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First Person

By Donna Mallard | Oct. 2, 2015

Law Office Management

Oct. 2, 2015

First Person

by Toussaint S. Bailey

Two years ago I called my mother to get her advice on a case-and maybe a little motherly encouragement. Even though my mom had played the role of mock juror or judge for me many times over the phone before my court appearances, I'd never had occasion to consult her as an expert. For more than 15 years, she managed Project Home Again, a program that provided support services for homeless people with mental health and substance abuse issues in San Bernardino County.

In 2013 my client, the suburban city of Albany, was being sued in federal court by a group of homeless people who refused to leave a piece of public land known as the Bulb, a former landfill that juts out from the eastern shore of the San Francisco Bay. The city for years had wanted to convert this land to its intended use as a public park, but first it needed to relocate the scores of homeless people camping there.

City officials were sensitive to the political, social, and ethical issues surrounding the move. More than a year earlier, the city had formed a task force-including homeless people from the Bulb-to develop a transition plan. The city set up temporary shelters for residents, offered breakfast and dinner, provided storage and assistance to move personal belongings, and hired a case manager to help them find housing.

By the time I called my mother, more than 30 inhabitants had already left the Bulb. But the roughly two dozen people who remained sued to stop the city from enforcing its no-camping ordinance. The team of lawyers representing the plaintiffs claimed the city's transition plan constituted cruel and unusual punishment under the Eighth Amendment, and that it violated the Americans with Disabilities Act, state privacy rights, and other constitutional rights.

"The Bulb is not a long-term housing solution," I explained to my mom. "Regulators are pressing the city to address health concerns and environmental threats posed by an encampment on the Bay waterfront." She understood the complexity of the situation immediately and reassured me that thoughtful action to address homelessness isn't tantamount to action against homeless people (though sometimes it seems that way).

Many people remaining at the Bulb faced significant barriers to securing housing: poor credit, no income, no rental history or identification, limited means of communication or transportation, and keeping large dogs. The city was considering offering relocation assistance payments to several residents. My mother was amazed at the city's willingness to work with the plaintiffs toward an amicable solution.

Within a few days of the suit's filing, I helped the city defeat the motion for a temporary restraining order on the camping ban. But the case wasn't over. It took six months of exhausting and at times emotional negotiations to reach a resolution. All but two individuals left the Bulb of their own accord, and we settled the case in April 2014. Restoration to ready the land to become a part of McLaughlin Eastshore State Park is under way.

After the settlement, I attended the American Bar Association's daylong conference in San Francisco on ending the criminalization of homelessness. I was one of the few lawyers representing local governments at an event that seemed more geared toward full-time advocates for the homeless. But at a breakout session I mustered the courage to speak up, saying: "If we are to solve the problem of homelessness, stakeholders on all sides of the issue must cease battling one another and find ways to work together toward a common good. Just as local governments continue to find more holistic approaches and move away from blanket criminalization of the homeless, their advocates must move away from a paradigm that views fighting local government as part of the job description."

Now I am much more aware of how homelessness is a worldwide problem-though local governments have become the battleground. There are no perfect solutions, but I'm proud of what all the parties accomplished together at the Bulb. Thanks, Mom.

Toussaint S. Bailey is a shareholder in Richards, Watson & Gershon's litigation department and a member of the firm's public agency and municipal law practice in San Francisco.


Donna Mallard

Daily Journal Staff Writer

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