In the recently decided case, Where Do We Go Berkeley et al. v. California Department of Transportation, the Ninth Circuit weighed in on how a public entity, Caltrans, may clear homeless encampments on its property, and what is required by the Americans with Disabilities 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-of-ways 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’ “program.” The Ninth Circuit also held that the district court abused its discretion in evaluating the harm to Caltrans and public safety and erred in balancing the equities.

In this case, Caltrans sought to clear its property 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 generally provides 72-hour notice to vacate and no notice for immediate health or safety hazards, and then clears encampments in coordination with shelter providers.

On June 8, 2021, Caltrans provided 72-hour notice of its intention to clear the encampment. The following day, plaintiffs sued Caltrans, claiming clearing of the encampment violated the ADA. They sought a preliminary injunction, which was granted in part, preventing Caltrans from clearing the encampment for six months. Caltrans appealed.

To state a claim for a violation of Title II of the ADA, plaintiffs were required to show that: (1) they are qualified individuals with disabilities; (2) they were either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or were otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of their disabilities. The Ninth Circuit first focused on the nature of Caltrans’ “program” under the ADA. It found that Caltrans' “program” was limited to the goals set out in its policy and that Caltrans had no specific duty to provide shelter as part of its program. Caltrans’ “program” for Level 1 encampments was to provide, when possible, 72-hour notice before clearing, and coordinate with local partners (including shelters), but not to provide relocation or shelter services.

Next, the Ninth Circuit considered whether the district court’s requirements imposed a “reasonable modification” of Caltrans’ program or a “fundamental alteration” that could not be required under the ADA. It found the six-month delay imposed by the district court was a “fundamental alteration” of the program and the fundamental alteration had deprived Caltrans of the “expedient” clearing of Level 1 encampments. It also found that forcing Caltrans to provide alternate housing as part of its program would require Caltrans to provide previously un-provided services, with no regard to the safety risks posed by Level 1 encampments. Because Caltrans does not provide housing as part of its “program,” the Ninth Circuit held that the district court could not make clearing Level 1 encampments dependent on timing of relocation.

The Ninth Circuit also found error with the district court’s entry of a preliminary injunction based on the district court’s determination that plaintiffs had articulated a merely “plausible” claim of discrimination under Title II’s second clause. Issuance of preliminary injunctions is normally considered under a “sliding scale” approach, and the district court found the balance of hardships tipped sharply in plaintiffs’ favor, that there was a likelihood of irreparable injury, and the injunction was in the public interest; as such, the district court found that plaintiffs need only show a “serious question” on the merits. However, the Ninth Circuit stated that the entry of a preliminary injunction was not appropriate absent an examination on the merits, and further found that the district court had failed to properly analyze precedent that had established that Title II’s second clause regarding discrimination is meant to prohibit intentional discrimination in a public entity’s programs, which was not sufficiently alleged, rendering plaintiffs’ claims of discrimination implausible.

Finally, the Ninth Circuit also found fault with the district court’s consideration of the ability of Caltrans to reopen previously closed encampments to the plaintiffs in the balancing of equities. The district court had indicated that Caltrans could avoid the preliminary injunction if it would relocate campers to a different Caltrans property—which itself had previously been cleared. The Ninth Circuit held that the district court improperly factored in the ability of Caltrans to provide relocation, which the district court could not impose as a requirement since that would go beyond preserving the status quo.

In summary, the ruling provides guidance as to what public agencies' obligations are under the ADA and is the first case to find that clearing public properties of encampments is a “program” under the ADA. In addition, the ruling provides public agencies further assurance that 72-hour notice is reasonable notice before clearing encampments presenting a “critical safety concern,” and immediate removal without notice can be warranted. The decision will stand as a case where the court has limited the rights of the unsheltered where critical competing safety concerns exist.