Homeless activists can sue Berkeley over evictions, judge rules

Samantha, 22 who is 8 months pregnant and been homeless for 5 years is living in an encampment on the corner of Cedar and 2nd streets in Berkeley, Ca., as seen on Friday June 23, 2017. Samantha, 22 who is 8 months pregnant and been homeless for 5 years is living in an encampment on the corner of Cedar and 2nd streets in Berkeley, Ca., as seen on Friday June 23, 2017. Photo: Michael Macor, The Chronicle Buy photo Photo: Michael Macor, The Chronicle Image 1 of / 38 Caption Close Homeless activists can sue Berkeley over evictions, judge rules 1 / 38 Back to Gallery

Members of a homeless activist group who were repeatedly evicted from encampments in Berkeley can sue the city for allegedly punishing them for their criticism of city policy, a federal judge has ruled.

U.S. District Judge William Alsup also indicated that he would allow a broader suit against Berkeley if it enforced, or threatened to enforce, a state criminal law against any of the plaintiffs during a period of housing shortages.

The lawsuit “plausibly suggests that plaintiffs have no choice but to sleep, eat and otherwise live in Berkeley’s public spaces,” Alsup said in his ruling Friday. Because the city has not charged them with a crime for camping on the street, he said, they cannot claim — at least not yet — that Berkeley “has, in effect, criminalized the status of being homeless.”

The judge refused to dismiss a claim by members of a group called First They Came for the Homeless that Berkeley had retaliated against them for free speech. The lawsuit contends the city targeted the group’s encampments for a dozen evictions between October 2016 and January 2017 after they camped in visible public places, posted signs that denounced city policies on homelessness, and expressed further criticism in newspaper columns and at City Council meetings.

Alsup also allowed two members of the group to sue Berkeley for allegedly destroying personal belongings that police had seized in the encampments without notifying the owners.

Police and the city Department of Public Works repeatedly “discard people’s survival items,” EmilyRose Johns, a lawyer for the homeless plaintiffs, said Monday.

“They made a clear, targeted effort to evict our clients more than any other encampment” even though the group kept its sites drug-free, Johns said. “It’s offensive to our standards of common decency, moving people, taking their tents, taking their jackets, so they have to spend one night or many nights without basic protections.”

The state law that Alsup cited makes it a misdemeanor to “lodge in any building, structure, vehicle or place” without the owner’s permission. Johns said Berkeley has enforced that law against other homeless people for camping out or sleeping on the sidewalk, and she said the lawsuit might be expanded to allege similar enforcement or threats of enforcement against plaintiffs, in violation of the constitutional ban on cruel and unusual punishment.

A city representative was not immediately available for comment Monday. But Berkeley spokesman Matthai Chakko said, “The city is confident that once the facts are presented, it will prevail on plaintiffs’ remaining claims regarding unlawful seizure of property and First Amendment retaliation.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko