root - Posted on 01 January 2000

The Journey to the De-prioritization of Code 647 (j) (the homeless harassment laws)

by Fiona Gow

Last April, after several hundred very low and no income folks and organizers
stormed Berkeley City Council demanding that
homelessness not be criminalized, the City voted to
deprioritize enforcing penal code 647 (j). Code 647
(j) states that it is illegal to "lodge" on property
without the owner's consent. Because there is only 1
shelter bed for every 10-12 homeless people and
Berkeley has a homeless population of approximately
1200 people, this law was unfairly targeting homeless

Last Wednesday, Berkeley's Commission on Homelessness'
met to hear reports on how the city was deprioritizing
enforcing 647(j). Though shelter space has not
increased, homeless people are not being cited or
arrested for "lodging" without permission. According
to Captain William Pittman of the Berkeley Police
Department, only four citations have been issued to
homeless people for illegal lodging since April, as
opposed to 20 citations between January and April.

What is the City doing instead of arresting and citing
people? According to David Wee, of the Health and
Human Services Department, the focus is on providing
outreach and asking people to "move along." "We are
not going out looking for people to arrest. Everything
is complaint driven. If a citizen has complained, then
we are put in the position of having to do something,"
said Capt. Pittman. According to Wee, police are only
brought in when there are repeated complaints made
against an individual.

As an example of the complaints, Wee said that the
colder months bring more cases of bronchitis among
homeless people and the police get calls about people
coughing, "They have a perfect right to complain if
someone's coughing outside their window," he added,
without batting an eyelid. Other complaints he
receives are about people defecating in public. When
asked if public bathrooms could be put in, he
responded that there was no guarantee that the
homeless people would actually use them.

Ken Moshesh, staff writer with POOR Magazine, videographer and artist was recently appointed to the Commission on Homelessness,incidentally
the only homeless person on the Commission at this time. Moshesh
has been the main proponent of changing how 647(j) is
enforced-he recently won a court case in which he
challenged the constitutionality of the code. The
judge in his case stated that she, "did not find the
code facially invalid, but that it was sufficiently
ambiguous and as it applied to Ken's conduct, the
statute was not constitutional." The hopes were that
his case would be appealed at the appellate level,
whereby it would become a binding precedent. At
present, reported Deputy City Attorney Matthew Orebic,
there is no written decision on the case and therefor,
the code is still enforceable. Moshesh would like to
see it ruled unconstitutional in all cases, but at the
moment "deprioritization" of the code is as far as the
City will go.

In regards to the "deprioritization" reports, Moshesh
stated optimistically that this is the beginning of
the challenge, that this process will bring together
groups who historically have been pitted as
adversaries. According to Moshesh, advocacy on the
part of the entire situation is still what is needed,
"What is being done so far is not a solution, it is
merely a rotation." The real problem here is the lack
of safe and affordable housing. "Berkeley may be the
best place to be if you're homeless, but it doesn't
make the nights any warmer or the streets any safer,"
Moshesh said.


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