Berkeley Homeless Union wins new restraining order, delaying encampment closure at Eighth and Harrison

On August 10, Federal Judge Edward Chen extended a restraining order preventing the City of Berkeley from removing Berkeley Homeless Union (BHU) members from their encampment at Eighth and Harrison Streets. The extension of the restraining order came after the judge determined that the city was not following a requirement to engage in an interactive process to determine whether BHU members were eligible for disability-related modifications under the Americans with Disability Act (ADA). 

The new restraining order follows a string of recent legal actions related to the closure of the encampment. Last month, BHU filed an emergency motion to hold the City in contempt for violating a June 10 injunction by the court, which had barred the closure of the camp until the city completed an interactive process to identify disability accommodations. Before that, the court had issued successive temporary restraining orders on behalf of BHU members who live in the encampment, in February and June. 

The interactive process is a federally mandated procedure under the ADA. It requires governments to adopt reasonable modifications to accommodate disabilities. The June 10 injunction had been set to expire on August 10, after the ADA process was expected to be complete. I helped file BHU’s motion for contempt, and I participated in the interactive process as a representative of the California Homeless Union, which is providing legal support to BHU in this case.

The recent emergency restraining order was granted to BHU members after the group argued that Berkeley Deputy City Attorney Iris Mattes shut down the in-person meetings that were part of the required interactive ADA process. 

Mattes says she shut down the in-person meetings because a BHU member threatened her during an earlier meeting, claiming the woman said, “Say we, why don’t I take you out there with me and put you in the water, and you commit suicide with me?” Mattes alleged that this meant the the woman was threatening to drown her and make it seem as though she had committed suicide.

The woman, however, denied threatening Mattes. In a filing, the woman gave her side of the story of her statement: 

Throughout the meeting, I listened and sat composed at the table. But at the end, after hearing nothing but denials from city staff and language that suggested for me ‘to remove myself from the Harrison corridor’ like if I was garbage, I felt desperation. When I said to Iris Mattes, ‘Why don’t I take you out there with me and put you in the water and you commit suicide with me,’ I was not threatening anyone. I was trying to explain how hopeless I felt in this situation. It’s sink or swim, and I feel like I am drowning in despair. I felt invisible and discarded by the City, and I needed them to understand how serious this is for me.

I was present at a number of the interactive ADA meetings as an advocate to assist BHU members in the process. The meetings were hours long, with unhoused BHU members and city officials sitting on opposite sides of the table, going through long lists of possible accommodations for the planned sweep at 8th and Harrison. The experience was often grueling, with BHU members and officers proposing modification after modification to accommodate their disabilities, and city officials refusing these proposals, saying the requests were “outside the scope” of city programs. During the eight-week process, the city did not accept a single modification requested by the BHU. Unable to find common ground, the tension in the room culminated in the alleged threat to Mattes as the unhoused member of the BHU expressed the pain and suffering she felt the city was inflicting upon her.

After another similarly tense meeting, Mattes cancelled all future meetings, citing concern that BHU members were unable to promise that she would not receive threats moving forward. Mattes also did not identify alternative locations for encampment residents, even though she previously assured the court that alternative city-owned properties where camping would not be prohibited could be found. 

Federal Judge Edward Chen expressed anger and frustration at the city’s refusal to identify alternative sites, at times raising his voice at city attorneys during the hearing on August 10. Instead of ruling on contempt, Judge Chen ordered the parties to negotiate the ADA claims with Magistrate Judge Robert Ilman. Until then, the City remains barred from clearing BHU members from the encampment at Eighth and Harrison.

The parties are now ordered to meet with Magistrate Judge Ilman to address the ADA claims and conditions at Eighth and Harrison. The timeline for the end of the preliminary injunction is uncertain, and until then, BHU members may remain in the encampment.

The case reflects a wide variation in application of the ADA in homeless litigation since the Grants Pass ruling in the Supreme Court last year. The BHU case represents the first long-term restraining order in the United States preventing an encampment eviction under the ADA since the Grants Pass ruling ended Eighth Amendment protections for unhoused people under the US Constitution. While the BHU’s success with finding protection for unhoused plaintiffs using the ADA represents a significant victory, other courts are ruling differently. In a different case I am involved in, a federal judge in Marin County denied a preliminary injunction under the ADA for a small encampment in Fairfax (Scwarz v Town of Fairfax). That case was argued under a similar legal theory to the one in Berkeley, but the desired restraining order was denied on August 20. Similarly, in July, another court in Berkeley denied a restraining order on similar grounds for the encampment at Ohlone Park. These disparate rulings portray the high standards and fact-specific determinations courts are placing on unhoused litigants looking for legal protections post-Grants Pass.