objects’ on sidewalks, but critics say it’s a way to eliminate the homeless from the new $13 million downtown BART plaza.

Last Thursday, city of Berkeley and BART officials heralded the opening of downtown Berkeley’s new BART plaza. Mayor Jesse Arreguin cut a ribbon to ceremonially inaugurate the space, which was reconstructed out of shining stone, and features sparkling glass and metal. From the BART station’s wave-shaped entranceway, the Berkeley Symphony emerged trumpeting the culmination of years of planning, while new public artworks were unveiled, including a massive metal globe sculpture by Michael Christian titled, “Home.” 

But a “home” it is not. 

Just two days before the ceremony, the Berkeley City Council voted to ensure that the plaza, formerly known as Constitution Square, will not be a place for people without homes to congregate, rest, or place their belongings. 

Although councilmem- bers say the new laws are about creating a “welcoming space” for all, critics say the intent of the sidewalk rules are to prevent unhoused people from gathering in the newly renovated plaza. 

Pattie Wall, executive director of the Homeless Action Center, wrote in an email to the Express that the city appears to have designed the new rules to avoid violating unsheltered people’s constitutional rights, as could be inferred under the recently decided Martin v. Boise case. In Martin, the Ninth Circuit Court of Appeals ruled that cities that criminalize homeless encampments are engaging in cruel and unusual punishment if they don’t offer a viable shelter alternative for homeless residents. Some civil rights attorneys say the principle could be extended to other activities such as a homeless person placing property on sidewalks when the city doesn’t offer a legal place to store belongings. 

“These new regulations absolutely prohibit what they call ‘temporary, noncommercial objects’ which are a euphemism for the property that homeless people have.” 

“The week before Martin was decided, this law was about people and their stuff,” said Wall. After the case was decided, the focus of the law switched entirely to objects. “None of us missed that switch.” Arreguin, who campaigned on a platform of treating homeless people in a more humane way, said at last week’s city council meeting before he voted for the new law and it was approved: “This is about objects. It’s not about behavior or people. This is about objects.” 

But Osha Neumann, an attorney with the East Bay Community Law Center, responded that “to regulate objects is a surrogate to regulating people.” Neumann added that he believes the “impetus for this is the new BART Access Corridor.” 

The “BART Access Corridor” is what the city is now calling the public space on Shattuck Avenue surrounding the BART Station. 

The new law makes it illegal for anyone to place “objects” on sidewalks in all residential parts of Berkeley. In commercial and manufacturing zones, objects, defined as “any item or thing” that isn’t a person or dog, may not take up more than 9 square feet of space and can’t be in the path of pedestrians or placed near building entrances during most hours. 

The city has repeatedly cited the pricetag of the BART Plaza project, and its significance as a transit hub through which 30,000 commuters pass daily, as a reason to step up enforcement of the sidewalk laws around it. 

However, in a nod to the harms done by criminalizing homelessness, the city council also approved “noncriminal remedies” for violations of the new sidewalk laws. Councilmember Sophie Hahn said code enforcement officers, not police officers, could request people move or consolidate their property. 

If someone fails to comply, the city will use administrative citations, usually reserved for businesses, as a way to compel homeless people to move their belongings. This would avoid using the police and criminal citations to enforce the sidewalk laws. 

Hahn said citations could be used “in situations that are a great impediment to the general community, or accumulations that are excessive and in the same place for a long time and limit the ability of others to use the sidewalks.” 

She called them “gentle management tools to work with people to consolidate or move.” 

But city staffers and the councilmembers acknowledged that ultimately, if a person doesn’t comply with an administrative citation, a police officer might be called. 

Administrative citations also carry hefty fines, between $100 and $500. And it’s unclear how an unsheltered person without money would be made to comply with the new laws after being hit with an administrative citation they can’t pay. 

Administrative citations have already been used in the Berkeley Marina to the detriment of homeless residents there, said Yesica Prado at last week’s council meeting. Prado lived in an RV in the marina. She said citations handed out weeks ago by the police caused one homeless family to lose their vehicle because they were unable to pay the fine. 

Arreguin told the Express in an email that he wants the city to “engage with people first and provide information on shelter, storage, and resources” before issuing citations. He thinks citations should only be used as a “last resort.” 

To help the homeless store their belongings in a legal fashion, the city has created secure storage lockers. But while providing storage may seem like a solution to the problem of sidewalk obstruction that doesn’t violate people’s rights, it is unclear how the 58 lockers provided by the city will help all of the nearly 1,000 individuals experiencing homelessness in Berkeley. 

Wall said the lockers are only open a few hours a day, and the timing of their implementation makes them seem like “window dressing” for the new sidewalk rules. 

The BART plaza renovation project began in 2016 and was originally slated to open in September of last year. The changes aim to improve walkability, security, and accessibility. But in addition to being over a year behind schedule, the plaza cost $13 million, almost double an earlier estimate of the project’s cost. 

The new BART plaza features “communal” seating that will be “available to the general public,” according to city documents. The communal seating, composed of cafe tables and chairs that are removed at night, will be looked after by the Downtown Berkeley Association (DBA), a local business improvement district. There are only few small built-in places to sit in the new plaza. 

For almost 10 years, DBA CEO John Caner has requested the city create stricter rules for homeless people in downtown Berkeley to keep sidewalks clear and to stop homeless people from blocking retail doorways. In 2012, Caner championed a failed sit-lie ordinance that was on the ballot known as Measure S. 

“The impetus really is the downtown Berkeley business association and John Caner,” said Neumann about the new sidewalk laws and request from the city council to make enforcement a priority around the new BART Plaza. “They’re the ones who have pushed this.” 

“All of the prior iterations of this law have been about citing and or punishing homeless people who are hanging out in public spaces, primarily downtown but in other commercial corridors as well,” Wall said, referring to previous versions of the sidewalk laws. 

At the plaza’s opening ceremony last Thursday, pedestrians milled about enjoying live music and taking in the new public art installations. 

A few people came to protest, however, chalking critical messages about the new sidewalk laws on the pavement. Wall held a sign reading “‘Home’ sculpture is not for homeless people to enjoy. Thanks DBA.” 

As the sun dipped below the buildings, new street lights flickered on, illuminating the gray stone of the plaza’s walkway and the red brick facade of a building facing the plaza where used to hang a sign reading “Constitution Square.” 

At some point over the past few years, the sign was removed. 

“That is gone,” said Neumann. “It’s no longer Constitution Square, it’s now the BART Access Corridor. These new regulations absolutely prohibit what they call ‘temporary, noncommercial objects’ which are a euphemism for the property that homeless people have.” 

This article originally appeared in the East Bay Express

Darwin BondGraham and Daniel Lempres are former employees of the East Bay Express.