Berkeley

The state-court case.

The case involves two large homeless encampments in Berkeley, California—one in the Harrison Street corridor and the other in Lower Dwight. The founding team secured an early victory, with the Superior Court judge denying the City’s attempt to dismiss the case on various theories of governmental immunity. The judge agreed that the plaintiffs were not telling the City how to exercise its law enforcement discretion, but rather that the City is legally responsible for the nuisance and has no discretion to refuse to abate it. Precisely how it does so may be a discretionary matter, but there is no discretion to continue maintaining a nuisance.

Federal litigation and appeals.

The case then took an interesting turn. A few months after the lawsuit was filed, the City finally started to take action to clean up some of the encampments. But the City was then sued in federal court by homeless advocacy organizations arguing that the City was violating the Fourteenth Amendment and the Americans with Disabilities Act (ADA) by removing certain encampments. A San Francisco federal judge agreed with them.

The founding team thought this was a clear attempt to end-run around the recent U.S. Supreme Court case City of Grants Pass v. Johnson, which ruled that there is no constitutional right to shelter in public. The San Francisco judge is just one example of how an activist judiciary can thwart efforts to clean up cities. Residents and business owners should be represented in these proceedings, too. That is precisely what the Clean Commons Initiative is doing. The founding team is participating in the several appeals to the U.S. Court of Appeals for the Ninth Circuit, which have been consolidated for oral argument on February 11, 2027.

Where the case stands.

In the meantime, the City has (finally) cleaned up most of the bigger encampment. The state court proceedings will also resume in the new year.