Highlighting court rulings that protect homeless people’s rights in the Bay Area

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Homelessness has increased in our City by 131 percent since 2015. The Encampment Management Policy (EMP) is a failed policy.

by People’s Minister of Information JR Valrey, Oakland Bureau Chief

Allyssa Victory will be interviewed by JR Valrey live at Smoke N’ Word on Thursday, Feb. 16 at Rosemary Jane Cannabis Consumption Bar, 2340 Harrison St. in Oakland from 6-8pm.

The Bay Area is just recovering from what the media is calling bomb cyclones and atmospheric rivers that have drenched the sun-parched, decades-long drought stricken northern California. 

Besides it still being wet, with overnight rains and gusty winds, very few people are thinking about the plight of the homeless – aka unhoused population – who are contending with the elements while fighting to survive on the streets. 

Now that the consumer-based holiday season is over, we still have to contribute as a community to doing what we can to ease the pressure, considering that reportedly nearly three quarters of the homeless population in Oakland, as well as a large percentage in San Francisco, are Black. 

Allyssa Victory is a rising star among the politicians in Oakland that represent grassroots people’s rights. She is a lawyer with the ACLU, and a former Oakland mayoral candidate.

This article came out of a conversation that I had with Allyssa Victory, as she explained to me the rights that unhoused people have, based on rather recent court rulings, that most people know nothing about, because they don’t get the same mass media coverage as government-created distractions, like the Chinese surveillance balloons.

Check out lawyer Allyssa Victory as she breaks down a few rulings that we should know about.  

JR Valrey: Can you talk about the Supreme Court ruling that says cities have to offer shelter before evicting people from public streets? Do you know the exact court ruling? 

Allyssa Victory: Martin v. City of Boise (“Boise”) is a 2018 case decided in the Federal Court of Appeals for the Ninth Circuit which covers the states of Alaska, Arizona, California,

Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Six homeless plaintiffs filed suit challenging citations they received for violating the city ordinances against sleeping on public property. 

These ordinances were enforced by local police. Boise held that cities cannot enforce anti-camping ordinances if they do not have enoughhomeless shelter beds available for their homeless population. 

The decision rests on the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment. The U.S. Supreme Court denied appeal of the case in 2019. The City of Boise ultimately agreed to fund additional shelter beds, amend their local ordinances and direct their local police to not cite unhoused residents when no other shelter is available. 

JR Valrey: How have the City of Oakland’s actions been in regard to following the ruling?

Allyssa Victory: In 2017, the Oakland-based Ella Baker Center began the Heal Not Harm coalitional campaign advocating to end 10 Oakland City ordinances that criminalized homelessness and poverty as violating the law. In 2018, our city council began declaring a local emergency due to homelessness.  

In 2020, the Heal Not Harm coalition sent a cease and desist letter to the city demanding repeal of the 10 anti-homeless ordinances and immediate services of trash pickup, sanitation, and access to bathrooms for encampments. 

In 2020, the City’s Life Enrichment Committee proposed the Encampment Management Policy (“EMP”). The Heal Not Harm coalition opposed. The EMP outlined massive geographical restrictions on homelessness throughout the entire city and specific regulations for how people may live homeless (e.g., “encampment footprint shall not exceed 12 x 12 sq. ft. per person,” EMP at page 4).   

The EMP was forwarded to city council and unanimously approved in the fall of 2020. The city began providing port-o-potties and handwashing stations at some, but not all, homeless sites with minimal upkeep. The EMP requires police presence at sanitation clean-ups of encampments and eviction of encampments that the city deems noncompliant with the EMP. 

The city has never had or invested in adequate staffing to implement the EMP even as written. The city has faced lawsuits brought by residents attempting to force full implementation of the EMP and by unhoused residents to protect their constitutional and civil rights. 

Despite access to emergency powers and funding since 2018, pandemic assistance since 2020 and other protections like eviction moratoriums, the city failed to make any progress in resolving the homeless crisis.

The city has had two homeless administrators since the EMP was passed with each leaving after less than a year in the position. The position is currently vacant. 

Managing and maintaining our residents in encampments is inhumane by itself. The city reports at least 70 percent of the unhoused residents are Black, while our city’s population is less than 25 percent Black. 

Oakland Fire Dept. reports an average of two encampment fires per day. There are thousands living in unsanctioned encampments as well as RVs, cars and other places of shelter. There are city-sponsored youth encampments. Despite access to emergency powers and funding since 2018, pandemic assistance since 2020 and other protections like eviction moratoriums, the city failed to make any progress in resolving the homeless crisis. Homelessness has increased in our city by 131 percent since 2015. The EMP is a failed policy.  

The EMP parallels policy passed in other cities including Los Angeles and San Francisco.  Unhoused residents in San Francisco filed suit against the City and County of San Francisco for conducting illegal sweeps and criminalizing homeless residents (Coalition on Homelessness et al. v. City and County of San Francisco et al., filed September 2022 in US District Court – Northern District of California). 

In December 2022, plaintiffs won a preliminary injunction against San Francisco under the Boise precedent based on evidence that the City of  San Francisco has been clearing encampments without offering adequate shelter and failed to comply with their own City rules. S.F. City Attorney David Chiu filed a notice of appeal of the preliminary injunction on Monday, Jan. 23. The case will move to a full trial possibly this year.  

In Oakland, the EMP redlines unhoused residents to some parts of the city that are legally controlled by other entities like Alameda County or CalTrans. In fall of 2022, CalTrans began eviction of the largest encampment at Wood Street in Oakland underneath the freeways. 

Without offering shelter, this caused migration of encampment residents to neighboring city land. The City noticed an eviction for Jan. 9, 2023 at the Wood Street encampment. However, residents obtained a temporary restraining order from the federal court halting the eviction based on failure of the City to offer adequate shelter and the torrential storm that was happening at the time. 

In Oakland, the EMP redlines unhoused residents to some parts of the city that are legally controlled by other entities like Alameda County or CalTrans.

Oakland and other cities will continue to face these legal challenges as long as unhoused people continue to have human and constitutional rights.  

JR Valrey: With homelessness growing 131 percent in the last seven years, and 70 percent plus being Black people, what are some things that the City of Oakland can do legislatively to more efficiently deal with the crisis? Who are the politicians and committees that are responsible for this situation?

Allyssa Victory: I am a lifelong Oaklander and our city has never seen this high level of widespread encampments and people living in inhumane conditions, including our children and seniors. We have a crisis of leadership with the lack of political will to act with urgency, to be creative in approach, and to fully exercise political power in service of those most in need. 

We also face fiscal accountability problems with our city auditor reporting in 2022 indicating that Oakland distributed around $70 million in homeless service grants over three years that were untracked, and cannot confirm as a result, a single person being housed.  

In 2018, Oakland began declaring a local emergency due to homelessness and also published its Equity Indicators Report confirming the racial disparities for Black Oaklanders across all indicators. Oakland’s anti-Black housing history, including that of segregation, urban renewal, predatory lending and redlining, environmental racism and more, have contributed to the current demographics we see. 

The Oakland City Administrator’s 2022 reports confirm that intervention programs and services were accessed by majority-white homeless residents and the administration could not understand why city outreach and services continue to produce inequity. Not enough has been done to bring a real racial justice approach to resolving our city’s crises, especially in housing. Black reparations is one solution that is being investigated by the State of California and cities like Berkeley and Los Angeles. 

Oakland City Council declares homelessness a local emergency every quarter, but the policies and budgets focus on maintaining and managing homelessness crisis, instead of resolving it.

Oakland is a central city that may always have some homeless people, but we are in a crisis level that demands use of our emergency powers to: commandeer hotels and other property; direct use of state assistance to fund housing including use of hotels as emergency housing; and responsible use of federal funds to stabilize our budget. 

We have full control over City lands and should have a public lands policy that prioritizes use for housing. Many of these proposals are mirrored in council member Carroll Fife’s plan to end homelessness.  

City Council is responsible for our local legislation and policy and the eight members vote to approve them or not. The Oakland City Council can repeal and replace the existing EMP. The Mayor is head of the city administration who is responsible for implementation of all policy and law passed by City Council unless it directs otherwise.

The homeless administrator’s office is under the Mayor. Our mayor has power under existing emergency declarations to act! The Mayor, through the City Administrator, is in charge of emergency planning, response and even budgeting. Our Mayor even has power to propose law and policy to the City Council.

The more our city leaders are willing to act with urgency, compassion, transparency and social justice to address homelessness, the more we will see the crisis dissipate. 

Allyssa Victory is a civil rights attorney, former Oakland mayoral candidate and community leader. Contact her on Twitter at @Victory4Oakland.

JR Valrey, journalist, author, filmmaker and founder of Black New World Media, heads the SF Bay View’s Oakland Bureau and is founder of his latest project, the Ministry of Information Podcast. He can be reached at blockreportradio@gmail.com and on Instagram.