Berkeley Homeless Union v. City of Berkeley

Background

The plaintiffs moved for a temporary restraining order, an emergency order that can temporarily stop challenged conduct before a hearing on a preliminary injunction. The City of Berkeley opposed the motion.

The dispute concerns the City’s planned clearing of an encampment in and along 8th and Harrison Streets in Berkeley, referred to in the order as the “Harrison Corridor.” The City had set a February 10 compliance deadline for people to leave. The court noted that the administrative hearing officer did not affirm the City’s ability to clear the encampment until January 29, 2025, and that the City posted a notice requiring people to leave on January 31. The notice directed people to request disability accommodations by February 3.

The three named individual plaintiffs described disabilities affecting their ability to relocate. Mr. Bouchard was described as having severe mobility impairments and being unable to relocate independently. Mr. Johnson was described as neurodivergent and diagnosed with autism and attention-deficit/hyperactivity disorder. Mr. Moore was described as having chronic back pain from a prior tailbone injury that limited his mobility and made frequent relocation impossible.

The plaintiffs said they requested, at least initially, an opportunity to remain at 8th and Harrison Streets rather than relocate. They alleged that the City’s Americans with Disabilities Act coordinator, Thomas Gregory, denied the requests as unreasonable without proposing alternatives and told them to remove themselves from the area. The City responded that it had attempted to work with the plaintiffs but attributed the delay to their late responses, late requests, and insistence on staying despite an order to leave.

The court also noted that Berkeley Homeless Union was listed as a plaintiff but was not represented by a lawyer. The individuals who suggested they represented the Union were not attorneys and were not named plaintiffs, so the court considered their filings only to the extent relevant to the named plaintiffs.

Legal standard and analysis

Under Federal Rule of Civil Procedure 65, a temporary restraining order may stop conduct until a hearing on a preliminary injunction. The court applied the usual injunction factors: likelihood of success on the merits, likely irreparable harm without relief, the balance of hardships, and the public interest. Under the Ninth Circuit’s sliding-scale approach, a plaintiff may instead show serious questions about the merits if the hardship balance tips sharply in the plaintiff’s favor.

The court found that the plaintiffs had raised serious questions about at least one claim under Title II of the Americans with Disabilities Act. Title II generally bars a public entity from excluding a qualified person with a disability from its services, programs, or activities, or discriminating against that person because of the disability. Its regulations require reasonable changes to policies, practices, or procedures when needed to avoid disability discrimination, unless the public entity can show that the changes would fundamentally alter the relevant service, program, or activity.

The court explained that the parties disputed what the disability law required before the City could evict disabled and unhoused people while clearing the encampment, and whether the City had met those requirements. The court stated that compliance with municipal code enforcement can constitute a public-entity service, program, or activity under Title II. It also found that the current record did not conclusively show that the City had engaged in the required process. City exhibits suggested that Mr. Gregory offered no alternatives after rejecting the plaintiffs’ initial requests, said he had no good ideas in response to their needs, and accused the plaintiffs of harassing him with their requests.

The court expressly did not decide whether the City had actually violated the Americans with Disabilities Act. It concluded only that the plaintiffs had raised serious questions about that fact-specific issue.

The court found that the balance of hardships tipped sharply toward the plaintiffs. The City confirmed that it intended to clear the encampment without further notice on a date of its choosing. The court found that removing the plaintiffs and their belongings from where they were living would cause immediate and irreparable harm, made worse by a storm and heavy rain. Although the City described the resources it had devoted to the planned clearing and the difficulties of rescheduling it, the court found those concerns did not outweigh the plaintiffs’ hardship and irreparable injury from an immediate clearing. The court also noted evidence of cleanup efforts by the plaintiffs, including the removal of 3,000 pounds of waste from the encampment.

Order

Judge Haywood S. Gilliam, Jr. granted the plaintiffs’ motion for a temporary restraining order solely to maintain the status quo until the earliest possible hearing on the merits of the request. The defendants were enjoined from proceeding with the clearing and eviction of people then residing in and along 8th and Harrison Streets until a hearing could be held.

The court set a hearing for February 20, 2025, at 2:00 p.m. to consider whether the temporary restraining order should be extended. The order required all parties to attend in person.