Extra

Housing is a human right. That is recognized internationally, and articulated in treaties to which the US is signatory. The fact that there are hundreds of thousands of homeless people in the US makes this country a mass violator of human rights. 

We have a funny way of avoiding this fact. Different levels of government will transform the right to housing into the right to exist without housing (homeless encampments, sleeping on sidewalks, etc.), then set that right to exist in conflict with property rights, and let property rights win. It’s a game played in courts. 

The word in Berkeley is that the city is getting ready to raid the encampment on Adeline where the BART tracks emerge. Though that will be a violation of the Constitution, it will not be a violation of the right of government to violate human rights. Sometimes government policy gets pretty ugly. 

In Boise, Idaho, in 2015, some homeless people sued the city to stop it from raiding their encampments (Bell vs. Boise). The city had an ordinance that said it was illegal to sleep on public land. The US Dept. of Justice filed a brief supporting the homeless in that case. It argued that if a city could not provide shelter for all the homeless, then it could not bar them from sleeping on public land. To do so amounted to criminalizing one’s status as homeless, rather than one’s conduct. The human (and mammalian) need to sleep refers to existence rather than conduct, and cannot be outlawed. If individuals have no access to private spaces to sleep, then the act of sleeping in public is not a choice and cannot be criminalized. 

That argument is based on the 8^th Amendment. That is the amendment that bars cruel and unusual punishment. The Court argued that in prohibiting such punishment, the amendment “limits what can be made criminal and punished as such.” Though the law can punish conduct, it cannot punish status. Addiction, for instance, is a status and not a conduct, and cannot be punished. Poverty is a status. For the homeless, if no alternative shelter is provided by the city, they must be left to camp where they can. 

The government’s brief in this case actually waxes humanitarian, affirming a broad government interest in ensuring that justice is applied fairly, regardless of wealth or status. This includes an "interest" in breaking any cycle of poverty and criminalization. That, in turn, would necessitate constructive alternatives to the criminalization of homelessness. Various programs have been started, but none have had much effect. 

"To criminalize" a social status means to claim a legitimacy in sending police to stop people from existing, and arrest them if they resist. In a police state, the police don’t need a law to enforce. They can do it on their own. Its what happens to some Cinco de Mayo celebrations and to homeless encampments. 

In Boise, the court pulled a fast one. It engineered a settlement between that city and its “tired and poor.” The settlement relieved the court of the necessity to make a decision. Since there was no decision, the government’s arguments (about the right to sleep) never attained legal status, nor became part of the law. Status and conduct remained undifferentiated – which implies, with respect to homelessness, that status can be dealt with as conduct – even though that is a violation of human rights. 

If you look over at that community of tents strung along the boulevard at 63^rd St. (on Adeline St.), you will see a pristine camp, clean, with no trash lying around, and a portapotty just a few feet to the north. These are people who know how to take care of themselves. They have to. The city of Berkeley will not recognize their community, let alone their camp’s existence as a human right. It has raided them over 16 times in the last two years, though it provides shelter for less than 20% of the city’s homeless. 

Under the 8^th Amendment, when Berkeley police raid that encampment, they will be violating the Constitution they are sworn to uphold. 

If housing is a human right, to withhold housing from homeless people is actually to create status as homeless, and to then criminalize status. Wasn’t it a form of criminalizing status that was overthrown by Brown v. Board of Education when it outlawed segregation in schools? Does that mean that prior to that decision, criminalizing status was acceptible? Richard Rothstein, in his book, “The Color of Law,” argues that that was the case. He shows that racially segregated neighborhoods (found in every city) were the result of government policy. To criminalize homeless encampments in Berkeley by raiding them will be very much in the tradition of Jim Crow. 

There are vacant buildings in Berkeley that the city could use to provide this human right. Just look along 10^th St. north of University. How come it doesn’t? Property rights. 

The Berkeley ideology on sidewalks  

Cal Penal Code sect 647c states that any person who willfully and maliciously obstracts the free movement of any person in any public space or place is guilty of a crime. The 8^th amendment implies that those who are involuntarily on the sidewalk cannot be criminalized. 

Berkeley’s City Council believes that sidewalks are for pedestrian passage, and not intended for human habitation. We agree. Government policy fostering homelessness as a status is the problem. If the city cannot provide shelter, then it cannot tell the homeless where they can sleep, without criminalizing sleep. 

The city wants to decide where the homeless would not "unreasonably" obstruct access to public space. This is not possible, since homelessness itself is unreasonable. A person living on a sidewalk is already unreasonable, even before the law speaks, or anyone walks by. Blocking public access becomes secondary for a sidewalk that belongs to a society that violates human rights. 

If councilmembers think they can differentiate between reasonable and unreasonable use of the sidewalk, they are subjectively choosing which reasonableness they will respect as a condition for considering the other to be unreasonable. 

The encampment on Adeline is a celebrated community because it knows how to take care of itself in the face of government refusal. As such, it provides a role model for community autonomy and democracy in general. (For that reason, it has been raided and robbed by the police some 15 or 16 times in the last two years. The city is more concerned with power than decency. It gives the police torture devices like pepper spray to insure public obedience.)  

The excuse for the raid  

In preparing to raid the encampment, the city’s excuse will not be obstruction of public space (the tents are on the grass), but rather than it is “bad for business.” Word on the street has it that the café/bakery on the west side of the boulevard is facing hard times. People are being scared away. So the homeless are being scapegoated. 

Neighborhood wisdom points instead to a more immediate factor, the presence of individuals who are in need of a different kind of assistance. They hang out in front of the bakery and panhandle or beg, or simply approach people to get recognition for their existence. Can you imagine someone simply wishing to have their human existence recognized? 

I was sitting at one of the outdoor tables one day drinking coffee, and a fairly large man I had seen around sat down on a chair about three feet away. He was somewhat desheveled, with an unkempt look in his face that spoke of long solitudes, and with a kind of crazed light in his eyes. I was reading at the table, while also reading the day, watching people walk by. I ignored him. After about 10 minutes, he asked me if he could have my coffee. I said no, looking him in the eyes. Both our tones of voice were businesslike, in what amounted to an abbreviated conversation. He took no for an answer. I know a few people who are better "heeled," and who wouldn’t. A few minutes later, he got up and walked on. 

Mental illness? Perhaps. If it were a virus, we could look for vaccines or an antibiotic for it. But it isn’t. It is more like a person whose hand was crushed under a bus, and who then gets kicked around because he can’t work at anything he used to know how to do. PTSD sets in, and there’s no pill for that either. The city has laws against the homeless. It has no time for those who are alone and traumatized by the life they could never find for themselves. And that makes one wonder what mental health would look like? 

The main care the city gives wears a blue uniform. They will routinely beat or shoot a mentally troubled person for not obeying orders (RIP Kayla Moore). 

The homeless are subjected to scapegoating criminalization in Berkeley, and the traumatized are subjected to discrimination. The city reserves the arbitrary right to decide which is “bad for business.” But that is because it doesn’t want to talk about the “other” reason. And that’s where the city’s hypocrisy comes in. 

All last year, the encampment was on that east side of Adeline, but on BART land, out of reach of Berkeley police raids. The city refused to put in a porta-potty, so people used the bakery’s facilities, which led the bakery to close them off, as well as a good part of its café space. It was neighbors that finally paid for the porta-potty at the encampment. In the meantime, the city’s refusal to provide “human rights” had led the bakery to live a truncated existence. 

Housing is a human right  

Let me rephrase the US government’s argument in Bell v. Boise. If a city cannot take responsibility for providing the human right to housing, then as a city it has no right to prevent those who have no housing from using public land to live on. To fail to provide housing for people is to violate their human rights. 

Some people ask, who decides where homeless people should camp? That depends on whether you live in a police state or a democracy. In a police state, the police decide. In a democracy, the homeless place themselves where they can be seen while waiting for society to act responsibly toward them. The city does studies, but doesn’t consult the homeless themselves, from whom it would get more practical suggestions than it could handle. 

Beside the government brief in Bell vs. Boise, and the 8^th amendment, there is a third document to which we should refer. That is the Violent Crime Control and Law Enforcement Act of 1994 (sect. 14141). Bill Clinton signed it into existence. It says, “individuals have the right to be free from unconstitutional and abusive policing.” Now, that’s a tall order these days. And getting taller as the police get ready to raid the encampment on Adeline again. 

But it recalls another sentiment in the government brief about government "interest" in breaking the cycle of poverty and criminalization. Remember the revolving door between government and the corporations? Those who are high corporate officials become members of committees designed to regulate their industry; and those who put in time on those regulatory agencies then get hired by a corporation or two after they retire from "public service." 

With a revolving door between impoverishment and imprisonment, the US has constructed the largest prison system in the world (most of whose "residents" are there for victimless crimes) – along with a cost of living (especially rent levels) that rises while wages lag behind. The entire system produces people who are shell-shocked by life and what it does to them, at a rate comparable to war. 

Strangely, the one’s who get attention in the form of raids and criminalization are those who have figured out how to take care of themselves and each other, in order to heal, and to mitigate the force of their circumstances. By raiding them, the city is stating clearly that it wants them truamatized, rather than secure in their intentional communities. 

If the city prefers policing a problem to resolving it democratically, its revolving door means it is more obsessed with appearing to arrive at solutions than in doing so. Democratic resolution would necessate the homeless themselves being involved in developing solutions. The city, with all its workshop, task forces, subcommittees, and resolutions, just leaves them out of the conversation. It has never organized assemblies of the homeless, and asked them to come up with real proposals. It has never consulted with the neighborhoods in community assemblies who are beset by the same forces that beset the homeless, with perhaps a little more protection. If the city ever did consult these people, it might just be totally traumatic for it.