Scwarz v. Town of Fairfax

Background

Cecil Brheath Scwarz and John Doe said they were living at “Camp Liberty,” also called “Camp Integrity,” on public property near Fairfax’s police station. Fairfax had passed an ordinance in January 2025 prohibiting camping and maintaining an encampment on public property. The ordinance permits the town manager to clear an encampment after giving 72 hours’ written notice. Items left behind must be stored, and people present during the clearing may request additional time or help removing their belongings. The opinion states that Fairfax had never previously cleared an encampment.

Fairfax posted a 72-hour notice to vacate Camp Liberty on July 29, 2025. Before then, the plaintiffs had requested accommodations based on conditions including post-traumatic stress disorder and Lyme disease. They sought, among other things, 30 days’ notice before clearing the camp and an interactive process to address foreseeable dangers. Fairfax agreed to meet with the plaintiffs’ representatives and later issued a written response granting or partly granting five of 11 requests. Those responses included access to public restrooms and drinking water, support-group assistance during clearing, storage for belongings for up to 90 days, and a truck and driver to help move personal property. Fairfax denied requests including permission to keep camping near the police station, creation of new shelter and health programs, and 30 days’ advance notice.

The plaintiffs filed this case and sought a preliminary injunction, which is a court order temporarily preventing conduct while a case continues. The court had earlier granted a temporary restraining order blocking Fairfax from acting on the notice, then revised it on August 6 to cover only certain people present at the camp as of July 31. The opinion states that the temporary restraining order was set to expire on August 20.

Legal standard

To obtain a preliminary injunction, a plaintiff must show a likelihood of success on the merits, likely irreparable harm without the injunction, that the balance of equities favors an injunction, and that an injunction serves the public interest. The Ninth Circuit also allows a sliding-scale approach, under which a stronger showing on one factor may offset a weaker showing on another. The court held that no showing on the other factors could overcome the plaintiffs’ lack of serious questions about the merits of either claim.

State-created danger claim

The plaintiffs asserted a state-created danger claim under the Fourteenth Amendment. The court explained that this theory can apply when the government affirmatively creates or exposes someone to a specific danger that the person would not otherwise face and acts with deliberate indifference to a known, obvious danger. “Deliberate indifference” requires disregarding a known or obvious consequence of government action, and the danger cannot be speculative.

The court found that the plaintiffs had not shown the required new and particularized dangers. It acknowledged that outdoor camping and limited access to bathrooms and essential services can involve serious risks, but concluded that clearing the campsite in one location would not create those risks because the plaintiffs already faced them. The court also noted that Scwarz claimed to have experienced harassment, stalking, and threats of violence while living at Camp Liberty—the same place the plaintiffs sought to remain.

The court further found no deliberate indifference by Fairfax. It relied on the town’s notice, meeting with the plaintiffs’ representatives, participation in alternative dispute resolution, agreement to provide extended storage and a moving truck and driver, and continued access to bathrooms and other existing public services. The court distinguished a prior case involving a more substantial self-built shelter, winter conditions, and evidence that removal would expose the plaintiff to more dangerous conditions.

Americans with Disabilities Act claim

The plaintiffs also asserted a claim under the Americans with Disabilities Act (ADA). The relevant ADA provision prohibits a public entity from excluding a qualified person with a disability from its services, programs, or activities, denying that person their benefits, or discriminating because of the disability. Public entities must make reasonable policy modifications when necessary to avoid disability discrimination, but they need not make modifications that fundamentally change the nature of a service or create an undue burden.

The court found that the plaintiffs had little likelihood of success because they provided no evidence that Fairfax was discriminating against them because of their post-traumatic stress disorder or other conditions. The court concluded that the planned clearing resulted from their living in an encampment, not from their disabilities. It also concluded that allowing them to remain at Camp Liberty would fundamentally change enforcement of the camping ordinance, while providing new housing or the full set of requested services would create an entirely new program rather than modify an existing one.

The court also found that Fairfax had provided reasonable accommodations within the clearing process. It stated that the request for moving assistance was moot because Fairfax had agreed to provide a truck and driver and 90 days of storage. The court rejected the request for a 30-day notice period, finding that Fairfax had already engaged in an interactive process and that the plaintiffs had not explained why that process needed to last 30 days. The court also found no evidence that Fairfax chose remote meetings because of the plaintiffs’ disabilities.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction. The opinion did not state that the case itself was dismissed or finally resolved. It also noted that materials attached to the motion did not show that the plaintiffs were excluded because of disability from a homelessness-services partnership; instead, the materials showed Fairfax trying to find alternative places for them to live. The court encouraged Fairfax to find housing solutions for the plaintiffs.