Judge says BART can kick out homeless

BART can evict a group of homeless people from an encampment they have occupied since January on the transit system’s property in south Berkeley, a federal judge ruled Tuesday, saying a transit agency has no legal duty to provide housing or shelter.

Twenty to 30 people have been living at the encampment near Martin Luther King Jr. Way and Alcatraz Avenue, just west of the tracks as they descend from overhead to underground, since Berkeley police evicted them from other parcels in the area.

After BART officials posted an eviction notice on Oct. 21, encampment residents filed suit in the name of an organization called First They Came for the Homeless, claiming they were being punished for being homeless.

U.S. District Judge William Alsup issued a temporary restraining order on Oct. 24

that blocked the eviction while the opposing sides prepared their cases. But on Tuesday, Alsup denied a permanent injunction and said BART officials could evict the encampment after giving residents 72 hours to remove their property. Under BART policy, the residents would then have at least another two weeks to reclaim any items left behind that the agency had placed in storage.

“While sympathetic to the plight of plaintiffs, and the problem of homelessness, which is ever more severe, the court must be faithful to the law,” Alsup said in his ruling, issued shortly after a hearing in his San Francisco courtroom. The transit agency’s actions in reclaiming its property, he said, “do not amount to the criminalization of plaintiffs’ status as homeless.”

“Unlike a city, a transit district is not as equipped to remedy the problems associated with homelessness,” the judge said. “Clearly, BART is not equipped to provide shelter or housing aid.”

Some courts have allowed the homeless to sue cities over laws that prohibit camping or sleeping on city property, citing the local government’s responsibility for shelter. But those obligations do not apply to a transit agency, Alsup said. The city of Berkeley, in an agreement with BART, provides maintenance and landscaping for the parcel near the tracks, but does not own it.

If the camp stayed open, he added, BART might face liability for failing to provide police protection — in a nearby encampment on the east side of the tracks, which BART evicted Oct. 25, “a drug overdose occurred and a crazed man attacked others with a hammer,” he said.

Alsup said the 72hour window would give the plaintiffs time to seek review from a federal appeals court. Attorney Daniel Siegel said residents of the encampment were meeting later in the day to discuss their options, but he indicated they might look elsewhere for a campsite.

“We argued not so much that a transit agency had the same obligations as the city, but that a transit agency should not be allowed to push people off its property when those people have no options and the city has failed to provide shelter,” Siegel said. “Perhaps it makes most sense to focus on the city of Berkeley” for relief in the future.

BART said Tuesday that the agency had received more than 50 complaints from neighbors about “dangerous activity” at the encampments on both sides of the tracks.

The agency said it is working with the city of Berkeley “to address concerns from the community with a combination of enforcement, clearing and cleaning, ongoing maintenance, and help to individuals at sites adjacent to our tracks.”