There is no law in the City of Berkeley. That is the only conclusion possible when government violates the law with impunity. It means there is no law.

We’re talking about the law of the land. Not the ordinances that the City Council passes to make itself look important, or to allow the police to violate the law by enforcing those ordinances. We’re talking about the law of the land and its protections.

The "law of the land" is the basic law from which all else gets its authority, namely, the US Constitution, the Constitution of the state of California, and the Berkeley City Charter. When a city council or its agencies involve themselves in avoiding, evading, sidetracking, circumventing, eluding, finding loopholes in, and countermanding the law, then for the people of that city, there is no law. If the people have access to a society organized around law only through those councils and agencies, then the people are out of luck.

Two crises beset this city, a crisis of homelessness, and an affordable housing crisis. The first is a crisis foisted by economic processes. The second crisis results from an absence of political will (and it will require a separate article). 

The city of Berkeley’s response to homelessness has been one of denial of the law. It has been continuously discriminatory in violation of the 14^th Amendment – a failure of “equal protection under the law.” And it has chosen to violate the 5^th Amendment and the 8^th Amendment. We live in an era when people have risen up against discriminatory oppressions of all kinds, to re-humanize themselves through such opposition. Somehow, Berkeley can’t seem to get it. 

What are the conditions of the unhoused?

The basic conditions of the homeless are that they must sleep on the street, for which they set up tents, and congregate in encampments as a form of protective community against social hostility (to which city government has contributed). They do this in public space. In some cases, they soil the area (garbage, waste, unused property, etc.). 

What they are trying to achieve is protection from the elements, and from hostile people. They seek to create places to eat and read and be with friends in peace, and enjoy a sense of privacy. These are the same goals for which a person buys or rents a house or apartment. 

The city responds with ordinances. I won’t call them laws because they violate the law of the land – in particular, the 5^th, the 8^th, and the 14^th Amendments of the US Constitution. They are written in response to alleged complaints from homeowners or commercial establishments who think their private space is corrupted by those who must live in public space. These ordinances are designed to make life more difficult for those whose lives are already most difficult. That is the choice the city makes. 

 

What these Amendments provide

The 5^th says that no person shall be deprived of life, liberty, or property without due process of law. (Please notice the use of "person" rather than citizen, and "law" rather than ordinance.) When the police break up a homeless encampment (which they do regularly) and cart away the property of its members, or require the tents to be broken down to fit in an area of 3 x 3 feet, they are depriving people of property and liberty without due process. 

The police inform those they deprive that they can apply for return of their property. But that is a process of appeal. Appeal and due process are very different. Appeal is for the rectification of a wrong. Due Process is for the prevention of an impending wrong. Due process must come first (according to the Constitution). The person to be deprived must get a hearing prior to deprivation. That is the law. Confiscating property because it sits on a sidewalk violates the law. 

Banning encampments on public land has been done for years. It has finally been shown to be in violation of the 8^th Amendment. The Ninth Circuit Court, in its Boise Decision of 2018 (Martin vs. Boise), articulated the principle that a government cannot punish a person for their condition or status in society, but only for their conduct. Sleeping and poverty are conditions, not conduct, and can’t be banned or made punishable. Unhoused people must be able to sleep on public land if the city cannot provide shelter for them. 

To its dehumanized shame, however, the city has been attempting to find loopholes in the Ninth Circuit’s decision, so that it can continue to punish the homeless for being homeless. It thinks it has found two. One is that during non-sleeping hours, a person’s property must fit in an area “3 x 3” feet. The other is that homeless people who are fortunate enough to have an RV to sleep in may not sleep in an RV between the hours of 2 am and 5 am in the morning. These ordinances use cruelty as a "norm." They represent a totally dehumanized approach to the real suffering of people. 

They are also discriminatory. In violation of the 14^th Amendment, they don’t provide equal protection for the homeless. 

How has the city been discriminatory?

The 14^th Amendment says “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US.” It also says “Nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.” If a state cannot do these things (abridge or deny), then neither can their charter extensions (aka cities). These two clauses, folded into the same Constitutional amendment, are quite different. The city of Berkeley violates both of them. 

Tents are refused permits

The homeless set up tents, sometimes composed of cardboard, to protect themselves from the elements. They are also to obtain a modicum of privacy. That is what houses are designed to do. To treat a tent differently from a house is outright discrimination. 

When neighbors or residents complain about the homeless obstructing a sidewalk, the police will protect the residents from that obstruction by seizing it and taking it elsewhere. The city does not protect the homeless from unnecessary and unwarranted complaints and attacks by residents (or the police). It violates the equal protection of “the law.” 

The homeless live on public land, just as homeowners live on private land. They should be given certificates of occupancy, just as houses are certified by housing Code Enforcement. Not to do so is to deny equal protection of the laws to homeless people. 

The city gives construction permits for housing

The city gives homeowners permits to construct things on their land, or to put additions on existing housing. But it refuses to give a comparable permit to the homeless to set up a tent on public land (which is the only "land" they have). According to the Boise Decision, public land is, for those who have no shelter and no housing, the equivalent of private property. Not to provide permits to set up tents on public land is to withhold “privileges and immunities” from the homeless citizens. That is discriminatory. To contravene that principle by attacking the homeless for using public land the way a landowner uses private land is to violate the 8^th Amendment, as well as the 14^th. 

Waste disposal

The homeless sometimes soil an area because the city offers no equal protection in the form of sanitation. The city provides sewer systems for those who live in houses. For years, the city refused to provide toilets for encampments. Today, it begrudgingly provides toilets for some encampments. The city provides for the collection of garbage in all neighborhoods. It begrudgingly collects the garbage from some of the homeless encampments, and uses that to disrupt their stability. Thus, the city withholds equal protection of health and hygiene for its unhoused residents. This is an especially dire form of discrimination against the unhoused. 

The city must provide comparable services to the unhoused as to the housed. Here, the 8^th Amendment and the 14^th Amendment work together. They are a framework for protecting the victims of economic oppression. 

The homeless who live in RVs are deprived of their rights

There are some unhoused who have been fortunate enough to obtain an RV in which to house themselves. The city looks at them as a parking problem rather than as a partial solution to the housing situation. Thus it chooses a dehumanized approach, focusing on the machine, rather than use a humanizing perspective that would seek to integrate this form of housing into the overall housing landscape of the city. 

City Council writes ordinances about permits for RV parking in order to create time limits past which the RV dwellers will have to leave town. Thus it abridges the RV dwellers’ “privileges and immunities” as human, substituting the machine for the person’s condition. It violates the Ninth Circuit’s 8^th Amendment argument, which provides that the RV dwellers, as homeless, must be able to use public space. 

The city seeks to maintain peace in its resident neighborhoods, but it refuses to establish dialogues between neighbors and RV dwellers, by which to arrive at common understanding and mutual benefits. Thus, it discriminates against the RV dwellers. 

The sanctity of public space

The homeless must live on public space. It is the only space they have. It is their home. The city is barred from entering a private residence by the 4^th Amendment. It cannot tell residents which room they may sit in. The city would not dare do such a thing. Yet it does not shrink from telling the homeless which part of public space they may sit in and which not. Only others using public space should be able to do that – in dialogue with those for whom public space is "home." Thus, the city is again discriminatory, in violation of the law. 

There is no law. 

What does this mean?

The derogations of the city are multiple. As a result of its discriminatory policies, 14 homeless people have died in the streets of Berkeley in the last 6 months. The city’s officials have all sworn an oath to defend the US Constitution. These violations of the Constitution represent betrayal of that oath. 

In violating the law, the city is also corrupting the ethics of representation and democracy. "Democracy" means that those who will be affected by a policy should be the ones to decide on the policy that will affect them. But the city has never involved the homeless in writing any ordinances concerning the homeless or their condition. Representation means that the city will equally protect all its residents. But it betrays the morality of our time, which has been a singularly massive struggle, from voter registration to LGBTQ pride, against all forms of discrimination. In being discriminatory, the city of Berkeley turns its back on its historical era, and becomes despotic. 

When there is no law, there is only despotism. 

Applying the principle of democracy

Let the homeless of Berkeley take seriously the fundamental principle of democracy, and autonomously write their own rules and regulations concerning their lives, their survival, and their relations with the neighborhoods. Let them do this in dialogue with the neighborhoods. Let them present that to the city as their democratic expression, as a step toward reviving the reality of law in Berkeley. 

Let that democratic expression be their participation in establishing their own equal protection, or at least the principle of their own equal protection. Let that expression call the question on the city, that is must return to the law. 

This would be a really important step to dealing with the homeless as people. 

Let the city thus take its first steps away from its despotic propensities, by honoring the autonomy of the people, and by guaranteeing the “privileges and immunities” of all its citizens. 

W.E.B. DuBois begins his classic work, “The Souls of Black Folk,” by telling the story of how it feels to read that “unasked question” in the expressions of white people, “How does it feel to be a problem?” And here we are, a century later, unable to look at or embrace real human beings in terms that could really dispense with that paradigm.