Metropolitan News-Enterprise


Thursday, April 28, 2022


Page 1


Ninth Circuit:

Six-Month Bar on Clearing Encampments Was Invalid

Panel Vacates Preliminary Injunction Scheduled to Expire on Saturday, Citing Likelihood of Recurrence


By a MetNews Staff Writer


A District Court judge erred in issuing a preliminary injunction barring Caltrans from clearing two high-risk homeless encampments along a freeway for six months in order to give the inhabitants time to relocate, the Ninth U.S. Circuit Court of Appeals held yesterday.

Judge Edward M. Chen of the Northern District of California acted pursuant to the insistence by 11 homeless persons and others that rights under the Americans With Disabilities Act (“ADA”) were implicated.

“We vacate the district court’s order because there is no serious question that the ADA requires such a lengthy delay,” Circuit Judge Ryan D. Nelson said in an opinion for a three-judge panel. “We also hold that the district court abused its discretion when evaluating the injunction’s harm to Caltrans and public safety, and thus erred in balancing the equities.”

Seabreeze Area

The encampments in Berkeley that had been targeted by Caltrans were high risk—or “Level 1”—dwelling areas. Caltrans previously closed such an encampment in the area of Berkeley’s Seabreeze Market.

The preliminary injunction was initially scheduled to expire on March 23, but Chen subsequently extended it to next Saturday. (On April 6, he denied a second extension.)

Although the original order terminated before oral argument was held in the case last Friday, Nelson said:

“[W]e hold that the dispute is not moot because it is capable of repetition, yet evading review….The six-month preliminary injunction is too brief for an appeal to be fully litigated, and there is a reasonable likelihood that Caltrans will be subject to similar injunctions in the future.”

The judge said there is “a serious question exists as to whether Caltrans violated the ADA.”

He faulted Chen for issuing the preliminary injunction based merely on what the District Court judge termed a “plausible claim” under the ADA when the required standard is a likelihood of winning.

Balancing Equities

Nelson said Chen also erred in balancing the equities, declaring:

“The district court correctly recognized the public safety risks associated with allowing the campers to stay. But it erred by finding that these risks were mitigated by the injunction’s ‘limited duration’ and the fact that Caltrans is “in a position to mitigate the risk associated with the encampments at issue by allowing campers to stay, on a temporary Seabreeze.’ The length of the injunction was invalid, and consideration of reopening Seabreeze as a mitigating factor was also improper.”

He continued:

“Caltrans strongly objected to allowing the encampments to be moved to Seabreeze, and rightfully so. The district court cannot require Caltrans to allow the campers to live on another Caltrans property because such an order goes beyond preserving the status quo….This would be no different from the district court requiring Caltrans to move the campers into a hotel or other housing.”

The case is Where Do We Go Berkeley v. California Department of Transportation, 21-16790.


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