Background
The consolidated appeals arose from challenges to Berkeley’s abatement of a longstanding homeless encampment near Eighth and Harrison Streets. After rats at the site tested positive for leptospirosis, the City sought to clear the area, remove potential rodent harborages, and address the resulting public-health risk. The district court had entered orders requiring Berkeley to follow specified procedures under the Americans with Disabilities Act and imposing limits concerning residents’ property, vehicles, and relocation.
Berkeley asked the Ninth Circuit for an emergency administrative stay and a stay pending appeal. By the time the appellate court considered the request, the principal abatement had occurred, although several Berkeley Homeless Union members apparently remained. The City also challenged the district court’s broader, citywide permanent injunction, arguing that it exceeded the requested relief and improperly constrained future enforcement.
The Court’s Holding
In a per curiam order, the Ninth Circuit granted a stay to the extent the district court’s orders prevented Berkeley from clearing the Harrison Encampment or removing vehicles from it. The court found an emergency warranting relief because leptospirosis posed a public-health risk. It also concluded that Berkeley Homeless Union had waived any response concerning the City’s likelihood of success at this stage, that the City had offered residents locations outside the Harrison corridor and connections to interim housing, and that the public interest favored reducing the risk of disease.
The court otherwise denied the stay without prejudice. Berkeley had not shown irreparable injury from requirements governing the handling and storage of personal property, from the citywide scope of the final judgment, or from the ordered interactive process for relocating disabled residents. The record indicated that the City had agreed during a hearing to entry of a citywide final judgment, although the panel acknowledged a possible miscommunication about its written form and said the district court should address that issue first. The administrative-stay request was denied as moot.
Judge Bumatay concurred in staying orders that impeded abatement of the Harrison site but dissented from the partial denial. He would have stayed the district court’s orders in full, reasoning that Berkeley was likely to prevail on standing and merits issues and that the injunctions irreparably interfered with its public-health response and citywide homelessness policy.
Key Takeaways
- Berkeley may clear the Harrison Encampment and remove remaining vehicles despite the district court’s injunctions.
- The panel declined to stay the injunction’s other requirements because the City had not established irreparable harm on the existing, fragmented record.
- The denial was without prejudice, allowing Berkeley to renew its request if circumstances change and it supplies an adequate record.
Why It Matters
The order permits Berkeley to complete an encampment abatement tied to a documented disease risk while leaving most of the district court’s protections in place during the appeal. It underscores that even a strong claimed likelihood of success cannot support a stay without the threshold showing of likely irreparable harm.
The decision does not resolve the merits of the underlying ADA, Fourth Amendment, state-created-danger, or standing disputes. Those issues remain for expedited appellate review, with the consolidated appeals placed on the court’s February calendar.