Catch a Fire – Arson and Resistance to Gentrification in Oakland (CA Penal Code 451 & 452)

On July 7, 2017, a fire tore through the Alta-Waverly building, a seven-story, mixed-use building under construction in downtown Oakland. The heat from the fire was so intense, it was picked up on local weather radar and there was significant concern that an industrial crane, which was being used during the construction, might collapse onto adjacent buildings. I could feel it on my drive to the Summit Defense Law office in Downtown Oakland.  The fire destroyed the structure at 2302 Valdez Street, at the corner of 23rd Street, threatening homes and other businesses in the residential-commercial area northwest of Lake Merritt, and displacing more than 700 local residents. The blaze comes less than two months after a very similar fire in Emeryville destroyed an apartment and retail space that was also under construction at the time. The cause of that fire was ultimately determined to be arson. Only hours after the fire was first reported, allegations of arson have already been issued by Oakland City Council, with one member posting to social media platforms that “burning down housing doesn’t help make [Oakland] housing more affordable.” But was the fire at 23rd and Valdez Streets also arson and if so, is it related to a campaign of urban terrorism aimed at preventing a perceived gentrification of Oakland?

A person can be found guilty of arson if he or she “willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” California Penal Code § 451. The penalty for a conviction under this section of the penal code ranges from 16 months to nine years in prison. Aggravated arson, which can be charged if a person is found to have committed more than one act of arson within a ten-year period, carries a penalty of 10 years to life in prison. Even the lesser offense of unlawful or reckless burning under California Penal Code § 452, carries a potential sentence of six months to six years in state prison. And conviction under this section of the statute does not require property or forest land to catch on fire. In fact, simple charring, however slight, will suffice.

Oakland communities have undergone drastic changes over the past several years. United States Census Bureau statistics reported that 14.6 percent of Oakland residents earned an annual income of $30,000 or less. However, real estate statistics collected by agencies including Trulia and Redfin, show that between 2010 and 2014, 28 percent of Oakland residents leaving Oakland earned less than $30,000 annually – nearly double what would normally be expected from a community with the same wage map as Oakland. This trend tends to confirm that low-income people are leaving the city at disproportionately high rates. At the other end of the spectrum, Oakland residents who earned an average of $150,000 or more per year, are leaving the city at a much lower rate than expected. All of which points to cost of living being the biggest factor driving the exodus out of Oakland communities.

Breaking these statistics down to bare numbers, between 2010 and 2014, approximately 104,544 people left Oakland. At least 28 percent of those left for economic reasons, which represents approximately 14,000 people. This number does not take into account the number of people who earned more than $30,000 annually who also left the city for economic reasons, especially considering the fact that the average price of a single-family home in Oakland has now risen to $680,000, which is a 9 percent increase over the last year. The average monthly rent for a one-bedroom apartment in Oakland as of June, 2017 is $2,397, and for a two-bedroom apartment is $3,188. The exodus is not only affecting lower-income residents at a disproportionate level, it is also having a profound affect on African American residents. Since the year 2000, the city has lost 30 percent of its African American population – a concerning trend for a city that once boasted an African American population of more than 47 percent and is the birthplace of the Black Panther Party.

Oakland City Council members are quick to cry copycat with respect to this latest blaze. But arson as a method of combating perceived gentrification is not a new story in the Bay Area. In fact, several fires over the past three years at mixed-use buildings under construction have been attributed to arson, including two fires at the same building in Emeryville in May of this year. The Alta-Waverly building was purported to include 196 “market-rate” apartments and up to 31,500 square feet of retail space, with parking for residents in an underground garage. Oakland Mayor Libby Schaaf lamented the loss of “valuable units” in the “middle of a housing crisis.” But are these units really all that valuable to low- and middle-income residents? Keeping in mind that “market rate” for a two-bedroom apartment in Oakland runs well above $3,000 per month, these “market-rate” apartments are well out of reach for the more than 14,000 Oakland residents who are currently being displaced for financial reasons.

Arson is a serious offense, and serial arsonists face stiff penalties. But a pattern of arson like the fires affecting these mixed-use buildings in areas where gentrification may not be an affordable remedy for Oakland’s middle-class residents is something that Oakland city government needs to examine more closely. Arson may not be the issue here, but lack of affordable housing and forced financial exodus might be.

Summit Defense Criminal Attorneys is the Bay Area’s premiere exclusively Criminal Defense firm.  With six offices in the bay area, our criminal lawyers have successfully defended arson charges in San Mateo, Santa Clara, Alameda, San Francisco, Marin and Contra Costa counties.