Berkeley’s Encampment Resolution: Resolving What?
Around 450 residents in Berkeley were tallied as unhoused in 2024. While these residents occupy a diverse range of geographic locales, recent political attention has focused on two large West Berkeley encampments as the most “persistent and hazardous” to the city: one on Page Street, and another on the intersection of Eighth Street and Harrison Street.
On September 10th, Berkeley’s city council approved a resolution to “prioritize [these two encampments] for enforcement”, entailing consequences ranging from clearing the area of all residents to possible citation and arrest. Pursued during an election year, this action has marked implications for the direction of city council, for businesses and the public, and most severely, for the unhoused residents of the encampments.
City of Grants Pass v. Johnson
In June of 2024, the U.S. Supreme Court ruled 6-3 on the case, City of Grants Pass v. Johnson—a case which has proven dispositive for the enforcement of encampment resolution laws by state and local governments. Grants Pass reversed a Ninth Circuit case, Martin v. City of Boise, which proscribed encampment sweeps unless shelter was otherwise provided by the state. Specifically, Martin held that the “imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter” violates the Eighth Amendment’s prohibition of cruel and unusual punishment.
Grants Pass held that the methods of encampment clearing (usually fines or arrest) are neither excessively cruel nor unusual. It further held that, because anti-camping laws are generally applicable to all unlawful campers, the laws do not unduly criminalize the “status” of homelessness, but rather criminalize the activity of public camping.
Because the majority found the laws constitutional, it ruled against judicial oversight of the issue. For, as Justice Gorsuch authored, “a handful of federal judges cannot begin to “match” the collective wisdom the American people possess in deciding ‘how best to
handle’ a pressing social question like homelessness.”
Justice Sotomayor, along with Kagan and Brown, dissented. She wrote that laws defining campsites as “temporary” places of habitation clearly directed their application at unhoused people. In response to the distinction Gorsuch made between the status of homelessness and the act of sleeping outside—which he compared to the status of alcoholism and the act of being publicly intoxicated—she wrote that “sleep is a biological necessity, not a crime.” All homeless people must sleep. As part of her dissent, she quoted Erin Spencer, a veteran and unhoused resident of Berkeley’s own Eighth and Harrison corridor.
As per the ruling, state and local enforcement agencies no longer need to offer shelter space before imposing sanctions on homeless encampments. These sanctions can range from fines, to forced removal and arrest.
Anti-Homeless Laws Come Home
Since the Grants Pass ruling, California’s Governor Newsom has been enthusiastic in his appeals for California officials to “address this crisis on our streets.” Voting 8-1 on the Resolution, Berkeley’s city council has proven eager to take up the task.
Authored by Councilmember Kesarwani, the Resolution identifies the Harrison corridor and the Second and Cedar area as areas with significant health and safety impacts “including dead animals, open food sources and spoiled food, used uncapped drug needles, combustible materials like flammable gas containers inside unsafe wooden structures, bottles of urine, human feces, animal feces, soiled clothing and sheltering material, and other unidentifiable liquid and waste products.”
It identifies the encampments as a source of many police calls relative to the area, as well as a nuisance to local businesses. And, though it evades mention, the current lawsuit from three local businesses likely influences the resultant votes in a year when councilmembers must fight for their continued seats.
Councilmember Cecilia Lunaparra, who represents Berkeley’s Southside, was the one holdout vote in the decision. Like many academic voices on the issue, Lunaparra believes that the Resolution’s impacts would only serve to displace and criminalize unhoused residents, leading to increased impoverishment and suffering.
With four Council seats and Mayor up for grabs this November, the remainder of the Council have made their opinions on this pressing local issue clear. As soon as next month, the clearing of the two encampments are set to begin. Is the resolution a reasonable way to manage the growth of encampments considered “hazardous” to the city? Which stakeholders are rightly addressed by the City Council, and how?
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