The Wrong Men Were Sent to Jail in Berkeley

The video clearly shows that the violence was initiated by the ambassadors. The wrong men had gone to jail. The report given to Berkeley police by the DBA ambassadors was dishonest — itself a fairly serious crime.
DBA ambassadors confront a homeless man just before they began beating him. This is a screen shot of Bryan Hamilton’s video that has been posted to YouTube.

DBA ambassadors confront a homeless man just before they began beating him. This is a screen shot of Bryan Hamilton’s video that has been posted to YouTube.

 

by Bob Offer-Westort

Nora Isaacs recently wrote in tearful prose about the excess of tolerance in Berkeley. Her op-ed on the Berkeleyside news website asked, “In Berkeley, how much tolerance is too much?” From her perspective, a culture of tolerance in Berkeley is the root of Berkeley’s homeless problem: Until the culture of tolerance can be swapped for its alternative, Berkeley will be forced to support a homeless population that should be spread more evenly throughout the state.

Isaacs’ essay was written in defense of a slate of six proposed anti-homeless laws introduced by the Downtown Berkeley Association on March 17. The Berkeleyside op-ed is, thus far, the only piece in local media to defend the DBA’s proposed restrictions. The legislation was eclipsed in the public eye when Berkeley was reminded of just what a culture of intolerance looks like.

On Thursday, March 19, two homeless men who go by the names of Smiley and Quagmire pulled their belongings and Smiley’s dog Toad to the alleyway behind the CVS at Shattuck and Bancroft in downtown Berkeley. The two had been confronted by two of the Downtown Berkeley Association’s ambassadors earlier, and ordered to clear off Shattuck Avenue.

The ambassadors — employed to pick up trash, give visitors directions, and coax, cajole, or intimidate homeless people off of Shattuck — are not officers of the law. Like most of us, they’ve got every right to instruct other private citizens to scram, and said private citizens have every right to ignore the ambassadors, — like most of us.

Nonetheless, rather than engage in a prolonged conflict, Smiley and Quagmire ducked off Shattuck, down Bancroft, and into the first available alley. They made a mistake, however, and the ambassadors were quick to catch it: While on Shattuck, they had been on public property. But the alley was a loading entrance for the adjacent building, and was private property.

DBA Ambassadors Jeffrey Bailey and Carmen Francois followed them into the alley, and revived the confrontation. While the homeless men gathered their belongings to depart again, Bailey and Francois stood over Quagmire, supervising his packing. Bailey took one of Quagmire’s motions as a sleight, and told the “boy” to get out of his face.

Quagmire, age 29, objected, “Boy? Getting in your face? Punk, I’m packing up my shit. Get the fuck back from my shit.”

“Fuck you,” replied Francois.

Quagmire replied in terms not intended for print.

Bailey advanced forward toward Quagmire, stepping on his bag. Quagmire objected to this, and, his objection ignored, he stepped forward, pointed down, and demanded that the ambassador back up off of his property. DBA Ambassador Bailey looked to the side, and then suckered Quagmire with a right hook.

Violence has a momentum all its own. As Quagmire reeled and stumbled to the side, Bailey went after him, punching him three times in the head and neck, then grabbing him by the back of his shirt, forcing him to the ground.

“I didn’t touch you!” Quagmire shouted. Bailey slugged him again, while down, then five more punches as his victim huddled, trying to shield his face and stomach from the blows.

While Bailey, Quagmire, and Francois had been arguing, Smiley had continued to pack. But once Bailey slugged Quagmire, Smiley grabbed a walking stick, drawing Francois’ attention. While Francois tried to block him from the beating, Smiley skirted around her to grab the leash of Toad, his dog, intent on keeping the animal away from the fracas. He held the stick back from Francois, refraining from using it as a weapon, and instead shook the handle of the leash in front of him to ward the ambassador off.

As Bailey whaled on the huddling Quagmire, Smiley attempted to strike Bailey over the back, but missed. At this point, Bailey threw Quagmire to the ground, done with the first portion of the beating. He now turned his attention on Smiley. Smiley backed away a couple dozen feet, but Bailey followed. Smiley struck his pursuer twice on the left arm with the stick, but Bailey continued to follow.

And then the momentum broke. Bailey and Smiley kept their distance, the latter holding tightly onto his stick as defense while the former taunted, “You bad… You bad…” but both returned to where Quagmire and Francois were standing.

While the four quarreled, the two homeless men continued to pack up their belongings, under the ambassadors’ watch.

As the homeless men began to leave, Bailey approached Smiley, and grabbed the walking stick attached to his laundry cart, attempting to remove it. Smiley grabbed onto the stick as well, trying to hold it in place. Bailey knocked over the cart and slammed Smiley against a dumpster, the stick crossing his chest and pinning him by the throat.

“I’m watching you!” Bailey warned. With another shove and a strike across the face, he let Smiley go, and then told the men, “Get the fuck out of here.”

The beating was over, but the beating was just the beginning. As Smiley and Quagmire left, Bailey and Francois contacted the Berkeley Police Department and reported that they had been assaulted. Minutes later, the two homeless men were stopped on Shattuck, arrested, and spent the weekend in jail, falsely accused after having been beaten.

On Monday morning, they were brought to court on two charges of assault with a deadly weapon, two of exhibiting a deadly weapon, one of disturbing the peace by offensive language, one of battery, and one of criminal threats. The district attorney’s representation of events, assembled from Bailey’s and Francois’ police reports, is as follows:

“[Quagmire] used explicit language, raised his fist, and charged [Bailey] in an attempt to cause a physical altercation. [Quagmire] threatened to kill [Bailey] and their [sic] whole family… [Quagmire] committed these crimes against the victim while his co-defendant [Smiley] brandished and assaulted the same victim with a deadly weapon.”

Both men pled no contest, accepting probation, mandatory labor with the Sheriff’s Work Alternative Program, a stay-away order from CVS, and a requirement to pay restitution to Bailey, as the victim of the alleged assault. A restitution hearing to set the penalty was scheduled for May 18.

As court closed, neither Smiley nor Quagmire, nor the district attorney, nor the defense, nor the police, nor Bailey nor Francois knew that the previous day, a UC Berkeley student named Bryan Hamilton had posted a video to YouTube of the entire fight. The rest of Berkeley — and rapidly thereafter the rest of the country — didn’t find out until Thursday, March 26.

The video, shot from Hamilton’s room above the CVS store, gives a very clear perspective on the course of the beating. It was clear immediately that the report given to Berkeley police by the DBA ambassadors was dishonest — itself a fairly serious crime.

Quagmire had not threatened Bailey or his family. He had not raised his fist. He had not charged the man. The violence was initiated and almost completely perpetrated by the ambassadors. The wrong men had gone to jail.

When the video struck the news, the Downtown Berkeley Association’s CEO, John Caner, fired Bailey immediately. Francois was placed on indefinite leave. “I want to personally, and on the behalf of the DBA board and staff, apologize to the victim of this beating,” he wrote, “and the entire Berkeley community. This violent behavior runs entirely contrary to our organization’s goals, as well as the standards and values of our entire community.”

But if intolerance is the rallying cry of those who support the DBA’s proposed legislation, then that word “entire” may be a bit of a stretch.

So what’s the issue with tolerance in downtown Berkeley? Isaacs is a little short of the specifics, but you’ll get the general idea: “The homeless have taken over the street. Many of them are rude, aggressive, menacing, and intimidating.” Elsewhere in her piece, she mentions the presence of urine, feces, and aggressive canines.

She also complains of the smell of marijuana at the 2014 Christmas Tree lighting, though it’s not clear that she blames homeless people for this: Her piece veers at times from complaints about homeless people to unrelated complaints about the Berkeley Unified School District. It’s unclear whether she’s upset about homeless people smoking pot, or about Berkeleyans in general smoking pot. An anonymous source confirms that both phenomena have been reported.

This is all that makes it into writing, but I don’t want to be coy about this: In public fora, John Caner has complained about smoking in public spaces, and even alleges meth use on the sidewalk during business hours. But if we’re loath to be coy, Caner is not. Here is the set of laws that Caner and supporters like Isaacs advocate:

  1. No panhandling within ten feet of a parking pay station.
  2. No setting belongings down inside a tree well or planter, or within three feet of a tree well.
  3. No lying down on planter walls.
  4. No laying down bedding between seven a.m. and ten p.m.
  5. No tying belongings to bike racks, planters, trees, newspaper racks, or parking meters.
  6. No cooking on the sidewalk.

Nothing about meth, marijuana, aggression, smoking, urine or feces, or badly behaved dogs. This is a bizarrely irrational disconnect. For advocates of the criminalization of homeless people, one of the most tiresome counters to their arguments from opponents is that all of the behaviors they object to are already illegal. Everyone knows this. No one doubts the illegality of methedrine. And Berkeley already has some of the most restrictive public smoking laws in the country.

The proposed laws aren’t at all about the more specific complaints; they’re about the first thing Isaacs has to say: “The homeless have taken over the street.” I don’t think Isaacs means this literally: She doesn’t think that homeless people set rules for others on Shattuck. While the sidewalk is sometimes crowded, this is as much due to heavy commercial foot traffic as it is to homeless people’s busking, selling patches, or asking for alms.

It is entirely possible to spend hours upon hours on Shattuck with no greater interference from homeless people than from Cal students, or teenagers from Berkeley High. No, I think Isaacs means simply this: There sure are an awful lot of homeless people on Shattuck.

She writes, “Berkeley’s reputation for permissiveness has led homeless people to migrate here in large numbers. Right now, there is no realistic way we can support the disproportionate number of homeless people who come here — nor should one city have to bear a burden that should be spread throughout the state and country.”

This idea that a municipality’s good services or welcoming atmosphere draws a disproportionate number of homeless people to town is often referred to as the “magnet theory.” It’s been trotted out in Seattle, Portland, Arcata, San Francisco, Santa Cruz, and all over the West Coast.

Protesters held a rally on March 17 before speaking against anti-homeless laws at the City Council meeting. Sarah Menefee photo

Protesters held a rally on March 17 before speaking against anti-homeless laws at the City Council meeting. Sarah Menefee photo

As you might guess of a theory of being put upon that just about every city holds, it’s pretty hard to find any evidence that it’s true. Alameda County has not kept local records in its most recent homeless counts, but in the last year for which there is such data, 2009, the magnet theory doesn’t find much support: Oakland, at triple Berkeley’s size, also has triple the homeless people. However, it is able to serve a far greater portion of them: Oakland provides services for six times the number of homeless people that Berkeley does.

Berkeley’s overall population is 0.6 percent homeless; Oakland’s, 0.5 percent; San Francisco’s, almost 0.8 percent (using the 2013 numbers, which are a little lower than those from 2009). There’s just no evidence that Berkeley has a larger homeless population than similar West Coast cities.

If it did, it certainly wouldn’t be because of tolerance. In February, the UC Berkeley School of Law Policy Advocacy Clinic released a report entitled California’s New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State. California criminalizes homelessness at a far greater rate than does the United States at large, with an average of nine anti-homeless laws per city. Berkeley, with ten laws banning twelve acts, beats the average.

To really put the lie to that canard, we can compare Oakland and San Francisco. Oakland has fewer anti-homeless laws than does Berkeley, with eight laws banning ten acts, but per capita has roughly the same rate of homelessness. San Francisco has dramatically more laws — 23 with an equal number of restrictions — but has a higher per capita rate of homelessness.

But the magnet theory does not seem to have been damaged by contrary evidence. Caner — the CEO of the Downtown Berkeley Association, the supervisor of the ambassadors, and the chief proponent of the anti-homeless laws — also subscribes to this theory.

An interesting note, here. From the March 17 City Council meeting on, many in Berkeley have been describing the proposed anti-homeless laws through reference to their failed predecessor: Isaacs refers to the new laws as “the revival of Measure S…” City Councilmember Max Anderson said, “I call this ‘Son of S,’ the illegitimate son of S, who’s come back to haunt us again.”

They’re referring to a 2012 Berkeley ballot measure which would have made it a crime to sit on any commercial sidewalk. The measure failed at the ballot by a healthy margin (larger than that by which Obama beat Romney), but not for want of trying. Until 2014, the Yes on S campaign was far and away the best-funded measure campaign in Berkeley history with a campaign budget of just under $119,000. It eclipsed all candidate campaigns with the exception of the most recent mayoral campaigns.

Caner was the chair of the Yes on S campaign, and his commitment to the anti-sitting cause didn’t stop with money. On election day, Caner personally hired 50 homeless people from Oakland to stand by Berkeley polling locations and distribute slate cards that were designed to make voters believe that the Democratic party had endorsed Measure S (it had taken no position; all but one of the Democratic clubs that weighed in opposed the measure) and a pro-landlord slate of Rent Stabilization Board candidates. After the election, the Democratic Party censured the individuals who had produced the misleading slate card.

On one level, the comparison between these restrictions and a sitting prohibition could be confusing. Obviously, panhandling nine feet from a parking meter and sitting on the sidewalk are markedly different acts. A law preventing the one is not the same as a law preventing the other. But proponents must imagine that in practice in the real world, the laws would work in much the same way. Rachel Swan of the East Bay Express wrote the following in an interview with Caner in 2012:

“John Caner, CEO of the Downtown Berkeley Association, said that much of the frontline enforcement work under the sit/lie law would be delegated to ‘ambassadors’ rather than to Berkeley cops. Ambassadors are employed by merchants’ associations. Caner foresees a system in which ambassadors would quietly shoo homeless people away from the city’s main commercial districts…”

The beating on March 19 didn’t go off very quietly. When Hamilton’s video went public, homeless people on Shattuck immediately put out a call to action. Caner had written, as cited above, that he wanted “to personally apologize to the victim of this beating,” but Quagmire was in jail, and Caner had made no such personal apology. He’d just written those words in a press release.

Furthermore, according to homeless people on Shattuck, this wasn’t an isolated incident, but a pattern. The day after news of the video broke, a group of mostly homeless Berkeleyans gathered on Shattuck Avenue in front of one of the entrances to the Downtown Berkeley Association and held a rally, chalk-in, and march.

In defiance of Berkeley’s laws that criminalize homeless people for sleeping outdoors, a protester uses colored chalk to speak out against repression. Sarah Menefee photo

In defiance of Berkeley’s laws that criminalize homeless people for sleeping outdoors, a protester uses colored chalk to speak out against repression. Sarah Menefee photo

 

The finished message: “Sleepers United. We are tired of being cited!” Dozens of chalked messages have been written on Berkeley sidewalks. Sarah Menefee photo

The finished message: “Sleepers United. We are tired of being cited!” Dozens of chalked messages have been written on Berkeley sidewalks. Sarah Menefee photo

 

Ninja Kitty, a long-time resident of Berkeley who was one of the organizers of the protest, said, “Part of ambassadors’ job is to intimidate homeless people off of Shattuck Avenue. People are only intimidated if the violence is sometimes real. This brutality is a part of what the DBA does. This isn’t the first time that ambassadors have assaulted homeless people — it’s just the first time it’s been caught so well on camera.”

I don’t think John Caner or any of the members of the DBA wants this kind of brutality. But Ninja Kitty is right. Osha Neumann, an attorney who works with the East Bay Community Law Center, said, “Multiple times in the past couple months, private citizens have recorded Berkeley Police arresting homeless people with disabilities in ways that resulted in injuries. This incident differs only in that the shirt is yellow rather than blue.”

He referenced the DBA’s proposed laws: “This isn’t a coincidence. When the DBA pushes for criminalization, police and ambassadors feel pressured to use force to push homeless citizens out of public spaces.”

But homeless people aren’t flies. Despite Caner’s characterization of what ambassadors should do, homeless people don’t just dematerialize with a “shoo” and a flick of the wrist. Pro-criminalization advocacy leads to physical abuse.

If the Downtown Berkeley Association is against tolerance, the implication is that the other side is for tolerance. Elisa Della-Piana, the chair of Berkeley’s Homeless Commission, has been a vocal opponent of criminalization for years.

“Are we for tolerance?” She shakes her head in vigorous objection. “That’s not even the right question. Something that you tolerate is something that you disapprove of, or that pains you in some way, but that you accept because it’s good for a democratic society, or what have you. We don’t accept homelessness. The situation of homelessness is intolerable. When you have a social situation that’s intolerable, you try to solve it. If people who support criminalization want to do something about homelessness, then they should be collaborating with the rest of us to try to find solutions to the problem.”

Many such efforts are active in Berkeley, right now. City Councilmember Jesse Arreguín has convened a Homeless Taskforce, a community committee that has been working for almost two years to develop a set of solutions to homelessness in Berkeley. On April 20, they’ll hold their last meeting to finalize a set of recommendations that has been produced and vetted by housed residents, service providers, and homeless people. Those recommendations will go before City Council in June.

And the Task Force isn’t the only collaborative effort to address homelessness in Berkeley. A year ago, City Council asked youth service providers to develop a proposal for how to expand services for homeless youth. The near consensus response was that Berkeley needed to provide more housing opportunities for youth.

A specific proposal for rent subsidies passed through the Homeless Commission, but disappeared into limbo at City Council. In the past months, youth service providers have again taken up this cause. It is, without a doubt, the most effective and compassionate way to get youth out of cyclical homelessness, and to places of their own where they can legally rest, or set down their belongings during the day. Places that aren’t Shattuck. Places that aren’t limbo.

But for now, limbo is where Berkeley and the unsheltered people who call it home are left. The Alameda County Public Defender’s Office has successfully sought a positive finding of innocence for Smiley, but at press time Quagmire remains in jail. And as City Councilmembers simultaneously consider criminalization and collaborative solutions, they leave the city as a whole teetering between a future of intolerance, and one of hope.

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