It's a repeat of what happened in San Francisco last December, and presages what could be a contentious legal fight at the Supreme Court next year: A federal judge has issued a restraining order against the City of Berkeley over a planned sweep of a homeless encampment.
Berkeley city officials had warned the residents of a homeless encampment in northwest Berkeley, near the UC Village (the university’s family housing campus), that a sweep was coming on Tuesday, December 12. Two of those homeless individuals requested a restraining order on December 11, and as the Chronicle reports, a federal judge granted a temporary restraining order on Friday.
U.S. District Judge Araceli Martinez-Olguín wrote on the order that the unhoused individuals "have shown that there are serious questions going to the merits, i.e., whether the City’s planned course of action — evicting disabled, unhoused individuals from a site without indicating where they may lawfully relocate and without addressing their respective disabilities and limitations — violates Plaintiffs’ constitutional rights." And the judge scheduled a hearing on the matter for tomorrow, December 19.
The situation echoes one in San Francisco twelve months ago, wherein a federal judge issued an emergency injunction that temporarily halted all encampment sweeps in the city. That injunction grew out of a September 2022 lawsuit brought by the Coalition on Homelessness and the ACLU, on behalf of seven homeless plaintiffs, arguing that SF's practice of clearing encampments without being able to provide alternative shelter for all who need it was unconstitutional.
That case has yet to be decided, and whichever side loses is likely to appeal to the Ninth Circuit. In the meantime, this past summer, the Ninth Circuit issued some vague guidance that the city attorney has interpreted to mean that encampment sweeps may continue so long as shelter offers are made, and those who refuse those offers will be considered voluntarily homeless, as opposed to involuntarily homeless.
Still, the Ninth Circuit denied a request by the city for an injunction to overturn the lower court's injunction, saying that a ruling in the case was still pending and such a move would be premature.
San Francisco was among dozens of cities this fall filing amicus briefs with the Supreme Court, urging it to take up two cases decided by the Ninth Circuit that have led to widespread confusion about the legality of encampment sweeps. In one case, decided five years ago, the city of Boise, Idaho was told it was unconstitutional to forcibly remove people from public land without being able to provide alternative shelter. And in a second case out of Oregon, the city of Grants Pass was told it violated the Constitution by issuing fines for unpermitted camping on city property.
Citing the earlier Boise decision, Judge Roslyn O. Silver of the U.S. District Court of Arizona had issued a ruling saying "it is an Eighth Amendment violation to criminally punish involuntarily homeless persons for sleeping in public if there are no other public areas or appropriate shelters where those individuals can sleep."
The Ninth Circuit denied a request for an en banc hearing of the case in July, effectively upholding that lower court ruling, but several Republican appointees to the court dissented, saying that the court needed to take a tougher stand on upholding laws that are intended to maintain safety and order on city streets and sidewalks.
It remains to be seen if the conservative-majority Supreme Court will take up the request to review the cases, but in recent months, liberals including Governor Gavin Newsom and SF Mayor London Breed have been vocally in support of the court taking up the case and giving a final word on the issue.
Homeless advocates have countered that San Francisco has only a fraction of the shelter beds it would need to house everyone who is actively homeless, and that, often, offers of one-night stays in a shelter are not an adequate alternative for someone with belongings and pets living in a long-term encampment.
As the Chronicle explains, in the Berkeley case, the two individuals who filed for the restraining order are disabled. One, Michael Douglas, is disabled and partially blind and suffers from bipolar disorder, and the other, Lawanda Parnell, said she suffers from "a nervous condition that causes her to frequently lose her balance."
"If Mr. Douglas and Ms. Parnell, two disabled individuals, are evicted during the winter, with no place to go, they will certainly suffer a severe hardship," said Judge Martinez-Olguín in the order.
The encampment, near the intersection of Harrison and Eighth streets, is one of a number of encampments in Berkeley, where there were around 1,000 homeless people in the city as of the last point-in-time count.
The next biennial point-in-time census of the homeless is set to occur this winter in both San Francisco and Berkeley.
Photo: Naomi August
