The issue of homeless encampments keeps coming up. The reason is the insistence on the part of the police of Berkeley on raiding encampments, dispelling the groupings of the homeless, disrupting their comunities, and thereby forcing them to move, to resettle themselves, to figure out new procedures for survival.

During the Obama administration, the Dept. Of Justice formulated an argument for how and why and under what circumstances this practice of raiding and disbanding homeless encampments is unconstitutional, in violation of the 8^th Amendment. The 8^th Amendment prohibits “cruel and unusual punishment.” It therefore limits what can be punished and what not. In particular, certain conduct can be punished, but mere status cannot be under certain circumstances (such as illness, poverty, unemplyment, etc.). To the extent homelessness is a (involuntary) status, camping cannot be punished unless a city provides an alternative, such as shelter.

What I include below is an edited (by me) version of a writ introduced into a trial in Boise, Idaho, in 2015, on this issue. It was a case in which the homeless of Boise had filed suit against the city, and the US government had filed an amicus brief in favor of the plaintiffs (the homeless). I have redacted the footnotes and references in the interest of length, and to make the text more palable to those who would have trouble wading through all the legal citations and rhetoric. I tried to only leave the meat of the government’s argument there. For those who have no trouble with legalese, and would like to look at the precedents and citations, the name of the case is Bell vs. City of Boise, its trial number is 1:09-cv-00540-REB, held on 08/06/15. And the full text of the government’s writ can be found here – https://www.justice.gov/opa/file/643766/download 

******************** 

Civil Action No. 1:09-cv-540-REB 

Bell vs. Boise, Idaho 

STATEMENT OF INTEREST OF THE UNITED STATES 

On any given night in the United States, half a million people are likely to be experiencing homelessness. …These individuals must find space in a public shelter or sleep on the street. For many homeless people, finding a safe and legal place to sleep can be difficult or even impossible. In many cities, shelters are unable to accommodate all who are homeless. 

In [the case before us], Plaintiffs are homeless individuals who were convicted of violating certain city ordinances that prohibit camping and sleeping in public outdoor places.⁷ They claim that the City of Boise and the Boise Police Department’s (“BPD”) enforcement of these ordinances against homeless individuals violates their constitutional rights because there is inadequate shelter space available in Boise to accommodate the city’s homeless population. Plaintiffs argue that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself, in violation of the Eighth Amendment. 

The parties disagree about the appropriate framework for analyzing Plaintiffs’ claims. Plaintiffs encourage the court to follow Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007)), which held that enforcement of anti-camping ordinances may violate the Eighth Amendment on nights where there is inadequate shelter space available for all of a city’s homeless individuals. Defendants, on the other hand, assert that Plaintiffs’ reliance on Jones is “heavily misplaced, factually unsupported, and immaterial to this case.” 

Because the summary judgment briefing in this case makes clear that there is a significant dispute between the parties on the applicability of Jones and conflicting lower court case law in this area, the United States files this Statement of Interest to make clear that the Jones framework is the appropriate legal framework for analyzing Plaintiffs’ Eighth Amendment claims. Under the Jones framework, the Court should consider whether conforming one’s conduct to the ordinance is possible for people who are homeless. 

INTEREST OF THE UNITED STATES 

The United States has a broad interest in ensuring that justice is applied fairly, regardless of wealth or status. In 2010, Attorney General Eric Holder launched the Office for Access to Justice (“ATJ”) at the Department of Justice to address the access-to-justice crisis in the criminal and civil justice systems. 

The United States also has an interest in breaking the cycle of poverty and criminalization. Numerous federal initiatives are tasked with reducing the criminalization of homelessness and promoting alternatives to incarceration that are more cost-effective, efficient, and fair. 

DISCUSSION 

The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” … The Supreme Court has held that laws that criminalize an individual’s status, rather than specific conduct, are unconstitutional. Robinson v. California, 370 U.S. 660 (1962). 

[In a precedent case in Texas (1968), one judge] did not rest his decision on the status-versus-conduct distinction … but instead … considered the voluntariness, or volitional nature, of the conduct in question. Under this analysis, if sufficient evidence is presented showing that the prohibited conduct was involuntary due to one’s condition, criminalization of that conduct would be impermissible under the Eighth Amendment. 

For the present case [with respect to the homeless] he explained that, “[f]or all practical purposes the public streets may be home for these unfortunates, … because … they have no place else to go. 

[There is] a division among courts on how to analyze claims regarding enforcement of anti-camping ordinances against homeless individuals. … Some courts have adopted the plurality’s strict interpretation, … that the Eighth Amendment limits only the criminalization of status, not of conduct. … Others have considered the voluntariness of the conduct, and whether the conduct is inextricably linked to one’s status, such that punishing the conduct is indistinguishable from punishing the status.  

[In precedent cases], the United States took the position … that criminalizing sleeping in public when no shelter is available violates the Eighth Amendment by criminalizing status. Consistent with the position taken in its previous filings, the United States now urges this Court to adopt the reasoning of Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006). Although the Ninth Circuit ultimately vacated its opinion in Jones—pursuant to a settlement agreement between the parties, 505 F.3d 1006 (9th Cir. 2007), not for any substantive reason— its logic remains instructive and persuasive. 

The Jones court considered the enforcement of a Los Angeles ordinance prohibiting sitting, lying, or sleeping in public. There, like here (Bell vs. Boise), the court was asked to consider a statute that, on its face, criminalized conduct rather than status. Importantly, the plaintiffs in Jones presented evidence suggesting that there was an inadequate number of shelter beds available for homeless individuals, so many individuals had no choice but to sleep in public in violation of the city’s ordinance. 

The Jones court [in LA] found enforcement of the ordinance to be unconstitutional as applied to the plaintiffs because of inadequate shelter space. The court based its decision on its conclusion that, “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.” Because sleeping is unavoidable, the court then considered whether the plaintiffs had a choice to sleep somewhere other than in public, concluding that they did not: “for homeless individuals in [Los Angeles’] Skid Row who have no access to private spaces, these acts can only be done in public.” Id. at 1136. As a result, the court found that sleeping in public is “involuntary and inseparable from” an individual’s status or condition of being homeless when no shelter space is available. The court concluded that, “by criminalizing sitting, lying, and sleeping, the City [of Los Angeles] is in fact criminalizing [Plaintiffs’] status.” 

Defendants {Boise}assert that reliance on Jones would be “misplaced, factually unsupported, and immaterial to this case.” [They] rely on a conduct-versus-status distinction. Defendants’ position is unpersuasive because the Eighth Amendment analysis is not limited to the plain language of the statute in question. Rather, the practical implications of enforcing the statute’s language are equally important. Those implications are clear where there is insufficient shelter space to accommodate the homeless population: the conduct of sleeping in a public place is indistinguishable from the status of homelessness. 

It should be uncontroversial that punishing conduct that is a “universal and unavoidable consequence[] of being human” (having to sleep) violates the Eighth Amendment. It is impossible for individuals to avoid “sitting, lying, and sleeping for days, weeks, or months at a time . . . as if human beings could remain in perpetual motion.” Once an individual becomes homeless, by virtue of this status certain life necessities (such as sleeping) that would otherwise be performed in private must now be performed in public. Therefore, sleeping in public is precisely the type of “universal and unavoidable” conduct that is necessary for human survival for homeless individuals who lack access to shelter space. 

In this way, the Boise anti-camping and disorderly conduct ordinances are akin to the ordinance at issue in [a precedent case], at least on nights when homeless individuals are—for whatever non-volitional reason(s)—unable to secure shelter space. When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless. 

[An objection has been raised to this approach, namely that it] implicates the knotty concerns with the Cruel and Unusual Punishments Clause becoming “the ultimate arbiter of the standards of criminal responsibility.” 

The Justices in the [precedent case] declined to extend the Eighth Amendment prohibition to the punishment of involuntary conduct because they feared doing so would allow violent defendants to argue that their conduct was “compelled” by any number of “conditions.” … But these concerns are not at issue when, as here, they are applied to conduct that is essential to human life and wholly innocent, such as sleeping. No inquiry is required to determine whether a person is compelled to sleep; we know that no one can stay awake indefinitely. Thus, the Court need not constitutionalize a general compulsion defense to resolve this case; it need only hold that the Eighth Amendment outlaws the punishment of unavoidable conduct that we know to be universal. Moreover, … Its punishment would serve no retributive purpose, or any other legitimate purpose. [The thrust of this] interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act [or] has engaged in some behavior which society has an interest in preventing.” 

Using this reasoning, the vital question for the Court becomes: Given the current homeless population and available shelter space in Boise, as well as any restrictions on those shelter beds, are homeless individuals in Boise capable of conforming the necessary life activity of sleeping to the current law? If not, enforcing the anti-camping ordinances and criminalizing sleeping in public violates the Eighth Amendment, because it is no different from criminalizing homelessness itself. … 

The realities facing homeless individuals each day support this application of the Eighth Amendment. … Regardless of the causes of homelessness, individuals remain homeless involuntarily, including children, families, veterans, and individuals with physical and mental health disabilities. Communities nationwide are suffering from a shortage of affordable housing. And, in many jurisdictions, emergency and temporary shelter systems are already underfunded and overcrowded. 

Criminalizing public sleeping in cities with insufficient housing and support for homeless individuals does not improve public safety outcomes or reduce the factors that contribute to homelessness. As noted by the U.S. Interagency Council on Homelessness, “[r]ather than helping people to regain housing, obtain employment, or access needed treatment and service, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”¹⁷ Issuing citations for public sleeping forces individuals into the criminal justice system and creates additional obstacles to overcoming homelessness. Criminal records can create barriers to employment and participation in permanent, supportive housing programs.¹⁸ Convictions under these municipal ordinances can also lead to lengthy jail sentences based on the ordinance violation itself, or the inability to pay fines and fees associated with the ordinance violation. Incarceration, in turn, has a profound effect on these individuals’ lives.¹⁹ Thus, criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities. 

Conclusion: The Court should adopt the analysis in Jones to evaluate Boise’s anti-camping and disorderly conduct ordinances as applied to Plaintiffs in this case. If the Court finds that it is impossible for homeless individuals to secure shelter space on some nights because no beds are available, no shelter meets their disability needs, or they have exceeded the maximum stay limitations, then the Court should also find that enforcement of the ordinances under those circumstances criminalizes the status of being homeless and violates the Eighth Amendment to the Constitution. 

Submitted this 6th day of August, 2015. 

Sharon Brett - Attorney for the United States of America 

A report of a person with a gun at University of California at Berkeley today was a private armored guard who was authorized to be on campus, police said. 

Police said at 11:50 a.m. that a person with a gun was sighted near the Martin Luther King Jr. and Cesar Chavez student buildings in Lower Sproul Plaza.  

Both buildings were placed on lockdown shortly after noon, according to UC Berkeley officials. 

Police reported that the area was clear at 12:24 p.m. and that the armored guard had "legitimate business" on the campus.

If three trees fall on University Avenue in Berkeley, do they make any noise? Last week three felled redwoods created a reasonably substantial hullaballoo, proving once again that we’re a city of tree huggers. Online stories (Berkeley disciplines developer after redwood trees chopped down, City orders removal of 3 potentially dangerous trees at construction site, City orders redwood removal after trees destabilized at construction site ) prompted an outflow of outraged complaints from the little people, some of whom actually signed their real names, a refreshing contrast to the usual comments from the surly entitled trolls who spend too much time anonymously carping on these news sites.

Lost in the chorus was another disaster waiting to happen, the City of Berkeley Planning Department's surreptitious extension of the entitlements for 2211 Harold Way, a project which threatens to undermine the Shattuck Hotel in much the same way that this small-time developer undermined the redwoods. More about that later.  

The last time trees generated so much press was the protest against UC Berkeley’s proposed decimation of the oak grove which used to be outside of Memorial Stadium. Despite the efforts of several of the city’s most distinguished older matrons, who went up in a tree to register their protest against this stupid project, the university cut the oaks down. The stadium project continued on schedule, eventually producing an enormous albatross, a $438 million debt which U.C. bureaucrats are still haggling about paying for.  

It’s remarkable how many ill-conceived building projects produce unpredicted adverse results—or at least results denied by proponents. The concerned public all too often can say “I told you so” after things go south, for all the good that does. The stock in trade of development promoters is promises, promises, which are seldom if ever fulfilled.  

The redwoods were on a lot where an apartment project was approved at least 10 years ago. After a lot of protests at the Zoning Adjustment Board, needed variances were approved, with the proviso that the trees be preserved as a condition of the use permit.  

Since then, the project has been “flipped” multiple times.  

How does this work? The Zoning Board grants “entitlements” to the developer. According to the Urban Land Institute, “entitlements are legal rights conveyed by approvals from governmental entities to develop a property for a certain use, intensity, building type or building placement. “ Once a property is entitled, its value increases a great deal, often exponentially, and then it can be re-sold—flipped—multiple times, to add still more layers of profit and profiteers.  

What this means is that all the folderol which surrounds citizen testimony at ZAB hearings often adds up to just a lot of hot air. The ultimate flippee who now owns the project on University Avenue where the trees were lost has benefited handsomely because the Berkeley Planning Department turned a blind eye to numerous violations of the supposed conditions on the use permit. The flippers made out handsomely too, I’m sure.  

Friday morning when I started writing this I intended to list some of the many projects in the twenty or so years since I’ve been keeping track where the City of Berkeley has neglected to enforce conditions on a use permit. One of the three or four things I remember from law school is that standard conditions on use permits are not enforceable by citizens or their elected representatives, but must be enforced by the bureaucracy—if and when it wants to. If flipping is the goal, it’s a lot easier if Planning looks the other way where onerous conditions are concerned.  

Time and space do not permit me to provide a comprehensive list of such projects, so let’s just consider one, the apartment building on Shattuck which sports a theater marquee which says “Fine Arts”. That’s the former site of the historic Fine Arts Theater, and a successor art film house was supposed to be given space in the new building. Never happened. And this pattern exists all over Berkeley.  

My intention on Friday was to point out that across Shattuck from the Fine Arts is another debacle waiting to happen, the so-called 2211 Harold Way project. Its entitlements present many risks of disaster, some of which are detailed in the adjacent commentary from civic activist Kelly Hammargren, who sued the city on the inadequate EIR process which helped this bad scheme slide past a compliant council. 

Flipping hasn’t been going so well for the original recipient of the Harold Way entitlements, a “developer” which has never actually developed any of the projects for which it obtained permits. Two one year extensions on the permits had already been granted by Berkeley’s Planning Department in order to help the company out, and I had picked up rumors around City Hall that Planning was discussing giving them their third one year extension to continue trying to find a buyer. 

Trying to figure out what was going on, I made a call to the office of Planning Director Timothy Burroughs on Friday. His voice mail said he was out of town because of a family emergency, but he gave another number to call, where I left another (never returned) message. I’d tried to reach Burroughs a couple of months ago, when he was also out of the office, but that call was never returned either. 

I called the City Manager’s office, but was told I could only speak to the city flack, Matthai Chakko. I left him a voice mail message. 

Then I called Mayor Arreguin, who actually took my call. He told me he knew very little about what was going on with 2211 Harold Way, but would check. 

Finally, around three o’clock, Chakko called me back. Quelle surprise, quelle horreur, quel dommage! 

The letter granting an extension of the Harold Way entitlement to January 2020 had been sent that very day, perhaps that very afternoon, over Timothy Burroughs’ signature, despite the fact that he’s out of town. Chakko offered to send me a copy. 

So I called Councilmember Kate Harrison, who told me she’d also understood from the city manager in a discussion yesterday that staff were contemplating extending the project’s entitlements for a third year, which she opposed, but she had no idea the letter would be going out today. No further word from the Mayor at press time, so I sent them both a copy of the Burroughs letter. 

It seemed the least I could do. I hope Burroughs himself got one too, but if not I’d be glad to send him one. 

However, I did notice that cc’d on the letter along with two Planning staffers was Mark Rhoades, of the Rhoades Planning Group. He’s a predecessor of Burroughs in the city’s Planning Department. Having passed through the revolving door, he is now the developer’s fixer on this project. It is, shall we say, ironic, that Rhoades got a copy while none of our elected officials did. 

In case you are one of the innocents who believed that by changing the Berkeley City Council majority you could change the standard operating procedure in city government, think again. Even Berkeley, yes, dear little liberal Berkeley, is subject to regulatory capture. 

Wikipedia: “Regulatory capture is a form of government failure which occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate the industry or sector it is charged with regulating.” 

The revolving door is the easiest way to achieve regulatory capture. Planners like Rhoades write the rules for development when they’re inside the government and then exploit them for profit when they move outside. 

This differs not at all from coal company executives getting jobs with the EPA or the DOE. And Michael Cohen is not the only fixer in the country, he’s just swimming in a bigger pond. 

Berkeleyans like to believe that they’re superior, but there’s a bit of Trumpism everywhere, even here. And so it goes…. 

 

 

 

 

 

 

 

The only time I ever saw Nancy Pelosi in person was at a 2012 fundraiser for Ami Bera, the second time he ran for Congress in a Sacramento-area district which was at best on the edge. He’d lost a previous run, as I recall, but it was a close race and he was trying again, benefited by a re-drawn district.

This was not an event for the big-time donors, not held in a Pacific Heights mansion, but in a routine San Francisco restaurant with admission price about on a par with a ticket to a San Francisco Symphony concert. I went out of curiosity, wondering where the middle of the road, not my usual hangout, was going. Bera was of interest in particular because he’s a physician, and health care was and is a crucial need, not just a lefty’s dream.

Nancy Pelosi (then House Minority Leader) was a surprise guest, dropping in towards the end of the party to make a very brief speech before she worked the room on Bera’s behalf. When she got to my corner, for some reason I chose to ask her an arcane question about an obscure Ohio race that I’d been wondering about.

To my genuine amazement she gave me a detailed specific answer, with all the facts at her fingertips and cleverly analyzed to boot. She’s usually been depicted in the media as charming, shrewd and a terrific fundraiser, but smart as a whip on fine points of issues? Not often mentioned, but clearly her ace in the hole.

So what’s this cryto-campaign by some smart-ass young-uns who think saying they won’t vote for Pelosi to be Speaker of the House will help them get elected to Congress? Exactly what’s that all about?

Most of these wannabes are running as Republicans-lite in districts where Clinton did relatively well against Trump. One special election Democratic winner, Colin Lamb, even ran commercials showing himself with his guns, presumably angling for the NRA vote. Ugh. 

There was a recent rundown on this trend in the St. Louis Post Dispatch, with a link to a Vox list of Democrats trying to run against Pelosi. Just FYI, in California one of them is Andrew Janz, the person running against the hated Trump surrogate Devin Nunes. He will be asking you for money sometime soon: let your conscience be your guide. 

There was an excellent interview with Congresswoman Pelosi on KQED’s Political Breakdown show last week: Nancy Pelosi on Running Against a 'Culture of Corruption,' Challenges to Her Leadership, and Dark Chocolate. She pointed out that the main reason Republicans want to run against her is that she’s effective, and that’s true. But I think there’s more when ambitious Dems try the same trick.. 

Any woman who’s been in a position of power after the age of about 45 is familiar with what might be called the Baba Yaga factor. There’s a reason that witches, including the Russian ones who live in the forest, are most often depicted as old women. When a woman has been around for close to a half century she knows where the bodies are buried, and that’s bound to scare the young folks, male and even female.  

It’s sometimes said that older people can’t understand the point of view of younger ones. But old people have been both young and old, though young people have never been old, which gives the old an information edge. 

Pelosi’s detractors like to suggest that younger leadership is needed because ________________. Fill in the blank yourself.  

It’s true that younger people are sometimes more energetic that older people, but in the radio interview Nancy Pelosi amusingly pointed out that she’d had five children (all aged six and younger at one point) but had more than enough energy left over after they’d mostly grown up to take on Congress. 

With seemingly boundless energy, she can still out-organize, not to mention out-orate, most of her younger colleagues. Remember her eight-hour marathon attempt to bring DACA to the floor of the house? 

Her current frustration comes from a problem not of her own devising. While she was busy keeping the federal House in line, Democratic National Commitee functionaries allowed Republican-dominated state legislatures to gerrymander enough congressional districts to capture a phony majority in Congress, just as they captured enough Electoral College votes to defeat a popular vote Democratic majority in 2016. Recent revelations about Russian hacking of DNC files, another cause of the 2016 election defeat, can’t be blamed on Pelosi either. Nevertheless, she’s managed to keep her troops together since them, waiting for this year’s election. 

Now, because Donald Trump’s cronies have managed to turn the Washington swamp into The Alligators’ Ball, the Democrats have a chance to retake the House. Sadly, the usual Democratic circular firing squad is already being assembled.  

The moderates who denounce California’s leftish tendencies are out in force.And right on cure, the right-wing media, the Moony-owned Washington Times and its ilk, is trying to gin up some anti-Pelosi action oni the left, but it doesn’t seem to be getting much traction so far. When cute-as-a-button Socialista Alexandria Ocasio-Cortez beat out Pelosi’s putative successor as Speaker, she was tempted by interviewers to denounce the mnority leader, but so far she’s resisted the temptation. 

Triumphal press releases from Berniecrats this week celebrate recent changes in DNC rules to reduce the power of superdelegates, office-holders and other dignitaries, to vote in national conventions without being elected as delegates. That might be fine, but be careful what you wish for. The risk of unintended consequences is always present. Opponents of the change expressed apprehension that since local officials are often more heavily African-American and Latinx that might result in a Whiter convention in 2020.  

If the Republicans had allowed superdelegates in 2016, moderates (yes, there were still some moderate Republicans way back then) might have been able to stop Trump. Even the sainted Dems risk having their own Manchurian Candidate in the wrong circumstances. 

All in all, if (knock on wood) the Democrats do take back the House, they would be world-class foolish to dump Nancy Pelosi in favor of one of the several eager young white guys who’d like her job. Just this morning I heard the loudest among them, Tim Ryan from Ohio, on the radio enthusing over Trump’s touted “Mexico-U.S.” trade deal, which is supposed to replace NAFTA. 

Say what? It’s about as much of a deal as that one with North Korea. No way a wise old woman like Nancy Pelosi would be fooled by it, but Ryan seemed to be.  

There’s a sucker born every minute, isn’t there? But there’s no reason to make one Speaker of the House. 

Having said all this, there’s a Young White Guy running in the nearby 10^th Congressional District who deserves your support. Josh Harder made an appearance last night at an event sponsored by the Wellstone Democratic Club and Barbara Lee, and he seems to be the real deal. His no-notes speech touched all the right points for a very critical East Bay audience—didn’t get a single hostile question, which is almost unheard of. And also, thank goodness, he didn’t say a word about dumping Nancy Pelosi. If you’d like to help elect him, go to https://www.harderforcongress.com/ for the opportunity; 

Since it's Labor Day weekend, I'm taking my time. There are more submissions which I'll be posting at my leisure this weekend--stay tuned

The sinking Millennium Tower has captivated San Francisco. Is Berkeley sliding toward its own scandal?

Berkeley Planning Director Timothy Burroughs succumbed to City pressure to sign yet another extension for the project planned for 2211 Harold Way, so presumably the developers who carried the project through entitlement and won the CEQA lawsuit can find a buyer to build it and an institution to finance the project.

With a perceived shortage of housing and a captive student rental audience, why has this project been so hard to flip?
Location.


The project site consists of interconnected buildings (the Shattuck Hotel Complex) which are divided into three overlapping commercial condominiums: Units A, B and C.

The developers of the Harold Way project own Unit A and Unit B, the Postal Annex, the storefronts along Shattuck Avenue, the Shattuck Cinemas and the basements underneath. Longtime residents recognize these portions as the former Hink’s Department Store.

Unit C includes the operational Shattuck Hotel, the restaurant, the hotel lobby, the basement service area and the hotel rooms, including the hotel rooms along Shattuck Avenue, floors two through five above UNIT A. These are owned by BPR, an independent family operation.

The 2211 Harold Way project as entitled calls for demolition and excavation under the hotel rooms (which the developer does not own) to build the three subterranean movie theaters and a lobby area which are promised under the permit.

It may be possible to properly brace the upper floors of the historic Shattuck Hotel to prevent damage and/or collapse during demolition and excavation for these promised theaters, but if (and some would say when) something goes wrong, who is responsible and what is the cost?

The City of Berkeley approved the project. As San Francisco has been with the Millennium Tower, Berkeley could very likely be pulled into lawsuits along with the developer.

The other question is why any investor group would buy a project which requires demolition and excavation under a building it does not own when there are sites all across the country without this complication and risk. Maybe there is a different plan: an expectation of an easy ride, of dumping the cinemas in the current Harold Way project plan, especially if they start demolition and problems develop.

Over five thousand cinema patrons from all across the Bay Area signed petitions to save Shattuck Cinemas. Just a few spoke in favor of the project, many of whom were vying to be recipients of the project's supposed “community benefits.”

Citizens by the hundreds wrote and testified against this project, objecting to:

• the lack of inclusionary affordable housing,
• intrusion into the view from Campanile Way,
• demolition of Shattuck Cinemas and portions of the landmarked Shattuck Hotel Complex,
• allowing a seismic report instead of a seismic study with soil borings,
• location in a school zone impacting approximately 3500 students,
• a transportation study that challenged common sense with the project parking entrance/exit across from the Central Library on Kittredge and
• impact on City infrastructure.

It might be a good time for backers with career ambitions to start looking for a different job, before this project goes wrong as predicted by many.  

UPDATE: This morning, at 7 am, displaced homeless from the shelter, FTCFTH, and supporters took city hall. The reason is obvious. 90 out of the old, 60 into the new. The other 30?

The city had plenty of time to make sure no one was displaced. They did not care enough to. These homeless are all disabled. They are seniors. And the city again, did not care about the most vulnerable.

---

Recently, at a town hall meeting hosted by Berkeley’s Mayor Jesse Arreguin and Vice Mayor Cheryl Davila, the public was asked to think about ways we could house the residents of the soon to be closed Berkeley Emergency Storm Shelter at 9^th and University. A number of good possibilities, short and long- term were offered. I would like to lend my support to several of them.

I request that the Mayor’s office to do whatever is necessary to extend the operation of the shelter at its current location. Declare a state of emergency and request the County of Alameda and State of California governments extend the 180 days to whatever time is necessary. Comply with any and all repairs needed. In addition, build several bathrooms on site, add showers and washing machines. The Dorothy Day House does a spectacular job of making this place a well-run center and we should see that the City does everything it can to continue the operation of this good shelter they have created. 

Open the West Berkeley Senior Center to being a full-time shelter for several years. Have the Dorothy Day House extend their management to this center as well. Open the parking lot to rv dwellers. 

If safe, open the men’s shelter in the Veterans Building on Center Street and Old City Hall, downstairs, to create two more temporary shelters. Again, the Dorothy Day House should manage them. 

Start looking at residential/commercial properties and negotiate with the building owners about repairing and improving the structures. Pay for and help with special expedited zoning permits. Leases of the structures to the City for at least 20 years should be obtained if the cost of repair is very large. Apartments that are included in the structures should all be made code compliant and rented as very low income apartments under rent control. The rent control status must stay with the apartments, even if the building is sold after the leasing has expired. 

I live in a building that extends east/west for l block. The building has 8 apartments on the top (second) floor, 2 (possibly 3, according to City records) on the main floor and a huge cavernous open space that two business once occupied 12 years ago (Half Price Books and the Blue Nile Restaurant.) The building’s address is 2510 Telegraph Avenue on the west side and 2512-16 Regent St. on the east side. Of the 11 rent-controlled apartments, only 4 have been occupied in the last 12 years, with one of these having become unoccupied for the last 3 or 4 years due to the death of the occupant. The unoccupied apartments were gutted to the joists 10 years ago and no work was done on them since then.  

The downstairs commercial areas were also gutted around 10 years ago, with walls and structural supports removed to create one massive space. The landlord stopped working on the building when he encountered structural problems and had to sue the apartment house to the south for leaning on his property. A thorough analysis on the structural soundness of the total property was done 10 years ago. The building was found to be stable, with some reinforcement needed on the south wall. I propose that the City of Berkeley contact the owner, Ali Eslami, at 510.774.8387 or 510.644.2922 to confer with him on this property. 

I envision a large shelter on the main floor (street level) that would accommodate senior and disabled clients, along with their animals and partners, in addition to several small offices, a communal room and a kitchen. There are several bathrooms already there, so the plumbing is in and could be extended. A large commercial kitchen had been located there. The configuration of the rest of the space could be for rooms for the people recovering from illnesses or surgery and larger spaces for those not incapacitated. Staff could be provided by the Dorothy Day House. 

Funding for this Senior/Disabled shelter could be requested from Kaiser, which has established a funding unit just for these helpful places. Also, UC could be requested to contribute funds to it and perhaps an office for public health might be established there with doctors and nurses on duty. Perhaps LifeLong Medical Center would like to participate. 

The function of this space, though, is to give the senior and disabled homeless community in Berkeley a safe and supportive place to be at 24/7. Of course, the owner would be helped financially with grants and funding, tax incentives and special provisions to establish this needed center for those in need in Berkeley. The surrounding neighborhood would be benefited by a stable, humanitarian place that was dedicated to helping some of the most vulnerable in our population. 

You are faced with a humanitarian crisis that will continue for many years to come. I wish you all the best and thank you for the help you have already given and your willingness to expand the services you offer.

Every so often a writer produces a phrase that vividly encapsulates the political spirit of the times.

Becky O’Malley, in this space, did this for me when she coined the term “wisdom of the locals,” saying that this is what we need instead of endorsements from outside famous politicians. She named what is now flooding into my race for Assembly District 15.

I’m astonished and humbled. I am the grateful beneficiary of the wisdom of the locals.

Every day I seem to receive another endorsement from local activists, politicians and organizations brimming with expertise and knowledge of our dynamic East Bay and state. These people, together, represent centuries of experience and they know a huge amount about what we need to rectify the abiding problems we’re facing, from climate degradation, to a dysfunctional justice system, to deficient charter schools set up for profit not for children.

Only this week, when I thought there could be no more, more came. I welcome the help of the wise - maybe that’s why they keep coming! 

This week the California Latino Legislative Caucus joined the California Black Legislative Caucus to endorse me, then former Berkeley mayor Shirley Dean (years of wisdom). Two days ago I met with a group of East Bay Jewish supporters of our people-driven campaign to discuss how our values and desires to fight discrimination align. I am so grateful to learn and to be heard. On Sunday I had the honor to address the Wellstone Democratic Renewal Club, the biggest Democratic club in the East Bay. That evening I was delighted to hear they had endorsed me with more than 70% of the vote. 

These latest endorsements add to a list that is almost beyond imagination to me. Seven environmental groups including the Sierra Club (wisdom for survival); 20 labor unions, including nurses and teachers (picket lines are in my blood, because I’m in a union myself: the wisdom of the workers); truly progressive organizations including the Richmond Progressive Alliance (where I developed my political awareness), the Democratic Socialists of America (a rising national chorus of people before profit!); Our Revolution (indefatigable Bernie as a hero, Sister Nina as an inspiration, come hug me again, please!); my fellow elected officials and candidates in the primary Dan Kalb, Judy Appel, Rochelle Pardue-Okimoto, Andy Katz, Owen Poindexter, Cheryl Sudduth and Raquella Thaman; Oakland City Council Member Rebecca Kaplan; my friends Actor Danny Glover and Gus Newport. And many more! The wells of wisdom are deep, and from them our world needs refreshing. 

I’ve been an elected official in Richmond for two terms, and served on city commissions before that. I’ve had to develop the fortitude and patience to stand up, to the pressures of Big Money, against personal attacks, and for people who need help. California’s state budget is more than $250 billion, and the state regulates conditions for many, varied, and huge economic interests. That’s why politics gets vicious and people can be mean. The moneyed forces seek profits; but we put people first. 

What touches me about the wisdom coming my way is not that it’s Delphic - from the top down or from some established, calcified system of lobbyists, political experts or party hacks. The wisdom is bubbling up from the grassroots and from all around. 

My campaign is run almost completely by volunteers. We really are corporate free; the vast preponderance of our limited funds come from right here in the East Bay; and while working people and their unions rally with me, there isn’t any Big Money powering this campaign. We really are corporate free, not pretend-corporate free; we are part of a movement sweeping parts of the country, not a manufactured campaign; we really do put people first, not just try to convince them of our good intentions. 

Solving and managing the challenges that face us will take the wisdom of all of us, and a lot of love. I thank these generous activists who go to meetings all the time and care, care, care for our communities as they take action. Their wisdom comes with a lot of warmth. I am honored. 

Among the serious problems that working people confront particularly in the retail industries, which include food service establishments, is that their work schedules are subject to change with very short notice. This is problematic for women with children. It poses major hurdles for those who want to advance themselves by attending school or just taking courses they would enjoy.

Also, many workers in the retail industries who work part time need another part time job as well. Without steady and predictable hours, schedule changes make that impossible. For workers generally it makes planning difficult and even at times impossible. Most employees do not complain to avoid the risk of losing their jobs.

Unfortunately, these workers are treated as things that employers can manipulate rather than as real people. There should be a federal law as there is in other countries to protect working people against this abuse. Instead it is up to the states and cities to enact predictive scheduling laws. But very few communities have done so.

Two bay area cities, San Francisco and Emeryville, have each enacted a predictive scheduling law. San Francisco was the first city to enact a scheduling law (2014). The law applies to retail and chain restaurants, which are required to provide two weeks' notice of work schedules. If schedules change in less than seven days employers are subjected to a small penalty. However, there are no heavy fines. Moreover, most workers are not protected. The ordinance covers only those retail establishments that have at least 40 locations worldwide and 20 or more employees in San Francisco. As a result, only a small minority of workers benefit from the law. 

The Emeryville restrictive scheduling law, which was also enacted in 2014, is more inclusive, but not inclusive enough. The law, which requires employers to post schedules 14 days ahead, protects relatively few employees. The reason is that the law only applies to retail and food service company with at least a total of 56 or more employees.  

New York City, on the other hand, enacted in November last year a law that looks good on paper. Employer violations can carry a very heavy fine. It may be too early to tell whether the legislation is being rigorously enforced. If it is, the New York City law can serve as a model for other communities as well as states. 

Workers in Berkeley certainly need a predictive scheduling law. Berkeley's Labor Commission, whose members are appointed by the Berkeley City Council, is considering creating a bill that would be forwarded to the Council. Although it seems that most if not all its members favor protecting workers, the Labor Commission should move at a faster tempo. 

Of course, the Council itself could propose and pass a good scheduling law. But no member of the Council has so far attempted to. I would like, then, to urge the many progressive organizations and individuals to contact and pressure the Council to demand action on this very vital issue.

Despite the gain in earnings that many women have made, obtaining equality is a long way off. The current wage gap of 80.5 percent of male earnings is still substantial. As a result, women who work full time year-round are losing on the average over $10,000 a year. Moreover, If working women were receiving equal pay with men, their poverty rate would be cut in half.

Yet as revealing as this summary statistic is, it also conceals very important, contrary data. In over a third of all husband and wife families the woman is the main and in many instances the sole breadwinner. The changes in family work patterns have been considerable since 1970, when in almost half of all families only the father was employed. Now. the male as the sole family provider is in the minority.

In the last few decades, an increasing number of women have been entering the labor market. Women, who comprised fewer than thirty percent of the workforce in 1950 ,now make up 47 percent. In fact, the Department of Labor predicts that women for the first time in history will soon constitute a majority of working people.

Many women have been successfully competing for jobs that were once held only by men. Women have been able to do so in part because an increasing number have been going to college. In fact, they have been exceeding the number of males who receive higher education degrees. 

Women currently earn about 57 percent of all bachelor's degrees, 60 percent of all masters, and 51 percent of all doctorates. Although these achievements have not been enough to close the gender wage gap, it explains why many women have increased their income and have also become major breadwinners. Women in the last four decades have averaged a wage increase of 30 percent. Also, the gender wage gap for full time women workers has narrowed in the last four decades from 60 to 80.5 percent. 

Unfortunately, another very important reason women seem to be catching up is that men are losing ground. Their real wages have for a long while been stagnant. After taking account of inflation the purchasing power of men in the last forty years remains not only unchanged. For some it has even declined. 

Among the problems is that too many jobs are being exported. Over 14 million jobs, including 5 million manufacturing jobs, many which were well paying, have been outsourced to low wage foreign countries. Since 2001 well over 3 million jobs have been shipped to China. In addition, millions of additional jobs have vanished due to the immense loss in purchasing power that the domestic layoffs precipitated. Under the current Trump administration, despite the President's rhetoric, the exodus of jobs is continuing unabated. 

Also, as a result of the very successful legal and political 

assault against unions by business interests, the unions have been devastated. Union membership has decline from around a third of the workforce in the 1950s to currently just under 11 percent and only 6.5 percent in the private sector. Men particularly have been victimized. In 1979, when union membership peaked, almost 70 percent were male. Before the unions were busted, their earnings were up to 30 percent more than non-unionized workers. Now, according to the Brooking Institution, after taking account of inflation, men have not gotten a collective raise since 1973.  

Due to the beating many men have been taking, women have been replacing men as the main family provider. According to the US Department of Labor, in families where both spouses are working, the wives in 29 percent of these families earns more than their spouses. When the Department of labor also includes unemployed spouses, who made no financial contribution to their families, women are the primary breadwinners in 38 percent of these households. 

In a household where the woman is the primary bread winner, this arrangement can generate considerable marital tension and can even result in divorce. The patriarchal role that men have been playing, which has been rooted in their being the main breadwinner, has certainly been very problematic. As more women are becoming the main breadwinner, the risk is that some will be tempted to play a similar role. The version of feminism that favors the dominance of women could be reinforced in families where women are the main providers.  

The best route by far for a successful marriage is an egalitarian relationship in which both spouses see themselves as equal partners regardless of the different family roles they play. According to the research of John Gottman, who has interviewed thousands of married couples, spouses who treat each other as equal partners are much less likely to divorce and are more likely to have a happy marriage. Those who make the effort to build an egalitarian marriage will eventually see, according to an old metaphorical expression, the light at the end of the tunnel. 

In recent weeks, I’ve asked why Mayor Arreguín hasn’t vocally opposed Assembly Bill 2923, the state legislation that would remove zoning authority over BART stations in Alameda, Contra Costa, and San Francisco counties from the host cities and give it to BART. On May 29, he voted with the council majority to oppose the bill and staunchly defended community say in land use. But his name was missing from the strong letter of opposition signed by ten other mayors and published on August 4 in the East Bay Times. He’s continued to remain silent, leaving Berkeleyans to speculate on the reasons for his reticence. 

I think I’ve stumbled over a clue. On May 22, Arreguín sent an email to Housing Advisory Commissioners Darrell Owens and Igor Tregub, members of the HAC Subcommittee on North Berkeley BART. Here’s the revealing passage: 

“Any development on this site must be done in partnership with BART, as it is their property. We must work with them and [be] consistent with their TOD Guidelines to develop any implementing zoning.” 

If I read this correctly, first, Arreguín thinks that when it comes to land use policy, property-owners are equal partners with municipal authorities; and second, in this case, that the City of Berkeley must defer to BART—a special use district agency—and follow its TOD [Transit-Oriented Development] Guidelines. 

The first supposition is troubling. Zoning is the proper prerogative of cities and counties, not special use district agencies. Arreguín must know that. 

The second supposition is also disquieting. If AB 2923 becomes state law, Berkeley and other Alameda, Contra Costa, and San Francisco cities with BART stations will indeed have to follow BART’s TOD Guidelines. But AB 2923 has yet to be enacted. In this coming week, it will either pass on the Assembly floor or die. Apparently Arreguín’s silence on the bill reflects his assumption that it’s going to pass, which means he’s sucking up to BART. 

To those who, like myself, supported his mayoral campaign in hopes of boldly democratic leadership in the Berkeley Mayor’s office, this pandering is a big disappointment.

As we head for the November 6th midterm elections, it's worth remembering that Donald Trump was elected President because he promised to "drain the swamp." Instead of doing that, Trump has unleashed a tidal wave of corruption. Over the next two months, Republican corruption is the key topic Democrats must talk about. A 2016 Washington Post/ABC News poll (http://apps.washingtonpost.com/g/page/politics/post-abc-tracking-poll-oct-30-nov-2/2124/ ), released a few days before the presidential election, found that Hillary Clinton had a narrow lead over Trump on all issues except corruption -- where voters trusted Donald to address "corruption in government." In the presidential election exit polls (https://www.cnn.com/election/2016/results/exit-polls ), 39 percent of respondents said the candidate quality that mattered the most was the ability to "bring change;" 82 percent believed Trump was more likely to do this. It can be argued that ending corruption was Trump's key issue.  

Over the course of Trump's presidency, he has lost ground as a perceived agent of change. Now, most voters see Trump as part of the swamp; someone incapable of bringing the required change to Washington. The most recent USA Today/ Suffolk University poll (https://www.suffolk.edu/documents/SUPRC/8_29_2018_tables.pdf ) asked: "During the 2016 campaign, Donald Trump promised to 'drain the swamp' -- to reduce corruption in Washington. Which comes closer to your view?" 57 percent of poll respondents said, "The swamp has gotten worse during the Trump Administration." 

A recent Pew Research poll (http://www.people-press.org/2018/06/20/1-views-of-donald-trump/ ) found, "about half of Americans (54%) say they trust what Trump says less than they trusted what previous presidents said while in office." (In the latest Washington Post/ABC News poll, 60 percent of respondents disapproved of Trump's job performance.) 

As a consequence of Trump's diminished credibility, voters have begun to label Republicans as the Party of corruption. In July, the Center for American Progress (https://cdn.americanprogress.org/content/uploads/sites/2/2018/07/09124028/CAP-Battleground-Poll-Memo-070918.pdf ) commissioned a significant poll in 48 "battleground" congressional districts. "By an 8-point margin, most voters say that Republicans are more corrupt than Democrats, 54 – 46 percent. This gap (larger than the Democratic lead on the generic congressional ballot) is driven in major part by the 60 percent of Independents who find more fault with the Republican Party, and the 27 percent of moderate Republican voters who agree with them." 

How the issue of corruption will factor in the midterm elections will vary from state to state and from congressional district to congressional district. For example, in California there are (at least) three contested congressional races where incumbent corruption will be an issue: CA 22, where Representative Devin Nunes spends his Washington time trying to scuttle the Trump-Russia investigation. Recently his home time newspaper, The Fresno Bee, featured the headline, "Nunes used to care about Valley. Now he’s a D.C. fat cat living large on donors’ dime." CA 48, where Dana Rohrabacher is Russia's man in Congress. Recently the New York Times ran a front-page article about Rohrabacher, "He’s a Member of Congress. The Kremlin Likes Him So Much It Gave Him a Code Name." And CA 50, where Duncan Hunter was recently indicted for misuse of $250,000 in campaign funds. 

Corruption infests Trump's cabinet. We've already seen several cabinet members leave because of corruption charges (Tom Price and Scott Pruitt). Several others are being investigated. Secretary of Commerce Wilbur Ross has been accused of stealing $120 million at his investment company (https://www.newsweek.com/ross-accused-stealing-120-million-1060598 ) -- Ross is also accused of violating conflict-of-interest laws and filing false information. 

For Trump, his family, and his close associates, corruption is tied to self dealing. The most noteworthy case involves emoluments. Article I of the Constitution says, "No Person holding any Office... shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” On March 28th, a Federal Judge in Maryland let an emolument lawsuit go forward. (https://www.nytimes.com/2018/07/25/us/politics/trump-emoluments-lawsuit.html ) This action, brought by the District of Columbia and the State of Maryland, focuses on the Trump International Hotel in Washington DC: "The District of Columbia and Maryland said their local residents who compete with Trump's businesses, such as Trump International Hotel... , are harmed by decreased patronage, wages and tips..." 

Trump's son-in-law, Jared Kushner is said to be under investigation for self dealing. (https://www.economist.com/united-states/2018/03/08/jared-kushner-appears-to-be-in-trouble ) So is Trump's son, Donald Junior. (https://www.axios.com/donald-trump-jr-trump-tower-meeting-mueller-investigation-e48b2134-560c-4943-8100-de9826d18913.html ) 

Close Trump associates have either been indicted (Michael Cohen, Paul Manafort) or are under investigation (Elliott Broidy) (http://www.msnbc.com/rachel-maddow-show/scandals-engulf-multiple-rnc-finance-chairs ). 

It's an open secret in Washington that if you want to get Trump's attention you should stay in his Washington hotel or better yet, buy a membership in one of his golf clubs. (https://newrepublic.com/minutes/144704/easiest-way-get-trumps-ear-paying-play-one-golf-clubs ) It's clear that Trump's economic policies are dictated by his friends. For example, the New York Times (https://www.nytimes.com/2018/08/05/us/politics/nucor-us-steel-tariff-exemptions.html ) reported that the implementation of the steel tariffs has guided by Trump supporters at two large US steel companies, Nucor and US Steel. As another example, Trump plans a coal company bailout that will help some of his biggest donors. (https://www.marketwatch.com/story/trump-sells-regulatory-favors-to-his-donors-2018-06-14 ) And, of course, it's well established that the 2017 Trump-sponsored tax cuts primarily favored big GOP donors (https://www.politico.com/story/2018/01/29/big-donors-republican-tax-cuts-374842 ). Finally, early in the month, ProPublica reported that Trump has ceded control of the VA to three members of his Mar-A-Lago resort (https://splinternews.com/trump-has-reportedly-handed-over-control-of-the-va-to-h-1828187399 ). 

Donald Trump was elected President because he promised to "drain the swamp." Instead of doing that, he's enabled "the swamp." And he's give Democrats the key issue to talk about heading for the midterm elections 

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Bob Burnett is a Berkeley writer and activist. He can be reached at bburnett@sonic.net