Berkeley can close Harrison encampment, 9th Circuit says
One judge said the city should be allowed to take stronger action, writing: "Berkeley's efforts face the ongoing threat of paralysis by judicial fiat."
Berkeley can finish closing the Harrison Street homeless encampment, a federal appeals court ruled Monday.
The ruling left some protections in place for disabled homeless residents represented by Berkeley Homeless Union, which has challenged the city's encampment enforcement practices in federal court.
All three judges agreed that Berkeley could close the Harrison encampment, but Judge Patrick Bumatay dissented from the majority decision to leave court-ordered disability accommodation requirements in place — for now.
The 9th U.S. Circuit Court of Appeals has scheduled arguments on the broader legal issues for February.
"Whether this process (or any other) is legally required under the ADA is a merits determination," the judges wrote. "We recognize the need to expedite resolution of this dispute."
The city cleared much of the sprawling Harrison encampment in September but had been prevented by a federal judge from removing some residents who had sought disability accommodations. At the time, the city said its plans did not include vehicle removal.
The new ruling says the city can proceed with complete closure.
"Even on an incomplete record, we are persuaded that the City must be able to clear the Harrison Encampment because of the public health risk posed by leptospirosis," the court wrote.
The city has found leptospirosis, a potentially deadly disease, in rats and two dogs in the neighborhood. A man with leptospirosis who lived not far from the Harrison Street encampment also died.
"We agree that the conditions in the encampment warranted intervention without delay," the court said.
Berkeley had also asked the appeals court to suspend broader restrictions imposed by U.S. District Judge Edward Chen, including requirements to accommodate disabled homeless residents during enforcement actions. The majority declined to do so while the appeal proceeds.
The court noted that a possible miscommunication during a July hearing may have contributed to the dispute over how broadly the restrictions applied.
Berkeley argued that Chen had improperly expanded his restrictions beyond the Harrison encampment. The appeals court was not persuaded.
During the July hearing, the city had asked Chen to make a final ruling so its 9th Circuit appeal could proceed. Chen had cautioned that the ruling would apply "throughout the city." The city had not objected, the 9th Circuit wrote.
The panel wrote that the city would have a chance to raise the matter at a hearing before Chen on Oct. 29.
Berkeley has also sparred with Chen over how its posted "No Lodging" areas fit into its plans. At a recent hearing, Chen said the city had failed to provide evidence as to why the areas should remain off-limits to Berkeley Homeless Union members.
The appeals court did not resolve that dispute, which remains an issue in the district court proceedings.
Ultimately, the appeals court denied Berkeley's broader stay request "without prejudice," allowing it to renew the request if circumstances change.
The court also observed that it had been given limited materials to review, "which leaves much of the relevant litigation story unexplained."
It said both sides would need to provide a more complete record if they sought further relief.
Read more about homeless camps in Berkeley.
In a sharply worded, 56-page partial dissent accompanying the 17-page majority ruling, Judge Bumatay argued that the appeals court should have gone further and suspended Chen's broader restrictions while the case proceeds.
He criticized the district court's involvement in Berkeley's homelessness policies, arguing that decisions about how to address encampments should rest primarily with elected officials rather than federal judges.
Bumatay wrote that the district court had "weaponized the Americans with Disabilities Act" by imposing unreasonable requirements on the city.
"Berkeley’s efforts face the ongoing threat of paralysis by judicial fiat," Bumatay wrote. "Berkeley must be allowed to conduct its homelessness policy without unmerited judicial micromanagement."
The Scanner requested statements from the city and Berkeley Homeless Union but none had been provided as of publication time.
