Our Human Right to Sleep

by Kaponda

The conductor nosed the two-toned train of metallic coaches beyond the obscure perimeters into the lighted Berth of the terminal. I disembarked at the Berkeley station. Ascending the escalator, I watched as an image of a set of handcuffs loomed large as the words beside it informed the rider that whoever lifts a fist during a verbal dispute with a station agent would go to jai. As I went through the turnstile, I observed that Berkeley Patrol Car No. 596 was posted and prepared to enforce any allegations of assault by a B.AR.T.. agent.

I walked two blocks west on Center Street to the scene of a live assault that was staged at high noon on the front lawn of the Berkeley Municipal Court. A coalition of civil rights organizations had launched a full-scale assault on a California statute.

"Ain't no mistake about it, folks!" stated Lisa Gray-Garcia as she fired the opening salvo of a concerted campaign to repeal California Penal Code 647(j). "Challenging the constitutionality of the lodging law is to attempt to actually change the situation for poor and homeless people across the country. This is precedent setting. If we can make this happen, we are going to help poor folks who are victims of economic and racial cleansing all across this crazy nation....So, that is what we are her to fight," concluded Gray-Garcia of POOR Magazine, under a bright, warm sun that lit up the faces of the activists, lawyers, elected officials, scores of homeless men and women, and the Sheriff's deputies with incredulous stares on that 12th day of April.

Cities across America are using lodging laws to declare war on innocent citizens who camp beneath the serenity of twilight. Over 23,000 homeless people were swept into oblivion by Mayor Rudolph Giuliani using its infamous statute.

In California, a law that has been on the books since 1872, California Penal Code 647(j), has been revived to force people out of sight. According to this statute, a person is guilty of disorderly conduct, which is a misdemeanor under this law, for lodging outside. The California Penal Code 647, section (j), reads as follows:

Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of
the owner or person entitled to the possession or the
control of it.

The idea to challenge the old California statute was born out of the frustration of a denizen of the City of Berkeley. Ken Moshesh was given a citation for lodging outside on October 27, 2000. After three months, on January 18, 2001, Moshesh was again aroused from his sleep and arrested for the 10-27-00 citation that had gone to warrant. Ken Moshesh, a former University of California at Berkeley Professor, spoke to the crowd whose fury was expressed by raised fists.

"This is not just another homeless person railroaded through the courts and sent to jail," stated Moshesh, as the gapes of Sheriff's deputies were noticeably conspicuous for the first time. "But this time something different is going to happen. And the different thing will be that instead of [Berkeley police] challenging people outside in their cracks and crannies where they sleep, because there is no place else to sleep, instead of [Berkeley police] challenging them while they attempt to hide and get their 40 winks, we are going to challenge the antiquated 647(j) lodging law that gives law enforcement the authority to follow us around and declare us illegal when, in fact, there administrative personnel have not been able to deal effectively with the problems on homelessness here in Berkeley," concluded Moshesh as he was saluted by a person with a placard with the words "People are Sleeping in Bushes in the Richest Nation in the World"

The task to which Garcia, Moshesh and the coalition of agencies have committed is not only formidable, but, if successful, unprecedented. It entails a challenge to invalidate California Penal Code 647, section (J). The constitutional challenge will be lodged in the Berkeley Municipal Court on Thursday, May 17, 2001. Gregory Syren, the Public Defender who has agreed to represent Ken Moshesh.

Similar challenges to overturn this statute that is used to criminalize homeless people have been lodged in the past but were waylaid, I asked Pat Wall, an attorney with the Homeless Action Center, what the likelihood of a constitutional challenge was at the Municipal Court level?

"....Since the Public Defender has taken the case, it will set a powerful precedent for other homeless people who are cited for 647(j) violations and send a message to both police and the office of the District Attorney that they need to stop charging people with that lodging law....because its unconstitutional....We think the chances of this [overturning the statute] happening are very good," stated Wall.

Osha Neumann, of Community Defense Incorporated, an organization that advocates for civil rights issues of homeless people, explained to be that the war will be waged on two fronts. According to Neumann, who also directs a clinic for homeless street youths through the ecumenical chapter for the homeless,

"This is a two-pronged campaign," stated Neumann, as we walked away from the voices that blared spoken words about the atrocities of homelessness. "We are attempting to repeal California Penal Code 647(j) in Municipal Court and instruct the Berkeley Police Department to set low priorities in its enforcement of lodging laws..."

Just as Neumann had stated, the second campaign -- to instruct the Berkeley Police Department to set low priorities in its enforcement of lodging laws -- was launched on the front lawn adjacent to the Berkeley Municipal Court before the mayor of Berkeley and every member of the Berkeley City Council, on Tuesday, April 17, 2001.

An item was placed on the Berkeley City Council Consent Calendar by Berkeley Councilmember Kriss Worthington, who, during adolescence, also experienced homelessness. The item, entitled "Compassionate Treatment of Homeless, calls for the City of Berkeley to adopt a resolution supporting compassionate treatment of homeless people in Berkeley (using the dictionary definition of compassion -- not the President's [definition of compassion]).

As I entered into the building for the Tuesday, April 17th, 7:00 PM, hearing on the Compassionate Treatment of Homeless, I was turned back along with scores of other people. When I flashed my press badge, the Sheriff's deputies pointed to the crowd atop the second floor that had been backed up to outside the hearing room. There were other reporters being turned back along with me because of the extremely large crowd that the Compassionate Treatment item on the agenda had attracted.

After a couple of homeless insurgents discovered the news agencies that I represented, they directed me on a course that circumvented the usual path to the Berkeley City Council hearing. As I entered in the session on the second floor, the executive director of Building Opportunities for Self-Sufficiency, B.O.S.S., boona cheena, had just begun to testify on behalf of the Compassionate Treatment item.

"We are asking for a resolution which includes homeless families and children and homeless single men in this city as a priority -- that their rights have to be protected," stated an emotional cheena.

If the second phase of the full-scale assault by the coalition of civil rights agencies, the Compassionate Treatment resolution, is successful and the City of Berkeley approves a low priority in enforcement of lodging laws, then the cops of Berkeley will no longer be authorized to issue citations to people who sleep in public. Instead, the Berkeley police will probably have to learn to issue citations to automobiles that exceed the speed limit or citations to people who bully other people. I asked the Berkeley City Attorney, Manuela Albuquerque, about the consequences of a successful Compassionate Treatment resolution?

"We have the power as a city to set law enforcement priorities and to determine that enforcement of lodging laws would be a low priority -- the lowest priority. There are a finite amount of law enforcement resources in the city. The city can determine what is the order of priority to utilize those. The police have discretion. They do not have to enforce every law every time and they exercise that discretion every day. So the city could determine as a matter of policy that certain laws would be very low priority to enforce.

I asked the City Attorney if the City of Berkeley is currently using high priority in enforcement in lodging laws?

"Lodging is not a high-priority item but my understanding from the police is that it is basically done on a complaint-driven basis. When there is some problem that is being caused," stated the City Attorney."

Item number 34, Compassionate Treatment of Homeless, did not get an opportunity for discussion on that evening at the City Council hearing because items like zoning appeal, regulation of street events and block parties, transportation demand management, and solar energy had been given a higher priority.

"It certainly appeared to many people in the audience that some people were trying to filibuster and just talk, talk, talk and not move on to the next items on the agenda....We could have easily finished two more items last night, but they talked so much that it was midnight and people wanted to go home," stated Councilmember Worthington about the disappointment of not having his item heard on that Tuesday afternoon.

I asked Councilmember Worthington who he thought was primarily responsible for the Compassionate Treatment item not being heard at the Berkeley City Council Meeting?

"Certainly, the Mayor has the most influence over controlling the Council meeting and pushing it in the right or wrong direction because she chairs the meeting. Obviously, if it were something that she wanted to get done, she would have pushed it ahead and made sure that it got done," stated Worthington, who has had an emotional connection with people who don't have anywhere to live for most of his life.

I asked Councilmember Worthington how he got involved with the coalition of agencies that have launched this two-pronged assault and, in particular, Ken Moshesh?

"I was visiting a student program called SHARE where they have homeless people come once a week. I heard there about people who said they had been getting arrested for lodging. Listening to that and hearing it from other people, I came to the conclusion that this isn't just happening to one person," stated Worthington.

Will the Compassionate Treatment resolution pass at the next Berkeley City Council meeting or will it be voted down? I went to the Mayor of the City of Berkeley to inquire about the chances of the City of Berkeley scaling back on the vigorous enforcement of homeless people.

The bright smile of the receptionist compensated for the absence of light due to compliance of the Governor’s conservation plan on the top floor of Berkeley City Hall. High above the problems of the common people in a renovated City Hall, I observed the bijou, fashioned from steel in the shape of a harp, mounted on the wall, as I entered into Mayor Shirley Dean’s office.

"I’ve fallen in love with it because its musical," explained Mayor Dean of the clock glossed over with oil and acrylic the small hand of which was on the five and the big hand rested on the three..

I sat in a chair next to the chair in which she sat at the conference table as I noticed the two impressive leather seats between the end table at the northeast corner of her spacious office. The mayor was of sober humor and maintained a strong face as she explained her concerns about the Compassionate Treatment resolution.

"A moratorium means you can't cite an arrest under section 647(j). That is a moratorium on the criminalization of sleep within Berkeley City limits and instructs the Berkeley Police Department not to cite or arrest any homeless individual for sleeping on public property in Berkeley and refers to the City Manager and to the budget process funding for detox, day time respite care, rainy day vouchers, share proposal and storage."

"That is what is before us. Now we have been sent some material from a group called The People's Rights Committee. They have sent us a summary for what is called 'Honoring the Right to Bed and Sleep.' There are also some other materials that are different from the resolution that is before the Council -- although its similar, it is also quite different," continued the mayor.

"So, one of the things that immediately needs to be clarified is, what is before us? They refer to the Resolution from Councilmember Worthington, as well. It is pretty unclear, for example, what are the:
1) Share Proposal -- It is not defined here at all. it just says, 'Share Proposal.' -- that we are supposed to refer this to the City Manager and the budget process;
2) Rainy-day Vouchers -- I assume this is a voucher to stay in a motel or a hotel during the rainy season. We already do that;
3) Day-time Respite Care -- Again, I am not quite sure what they are referring to; and
4) Storage Units -- I believe we already provide this," concluded the mayor of her concerns about the resolution set forth by Councilmember Kriss Worthinton for low priority in enforcement of 647(j).

I asked Mayor Shirley Dean how she had interpreted the proposal by Councilmember Worthington and her thoughts?

"Now if they are talking about increasing these services, then we should know what the proposal is. There is nothing here that talks about what those things mean. So, this is not a very well written 'thing' that we would just pass because there are so many questions about what does it mean. What are we doing if we pass it? So, I am surprised that it got put on the Consent Calendar. the Consent Calendar is supposed to be reserved for items that are 'non controversial,' if you will, and for which there are very few questions. There is likely to be a lot of questions about this simply because there is not enough material here given with the item," concluded a disappointed Mayor Shirley Dean.

I commented that based on her questions about the document drafted by Councilmember Worthington that a lot of information was omitted and that she was not satisfied with the proposal as it was written, but not dissatisfied with sympathizing or supporting a low priority in the enforcement of homeless people in terms of citations?

"I think that it is a sad situation when a person has to sleep outside, and I would like this city to provide sufficient services so that doesn't have to happen....I do not like the idea of a moratorium on 647(j), mainly because it is the State Penal Code and there are times when you don't want a big encampment of people," stated the Mayor about the attitude of her constituents of Berkeley..

Mayor Dean stated that 647(j) was divisive because it prohibits a person from sleeping in both private and public. I asked her about the public aspect of 647(j)?

"Well, again I think that depends on what the circumstances are. If you had an individual who falls asleep on a bench -- daytime or nighttime -- I don't think that that person should be arrested. But if you've got 50 people who are sleeping in the park or in the building that is afire -- we've had that in Berkeley -- then I think, again, the police ought to say 'move on, let's go to a shelter, let us bring you to a shelter, let's provide you with transportation to bring you to a shelter.' We can't have this. It upsets citizens. It makes everybody angry. It makes it very difficult to go to people and say we need your tax money to pay for services to provide to people. They get angry and will say, ‘No.’ I don't think that that is the way you solve this problem," were the language and theory that the mayor had used to impugn the proposed Compassionate Treatment placed on the City Council Consent Calendar.

I asked Mayor Dean how many homeless people are there in the City of Berkeley?

"I have always been told that at any one time there are a thousand people who are homeless in the City of Berkeley. We are not able to provide that number of beds every single night -- that's for sure. But we provide more beds in this community than any other community in Alameda County. I've always supported that, and I think that if we need to increase those services -- let's do it. We need to be humane to people; we need to be compassionate to people, but we shouldn't pass moratoriums on 647(j). I don't think that's the way to go. I think our Police Department -- when they find a problem -- need to be careful and sensitive towards people and offer them an alternative. Say, for example, if a person is sleeping in the park. They should say, ‘Look, we have a bed for you in the shelter or we have vouchers,’ or whatever it is that we have at that time."

I responded to Mayor Dean that the possibility of the police offering a homeless person an alternative does not exist since there are more people than there are beds, according to what I had just heard.

She responded by stating that, "Well, sometimes it is."

Over 100 homeless people and allies flooded Berkeley City Hall on the following Tuesday, April 24th, to express to the entire City Council their grievances over the lack of beds and services and the aggressive enforcement of 647(j) by Berkeley cops. Their signs and chants occupied every molecule of space in the chambers and hallways on that evening. It was a night on which the substratum of the tradition of Berkeley would ring loud. A night on which a victory would resound throughout Berkeley and the state of California. It was night on which the very fabric from which America had been built -- poverty and hope – would buck up and force a vote on the Compassionate Treatment resolution.

After every testimony was registered with the Council and a lenthy debate by councilmembers, the councilmembers provided the people of a gentle nature an oasis of the sort unique only to the City of Bereley.

Just as Lisa Gray-Garcia had stated at the outset two weeks earlier, the first part of the battle had been won. The victory on Tuesday night sets a statewide precedent in the compassionate treatment of homelessness. It requires that police make enforcement of California Penal Code 647(j) a low priority. Furthermore, it provides that people who sleep outside are given two warnings before being arrested for lodging, and that arrests must be initiated by a citizen complaint rather than the volition of a cop. The resolution also calls for a commitment to the human and civil rights of homeless people, and refers multiple programs for study by the city manager, including detoxification facilities, daytime respite care, rainy-day vouchers, increased locker space, and a legal advocacy clinic for homeless pepole – which Mayor Shirley Dean and I discussed during our interview.

Discussions of the resolution ended with a commendation by Councilmember Kriss Worthington of the courage and resourcefulness of the homeless people who organized themselves to support the resolution.

"….It has been many years since Berkeley’s City Council Chambers have been overrun and completely occupied by homeless people standing up for their rights," concluded Councilmember Worthington.