Prado v. City of Berkeley

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 YESICA PRADO, et al., Case No. 23-cv-04537-EMC

8 Plaintiffs, ORDER DENYING PLAINTIFFS’ 9 v. MOTION FOR PRELIMINARY INJUNCTION 10 CITY OF BERKELEY, Docket No. 2 11 Defendant.

12 13 14 Plaintiffs are four individuals: Yesica Prado, Lucian Jeffords, Erin Spencer, and Angel 15 Kennett. Plaintiffs are currently unhoused and reside in or use an encampment located in 16 Defendant the City of Berkeley – specifically, the encampment located in the area of 8th Street 17 and Harrison Street. Plaintiffs filed suit over the Labor Day weekend after the City issued a notice 18 indicating that there would be an emergency abatement of at least part of the encampment. This 19 Court issued a temporary restraining order enjoining the City from taking action through 20 September 27, 2023, i.e., the date of the hearing on Plaintiffs’ motion for a preliminary injunction. 21 Plaintiffs now ask for a preliminary injunction to “restrain[] [the City] from displacing the 22 residents of 8th and Harrison until adequate shelter is available for them and until [the City] can 23 do so without violating the constitutional and statutory rights of Plaintiffs.” Mot. at 2. Plaintiffs 24 also seek a preliminary injunction enjoining the City from destroying their property. See Mot. at 25 2. 26 Having considered the parties’ briefs and accompanying submissions, as well as the oral 27 argument of counsel, the Court hereby DENIES Plaintiffs’ motion for a preliminary injunction. 1 at Harrison, between 7th and 8th, but subject to certain conditions as specified below. 2 I. FACTUAL & PROCEDURAL BACKGROUND 3 A. Encampment 4 The homeless encampment at issue is generally in the area of 8th and Harrison. A part of 5 the encampment – not the entire encampment – is located on Harrison between 7th and 8th. 6 It is not clear from the record how long the overall encampment, or even that specific part, 7 has been there. It appears, however, that all or part of the encampment has existed for several 8 years. In addition, it appears that the City has provided certain services to the encampment since 9 2021 – e.g., dumpsters, port-a-potties with wash stations, access to mobile showers and a laundry 10 service, and even, on occasion, tents and tubs. See Radu Decl. ¶ 7(a)-(c), (g). There have been 11 nine deep cleanings of the encampment. See Radu Decl. ¶ 7(f). 12 At some point in February 2022, the encampment was closed, and there have been three 13 “partial closures” thereafter. See Radu Decl. ¶ 7(e). The record does not reflect how the present 14 encampment reappeared. This pending suit was filed after the City issued notices indicating that it 15 intended to abate part of the encampment – as now clarified, that part located on Harrison between 16 7th and 8th. 17 B. Housing Options 18 The City has contracts with shelters to provide housing options for homeless persons. This 19 includes the Berkeley Inn and the Super 8 Motel (also known as the Campus Motel). Both the 20 Berkeley Inn and the Super 8 provide for noncongregate housing. See Radu Decl. ¶ 8. In 21 addition, at both locations, there are no curfews, and a resident can come and go as he or she 22 pleases. See Radu Decl. ¶ 9. “Shelter participants may bring up to two 64-gallon trash bags of 23 personal belongings into their room and the City has also provided additional onsite storage.” 24 Radu Decl. ¶ 9. 25 C. Plaintiffs 26 The evidence of record reflects the following about Plaintiffs. 27 • Ms. Prado is a 31-year-old woman. See Prado Decl. ¶ 2. She is a journalist 1 community advocate. She has been unhoused and living in an RV since 2017. See 2 Prado Decl. ¶ 3. In August 2018, she began to live in her RV at the encampment at 3 8th and Harrison. See Prado Decl. ¶ 3. The RV is “currently parked on 8th Street 4 between Harrison and Gilman Streets” – i.e., outside the area subject to abatement. 5 Prado Decl. ¶ 4. The RV is operable but has mechanical issues that prevent it from 6 being moved more than a few hundred feet. See Prado Decl. ¶ 4. Ms. Prado had an 7 intake appointment for shelter at the Super 8 Motel on September 12, 2023. At the 8 time she accepted the appointment, she was not told what the conditions of housing 9 were. See Prado Decl. ¶ 8. Subsequently, she was told that she cannot park her RV 10 at the motel and that she cannot leave it at 8th and Harrison. See Prado Decl. ¶ 11. 11 She also has been told that she cannot have visitors at the motel even though her 12 “community is critical to [her] mental health.” Prado Decl. ¶ 11. The City 13 indicates that, on September 12, Ms. Prado did not relocate to the Super 8 Motel 14 because “she unexpectedly requested that she record her intake (which takes place 15 with a non-profit, not city staff) and have her attorney present. . . . The intake was 16 rescheduled for September 28 . . . .” Radu Decl. ¶ 12(a)(iii). 17 • Mr. Jeffords has lived in the encampment for five years. He currently lives in an 18 RV which “can be moved but only [for] short distances.” Jeffords Decl. ¶ 2. 19 According to the City, he was repeatedly offered shelter at both the Super 8 Motel 20 and at Berkeley Inn, as well as permanent housing at the Depot in Hayward. “He 21 declined the Super 8 offers, stating that he did not want to be near his Harrison St[.] 22 neighbors, but stated he was interested in the Berkeley Inn and Depot housing 23 option.” Radu Decl. ¶ 12(c). Mr. Jeffords, however, was told that he cannot park 24 his RV at the Berkeley Inn, see Jeffords Decl. ¶ 4, and he is not aware of an area in 25 Berkeley where he can park the RV “for a long time on the street.” Jeffords Decl. ¶ 26 3. According to the City, Mr. Jeffords has admitted that his RV is infested with 27 rats, see Radu Decl. ¶ 12(c)(i), but Mr. Jeffords disputes such. Mr. Jeffords was 1 Jeffords Decl. ¶ 8. But see Radu Decl. ¶ 12(c) (indicating that the City offered to 2 take the additional cat to the animal shelter to find a new home). As indicated 3 above, Mr. Jeffords was also offered shelter at Abode Housing in Hayward, but he 4 was unable to go to Hayward to view the housing option “due to medical issues.” 5 Jeffords Decl. ¶ 3. Mr. Jeffords has medical issues that have left him “unable to eat 6 for days at a time and very physically weak.” Jeffords Decl. ¶ 5. He is not able to 7 “engage in any physical activity such as moving objects and remaining on [his] feet 8 for long periods of time.” Jeffords Decl. ¶ 5. Mr. Jeffords affords no other 9 description of his alleged disability. 10 • Mr. Spencer is a retired member of the marines. He has lived at the encampment 11 at 8th and Harrison for a year. See Spencer Decl. ¶ 3. He has a “service-related 12 disability in [the] right shoulder.” Spencer Decl. ¶ 2. Specifically, his “collar bone 13 puts pressure on the nerve that goes underneath, causing [him] chronic pain and 14 limiting [his] range of motion and ability to left heavy objects.” Spencer Decl. ¶ 2. 15 Mr. Spencer has received an offer of shelter at the Super 8 but he has “not accepted 16 it because it does not accommodate [his] disability and other needs; specifically, no 17 visitors are allowed, and there are severe limitations on how many personal items” 18 can be brought which affects his ability to do work (e.g., using his tools). Spencer 19 Decl. ¶ 7. In addition, he cannot cook for himself at the Super 8 Motel. See 20 Spencer Decl. ¶ 7. According to the City, Mr. Spencer has been repeatedly offered 21 shelter but has declined on the basis that the shelter offered does not allow visitors. 22 See Radu Decl. ¶ 12(b). 23 • Ms. Kennett is a 41-year-old woman with several disabilities, “including OCD and 24 anxiety.” Kennett Decl. ¶ 3. She also had ovarian cancer in the past. See Kennett 25 Decl. ¶ 3. She currently has a place at the Berkeley Inn but she keeps items that 26 she is not allowed to take there in the encampment at 8th and Harrison. This 27 includes, e.g., bedding and a tent. See Kennett Decl. ¶ 4. She also feels safer being 1 maintains. See Kennett Decl. ¶ 7. For example, Berkeley Inn has a no visitors 2 policy, and it also bars residents from socializing with other residents (which 3 prevents Ms. Kennett from socializing with her brother). See Kennett Decl. ¶ 8. 4 Also, Berkeley Inn prohibits residents from deadbolting doors from the inside. See 5 Kennett Decl. ¶ 9. Ms. Kennett has been at the Berkeley Inn since mid-March 6 2023. See Radu Decl. ¶ 12(d). 7 D. City Notices 8 As indicated above, Plaintiffs brought suit over the Labor Day weekend after the City 9 issued notices indicating that, e.g., there would be an emergency abatement of a certain part of the 10 encampment. The City has provided evidence indicating what led to the issuance of the notices. 11 That evidence reflects as follows. 12 From May through July 2023, three community meetings were held between City staff and 13 residents and advocates of the encampment “to discuss resources and how to improve safety.” 14 Radu Decl. ¶ 7(i). 15 Subsequently, on August 23, 2023, the City conducted an investigation of the 16 encampment. The investigation was initiated by the City’s Homeless Response Team (“HRT”).1 17 The Environmental Health Division and the Fire Department participated in or attended the 18 investigation. See Torres Decl. ¶ 3; Shaffer-Killey ¶ 7. 19 On August 30, 2023, the Environmental Health Division and the Fire Department each 20 provided the City Manager’s Office with a memo detailing its findings related to the encampment. 21 The memo from the Environmental Health Division stated, inter alia, that there “several 22 areas along the north side of Harrison St.” which were problematic. Torres Decl., Ex. A (Environ. 23 Memo. at 1). The memo further stated that the conditions rose “to the level of an imminent health 24 hazard, particularly [given] findings of used syringes, areas where raw sewage was observed and 25

26 1 The City created the HRT “to bring multiple departments together in addressing the needs of the unhoused population. The HRT has representatives from Fire; Police; Public Works; Parks, 27 Recreation, and Waterfront; Environmental Health; Parking Enforcement; Health, Housing, and 1 the proliferation of rat burrows all along the Harrison St[.] corridor.”2 Torres Decl., Ex. A 2 (Environ. Memo. at 1). Thus, the Division recommended that “those areas identified in the . . . 3 report be summarily abated to minimize the impact to the residents and general public.” Torres 4 Decl., Ex. A (Environ. Memo. at 1); see also Torres Decl. ¶ 4 (testifying that “[t]he presence of rat 5 burrows and accumulation of food and debris on Harrison Street between Seventh and Eighth 6 Streets created an environment conducive to the proliferation of rats, which increases the disease 7 transmission from rats to residents of the area and the surrounding community”); Torres Decl. ¶ 8 3(b) (testifying that there were “used hypodermic needs scattered over a 400 square foot area 9 along the north side of Harrison St[.], between Seventh and Eighth St.,” that “[t]he presence of the 10 used hypodermic needles alone constitutes a significant potential for possible disease transmission 11 by accidental prick,” and that “the large amounts of personal belongings mixed in with other 12 miscellaneous debris and trash increases the potential for accidental needle pricks”). 13 The Fire Department’s memo noted, inter alia, that, from January through August 2023, 14 there were 29 fire-related incidents at the part of the encampment on Harrison between 7th and 15 8th. See Shaffer-Killey Decl., Ex. A (Fire Memo. at 1-2) (listing incidents). The memo also 16 stated that it found “multiple fire and building code violations” based on the August 23 17 investigation – e.g., “[t]he structure does not have adequate fire separation distance and fire- 18 resistive construction,” and “[a]ccumulations of combustible waste materials are present in and 19 around the structure and the adjacent encampment areas.”3 Shaffer-Killey Decl., Ex. A (Fire 20 Memo. at 2). Finally, the memo stated that “[t]he number and types of calls combined with the 21 observed code violations are sufficiently concerning for the Berkeley Fire Department to 22 recommend that the encampments on the north side of Harrison St. be abated summarily.” 23 Shaffer-Killey Decl., Ex. A (Fire Memo. at 2). 24 On August 31, i.e., the day after the memos from the Environmental Health Division and 25 Fire Department were provided, Peter Radu (the Assistant to the City Manager) wrote a memo to 26

27 2 The memo includes some photographs related to the Environmental Health Division’s concerns. 1 the City Manager. Mr. Radu provided some history on service efforts for the encampment and 2 then provided an assessment on current conditions there.

3 [F]or months (and at present) the [Homeless Response Team] continues to observe dead animals, open food sources and spoiled 4 food, used uncapped drug needles, combustible materials like flammable gas containers inside unsafe wooden structures, bottles of 5 urine, human feces, animal feces, soiled clothing and sheltering material, and other unidentifiable liquid and waste products. In 6 addition, the large accumulation of debris and ad-hoc sheltering structures has completely blocked the sidewalk and extended into 7 the roadway, creating numerous concerning fire and traffic safety hazards. 8 RECOMMENDATION 9 The HRT and City Manager’s Office will continue to work to 10 finalize the Good Neighbor Guidelines for future implementation at encampments around the City and will continue the ongoing process 11 of moving residents inside the new Super 8 or other City shelter resources. The City has also formally engaged the Alameda County 12 CoC with a recommendation to prioritize this encampment for permanent supportive housing referrals, with a memo dated July 13 20, 2023, and that recommendation is under discussion.

14 In the meanwhile, however, the Berkeley Fire Department and Environmental Health Divisions have observed alarming conditions 15 that justify their declaring Harrison St between 7th and 8th Streets an imminent health hazard (see attached memos and reports). 16 Therefore, to resolve these dangerous nuisance conditions now as we work towards a fuller resolution of the entire encampment in 17 the near future, we recommend a summary nuisance abatement of the encampment conditions Harrison St between 7th and 8th 18 Streets. 19 Radu Decl., Ex. A (Memo. at 2-3) (emphasis in original). 20 The City Manager responded the same day, approving summary abatement. See Radu 21 Decl., Ex. B (email). The following day, September 1, 2023, two different notices were issued 22 and posted. The notices were not handed out to campers or placed on vehicles belonging to 23 campers but rather were publicly posted.4 See, e.g., Prado Decl. ¶¶ 5-6. 24 One notice was a Notice of Abatement (“Notice of Imminent Health Hazard and 25

26 4 In its papers, the City notes that a third set of notices was given to Mr. Spencer specifically. See Shaffer-Killey Decl. ¶¶ 9-10 (testifying that “I posted a Notice of Fire Hazard on a structure . . . 27 later identified as [one] belonging to [Mr.] Spencer” as well as a warning notice stating that “the 1 Emergency Abatement Beginning Sept 4, 2023”); the other notice was a Notice of Violation 2 (“Shared Sidewalk Policy – Notice of Violation”). See Prado Decl. ¶ 10 & Exs. A-B (notices). 3 1. Notice of Abatement 4 The Notice of Abatement was issued to “Persons Encamped and Vehicles Parked on 5 Harrison Street between 7th Street and 8th Street.” See Prado Decl., Ex. A (Not. of Abatement at 6 1). The City emphasizes that

7 that precise section of the larger encampment is the only area subject to the notice and the only section the City intends to clear pursuant 8 to the imminent health hazard declaration. Any RVs parked along 8th Street (e.g., Plaintiff Prado’s) are not subject to the specific 9 notice being challenged. This is also why Plaintiff Prado’s intake interview was scheduled for September 12, 2023, after the 10 abatement; as they were not going to be affected by the abatement. 11 Radu Decl. ¶ 16. 12 The Notice of Abatement began by noting that, on August 23, 2023, the Environmental 13 Health Division and Fire Department for the City had conducted a site visit which

14 revealed significant health and safety hazards due to the presence of excessive amounts of accumulated garbage, raw sewage, open food 15 sources, unsafe structures with combustible materials, numerous loose syringes and various personal property items which have 16 expended onto the City’s rights-of-way. The conditions observed at the time of the site visit are conducive to the proliferation of rats, 17 which increases the potential for disease transmission from rats to the residents in this area and the surrounding community. The 18 presence of numerous rat burrows within and adjacent to the encampment is evidence of a thriving rat population. 19 20 Prado Decl., Ex. A (Not. of Abatement at 1). 21 The Notice of Abatement then stated that the Manager of Environmental Health had 22 “declared the conditions to be an imminent health hazard and public nuisance pursuant to Berkeley 23 Municipal Code Sections 11.36.030 and 11.36.050, and the City Manager ordered a summary 24 abatement of these conditions, on August 31, 2023.”5 Prado Decl., Ex. A (Not. of Abatement at 25 5 Section 11.36.030 provides: “For the purpose of this chapter, the existence of the following 26 condition is declared to constitute an imminent health hazard: the discharge of sewage, garbage or any other organic filth into or upon any place in such a manner that transmission of infective 27 material to human beings may result therefrom.” Berkeley Mun. Code § 11.36.030. 1 1). The underlying Municipal Code violations identified in the notice were: violations of §§ 2 11.32.050, 11.32.070, 17.20.030, and 17.20.050.6 See Prado Decl., Ex. A (Not. of Abatement at 3 1). The notice also indicated that there were violations of Berkeley Municipal Code § 4 14.48.020.7 5 Abatement would include “destruction of any property constituting [a] nuisance if the 6 nuisance cannot be abated otherwise.” Campers were instructed to “address the nuisance 7 conditions listed below, by discarding garbage and any items creating a rodent harborage or other 8 health hazards, and reduce your belongings to a 9-square-foot footprint by or before September 4, 9 2023 [i.e., Labor Day].” Prado Decl., Ex. A (Not. of Abatement at 1-2). 10

11 declared to be a public nuisance and may be abated as provided in Sections 11.40.040 through 11.40.120 of this code. Each imminent health hazard as defined in this chapter is declared to be a 12 public nuisance and may be abated as provided in Sections 11.40.130 through 11.40.160 of this code.” Berkeley Mun. Code § 11.36.050. 13

6 Section 11.32.050 provides: “No person shall possess, occupy or maintain, or cause or permit 14 another person to occupy or maintain, any building, structure, vehicle or any other place in such a condition as will permit the breeding or harboring therein, or thereon, of rodents or any other 15 vermin.” Berkeley Mun. Code § 11.32.050.

16 Section 11.32.070 provides: “No person shall place, leave, dump or permit to accumulate any garbage or rubbish in or upon any building, structure or place so that the same shall afford 17 food and/or harborage for rodents. No person shall accumulate or permit the accumulation on any place, premises or on any open lot any lumber, building material, boxes, paper, rags, excess or 18 dense vegetation, or any material that may be permitted to remain thereon that may serve as a rodent harborage, unless the same shall be place don open racks that are elevated not less than 19 eighteen inches above the ground and evenly piled or stacked, or otherwise made reasonably unsuitable as a rodent harborage by such manner as may be approved by the chief of 20 environmental health.” Berkeley Mun. Code § 11.32.070.

21 Section 17.20.030 provides: “Except as otherwise expressly exempted below, it is unlawful to discharge any matter except stormwater into the storm drain system.” Berkeley Mun. Code § 22 17.20.030.

23 Section 17.20.050 provides (in relevant part): “Any person engaged in activities which will or may result in pollutants entering the storm drain system shall undertake all practicable measures 24 to reduce or prevent the contamination of stormwater by pollutants. Such measures shall include, but are not limited to, adherence to the following requirements [e.g., littering prohibited, 25 requirements for construction and development].” Berkeley Mun. Code § 17.20.050.

26 7 Section 14.48.020 provides (in relevant part): “It is unlawful for any person to place or cause to be placed anywhere upon any Sidewalk, Parklet or roadway, any object which obstructs, restricts, 27 or prevents the use of any portion of such Sidewalk, Parklet or roadway, except as set forth in this 1 The Notice stated that the City

2 will discard items you no longer wish to keep at your request. The City can temporarily store a limited amount of certain types of 3 personal property up to 90 days, depending on value. However, please ensure that you keep with you all necessary personal 4 belongings (medications, identification, electronics, wallets), items of value, clean and unsoiled shelter items, and items of 5 special importance to you. Personal property left unattended may be collected and stored pursuant to the City’s policy, if it meets 6 certain requirements, described in more details below:

7 1. Personal property that may be stored up to 90 days includes property of a personal nature such as identification; photos/photo 8 albums; tents, sleeping bags, bedding (which is deemed to be in serviceable condition); luggage, backpacks, purses; clothing; 9 documents (together in a packet bound or secured in some way); jewelry; medication; eyewear; electronic equipment; tools; 10 bicycles and other non-motorized methods of transportation which are in working order. 11 2. Items that will not be stored and are subject to disposal if left on public property at the time of the abatement include but 12 are not limited to: soiled or moldy items; loose or scattered papers; wet or damp clothing, bedding or sleeping bags; 13 perishable food or personal products; personal hygiene products such as toothbrushes or hairbrushes; bike carcasses and parts; 14 mattresses, futons, furniture; shopping carts (items easily identified as personal belongings and meeting the criteria for 15 storage may be stored); broken or disassembled items or items stripped of parts; weapons; items that attract rodents or insects 16 (containers for recycling or food storage); hazardous or explosive items such as gasoline cans, propane tanks, batters. Property 17 that is so entangled with hazardous material that it is unsafe for the City to sort through (i.e., visible presence of needs, 18 rodents, bodily waste, etc.) will not be sorted and stored and will be subject to disposal. 19 Unattended property will be handled in accordance with City policy. 20 Individuals who wish to reclaim their property may call “311” to contact the City’s Customer Service Center during regular business 21 hours (Monday-Friday, 9:00 AM to 3:00 PM), or call (510) 981- 2489 or (510) 981-CITY. Alternatively, information regarding 22 retrieval of unattended and stored property is available in the lobby of the Berkeley Civic Center, 2180 Milvia Street, Berkeley, during 23 regular business hours.

24 Vehicles may be subject to two and impound if authorized by the Vehicle Code and community caretaking needs. 25 26 Prado Decl., Ex. A (Not. of Abatement at 2) (emphasis in original). 27 The Notice of Abatement concludes by warning that “[f]ailure to comply may result in the 1 prefers not to cite or arrest in order to gain your compliance with this notice. However, 2 absent voluntary compliance, failure to comply may result in citations and/or arrest.” Prado 3 Decl., Ex. A (Not. of Abatement at 3) (emphasis in original). It also provides information about 4 appeal rights (to the City Manager) – but “because of the imminent health hazards at this location, 5 any request for a hearing will not prevent the city from abating the hazards as soon as possible 6 beginning Sept 4, 2023, if you do not comply prior to that date.” Prado Decl., Ex. A (Not. of 7 Abatement at 3). 8 The City maintains that it is

9 prepared to offer shelter to Harrison St[.] residents during the emergency abatement action. The City is also prepared to store all 10 belongings that can be properly stored under City policies (including the use of a 40-foot shipping container purchased with HRT funds 11 and located at the Super 8 motel for this very purpose), discard any remaining hazardous items, and provide help in moving Plaintiffs’ 12 belongings that can be kept at the shelter. 13 Radu Decl. ¶ 18. 14 2. Notice of Violation 15 The Notice of Violation was issued either to “Persons at Harrison” or “Persons at Harrison 16 Between 8th/7th.” See Radu Decl. ¶ 17; see also Radu Decl., Ex. D (Not. of Violation). 17 The Notice of Violation refers to a violation of the City’s “Shared Sidewalk Policies, BMC 18 sections 14.48.020 and 14.48.120, due to the accumulation of your possessions at the above-listed 19 location.”8 Prado Decl., Ex. B (Not. of Violation at 1). It directs individuals to “pack or reduce 20 your belongings to 9 square feet. [¶] The City prefers not to cite or arrest in order to gain your 21 compliance with this notice. However, absent voluntary compliance, failure to comply may result 22 in citations and/or arrest.” Prado Decl., Ex. B (Not. of Violation at 1) (emphasis omitted). The 23 notice then goes on to contain some of the same language contained in the Notice of Abatement – 24

25 8 Section 14.48.120 provides (in relevant part): “The City Manager may adopt regulations specifying what TNC [Temporary Noncommercial] Objects may be permitted under this Section 26 and where such TNC Objects may be permitted . . . .” Berkeley Mun. Code § 14.48.120. TNC is defined as personal belongings “[i]n the immediate custody and control of a person or persons at 27 substantially all times,” “[n]ot offered for sale or exchange or involved in the solicitation of money 1 i.e., regarding discarding of property, unattended personal property, storage thereof, etc. 2 E. Operative Pleading 3 Based on, inter alia, the above, Plaintiffs filed suit asserting the following causes of action: 4 • Exposure to state-created danger under the Fourteenth Amendment to the U.S. 5 Constitution and Article I, § 7(a) of the California Constitution. 6 • Unreasonable search and seizure under the Fourth and Fourteenth Amendments to 7 the U.S. Constitution and Article I, § 13 of the California Constitution. 8 • Discrimination against persons with disabilities under the Americans with 9 Disabilities Act (“ADA”) and California Government Code § 11135. 10 • Infliction of cruel and unusual punishment under the Eighth Amendment (i.e., a 11 claim under Martin v. City of Boise, 902 F.2d 1031 (9th Cir. 2019)). 12 II. DISCUSSION 13 A. Legal Standard

14 [P]laintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer 15 irreparable harm absent preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. [A 16 court] employ[s] a "sliding scale test," which allows a strong showing on the balance of hardships to compensate for a lesser 17 showing of likelihood of success. Thus, when plaintiffs establish that the balance of hardships tips sharply in their favor, there is a 18 likelihood of irreparable injury, and the injunction is in the public interest, they need only show "serious questions" on the merits. 19 20 Where Do We Go Berkeley v. Cal. DOT, 32 F.4th 852, 859 (9th Cir. 2022) [hereinafter WDWGB]. 21 B. Irreparable Harm/Balancing of Hardships 22 The Court begins its analysis by considering whether Plaintiffs are likely to suffer 23 irreparable harm absent preliminary relief. At the hearing, the City made multiple representations 24 that impact the Court’s view of the irreparable harm factor. 25 • The City stated that any City action here will affect only a portion of the 26 encampment – specifically, Harrison between 7th and 8th – and not the entire 27 1 encampment.9 2 • The City stated that it will only abate the area on Harrison between 7th and 8th. In 3 other words, the City will not be closing that part of the encampment, and people 4 will not be barred from returning to the area to set up camp again once the 5 abatement is completed, at least not in connection with the current abatement 6 action. 7 • The City stated that, historically, abatements have taken only a few days to be 8 completed. Although the City added that more time could be needed for the 9 specific abatement contemplated here (depending on what is uncovered), there is 10 nothing to suggest, as a facial matter, that the abatement would need to continue 11 beyond a week or two. 12 • The City confirmed that it is offering all campers located on Harrison between 7th 13 and 8th housing during the time of abatement (and potentially beyond). 14 Specifically, campers are being offered housing at the Super 8 Motel and Berkeley 15 Inn. Both places provide noncongregate housing, and residents are free to come 16 and go as they wish. 17 • The City confirmed that it will store impacted campers’ belongings during the 18 period of abatement (up to 90 days), subject to valid health and safety concerns. 19 • The City confirmed that it will help campers to move their belongings to the 20 shelters and/or storage. 21 • The City stated that, if essential habitation items such as bedding or tents cannot be 22 stored and will need to be destroyed (e.g., because they are soiled or contaminated), 23 the City will offer the affected campers comparable replacements.10 (Replacements 24 need not be identical, but they should be reasonably comparable.) 25 9 Given this limitation, Ms. Prado is not impacted by the abatement at all. She currently lives in a 26 different part of the encampment.

27 10 The City voluntarily offered to provide comparable replacements after the Court asked whether 1 • The City did not voice objection to a new notice of abatement being issued, 2 including notice 72 hours in advance (not counting weekend days) of the 3 abatement. 4 Plaintiffs protest that, in spite of the City’s representations above, they will likely suffer 5 irreparable harm without preliminary injunctive relief. Their main criticism is that the housing 6 options offered by the City are insufficient given their disabilities. For example, Plaintiffs 7 maintain that they have mental impairments that make it difficult for them to follow the shelters’ 8 rules and regulations which will then lead to their being evicted from the shelters for failure to 9 comply. There is no evidence of record, however, to support this specific claim of mental 10 impairments.11 And even if the Court were to accept the representations made by Plaintiffs about 11 their disabilities – whether in the record or at the hearing – the Court must still balance the 12 hardships claimed by Plaintiffs (if no preliminary injunction relief were to issue) with the 13 hardships claimed by the City (if such relief were to issue). Moreover, the balance of hardships 14 must tip sharply in Plaintiffs’ favor in order for them to obtain relief because, as discussed below, 15 they have not shown they are likely to prevail on the merits of their claims and have shown at 16 most serious questions going to the merits. 17 The City has provided sufficient evidence to support their contention that enjoining 18 abatement – whether entirely or for a significant period of time – would pose a significant 19 hardship on the City. More specifically, enjoining abatement entirely would impose a hardship on 20 both the encampment and the larger community the City represents because there are serious 21 health and safety issues at the encampment that need to be addressed in a timely fashion, as 22 supported by the memos from the Environmental Health Division and Fire Department. This 23 includes used syringes, raw sewage, rat infestations, and fire threats. On the other hand, the 24 hardship to the Plaintiffs of allowing the City to move forward with the conditions attached as 25 articulated herein, would be minimal. The Court, therefore, cannot say at this juncture that the 26 11 As noted above, Ms. Prado is not living in the part of the encampment subject to abatement. 27 The record indicates that Mr. Jeffords and Mr. Spencer have physical impairments only, not 1 balance of hardships tips sharply in Plaintiffs’ favor; this is particularly true given that the City has 2 not only provided evidence of the substantial hardship it would suffer but also made 3 representations to the Court as to how it would temper hardships to Plaintiffs (as well as others in 4 the affected part of the encampment), and the Court will impose conditions to lifting the temporary 5 injunctive relief. 6 C. Public Interest 7 The public interest factor weighs in favor of Defendants. While there is a public interest in 8 ensuring that “members of the community, including the unhoused, are not endangered or parted 9 from their homes and community without cause.” Docket No. 11 (Order at 2), Defendants have 10 offered noncongregate housing to Plaintiffs during the abatement. On the other hand, there is also 11 a strong public interest in abating a significant hazard, and on a timely basis. 12 D. Likelihood of Success on the Merits 13 Particularly because the City is offering alternative housing and assistance in moving 14 Plaintiffs and their belongings to that housing, Plaintiffs have not shown a likelihood of success on 15 the merits. They still have, however, raised serious questions on the merits for many of their 16 claims. 17 For example, on the ADA claim, even if the program here were to be defined narrowly – 18 e.g., a program of abating an imminent health or safety hazard – there are still serious questions as 19 to whether Plaintiffs should be given some time and support to relocate before the abatement takes 20 place. On the state-created danger claim, there are serious questions as to whether the City has 21 exhibited deliberate indifference, particularly as at least some Plaintiffs are disabled and the City’s 22 abatement could deprive them of essential items of living such as bedding, tents, and RVs should 23 those be destroyed and not replaced. With respect to the unlawful seizure claim, there are serious 24 questions as to whether adequate notice of the seizure was given in the first instance. Even if the 25 Berkeley Municipal Code did not require advance notice to be given to Plaintiffs, that does not 26 mean that the Fourth Amendment and/or Due Process Clause did not require such notice. 27 However, with the conditions imposed herein and the new notice to be given, the legal concerns of 1 E. Summary 2 Taking into account the preliminary injunction factors, the Court finds that Plaintiffs have 3 established at most serious questions going to the merits on many of their claims but have not 4 shown that the balance of hardships tips sharply in their favor. Nor have they shown a likelihood 5 of success on this record on their legal claims. The Court’s evaluation of the hardships might have 6 been different if the City had not made the representations it did at the hearing and/or in its papers. 7 In other words, without those representations, the hardships to Plaintiffs would be far greater (e.g., 8 they would not have had a place to stay during the period of abatement and their property essential 9 for habitation could be destroyed). But because of those representations, the hardships to 10 Plaintiffs have been tempered significantly. 11 The Court, therefore, shall dissolve the TRO and not grant Plaintiffs preliminary injunctive 12 relief. In addition, the Court shall allow the City to abate the part of the encampment located at 13 Harrison, between 7th and 8th, but subject to the following conditions (which largely align with 14 the representations made by the City at the hearing): 15 • The City shall issue a new notice of abatement. 16 • Abatement cannot begin unless Plaintiffs are given seventy-two hours’ notice of the 17 abatement. The seventy-two hours does not include weekend days. 18 • Out of an abundance of caution, the notice shall also be publicly posted and placed 19 on structures and vehicles located in the affected area. 20 • The notice shall specify that the only area to be abated is that part of the 21 encampment located on Harrison, between 7th and 8th. 22 • The notice shall specify the exact date that the abatement shall begin and shall 23 provide an estimate as to how long the abatement will take to complete. 24 • The notice shall specify that people are allowed to return to the area to camp after 25 the abatement is complete. 26 • The notice shall provide the information provided in the prior notice and further 27 shall provide instructions to campers on how to designate property for storage and 1 e The notice shall specify that, if essential items for habitation are not appropriate for 2 storage and must be destroyed (e.g., because they are soiled or contaminated), the 3 City shall provide comparable replacements. 4 e The City shall provide comparable replacements for essential habitation items that 5 are destroyed. 6 e Mr. Jeffords’s RV shall not be moved or destroyed but may be cleaned and/or 7 treated for pests. 8 e The City shall provide housing for campers at the Super 8 or Berkeley Inn, at the 9 very least during the period of abatement. 10 e The City shall help campers move themselves or their belongings to the Super 8 or 11 Berkeley Inn and/or to storage. 12 e The housing at Super 8 and Berkeley Inn shall permit one emotional support 13 animal. Wl. CONCLUSION 5 15 For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction is denied, and the A 16 || City may abate the part of the encampment located at Harrison, between 7th and 8th, but subject to i 17 the conditions specified above. A violation of these specified conditions may be deemed a Z 18 || violation of this Court’s order. 19 This order disposes of Docket No. 2. 20 21 IT ISSO ORDERED. 22 23 Dated: September 27, 2023 24 LL 25 lio EDWARD M. CHEN 26 United States District Judge 27 28