by Kheven LaGrone

On Thursday, Oct. 25, 2018, around 9:30 a.m., I took this picture in front of a homeless encampment at Lake Merritt. These signs were very prominent. They read: “Lake Merritt’s Homeless Population is Much Larger Than 20 Tuff-Sheds,” “United Nations Report: Oakland’s Treatment of the Homeless is Cruel and Inhumane,” “Stop Evictions Now,” “Nowhere to Go! Stop Evictions Now!” By noon, when I went back to take better pictures, the signs had been taken down. Someone at the encampment told me that the City took them down. – Photo: Kheven LaGrone

On Sept. 4, the 9th 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. City of 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.

The court agreed, writing that “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 9th Circuit districts, which include San Francisco and Alameda counties.

But some Oakland residents have demanded 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 he is. 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 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. City of Boise, the Mosswood encampment could have been legal.

If you had nowhere else to live, pitching your tent under this bridge at Lake Merritt would be a relatively pleasant location. But will the City and other government agencies in Oakland obey the 9th Circuit outlawing laws against “sleeping outdoors, on public property, when no alternative shelter is available”? Or would you and this brave little encampment be evicted again, swept away like trash in defiance of the Martin v. Boise ruling by the second highest court in the land? – Photo: Kheven LaGrone

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 Jan. 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, the 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. City of Boise. Oakland’s enforcing anti-camping ordinances – including the posted hours at Mosswood Park – could violate those citizens’ rights.

Perhaps even enforcing CalTrans anti-camping ordinances would be unconstitutional as well. I emailed BART asking for their response to Martin v. City of Boise as it pertained to the homeless encampment. On Oct. 10, 2018, I received the following:

“In response to your question, ‘In light of the court ruling, how will BART address the homeless encampments?,’ BART will continue to work collaboratively with government and social services agencies within the counties it serves to balance its mission of providing safe, reliable public transportation with the needs of those affected by the housing crisis.

“Specific to the 9th Circuit Court of Appeals ruling in Martin et al v. City of Boise, BART does not have an ordinance against 24-hour camping, which is at the heart of the aforementioned case.”

When I asked BART if this meant that homeless people cannot be evicted for sleeping on the train, BART replied in an Oct. 15, 2018, email:

“Someone who has a valid ticket or Clipper card and is otherwise obeying the laws and code of conduct would be allowed to remain on an in-service train regardless of whether they are awake or asleep.”

From now on, people demanding the City evict the homeless from public places should be told about Martin v. City of 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.”

However, not every homeless person agrees with the City’s response. A sign at the entrance of an encampment at Lake Merritt read “STOP EVICTIONS NOW.” The City should inform these citizens of Martin v. City of Boise.

In the past, several Oakland businesses have organized to demand the city criminalize and evict the homeless. It would be a better use of time for those businesses to work with the city to improve the housing crisis.

Sadly, the homeless citizens camping in the Mosswood Park dog park were also terrorized by illegal drug activity, trash dumping and violence. Could these illegal activities give the City excuses to evict anybody returning to the encampment, despite Martin v. City of 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, activist, writer, artist and curator, can be reached at kheven@aol.com.

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