Not again.
Yes, again. A federal judge in California has re-opened the question of whether, how and under what circumstances a city may enforce an anti-camping ordinance.
In this case, the city is Berkeley, the problem is a potentially fatal disease spread through rat urine, the location is the longstanding Harrison Encampment, and the federal district judge is Edward M. Chen.
Two years ago, the U.S. Supreme Court appeared to put an end to the decades of lawsuits against cities that tried to clear homeless encampments. In Grants Pass v. Johnson, the Court held that enforcing “generally applicable laws regulating camping on public property does not constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment.”
Grants Pass v. Johnson overruled Martin v. Boise, the decision in the Ninth Circuit that said cities could not enforce an anti-camping ordinance unless they had adequate shelter for everyone, a murky standard that caused federal lawsuits to multiply like rabbits.
Martin v. Boise was the reincarnation of the 2006 decision in another case, Jones v. Los Angeles, which the Ninth Circuit vacated in 2007, meaning it could not be cited as a precedent. That was a condition of a settlement in the Jones lawsuit between the American Civil Liberties Union (ACLU) and the city of L.A.
The Jones lawsuit challenged a Los Angeles city ordinance that made it illegal to “sit, lie or sleep in or upon any street, sidewalk or other public way.” The Ninth Circuit agreed with the ACLU, holding that the law was “one of the most restrictive municipal laws regulating public spaces in the United States” and unconstitutional.
The city of L.A. could have appealed to the U.S. Supreme Court or rewritten the law to tailor it more narrowly, but instead agreed to a settlement. In exchange for having the Ninth Circuit decision vacated, the city agreed to stop all enforcement of the ordinance, anywhere in the city, between the hours of 9:00 p.m. and 6:00 a.m. until 1,250 additional units of housing for the chronically homeless were constructed, half of them in the downtown Skid Row area.
In the wake of the 2007 settlement, tents began to appear on the sidewalks, freeway embankments, overpasses, underpasses, civic plazas and public spaces everywhere in Los Angeles. By 2015, the city’s Housing and Community Investment Department reported that the terms of the settlement had been met: 1,170 units of housing for the chronically homeless had been built, 656 in the downtown Skid Row area, with another 206 units under construction.
But the city chose not to go to court to request permission to resume enforcement of its anti-camping ordinance.
Although Ninth Circuit judges couldn’t cite the vacated Jones decision as a precedent, nothing stopped them from repeating all the same reasoning to reach a similar result in a similar case. That’s what they did in Martin v. City of Boise in 2018. It was an echo of the Jones decision, and vague enough to allow advocates for the homeless to file federal lawsuits against any law enforcement action aimed at limiting encampments. This happened in city after city, again and again, until federal courts were supervising the smallest details of municipal code enforcement.
When the U.S. Supreme Court overruled Martin v. Boise in 2024, Justice Neil Gorsuch wrote that the Constitution’s Eighth Amendment “does not authorize federal judges” to “dictate this Nation’s homelessness policy.”
Tell it to the judge in Berkeley Homeless Union v. City of Berkeley.
This lawsuit was brought on behalf of seven individuals who contend that the city’s plan to clear an area known as the Harrison Encampment discriminates against disabled residents and is illegal under the Americans with Disabilities Act. Judge Chen found that the city’s planned “abatement operations” failed to provide “reasonable accommodations” to the disabled encampment residents who wished to continue living in their tents and RVs.
However, the decision notes that the city spent $5 million for a master lease of the Campus Motel “to operate as a low-barrier non-congregate shelter for residents of the Harrison Corridor,” and that “all plaintiffs in this action were offered a unit at the Campus Motel and declined,” a characterization that “plaintiffs do not dispute.”
The problem for the city of Berkeley is the “documented outbreak of leptospirosis bacteria within the Encampment.” Leptospirosis, city officials told the court, is “spread by rat urine, which can diffuse through soil, mud or standing water to contaminate the wider environment.” It can cause “high fever, headache, and without treatment, kidney damage, meningitis, liver failure, trouble breathing and death.” The city said it’s a threat to the health and safety of the encampment residents and the surrounding community, which includes restaurants and university student housing.
Nonetheless, Judge Chen ruled that the city may not simply clear the encampment. It must assess vehicles for rat infestation and make individual determinations about whether the parking enforcement rules really need to be enforced. It must determine whether tents of adequate size for the disabled residents will fit on the sidewalk with enough room for pedestrians to walk past them. It must collect and store all the property of encampment residents, although the judge kindly allowed that city workers are not required to handle or store “items that are observably wet, muddy or plausibly contaminated with leptospirosis.”
What a guy.
The judge’s 74-page order patiently sorts through the individual disability claims of the seven plaintiffs, the reasonableness of their requested accommodations, and the scope of their rights under the ADA and the Fourth and Fourteenth Amendments to stay in their tents and RVs.
Unsurprisingly, a footnote on page 6 says the Court was informed at a March 6 hearing that “16 additional Harrison Encampment residents had submitted ADA accommodation requests related to the abatement.”
If this decision is upheld on appeal, every city in the Ninth Circuit will be sued for clearing encampments and federal judges will be managing homelessness policy rat by rat.
Your move, Justice Gorsuch.
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