PRESIDENT’S MESSAGE HOMELESS ENCAMPMENTS Where Do We Go From Here? SERGIO RUDIN AND ELI FLUSHMAN
In the recently decided case, Where Do We Go Berkeley et al. v. California Department of
“program.” The Ninth Circuit also held that the district court abused its discretion in
Transportation, the Ninth Circuit weighed in on how a public entity, Caltrans, may clear
evaluating the harm to Caltrans and public safety and erred in balancing the equities.
homeless encampments on its property, and what is required by the Americans with Disa-
In this case, Caltrans sought to clear its prop-
bilities Act (“ADA”) when “critical safety concerns” are present (9th Circuit No. 21-16790, April 27, 2022). The Ninth Circuit determined that Caltrans’ acts to remove homeless encampments from highway rights-ofways was a “program” subject to the ADA. The Ninth Circuit then vacated the district court’s preliminary injunction, which would have delayed Caltrans from clearing encampments located near a highway exit ramp for six months, finding the delay was not a “reasonable modification” of Caltrans’
erty of an encampment. Based on its own policies, Caltrans triaged removal of encampments based on the risks posed. Under Caltrans’ policies for clearing encampments, the encampment at issue was categorized as a Level 1 encampment because it presented “a critical safety concern” based on its location adjacent to a highway exit ramp. Level 1 encampments required urgent relocation when
compared with other kinds of encampments—which allowed more time for relocation or required no relocation at all. Before clearing a Level 1 encampment, Caltrans
Photo by Levi Meir Clancy on Unsplash
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
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