TWS family!!! This is a local issue here in Oakland, yet really, it's something that's happening across the country, the abuse and disregard for our homeless. J.A. Duarte Miranda an incredible local advocate for human rights and a longtime supporter of TWS has written this and truly been on the front lines of this particular issue.
Dear Mayor Schaaf and Oakland City Council,
The attached letter addresses the statements made by Bridgett Cook made on your behalf on 09/15/16 indicating that City intends to forcibly remove homeless persons from the intersection of 35th and Adeline St. The City's policy of arresting, detaining, and destroying the property of homeless persons is unconstitutional because it punishes homeless persons based on social condition, illness, and speech. "The judicial prohibition of status-based abuse of police power under the eighth amendment is not without precedent. In a leading United States Supreme Court case addressing the issue, the Court held that punishment of a person for his involuntary status of being an addict was cruel and unusual in violation of the eighth amendment." Pottinger v. City of Miami, 810 F. Supp. 1551, 1561-1562 (1992), citing Robinson v. California, 370 U.S. 660 (1962).
"Finding the status of being an addict similar to that of being mentally or physically ill, both of which are innocent and involuntary, the Court stated the following: a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Id. The Court distinguished the punishment of the involuntary status of being an addict and the punishment of voluntary acts such as the use, purchase, sale or possession of narcotics or the disorderly behavior resulting from their use. Id. "Based on Robinson, courts have overturned vagrancy laws because they punish status or condition. In Wheeler v. Goodman, a district court found a vagrancy law to be constitutionally invalid because it punished mere status." Id.
"According to Professor Wright's testimony, joblessness, like physical and mental illness, becomes more of a problem once a person becomes homeless. This is so because of the barriers homeless individuals face in searching for a job. For example, they have no legal address or telephone. Also, they must spend an inordinate amount of time waiting in line or searching for seemingly basic things like food, a space in a shelter bed or a place to bathe." Id. at 1564. "In addition to the problems of social isolation, illness and unemployment, homelessness is exacerbated by the unavailability of many forms of government assistance. Gail Lucy, an expert in the area of government benefits available to homeless people, testified that many homeless individuals are ineligible for most government assistance programs. For example, Supplemental Security Income is available only to people who are sixty-five years of age or more, who are blind or disabled and who are without other resources. Social Security Disability Insurance is available only to workers who have paid into
the social security fund for five of the past ten years prior to the onset of the disability. Aid to Families with Dependent Children is available only to low-income families with physical custody of children under the age of eighteen. The only benefit that is widely available to the homeless is food stamps. Another notable form of assistance that is unavailable to a substantial number of homeless individuals is shelter space." Id.
To detain, question, and destroy the property of homeless persons are unreasonable search and seizure in violation of the 4th Amendment. "As stated, plaintiffs allege that the City has a pattern and practice of arresting homeless individuals for harmless conduct such as eating, sleeping or congregating in public when they have no place else to go." Id. at 1569. The "interior of the bedrolls and bags or boxes of personal effects belonging to homeless individuals in this case is perhaps the last trace of privacy they have." Id. at 1572. Being on the street does not support reasonable suspicion much less probable cause to believe a crime has been committed warranting detention, questioning, arrest, incarceration, and the unmistakable taking of homeless person's property without due process and just compensation. Id.
On 08/01/16, the City cited Alliance Recycling for obstruction of the street for the alleged acts of third parties, ostensibly homeless persons of color and disabled with shopping carts. See also Soltani, Amir, Statement of Rosalind Sanders, 01:34, "The Last Day of Recycling in West Oakland" (2016). The citation was a violation of due process as the recycling center was not pushing the cart and was a violation of 1st Amendment freedom of association, because the recycling center was allowing homeless black people, brown people, and disabled people to sell recyclable refuse. The City's policy of "cleaning up the street" is thinly veiled repression of the insular classes of the above homeless persons, who are black, brown, and disabled, in violation of 14th Amendment equal protection. Yick Wo v. Hopkins, 118 U.S. 356, 363 (1886)(a facially neutral statute [prohibition of wooden laundries] enforced in a prejudicial manner [to drive out Chinese laundry competition], is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution).
Cease and desist the violation of the basic constitutional rights held by colored and disabled homeless persons. The City government's policies expressly deny that homeless persons are human beings, whose condition is the result of your social policies creating the distorted distribution of resources as conclusively demonstrated by social research and the above published case law.
I look forward to hearing from you within 7 calendar days. Thank you for your attention to this matter.