Fisher v. City of Berkeley

Background

Diane Fisher, Mark Tayne, and Staci Prado, whom the opinion describes as unhoused individuals with disabilities living in Berkeley, sued the City of Berkeley and other defendants. They filed a motion for a temporary restraining order, an emergency order intended to preserve the situation temporarily, to prevent the City from evicting them from their encampments or removing their property.

The plaintiffs’ complaint asserted seven causes of action: federal and state claims based on a state-created danger, federal and state claims alleging unlawful search and seizure, federal and state disability-discrimination claims, and a federal First Amendment retaliation claim. Their requested relief was not entirely clear. Because they were representing themselves, the court construed the motion as seeking an order preventing the City from evicting them or removing their property, and possibly requiring the City to begin an interactive process to address their disabilities.

The plaintiffs relied in part on an approaching “atmospheric river” and argued that losing shelter or survival gear during a severe storm could cause injury or distress. The City submitted a declaration from an assistant to the City Manager stating under oath that the City had no plans to evict the plaintiffs or others from the sites where they then lived. The City also said the notices attached to the motion did not state that the plaintiffs would be immediately evicted or removed, expressly stated that shelter items would not immediately be discarded, and indicated that the City would provide physical assistance to people who asked for help moving.

Legal standard

A temporary restraining order is an extraordinary remedy. The party requesting one must generally show a likelihood of success on the merits, a likelihood of irreparable harm without emergency relief, that the balance of hardships favors an injunction, and that an injunction would serve the public interest. The court emphasized that irreparable harm must be likely, not merely possible.

Court’s analysis

The court held that the plaintiffs had not shown a likelihood of irreparable harm. The City’s sworn statements that it did not intend to remove them, together with the contents of the notices, undercut the claim that the plaintiffs were likely to be evicted, lose their property, and face the storm without shelter. The court found that earlier incidents involving Prado’s car and Fisher’s belongings were insufficient to establish a likely and imminent injury.

The court also found that the plaintiffs had not established a sufficient likelihood of success on their claims for purposes of emergency relief. For the state-created-danger claim, the court reasoned that the City’s lack of plans to evict the plaintiffs meant it had not affirmatively placed them in danger. For the Americans with Disabilities Act claim, the court found that the City had been informed of the plaintiffs’ need for accommodations only four days before the motion was filed, which was not enough time to establish that the City had unlawfully denied an accommodation. The court was also skeptical that all requested accommodations were reasonable.

For the First Amendment retaliation claim, the plaintiffs’ evidence consisted of an assertion that the City had not issued similar notices to other Berkeley encampments. The court found that the limited record did not show that the other encampments were similarly situated or otherwise establish a likelihood of success. The opinion notes that the plaintiffs did not address several of their state and federal claims in the temporary-restraining-order motion.

As to the balance of the hardships and the public interest, the court found that the plaintiffs had not explained adequately why those factors favored emergency relief. The court also declined to give significant weight to the City’s hearsay evidence about homelessness activists. On the limited record, the court found that these factors did not weigh against emergency relief any more than they weighed in favor of it.

Disposition

The court found that none of the required factors supported granting a temporary restraining order and DENIED the plaintiffs’ motion. The order ruled on the request for emergency injunctive relief; it did not state that it finally resolved the underlying claims.