Class Certified in Homeless Residents’ Beef With Berkeley

September 25, 2018 

SAN FRANCISCO (CN) – Homeless people who lost tents, sleeping gear and other belongings in encampment sweeps can team up to sue Berkeley, California, on claims of civil rights violations, a federal judge ruled Tuesday.

In granting class certification, U.S. District Judge William Alsup found approximately 1,000 homeless people in Berkeley can seek injunctive relief from the city. However, they cannot seek monetary damages because that would require evaluating claims of property loss on an individual basis.

“It means that we can proceed on behalf of all homeless individuals in the city of Berkeley in order to defend their rights to keep their property, which may look like and be treated as trash by the city of Berkeley but often times represents everything that individual owns,” said plaintiffs’ attorney EmilyRose Johns of Siegel Yee & Brunner in Oakland.

Johns said her clients want the city to give more warning before clearing out encampments and provide more information on how people can reclaim seized belongings or get help to retrieving their lost property.

“Ideally people wouldn’t be deprived of their property in the first place,” Johns said. “Many of these individuals don’t have the resources to get their property back, such as cars or assistance from able-bodied folks.”

Berkeley says it respects the rights of homeless people, giving 72 hours’ notice before any eviction deemed necessary for public health and safety and holding property seized during evictions for up to 90 days.

But Johns said the city doesn’t always provide 72 hours’ notice. When the city warned about a sweep five days before it happened, it assumed people had adequate time to claim their property and deemed everything left there as garbage destined for the dumpster, Johns said.

Several members of the group First They Came For The Homeless, which has organized multiple drug-free encampments in Berkeley, also describe having lost all their possessions in past raids.

In asking Alsup to deny class certification, the city contended any loss of property resulted from isolated incidents or employee misconduct, not an official city policy or custom. Alsup refused to consider that argument at this still-early stage of litigation.

“The city has a long-standing written policy regarding the collection, storage, and retrieval of property from homeless encampments,” Alsup wrote. “Commonality has therefore been demonstrated.”

But the judge declined to certify a separate class of campers associated with the group First They Came For The Homeless. That group set up camps in prominent areas of Berkeley to raise awareness about homelessness and affordable housing issues, and claims the city specifically targeted them in retaliation for their political activism.

Alsup found that because the group members voiced their opinions in different ways – by protesting, making signs, writing op-eds, and speaking at government meetings – the activities were too varied to be evaluated on a class-wide, rather than individual, basis. He also found the proposed class size would be less than 40, which courts generally find falls short of the threshold for class certification.

Additionally, Alsup refused to let two named plaintiffs – Clark Sullivan and Adam Bredenberg – represent the class of people who lost possessions. That’s because Sullivan and Bredenberg could not conclusively say the city, rather than those helping them move before encampment sweeps, caused the loss or damage of their property.

Alsup appointed named plaintiff Benjamin Royer as the sole class representative for the allegedly unlawful seizure of property. Royer says he lost his tarp, sleeping bag and clothing during an early morning camp eviction in December 2016.

According to Johns, the next step will be to work with Berkeley to craft a plan for notifying approximately 1,000 homeless people about the litigation, giving them an opportunity to opt out of the class action if they want to pursue their claims individually.

From there, the plaintiffs will continue to seek discovery from Berkeley and possibly negotiate a settlement or ask Alsup to render a summary judgment ruling based on the evidence and merits of the case, Johns said.

The named plaintiffs and members of First They Came For The Homeless group will continue to pursue their claims of free speech retaliation against the city individually, Johns added.

The homeless plaintiffs first sued the city of Berkeley and Bay Area Rapid Transit, or BART, in October 2017 to block a planned eviction from a South Berkeley encampment. Alsup denied the group’s request for an injunction at that time, but he allowed claims of free speech retaliation, unlawful seizure of property and due process violations to go forward this past January. BART was dropped as a defendant this past April.

In November 2017, Berkeley told Alsup that it lacked the resources necessary to house more than 268 of the city’s approximately 1,000 homeless people, despite spending $3.9 million per year on homeless services.

The city opened a $2.4 million navigation center in West Berkeley in June, which can house 45 individuals and provides on-site access to mental health counseling and social services. The city also told Alsup last year that it was working to build an 89-unit affordable housing complex and create another 50-bed shelter with modular buildings.

Berkeley spokesman Matthai Chakko said the city is working to improve the situation for its homeless residents.

“Over the past year, the city has started the Pathways Program which created a structured environment for a broad range of unhoused people to receive housing, meals and other services while transitioning to permanent housing,” Chakko said in a statement. “We’ve also created more year-round shelter, and we’ve begun work on a storage program.”

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