On July 9, Berkeley City Councilmember Cecilia Lunaparra introduced an emergency agenda item — a resolution affirming the city’s commitment to not escalate harm against unhoused people following the controversial Supreme Court decision that made it legal for cities across the country to cite and arrest people for public camping.
“This resolution is written very explicitly to be an assertion of our values. It does not change any policy,” said Lunaparra. “All this resolution says is that unhoused people in our city are not less safe than they were two weeks ago.”
This resolution was among the first local responses to the Grants Pass decision, which argued that enforcing laws against camping on public property does not constitute “cruel and unusual punishment” under the Eighth Amendment. Amid intense debate, the Berkeley City Council decided to refer the issue to the city attorney for a confidential legal analysis instead of approving the resolution. A closed session was scheduled for July 29, where the council reviewed the analysis and discussed the issue further before reopening it for public discussion.
The Supreme Court ruling on June 28 clarified that “cruel and unusual punishment” applies to the type of punishment a government may impose after a criminal conviction, not whether certain behaviors can be criminalized in the first place.
The decision further stated that citations and arrests do not qualify as cruel and unusual punishments because they are not intended to inflict “terror, pain, or disgrace.” Fines and jail terms remain common methods for punishing criminal offenses.
In Berkeley and cities across the country, elected officials are working to propose revisions to current homeless policies or to introduce new measures that correspond with the Supreme Court ruling and the humane treatment of unhoused people. On July 8, an appeals court in San Francisco put an end to an injunction that has kept the city from sweeping encampments for over a year as a direct result of the landmark Supreme Court decision.
In Berkeley, there are several ordinances that are intended to curb homelessness. In 2016, Mayor Arreguín’s administration approved the modifications to the “Obstruction of Streets/Sidewalk” ordinance, limiting the space any unhoused person can occupy on a sidewalk to nine square feet. Additionally, the “Temporary Noncommercial Object” ordinance was changed in 2018 to prohibit personal property in residential districts and prohibit leaving property unattended in commercial districts for more than two hours. Failure to comply with these ordinances means personal belongings can be discarded, and the owner may face a fine or arrest. Lunaparra’s resolution aimed to maintain the status quo with such laws encourage the city not to expand them or write new and stricter ordinances.
During the meeting, Deputy City Manager Peter Radu informed Mayor Arreguín that city staff has not altered its enforcement while awaiting the city attorney’s advice. However, unhoused Berkeley residents have noticed new public notices around the city in recent weeks, reminding them of the city’s existing laws and warning them of impending sweeps.
Before the Grants Pass ruling, public notices invited unhoused individuals to participate in a “community clean-up day,” explicitly stating that no one would be asked to relocate during cleanups.
On May 9, 2023, Marjo Hughes and Matty Henderson gather their personal property so that it would not be crushed by a bulldozer during clean-up of their Berkeley encampment at Second and Page Street.(Photo by Yesica Prado)
After the Supreme Court decision, notices reverted to their old format, instructing residents to “take this opportunity to pack or reduce your belongings to nine square feet” and notifying them that failure to comply “may result in citations and/or arrest.”
Advocates raised concerns about these notices at the council meeting, prompting a return to the “community clean-up day” format. Street Spirit asked if this type of public notice is used citywide, and Maitée Rossoukhi, Berkeley’s public information officer, said that the public notices are tailored to “reflect the needs of the people who live” at Eighth and Harrison, but not throughout the city.
“Our encampment approach has been to always strive to work collaboratively with people living in encampments while maintaining consistency in the application of policy and law,” said Maitée. “The City is still examining the impact of the Grants Pass decision, and it has not had any impact on our operations.”
The lack of communication and clarity from city staff has spurred confusion amongst residents, who fear another sweep of their community. Merced Dominguez, RV resident of Eighth and Harrison Streets, said,” Are people supposed to read between the lines?” She noted the language was different, but felt frustrated that the city keeps changing its mind. “One moment they are saying, ‘confine it to this amount’ and other times ‘just keep your area clean.’”
Councilmember Lunaparra’s emergency resolution aimed to mitigate potential harm and sweeps in light of the Supreme Court’s decision, reflecting ongoing tensions within the community and the city council. The resolution listed Terry Taplin as a co-sponsor. The councilmembers Ben Barltett and Igor Tregub supported the resolution as well.
On the other hand, Rashi Keserwani and Mark Humbert voted against it. Councilmember Humbert says he doesn’t believe in citywide bans, but thinks, “local governments need tools and flexibility to mitigate circumstances when encampments become a threat to public safety and health.” At the meeting, he explained, “We don’t necessarily want to tie our hands and take a position that would impede our ability to address dangerous conditions that we know actually do occur in our encampments.”
Mayor Arreguín, Susan Wengraf, and Sophie Hahn abstained from voting on the resolution.
The meeting lasted until 11:30 p.m., with a dozen people waiting hours for public comment on the last agenda item for the night. Andrea Henson, Executive Director of Berkeley-based advocacy organization Where Do We Go Berkeley, criticized the city’s sidewalk ordinance. She brought a sleeping bag and strips of tape to form a three-by-three-foot square on the carpet of the council chambers and laid down on the ground to demonstrate how the city’s sidewalk policy inhumanely restricts a person from being able to sleep. “In a three-foot-by-three-foot space, I can’t sleep,” she said. “I have to take my sleeping bag with me, or it’ll be confiscated.”
Henson further pointed out that posting public notices that threatened unhoused people with citations and arrest if their belongings weren’t consolidated to nine square feet was “egregious and cruel” in light of the Grants Pass ruling. “Whoever made this decision to put these notices around the city without explanation, in light of the fact that the news is telling them they’re going to be criminalized, has really made a cruel and inhumane decision,” said Henson.
The council’s decision will be closely watched, with the potential to set a precedent for other neighboring cities, which are quickly moving to respond with increased sweeps. Mayor London Breed has announced a “very aggressive” crackdown on encampments in San Francisco, starting in August. Oakland continues to do sweeps by using a local ordinance — the “safe work zone,” that restricts the movement of people in and out of the encampments scheduled for clearing.
“We’re not going to crack down and do sweeps. We are going to continue to take the very thoughtful approach that we take which focuses on outreach and intervention,” said Mayor Arreguin. “Building trust and connection to services, and providing shelter and housing first, before we do any sort of enforcement.”
Yesica Prado is an independent journalist and lives in her vehicle in Berkeley, California. She is an alumnus of the UC Berkeley Graduate School of Journalism and sits on the board of directors for the legal aid nonprofit, Where Do We Go?