Berkeley Homeless Union v. City of Berkeley

Background

Berkeley Homeless Union asked the court for an emergency temporary restraining order to delay the City of Berkeley’s planned closure of encampments at Ohlone Park. The closure was scheduled to begin by May 28, 2025. The group had previously sought the same relief in an earlier related proceeding involving encampments at a different location. The court in that proceeding determined that the Ohlone Park claims involved a different location, facts, and potentially different people, and directed the group to file a new action.

The application was filed on May 27, 2025. The group’s counsel alleged that he contacted defense counsel on May 23 about seeking emergency relief and proposed a briefing schedule, but defense counsel declined those proposals.

Legal standard

A temporary restraining order is emergency relief that can temporarily block conduct before a hearing on a preliminary injunction. The court applied the standard requiring a showing of likely success on the merits, likely irreparable harm without relief, a favorable balance of hardships, and consistency with the public interest. Under the Ninth Circuit’s alternative “sliding scale” approach, a plaintiff may instead show serious questions about the merits if the balance of hardships sharply favors the plaintiff and the other requirements are met.

For an order issued without written or oral notice, Federal Rule of Civil Procedure 65 also requires specific facts showing that immediate and irreparable harm will occur before the opposing party can be heard, along with a written certification by the attorney describing efforts to provide notice and why notice should not be required.

Court’s analysis

The court denied the motion because Berkeley Homeless Union had not shown serious questions about the merits of its claims.

Americans with Disabilities Act claim. The court found that the group relied largely on broad allegations that did not concern specific people living at Ohlone Park. The group alleged that the City failed to provide adequate notice, time, and assistance to unhoused people with disabilities and created unreasonable barriers to accommodation requests.

The application identified seven accommodation requests submitted on May 24, after the May 21 deadline for such requests. The declaration did not say that the deadline itself was unreasonable. The application provided specific facts about only one response: an official stated that Richard Weaber had previously declined packing assistance and had not made an accommodation request during an earlier conversation. The official also declined to waive the City’s requirement for verification from a qualified professional connecting Mr. Weaber’s disabilities to his inability to comply with the order to leave. The official stated that requests for physical relocation or transportation services were outside the scope of reasonable accommodations, while inviting additional information or alternative proposals.

The court said the group did not explain how the Americans with Disabilities Act required the City to grant those specific requests, provide help identifying accessible shelter, waive medical verification, or treat the late-filed requests as inadequate notice of the closure. The court therefore found that the group’s conclusory assertions did not raise serious questions about the disability claim.

Fourth Amendment claim. The group alleged that the City had refused to store unhoused people’s property after encampment clearances, citing incidents from January and November 2024. The court found that the claim was also conclusory and did not connect the Ohlone Park allegations to controlling legal authority showing likely success. The court noted that the group relied on a nonbinding district court decision rather than controlling authority from the Ninth Circuit or another applicable source.

State-created-danger claim. The group also asserted a state-created-danger claim under 42 U.S.C. § 1983, a federal law allowing certain civil-rights claims against state or local officials. The court stated that such a claim requires proof that a government actor’s affirmative conduct created or exposed a person to a particular danger that otherwise would not have existed, that the resulting injury was foreseeable, and that the actor deliberately disregarded the known danger.

The court found that the group mostly repeated those legal elements and made general assertions that Berkeley’s encampment-clearance efforts pushed unhoused people into more dangerous situations. Although Ohlone Park had public restrooms, water fountains, and proximity to other resources, the group did not explain why requiring people to leave the park amounted to a state-created danger.

The court also noted that the application was submitted less than 24 hours before the requested relief, which realistically limited the defendants’ opportunity to be heard. It further stated that, as a preliminary view, the group’s position that the City was legally required to allow people to remain indefinitely in a particular part of Ohlone Park lacked support in the law.

Disposition

The court DENIED Berkeley Homeless Union’s motion for a temporary restraining order. It ORDERED the defendants to respond to the motion by noon on May 29, 2025, and set a hearing on the request for a preliminary injunction. The opinion text provided does not clearly show the date of that hearing.