Public Comment

As if defending itself against “no one,” Berkeley City Council, on April 21, 2020, threw equity to the howling winds. Quoth the council: “We’re in the middle of a crisis right now, so we are very busy. This is not a good time to change policy.” Because the policy in question was already in effect, it sounded like double-talk. In its bumbling terms, it harked back to that old political draw-bridge between bureaucracy and feudalism. Something nefarious passed beneath that bridge in the night.

The issue in question, against which “change-in-policy” marked an unneeded defense, was a measure proposed by one councilmember desiring to clearly state the city’s moratorium on action against the homeless for the duration of the pandemic lockdown. It halted enforcement of the sidewalk ordinances regulating homeless presence. It halted encampment raids by police, and the ticketing or towing of those mobile means of self-sheltering used by RV dwellers. While faithfully reflecting city policy (repeated during the meeting by the City Manager herself), the aim of the measure was simply to make a spoken policy official. Yet when the Mayor asked for a second to the motion, no one spoke up. The measure died for lack of a second. The silence, as they say, was deafening. 

It was a multiple act of silencing. It silenced any sense of responsibility to the unhoused residents of the town. It silenced the many souls who spoke for the measure in “public comment.” It silenced a council colleague as if drowning her under a water-cannon assault. But it loudly ratified the distrust that the homeless have developed toward City Council. 

That actually took some doing. Four levels of political representation (federal, state, county, and city) have each established a moratorium on evictions and foreclosures during the shutdown. Because millions of jobs have been vacated, and millions of paychecks aborted by the pandemic, such moratoria only reflect basic responsibility. The little measure proposed to the Berkeley council would have simply provided equity for those too often excluded from human or constitutional rights because they are without street addresses. 

The term "homeless" expresses that exclusion. The alternative is the term "unhoused," which seeks to undo exclusion by invoking a form of residence. Some of the councilmembers use the latter, but do so hypocritically insofar as it masks their continued exclusion of the unhoused as "homeless." 

Lest one think that council’s silence (in the event in question here) expressed a difference of opinion, be assured that there was no issue on which to differ. All had heard the policy spoken by the City Manager, and raised no objection. On the contrary, the Manager had added the need for "flexibility" in policy in order to ensure “health and safety” – terms that were to fill the balloon of silence with a little smoke and a few mirrors. 

The issue greeted by silence was whether council should state the already stated policy officially or not. It was not an idle gesture, however. In their common silence, the eight councilmembers were united around something entirely different. 

 

Council’s pride in outflanking Boise

The moratorium on encampment raids or unconstitutional seizure of possessions or petty sidewalk laws or bans on sleeping in RVs have essentially been ways to give the city harassment power. These ordinances, passed over the last few years, have had two purposes. One was to make rules for the homeless as if they were not residents, and had no right to city services. The other was to outflank the principles contained in the Boise decision. With respect to the first, its crowning glory was the 3 x 3 rule, which held that a homeless person’s possessions must be packed into a 9 square foot area. There was no quid pro quo when it was passed. No bathrooms or trash pickups were generated (services offered "real" residents). Indeed, the very absence of these services could be seen as threats to “health and safety,” and used as reasons to raid. Oddly enough, when councilmembers described their travails in writing the ordinances, they waxed poetic about how democratic, humane, and "nuanced" they were, though they were written without the (democratic) participation of the homeless they were to be about. And harassment capabilities are hardly a sign or democratic intent. 

The intention that needed nuancing was the desire to evade or outflank the responsibility placed on a city by the Ninth Circuit Court’s decision (Martin vs. Boise). In that decision, the court ruled that, under the 8^th Amendment of the US Constitution, a city could not ban sleeping on public land if it could not provide domicile or shelter for such unhoused persons. The Court reasoned that, because sleep is a necessity for human beings, punishing sleep (by means of enforceable regulations) was to punish a person’s status rather than what they did. 

This decision put a crimp on the City’s ability to attack the homeless. The city, in its corporate irresponsibility, wished not to be shackled by this form of responsibility toward its own (unhoused) residents. Without shelter to offer, the unhoused could not be evicted. In response, if the city could not bar sleeping on public land, it could at least open the sleepers to police harassment during waking hours. The purposes of those ordinances were no grander than that. Council has been heard to have admitted as much.  

The result was to engender emotional torment on the part of the homeless. The version imposed on the RV dwellers was to bar sleeping in their shelter-vehicles between 2am and 5am. Thus, council had self-righteously labored over nuancing the Constitution’s 8^th Amendment, and transformed sleep deprivation into political representation. 

It was the weight of that "nuancing" against the already deprived people that crashed against the one humane member of that council in that deadly moment of silence. 

 

The compassion for the unhoused in this measure

The actual purpose of the measure proposed was a form of equity between the unhoused and other city residents protected from eviction and foreclosure by official moratoria. It was to include the unincluded. The unhoused may be the unwary victims of corporate profiteering, but in that, they have fallen prey to the same force that shackles homeowners to usurious mortgage interest rates. 

The maker of the measure spoke about what it is like to live in fear of midnight or early morning assault by police, about confiscation of property essential for defense against the elements, about the stress of living the daily uncertainties of an unhoused life and its unrequited search for bathrooms, water for washing, showers, food, etc. Nevertheless, for six years, the police have chased the community called “First they Came for the Homeless” from campsite to campsite, incurring a budgetary expenditure in high 6 figures – a stiff price to pay for harassment rights. 

That persecution has continued against those now encamped under I-80, leading to the “Where do we go?” movement, which has called the human rights question on the council and the police in a massive way. The logic of that question remains unanswerable despite the fancy rhetoric of “humane and nuanced” ordinances. It comes from the daily fear and anxiety that produces sleeplessness, which produces ill health in turn, and a vulnerability to contagion that is inexcusable during a pandemic. 

But an additional issue was implicit in the silenced measure, that of trust. There is no reason why any of the unhoused residents of this city should trust the mere statements of city officials. None. It was for that reason that the measure sought to put the moratorium in writing. It was a small step designed to move an inch toward initiating trust in city government. For the unhoused to sleep in the same sense of security as the housed would not only be of rightful social benefit, and humane, but the countermanding of an injustice. 

What eight members of the council said loudly through their silence and refusal to even bring it to discussion was that they do not care about that distrust. It was totally unimportant to them. One wonders where their unanimity came from? It was not produced by any open discussion, which they themselves curtailed. What drove them to drown this simple measure? 

Two perspectives faced off in this council meeting. One was that of the proposal, adopting the perspective of the unhoused (the allegedly represented), and their need (and freedom) to sleep without fear in the midst of a pandemic, a freedom from fear that would require trust in the government. Did not FDR promise that to all humanity back in 1940? The other perspective, adept at silencing, focused on the homeless instead, and far from assuaging their experience with bureaucratic city behavior, augmented it instead. It has taken many years for the unhoused to impress upon the city that they are human, residents trying to gain human rights and due process. It is as yet an uncompleted task. 

On that score, the real issue before council was one of trust. The homeless have seen how the city cuts corners on services, refuses equal respect or status, and prefers to harass. with a great smallness of spirit. It can force the folding of possessions into small spaces each day, but it remains incapable of opening any of the long-vacant apartments or houses that exist around Berkeley for occupancy by the unhoused. (We’ve heard the story about the thousand empty apartments in Berkeley, though no one has ever shown us a list of them. They are just another unkept promise.) 

What led to the silence, however, the refusal to second the moratorium measure, was something else. 

 

A change in policy

Ultimately, nothing was as vapid as the notion that the moratorium measure was a change in policy. In line with the Manager having repeated the policy, the measure’s proposal was simply to write it down. To call that a "change in policy” is to lose oneself in an inane knot of language. Or, in its violation of logic, be more correctly called "corruption." Of course, when the City Manager added “flexibility” in the interest in “health and safety,” she was giving these councilmembers a bandwagon to jump on. That too was corrupt (as a bandwagon) insofar as it allowed withholding that same “health and safety” from the unhoused themselves – rendering them "homeless" (alien) in doing so. 

It was the non-curtailment of those ordinances that was the real meaning of "flexibility" allowed the council. In their unabashed pride in the harassment statutes, to have moved enforcement out of reach would have been unconscionable. The system of prohibitions was muted even by its verbal version. They could not imagine relinquishing it. Despite the postponement of hardships with respect to rent and mortgages, extension of similar assurances to homeless would be a step too far. Though the council had not the courage or temerity to oppose the Manager’s statement of the policy, they found the ability do so with their own colleague. And that means that the issue was actually one of power. 

The power in which they were interested was their own, not the power to represent, not the power to protect residents, nor the power to provide equitable services to all. For them, the question was one of power over people, a power to refuse inclusion in the city, a power to not grant belonging as unhoused residents. 

These eight councilmembers refused to vote the policy not from a need for flexibility or “health and safety.” It was a refusal to dilute that power, about which they had waxed poetic. Thus, they transformed the term "flexibility" into a euphemism for the power to control, and to expel. 

That is the real corruption exposed by this event. It marked the wholly undemocratic character of their thinking, their preference for harassment, their desire to undo the Boise decision, their adamant attitude in excluding the homeless from all involvement in making policy about themselves as unhoused. It is the power to lord over others with imposed standards, the power to make policies that affect people who will be given no participation in what will affect them. 

Inclusion in policy making by those who would be affected by that policy is the fundamental principle of democracy. These councilmembers are content with consigning the homeless to “public comment,” and glad that they come in numbers sufficient to restrict each to one minute a piece, as if that were sufficnet privilege for addressing the august council. 

To silence is to disenfranchise. It is to affirm that these people are homeless, and not actually "unhoused," with its sense of belonging.  

For those on the council, the power to enforce obedience is the power to reduce residency (as unhoused) to special alien status (subject to special enforcement). It is the power to reduce people to lesser human status. We see it all the time in its racialized guise. When Katrina hit New Orleans, black people were condemned for doing the same thing for which white people were approved. Today, black communities are feeling the brunt of Covid far beyond their numbers because medical services have been skimped for them and unfunded. 

We know the term that describes the structure of thinking that reduces a group to second-order human status. That term is bigotry. It is always, in whatever guise it appears, a form of racialization. And so too is the silencing and shunning of the maker of the motion’s attempt at equity a form of racialization.