A sign at Oakland's Mosswood Park reads "park closed 10 pm - 6 am violators subject to fine"
A sign at Oakland’s Mosswood Park states the park’s hours. (Alastair Boone)
A new federal court ruling could curb the criminalization of homelessness in Alameda County.

 On September 4, the Ninth Circuit Court of Appeals ruled that cities may not punish homeless people for sleeping outside in public spaces if they do not have access to shelter elsewhere. The case—Martin v. Boise—started way back in 2009, when six current and formerly homeless residents of Boise, Idaho sued the city for giving citations to people who were sleeping outside. The lawsuit rested on the notion that these citations violated the Eighth Amendment rights of Boise’s homeless residents, amounting to cruel and unusual punishment.

According to the court, these citations violated individuals’ Eighth Amendment rights. The court wrote, “an ordinance violates the Eight Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”

The ruling applies to all Ninth Circuit districts, which include San Francisco and Alameda counties.

But some Oakland residents have often demanded that the city criminalize their homeless neighbors. For example, after a group of displaced citizens moved into the dog park at Oakland’s Mosswood Park, one newcomer complained to the city. In March 2018, he sent this email:

"Hello, I recently moved to the area with my girlfriend and two dogs. In the past few months we’ve noticed the park is being taken over by tents; especially the dog park.

The park has posted hours. This is your district. Who is responsible for enforcing this? Why is it not being enforced?

Please help me understand."

The letter exposed the newcomer’s sense of entitlement and privilege. He showed disdain for citizens less privileged than him. He assumed he was more valuable to the city. He seemed to be clueless about the system that privileged him, while making others homeless. He stated that he was a newcomer, yet he felt entitled to disrespect existing citizens. He felt entitled to a dog park, even at the cost of further displacing citizens who were already homeless.

Today, if someone demands that the city evict Oakland citizens from an encampment who have nowhere to go, the city has the ammunition to protect the people in the encampment if they choose to. Under Martin v. Boise, the Mosswood encampment could have been legal. In fact, Oakland can have no illegal homeless encampments. Under the new ruling, Oakland’s homeless encampments should be legal until the city builds adequate shelter to house all of their residents 

The City has already acknowledged the fact that, for years, it has not had enough shelter space to hold all the citizens displaced by gentrification. On January 5, 2016, the Oakland City Council adopted an ordinance declaring a shelter crisis in Oakland. According to the ordinance, “The current number of homeless individuals in Oakland far outpaces the number of existing shelter beds, transitional housing or permanent supportive housing units available.” Then in October 2017, Oakland City Council again signed an ordinance declaring a shelter crisis. 

From now on, people demanding the City evict the homeless from public places should be told about Martin v. Boise. Oakland’s enforcing anti-camping ordinances—including the posted hours at Mosswood Park—could violate those citizens’ rights.

Certain Oakland businesses will also have to change their demands regarding the homeless. In the past, several Oakland businesses have organized to demand the city criminalize and evict the homeless (see “Oakland Businesses Malign the Homeless Poor,” Street Spirit, May 2018 and “Gentrification and Class Warfare in West Oakland,” Street Spirit, April 2018). It would be a better use of time for those businesses to work with the city to improve the housing crisis. 

When I asked the City of Oakland how the new ruling would impact the way in which they address the homeless community, they responded in an email saying, “The recent Court ruling affirms the City of Oakland’s approach, which is to provide our unsheltered residents with alternatives to sleeping on the street (i.e., Henry Robinson Multi-Service Center, 3 Community Cabin sites, winter shelter, etc.). The city is not criminalizing the unsheltered, nor are they being arrested for sleeping outdoors.” 

Despite the court ruling, it is possible that the city will use a different set of laws to continue to crack down on homelessness. But if they do, Martin v. Boise can be used as a tool to challenge the broader category of laws and practices that criminalize the basic, life-sustaining activities of the unhoused.

Sadly, the homeless citizens camping in the Mosswood Park dog park were also terrorized by illegal drug activity, trash dumping, and violence. All of these are things that may be used to evict homeless people from encampments, despite Martin v. Boise. 

Of course, if the campers returned to the dog park, the city would have to stop any violence and illegal activity immediately. The police would have to protect the people living in the encampments. That would improve the living conditions of the citizens living in the encampment legally. In fact, homeless encampments in dog parks could bring more attention to the housing crisis. It would send the message that the housing crisis is everybody’s problem. 

Kheven LaGrone is a writer and activist who lives in Oakland.