Public Commons for Everyone:
Except the Poor

LYDIA GANS / Street Spirit v.14, n.3, 1mar2008

[More by Lynda Carson]

The Berkeley City Council can hardly claim to be a model of thoughtful, responsible decision-making, though perhaps the members of the council deserve a bit of sympathy for having to try to satisfy a vociferous and very strongly opinionated constituency.

The decisions the council is called on to make can be far more complex than whether to tell the Marines they are unwelcome here. In recent months, the council has struggled with difficult questions of ethics and conscience having to do with how this city treats its poor and homeless population.

When Mayor Tom Bates proposed the Public Commons for Everyone Initiative, a great deal of emotion was generated about this critical issue. The subsequent debate exposed, in the words of Berkeley attorney Osha Neumann, "an astounding level of ignorance and misinformation" about laws regarding public behavior on the streets.

Business has been stagnating on Telegraph Avenue and in downtown Berkeley for quite some time. While some merchants realize that this downturn is due to a weakening economy in general, rapidly rising commercial rents and restrictive city policies, as well as the closure of big chain stores like Tower Records and the Gap, it is easier to blame business woes on homeless people and panhandlers making shoppers "uncomfortable."

The downtown business association and the Telegraph Avenue merchants pressured the Berkeley City Council to do something to get "undesirable" people off the street. At the same time, advocates for homeless, disabled and poor people demanded that officials do something to provide housing and services to help the city's needy population.

What the Berkeley City Council actually did is far from clear. Last summer, the mayor and some members of the council started proposing legislation with the euphemistic title of Public Commons for Everyone Initiative.

Some people immediately asked, "Where are the public commons? And who do they mean by everyone?" .No answers were forthcoming.

Over the ensuing months, a number of resolutions were passed that restricted behavior in public places, curtailing such things as sitting on the sidewalk, lying down, smoking, urinating and defecating.

Since it is primarily homeless people who have no place, other than the street, to sleep or sit or take care of bodily functions (the three public bathrooms are only open for limited hours) these prohibitions were clearly targeted at the homeless population.

Even under pressure from business owners, the City Council realized they had to offer a carrot to back up the stick.

Along with the aforementioned restrictions, they passed "in concept" (whatever that means) an increase in parking meter fees that would pay for a number of services, including housing with supportive services for about 15 chronically homeless people identified as having serious disabilities; along with public toilets, outreach, advocacy and other programs.

Although this part of the initiative passed almost unanimously, a "concept" is hardly an action, and the question of when and how this is to be implemented still has not been determined.

In the meantime, the City Council passed various muddled resolutions declaring it illegal for people to sit or lie down at certain times, in certain places. For whatever reasons, they seem to have avoided considering existing laws dealing with public behavior.

"What really mattered," Neumann explained, "is that they also passed a resolution that the police should enforce all laws, enforce all existing laws. And that's where the problem came in, because what happened is that whatever the council was voting on, what the police got out of it was that the council wants to crack down on homeless people and, whatever laws are on the books, to use those laws as fully as possible. And that's what's made a difference out on the street."

The outcome has been the flagrant harassment and ticketing of people who spend time out on the streets, not even all of them homeless.

"They use laws so that they can cite people in situations where it's really clear the law was not meant to be used in that fashion," Neumann said. "They dredged up old laws that hadn't been enforced for years."

He described the case of a disabled woman sitting in her wheelchair in Willard Park during the day. A police officer cited her for violating a Berkeley municipal code that says it is. unlawful to loiter about schools or public places at or near where school children attend.

"It's now been over 20 years that the U.S. Supreme Court and other courts have declared those kinds of loitering laws unconstitutional," Neumann said.

Another case involved a man sitting in a chair outside a local business one afternoon, waiting to talk to the manager. Even though the man had a longtime relationship with the manager, a police officer came along and ticketed him for trespassing.

In another trespassing incident, two women were ticketed for sitting on the sidewalk in front of the former Cody's bookstore on Telegraph Avenue in the middle of the morning.

Neumann related the tragic story of a 53-year-old man with multiple, serious health problems who needs regular treatment at Alta Bates Hospital. The man lives in his camper, and the Berkeley police have cited him numerous times under an ordinance making it illegal to "inhabit a house car."

I talked with a number of people on the street who report increased pressure from the police. A man who calls himself "Smooth" said he is constantly being stopped and accused of stealing his bicycle and forced to show proof of ownership.

Two young people spare-changing were threatened with arrest recently. Seeing this, Ed Campbell, a Street Spirit vendor nearby, said that it is a shame that "kids have lost their right to sit, to be free."

In a fit of compassion, the City Council did pass a resolution declaring "enforcement (of a ban on sleeping in public places) to remain a low priority between 10 p.m. and 6 a.m."

BOSS organizer Michael Diehl said that the law states that people can't be cited for sleeping in the street unless they refuse to go into an available shelter. Berkeley has at most 250 shelter beds and more than 800 homeless people on any winter night.

When people get a ticket, they have to go to court or be represented by an attorney. Neumann said, "When we have rep-resented clients, we have often been able to raise issues that resulted in the case being dismissed or a finding of not guilty." If they are found guilty, they are usually eligible for community service.

Neumann gets some funding and works with law students through the East Bay Community Law Center; unfortunately, there is not enough time .or money to represent all the people who need help, let alone do any kind of community outreach.

Also, if people ignore their tickets, warrants are issued; and then they can be picked up and sent to Santa Rita. Sending people to jail doesn't solve any problems.

"They come back more. angry," Diehl said. "It doesn't help them. It gets them in contact with more hard-core criminals."

Does anyone really think that all this will bring more business to Telegraph Avenue or downtown Berkeley?

Lynda Carson may be reached at, tenantsrule [at] yahoo.com

Street Spirit is published by the American Field Service Committee (AFSC). The vendor program is operated by BOSS. Editor and Layout by Terry Messman. Contact: Street Spirit, 1730 Franklin St., Suite 212, Oakland, CA 94612, Phone: (510) 238-8080, ext. 303,   Fax: (510) 238-8088.