Their victory is the first step in a case that could bolster the rights of unsheltered people with disabilities in California and beyond
At the end of September, Berkeley-based advocacy group Where Do We Go Berkeley (WDWGB) won a court battle to allow residents of the Shellmound encampment community to stay put despite Caltrans’ efforts to evict them. The preliminary injunction, granted by a District Court judge, means the group can continue living in their encampment next to the Ashby/Shellmound offramp for the next six months, while they search for alternative housing. This is the third time WDWGB has taken to the courts to fight for the rights of encampment residents to shelter in their encampment when the city or state comes in to evict them. These suits come at a time when encampment sweeps in Bay Area cities are picking up after a brief pause during the COVID-19 pandemic—and the precedent set by these legal actions could have echoes across the state and beyond.
“People are starting to see lawsuits as a viable way to push back against some of the more questionable sweeps that cities and the state have been bringing,” Ian Cordova Morales, the president and lead advocate with WDWGB says. “They need to watch out, because it’s not just going to be us.”
The Ashby/Shellmound encampment sits at the very edge of town, where Berkeley meets Emeryville. The border separating the two cities runs through the middle of the tents and self-built structures where some-27 people currently live. Many have been there for about three years. But in July, Caltrans started taking steps to close the encampment, citing concerns that the area is dirty, and that drivers need adequate space to regain control of their vehicles in the event of an accident. Additionally, a neighboring construction site had permits to use the land for emergency vehicle access.
Back in July, the state agency posted a closure notice at the encampment, but could not ultimately follow through due to a Temporary Restraining Order (TRO) issued by a District Court judge. They posted another closure notice last month, hoping to enact the closure on September 30.
Ahead of September 30, outreach workers offered encampment residents spots at Horizon—a new Berkeley shelter on Grayson Street where people live in tents indoors with access to amenities like showers and storage lockers. However, the eleven unhoused plaintiffs argued that they have disabilities that make Horizon inaccessible to them.
The group won on this American Disabilities Act (ADA) claim: the judge’s ruling states that the plaintiffs proved that they would suffer irreparable harm if their encampment was closed, because— without the shelter as an option—they would have no place else to go.
In court, Caltrans argued that they are not able to mitigate the risks that arise when an encampment is located on state property, and that allowing the group to stay would pose danger and exceed their power under the California Constitution, as well as state and federal laws.
In an email, a Caltrans representative said that the agency has “reviewed the written order and are considering legal options.”
“This case is about people who are suffering with disabilities. It’s not a preference that they can’t go into congregate shelters,” says Andrea Henson, one of the lawyers who worked on the suit. “If they have to live by a freeway, that should say something about what they’re suffering with.”
The unhoused plaintiffs suffer from clinical depression and anxiety, PTSD, bipolar disorder, and other psychological disabilities that make congregate living impossible. One plaintiff explained to the judge that his experience in prison—where he was strip searched five days a week for years, and was once left naked in a holding cell with the lights off and his hands and feet tied together—has resulted in PTSD that is likely to be triggered by the specific dynamics of group living. Another plaintiff testified that her anxiety causes her to suffer in large groups of people. These are not simply discomforts, advocates argue, but rather legitimate health concerns that should be considered the same way that physical disabilities would be.
Advocates say that encampment life allows people with disabilities to surround themselves with people who they feel comfortable with, and argue that closing an encampment harms unhoused people by cutting off their access to outreach providers and the self-built communities that keep them safe.
WDWGB works to connect unhoused people to services that meet their needs and, ultimately, help them move indoors. Henson says that when the group formed in October 2019, they were working with about 160 people across four encampments. Since then, some have disappeared and others have died, but many have been housed: She says that only 27 people of their original group still live outside.
“The folks who are left have severe mental and physical disabilities, trauma that most people can’t even imagine,” Henson says. “That’s why this is a victory for all of those who suffer with disabilities, and who because of those disabilities have been relegated to living on the street.”
The preliminary injunction that allows the group to stay in place for the next six months is not necessarily the end of the court battle. Caltrans has the opportunity to appeal it. If they do, that would bump the case up to the Ninth Circuit Court of Appeals, where the decision would set precedent for nine states, from Arizona to Montana. This could have widespread policy implications: it would mean that judges in ninth circuit courts would have to follow suit when similar cases come to bear.
However, even if the case does not go to the Ninth Circuit Court, the legal implications of the WDWGB suit could be significant locally. If the advocacy organization continues to win in court, it could mean that Caltrans would need to accommodate unsheltered people with disabilities under the ADA when conducting encampment sweeps.
“It could fundamentally change the way Caltrans—the state—and city governments have to [do] outreach before they do sweeps, to make sure that the accommodations they have are fitting for people. Right now, options for shelter are one-size-fits all,” says Cordova Morales.
While these victories in the district court would not create a binding legal precedent, they would make it easier for unhoused people and attorneys in other places to argue similar cases in the future.
Alastair Boone is the Director of Street Spirit.