Judge allows Berkeley homeless encampment sweep, sets guidelines
OAKLAND, Calif. (CN) — A federal judge on Wednesday lifted an order blocking the city of Berkeley from sweeping a homeless encampment and set out guidelines for the city before it takes action.
U.S. Senior District Judge Edward Chen said that the city had done its part to provide accommodations to those living at the encampment on 8th and Harrison Streets in Berkeley, removing the temporary restraining order that had been in place since Sept. 5.
The plaintiffs filed for the temporary restraining order after the city notified residents of the camp on Sept. 1 that they would have three days to leave the area and consolidate their possessions. The city claimed the camp was a fire hazard that contained detritus and used needles.
Chen ordered Berkeley to provide clear notice at least 72 hours in advance of any abatement, to be delivered on a weekday — not over the weekend, like the Sept 1 notice. Officials must make clear that the abatement is not permanent, and people may return after it ends, and provide a timetable.
The judge also wants the city of Berkeley to help those with mobility problems move into motels, and allow them to keep their pets for the duration of their stays.
Finally, Chen ordered the city to make an effort to store tents and other personal structures, even if they are soiled. If an item is too unsanitary to be stored, the city of Berkeley must give the camper another tent at a comparable value.
“It’s not too much to ask,” Chen said.
“I think the city has a very strong interest in abating the current situation. I think they made a very specific factual showing of health hazards here that are fairly urgent, and I think it warrants action. I think by offering housing the city is meeting its constitutional obligations.”
Marc Shapp, the deputy city attorney for the city of Berkeley, confirmed at a hearing Wednesday that the abatement is not intended to be permanent, and residents can move back to the camp afterward.
“For the time being, there is not a specific order to leave the area,” Shapp said.
Likewise, Shapp said, the Sept. 1 notice was not intended to clear the area for good, but for a cleaning period.
“The ask is for individuals to consolidate their belongings into a small enough area to provide access to abate the health and safety concerns,” Shapp said.
Chen asked how long the cleanup would take, but city attorneys said a timeline was impossible to estimate.
“Historically this has taken several days but it could take longer,” said Ashley Carter, Berkeley deputy city attorney.
While the abatement is underway, campers will be provided shelter by the city. Campers will have the option to stay in the housing permanently even after the abatement is over, Carter said.
“The ultimate plan is to move people into housing if at all possible,” Shapp said.
Melissa Reiss, counsel for the plaintiffs, said the offer for housing is not good enough.
“This is actually a motel program with a long list of rules and regulations,” Reiss said. “People who run the program often come into people’s rooms in order to do checks on them, so there is a lack of privacy. People are not allowed to have visitors come and see them in their space.”
In addition to those concerns, Reiss said there are limitations on what belongings people can bring to the motels as well as limits on emotional support animals.
“If you have been living on the streets, and you are being offered this spot in a motel, and you have to give up your belongings that you had on the street to get into the motel — and then have a number of rules imposed on you,” Reiss said, “you would understandably be concerned that you would be kicked out of the program relatively quickly and end up back on the street without the survival gear that you had collected.”
“It’s not perfect, I understand,” Chen told Reiss. But he said the city of Berkeley was within its rights, and likely in compliance with ADA regulations, in offering people other accommodations while the camp is cleaned.
“The city is committed to addressing the challenge of its unhoused population in a manner that’s consistent with the Constitution,” Shapp said.