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Ninth Circuit Vacates Injunction Delaying Caltrans Eviction of Homeless Persons Encamped Along Freeway Exit Ramp

The recent Ninth Circuit holding in Where Do We Go Berkeley et. al v. California Department of Transportation (CALTRANS) (9th Circuit No. 21-16790, April 27, 2022), provides insight into how courts may adjudicate claims brought under the Americans with Disabilities Act (ADA) against public entities attempting to clear homeless encampments. In the case, the Ninth Circuit vacated an injunction delaying the eviction of homeless persons following Caltrans attempt to clear its property. In particular, the Ninth Circuit ruled that the district court erred in its merits analysis in finding that a serious question existed as to whether Caltrans violated the ADA merely because it found the Plaintiffs’ claim to be plausible. In addition, the district court erred when balancing the equities by inappropriately mitigating the harm to Caltrans on the basis of availability of a separate Caltrans property for relocation.

In Where Do We Go Berkeley et al. v. CALTRANS (U.S. District Court, N.D. Cal., Sept. 27, 2021), the Plaintiffs argued that Caltrans violated the ADA through evictions associated with clearing outdoor encampments situated along an exit ramp for Interstate 80.  The district court granted an injunction, which was overturned upon Ninth Circuit review, that required Caltrans to give Plaintiffs six months to relocate and find housing before clearing the encampments.  The district court’s injunction was based on its finding that the ADA required the program to give “reasonable accommodation” to disabled homeless persons, who need more time before being evicted.

In reviewing the district court’s six-month injunction, the Ninth Circuit examined the Caltrans “programs” subject to the ADA and whether the district court’s remedy was a “reasonable modification” of those programs or a more major change that “fundamentally alters” their nature. The Ninth Circuit found that Caltrans’s programs include clearing the encampments. Caltrans, under its authority to “do any act necessary, convenient or proper for the . . . maintenance or use of all highways,” clears its properties of homeless encampments according to its assessment of the risks posed by each encampment. Here, Caltrans categorized the encampment as a level 1 camp that posed a critical safety concern requiring urgent relocation. As a general rule, Caltrans provides 72 hours’ notice to vacate level 1 encampments, but notice is not required. Therefore, the Ninth Circuit found a six-month delay to be a fundamental alteration of Caltrans’s programs.

In addition, Plaintiffs had not established serious questions on the merits as to whether they were entitled to relief as disabled persons subject to discrimination. The district court was required to analyze the merits despite finding a lack of precedent regarding Title II applicability and should not have entered an injunction on a merely plausible claim. Moreover, the district court’s holding contradicted precedent found by the Ninth Circuit that had established that Title II’s second clause regarding discrimination is meant to prohibit intentional discrimination in an entity’s programs, rendering plaintiffs’ claim implausible.

In evaluating the balance of equities, consideration of reopening a separate, previously cleared Caltrans property called Seabreeze for the campers’ use was found improper. The Ninth Circuit ruled that 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. According to the Ninth Circuit, the reopening of Seabreeze should not have been considered a mitigating factor.

This case is the latest in an ongoing series between governmental agencies attempting to clear public spaces of homeless encampments and homeless advocates seeking to protect the rights of homeless persons. It is clear that the opinion was influenced by Caltrans need to protect public safety, including that of the homeless persons. Caltrans’s tiered program focuses on clearing areas where it is most dangerous to allow homeless encampments to remain, while taking a more hands-off approach to less dangerous Caltrans properties. Nevertheless, the Ninth Circuit’s ruling in Where Do We Go Berkeley suggests that homeless advocates may have a more difficult time making a case for ADA protection for homeless persons in cases involving the clearing of homeless encampments.