By Andrew Cohen
On the heels of a tenant lawsuit filed in federal court, the Oakland City Council has voted unanimously to repeal a controversial ordinance that bans loitering on city public housing property.
Berkeley Law’s East Bay Community Law Center, working with four other organizations, brought the litigation on behalf of plaintiffs Darren Mathieu and Edward Jackson. It asserts that the Oakland Housing Authority ordinance is unconstitutional, and that the OHA Police Department has used it to hassle and intimidate public housing residents through racially discriminatory enforcement practices.
“This ordinance is used as a pretext to harass and conduct unjustified searches of residents and their guests, threatening their tenancy and preventing them from feeling safe in their own homes,” says EBCLC staff attorney Whitney Rubenstein ’14.
While pleased with the city council’s action, Rubenstein notes that it does not fully address the harmful policing practices described in the complaint.
A longtime resident of the apartment complex Lockwood Gardens, Mathieu reports being stopped more 70 times by the OHAPD over the last several years. Although never issued a citation for wrongdoing, he has still been handcuffed and asked to show identification. Several stops were logged in department incident reports that were sent to the housing authority as lease violations, putting Mathieu’s and his mother’s housing of more than 20 years in jeopardy.
“Mr. Mathieu has been stopped for sitting on lawn chairs outside of his own home with friends, and for standing with people in the outdoor areas of the property less than 10 feet from the door to his home,” Rubenstein says. “He is told that he can’t stand in a group of more than two people or else he risks being cited for loitering.”
Jackson lived in Lockwood Gardens as a child, and has relatives who reside there. He currently has an outstanding citation for violating the loitering ordinance and purportedly now owes $785.
After hearing about how the OHAPD was enforcing the ordinance—on the books since 1983—Rubenstein and EBCLC Housing Program Director Meghan Gordon ’11 began monitoring the ways in which arrests and citations led to evictions of entire families.
The lawsuit asserts that the ordinance violates the 14th Amendment’s Due Process Clause because it fails to put residents on notice of what conduct is prohibited and gives law enforcement officers unlimited discretion to determine what constitutes a violation. The suit also alleges that over-policing based on the ordinance has violated the residents’ 4th Fourth Amendment rights to be free from unreasonable search and seizure.
“Oakland Housing Authority residents are constantly being policed in and around their own homes, not for loitering but simply for living,” Gordon laments. “This not only criminalizes them but places their subsidized housing in jeopardy because the OHAPD reports these loitering stops as lease violations which can trigger an eviction.”
While the complaint focuses largely on more recent enforcement actions, such issues are hardly new at EBCLC.
“Our eviction defense practice has worked with countless tenants living in these public housing properties over the years,” Gordon says. “Many of them have reported that the OHAPD’s constant presence and their practices of over-policing creates an atmosphere of fear.”
Other Berkeley Law alumni on effort include Elisa Della-Piana ’02 and Eliza Hersh ’05 from the Lawyers Committee for Civil Rights, and Nicholas Miller-Stratton ’17, Garner Kropp ’16, and Katy Merk ’13 from King & Spalding. Recent graduate Emily Friedman ’18 and current student Ary Smith ’19 also played key roles.
Inspired to attend law school after seeing the Bay Area housing crisis escalate, Smith has worked at EBCLC’s Housing Practice and the law school’s Tenants’ Rights Workshop, and spent last summer at the Lawyers for Committee for Civil Rights.
“This case illustrates how direct client services and impact litigation can work in concert,” Smith says. “The plaintiffs originally came to EBCLC with a very concrete legal problem, an eviction, and through EBCLC’s client-centered services attorneys realized this was part of a larger pattern of police harassment of young men of color living in public housing. This insight led to the development of an impact case, which the Lawyers Committee for Civil Rights developed with help from EBCLC and pro bono counsel.”
The lawsuit seeks to reallocate resources from law enforcement to provide services that housing authorities are supposed to provide—namely safe, affordable housing. “We don’t often get to dream this big in client services,” Smith says.
The OHAPD has 34 sworn officers who police more than 16,000 households living in public housing. In addition to stops being potentially used in eviction actions, loitering ordinance violations constitute a criminal infraction punishable by a fine of up to $250.
“Loitering laws have been used for decades to restrict people of color’s movement in public spaces and their free exercise of civil rights,” Rubenstein says. “These laws have been widely criticized and struck down in many other cities because the stops and incidents lead to the loss of subsidized housing, homelessness, family disruption, and community instability.”