on behalf of; mcbracken [gypsypeacock@gmail.com]

The last truly free place for freedom of expression and free living
here in the bay is once again IN JEOPARDY.
The city of Albany plans to evict the homeless encampment and remove
artwork from the Albany Landfill also known as the Albany Bulb, on
Monday morning, the 24th of September and ongoing all week. Their
reasoning has something to do with making the Albany Bulb into a state
park, giving up the city's jurisdiction over the park and handing it
over to the state.

PLEASE! If you have video cameras or other cameras and are available,
please come down and document and/or agitate the potential destruction
of our creative sanctuary!

Osha Neumann, predominant artist in the landfill, homeless advocate
and attorney has prepared the document attached at the bottom of this
message. His letter has phone numbers you can call to protest this
abomination. If you do go to the Albany Bulb you will see a sign out
front with a DPW phone number on it, CALL THEM TOO! Let them hear your
opinion about the evictions and removal of art!

If you do get photos or footage, we encourage you to broadcast it
anyway you can! Contact local media, contact Tomas McCabe
(documentarian on the Albany Bulb) at tomas@bumsparadise.com, or post
your footage on YouTube yourself.

For more information on the Albany Bulb / Landfill:
http://www:bumsparadise.com

Off-Leash Art Movie on Youtube.com:
youtube.com/watch

groups.yahoo.com/group/alb...aterfront/

groups.yahoo.com/group/albanybulb/

and
ON TRIBE:
tribes.tribe.net/f87d90e6-...0b3941e752

__________________________________________________________
Re: Planned evictions on the Albany Landfill

Dear Sirs and Madame:

I am writing to protest the City of Albany's plans to evict homeless
people from the Albany Bulb.

On Friday, September 21, Albany city officials were out at the Bulb
and announced that on Monday, the 24th, they would begin evicting
people who had been living there. Police had previously passed out
notices to some of the people warning that they were in violation of
Albany's Municipal Code section 8-4.4 prohibiting "camping."

Albany still has no shelters where a homeless person who doesn't have
the means to rent or buy a place to live can spend the night legally
within the City. In 1999, when far more people were living out on the
Landfill, the City at least made a gesture towards providing temporary
housing. Not this time. The City has waited till the rainy season to
kick people out into the cold with no place to go. The message is
clear: Get out of town. There is no place for you here.

This eviction is not only inhuman, it's illegal. Enforcing Albany's
camping ordinance against the homeless when there are no shelter beds
available constitutes cruel and unusual punishment in violation of the
Eighth Amendment of the United States Constitution.

In Jones v. City of Los Angeles, 444 F.3d 1118 (April 2006), the Ninth
Circuit Court of Appeals held that a Los Angeles ordinance
criminalizing sitting, lying, or sleeping on public streets and
sidewalks at all times and in all places within Los Angeles city
limits violated the Eighth Amendment as applied to homeless
individuals involuntarily sitting, lying or sleeping on the street due
to the unavailability of shelter in Los Angeles. It held that "the
Eighth Amendment prohibits the City from punishing involuntary
sitting, lying, or sleeping on public sidewalks that is an unavoidable
consequence of being human and homeless without shelter in the City of
Los Angeles." (Id. at 1138. ) It remanded the case back to the
district court for appropriate injunctive relief.

Albany's vague and broadly written camping ordinance applies to all
open spaces within its borders including parks, undeveloped areas,
streets, and sidewalks. Its provisions against camping, loitering, and
lodging criminalize anyone who happens to be homeless who attempts to
spend the night with the City limits. To avoid its sanctions a
homeless person would have to stay awake and constantly on the move.
It applies to anyone who at any time attempts to secure a living space
in Albany who can't afford to rent a room. Because Albany has not a
single shelter bed, its camping ordinance, like the ordinance
considered by the court in Jones, cannot be used against homeless
individuals currently living on the Bulb without violating the
Constitution's Eighth Amendment prohibition against cruel and unusual
punishment. Nor can Albany claim an exemption from the logic of Jones
by pointing those it evicts to shelters in neighboring jurisdictions.
Its neighbors have their own homeless population and their shelters
are almost always full.

In In re Eichorn (1998) 69 Cal.App.4th 382, the court held that a
homeless man cited for violating a Santa Anna camping ordinance, who
had presented evidence that on the night he was cited every shelter
bed in the city was occupied could raise a defense of necessity. He
could argue that he violated the law only to "(1) prevent a
significant evil, (2) with no adequate alternative, (3) without
creating a greater danger than the one avoided, (4) with a good faith
belief in the necessity, (5) with such belief being objectively
reasonable, and (6) under circumstances in which he did not
substantially contribute to the emergency." (Id. at 389.) The court
noted that "Sleep is a physiological need, not an option for humans."
Eichorn could reasonably argue that the "significant evil" he avoided
by violating the camping ordinance was "loss of sleep." (Ibid. )

There is a close analogy between the defense of necessity and a claim
that prosecution violates the Eighth Amendment prohibition on cruel
and unusual punishment. In the one case that went to trial arising out
of the evictions of homeless people from the Bulb in 1999, People v.
Michael Reed Smith, Berkeley Municipal Court Case no. 162913), a jury
found "Picasso" Mike Smith not guilty based on a defense of necessity,
when he showed that Albany then, as now had no shelters.

If the City intends to evict homeless individuals currently living on
the Bulb, it must first provide them lodging for a length of time
sufficient for them to secure an alternative place to live. If they
don't have the means for obtaining housing, it must provide them real,
effective assistance. If it proceeds with evictions without providing
viable alternative housing it not only places the lives of those it
displaces at risk, it places itself at significant risk of liability
for knowingly violating their rights.

Finally, should Albany choose to proceed with the evictions, it
must take care to preserve and store the possessions of those who are
forced out of their campsites on the Bulb. By the manner in which they
are kept, those possessions are easily distinguishable from trash. If
there is ambiguity the City should err on the side of caution. In a
recent case, Kincaid v. City of Fresno 2007 U.S. Dist. LEXIS 63528 the
court issued a preliminary injunction barring the City from seizing
and immediately destroying the personal property of homeless people
found during raids on their encampments. It agreed with the Lawyers
Committee on Civil Rights, the ACLU of Northern California and the law
firm of Heller Ehrman who represented the plaintiffs that the practice
appeared to violate their constitution rights.

If you have any questions or concerns, or would like to discuss these
matters further, please contact me at your earliest convenience.

Very truly yours,

Osha Neumann
Attorney at Law
1840 Woolsey Street
Berkeley, California 94703
(510) 644-2429
(510)540-4821 (fax)

Cc: Vice Mayor Marge Atkinson
Councilmember Farid Javandel
Councilmember Jewel Okawachi
Councilmember Joanne Wile