Berkeley Homeless Union v. City of Berkeley

Background

Pro se plaintiffs filed a complaint and a separate motion for a temporary restraining order. They alleged that they are disabled and unhoused residents living in tents, cars, and recreational vehicles around 8th and Harrison Streets in Berkeley. According to the allegations, the City adopted policies in September 2024 establishing criteria for closing and clearing encampments, designated the area as a “no-lodging zone,” and was enforcing or threatening to enforce an abatement plan against the plaintiffs and others there.

The plaintiffs also alleged that the City had denied requests for reasonable accommodations under the Americans with Disabilities Act. They sought to stop the displacement of residents at 8th and Harrison Streets until disability-related needs for shelter and preservation of property were addressed. They also pointed to a storm warning covering February 7 through February 14, 2025.

Legal standard

A temporary restraining order is an extraordinary remedy. To obtain one, a moving party must establish a likelihood of success on the merits, a likelihood of irreparable harm without preliminary relief, that the balance of equities favors the party, and that an injunction is in the public interest.

Under Federal Rule of Civil Procedure 65(b)(1), a court may issue a temporary restraining order without written or oral notice only when specific facts in an affidavit or verified complaint clearly show that immediate and irreparable harm will occur before the opposing party can be heard, and the moving party’s attorney certifies in writing the efforts made to provide notice and why notice should not be required.

Court’s analysis

The court concluded that the current filings did not clearly identify the next step in the City’s abatement policy or when the City intended to act. The plaintiffs referred to scheduled abatement and enforcement actions beginning after February 10, 2025, but they filed the case after that date and did not allege that specific displacement actions had begun. They also did not attach an eviction notice identifying the timing or scope of the City’s next steps.

A declaration stated that a hearing officer had said in January that conditions at the encampment had to be abated by February 10, 2025, or everyone in the camp would have to leave. The court said this suggested only that the plaintiffs might be forced to leave at some unidentified time after February 10. The court also noted that the plaintiffs had waited to file until after the City’s alleged policy had been in place for several months and after at least some accommodation requests had been denied.

Disposition

The court determined that, on the current record, the plaintiffs had not met the high burden for a temporary restraining order, particularly an order issued without notice and an opportunity for the defendants to respond. Rather than rule on the requested temporary restraining order immediately, the court required notice to the defendants. The Clerk was directed to serve the order, complaint, and motion on the defendants through the Berkeley City Attorney. The defendants were directed to respond by noon Pacific time on February 13, 2025. The court stated that it would set a hearing if needed after reviewing the response.

The order did not decide the merits of the plaintiffs’ allegations concerning the encampment policies, displacement, or disability accommodations.