Prado v. City of Berkeley

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BERKELEY HOMELESS UNION; No. 25-7341 FRANK MOORE, D.C. No. 3:25-cv-01414-EMC Plaintiffs - Appellees, Northern District of California, San Francisco ADRIEN BOUCHARD, NICHOLAS JOHNSON, ORDER Plaintiffs, v. CITY OF BERKELEY; THOMAS GREGORY; PAUL BUDDENHAGEN; PETER RADU; OKEYA VANCE- DOZIER; RASHI KESERWANI, Defendants - Appellants. BERKELEY HOMELESS UNION; No. 26-842 FRANK MOORE, D.C. No. Plaintiffs - Appellees, 3:25-cv-01414-EMC NICHOLAS JOHNSON, ADRIEN Northern District of California, BOUCHARD, San Francisco Plaintiffs, v. CITY OF BERKELEY; THOMAS GREGORY; PAUL BUDDENHAGEN; PETER RADU; OKEYA VANCE- DOZIER; RASHI KESERWANI, Defendants - Appellants. BERKELEY HOMELESS UNION, No. 26-2755 Plaintiff - Appellee, D.C. No. 3:25-cv-01414-EMC ADRIEN BOUCHARD, NICHOLAS JOHNSON, FRANK MOORE, Northern District of California, San Francisco Plaintiffs, v. CITY OF BERKELEY; THOMAS GREGORY; PAUL BUDDENHAGEN; PETER RADU; OKEYA VANCE- DOZIER; RASHI KESERWANI, Defendants - Appellants. BERKELEY HOMELESS UNION; No. 26-2820 FRANK MOORE, D.C. No. Plaintiffs - Appellees, 3:25-cv-01414-EMC and Northern District of California, San Francisco ADRIEN BOUCHARD, NICHOLAS JOHNSON, Plaintiffs, v. CITY OF BERKELEY; THOMAS GREGORY; PAUL BUDDENHAGEN; 2 25-7341 PETER RADU; OKEYA VANCE- DOZIER; RASHI KESERWANI, Defendants - Appellants. YESICA PRADO, on behalf of themselves No. 26-2823 and all others similarly situated; ERIN SPENCER; LUCIAN JEFFORDS; AMBER D.C. No. WHITSON; MONIQUE WILLIAMS; 3:23-cv-04537-EMC RUFUS LEE WHITE; WHERE DO WE GO, named as Where Do We Go Berkeley; Northern District of California, JERMAINE WHITE, San Francisco Plaintiffs - Appellees, ANGEL KENNETT, BARBARA GEIB, Plaintiffs, v. CITY OF BERKELEY, Defendant - Appellant, v. BAY AREA COMMUNITY SERVICES, BUILDING OPPORTUNITIES FOR SELF-SUFFICIENCY, DOROTHY DAY HOUSE, INSIGHT HOUSING, Third-pty-defendants. BERKELEY HOMELESS UNION; No. 26-6170 FRANK MOORE, D.C. No. Plaintiffs - Appellees, 3:25-cv-01414-EMC 3 25-7341  v. Northern District of California, San Francisco CITY OF BERKELEY; THOMAS GREGORY; PAUL BUDDENHAGEN; PETER RADU; OKEYA VANCE- DOZIER; RASHI KESERWANI, Defendants - Appellants. BERKELEY HOMELESS UNION, No. 26-6177 Plaintiff - Appellee, D.C. No. 3:25-cv-01414-EMC FRANK MOORE, Northern District of California, Plaintiff, San Francisco v. CITY OF BERKELEY; THOMAS GREGORY; PAUL BUDDENHAGEN; PETER RADU; OKEYA VANCE- DOZIER; RASHI KESERWANI, Defendants - Appellants. Before: Sidney R. Thomas, Morgan B. Christen, and Patrick J. Bumatay, Circuit Judges. Concurrence in part and dissent in part by Judge Bumatay. PER CURIAM: This case arises from a challenge to the City of Berkeley’s abatement of a long-running homeless encampment at 8th and Harrison in Berkeley, California (the “Harrison Encampment”).1 The court has received the City’s emergency 1 The City’s Notice of Encampment Closure, dated September 11, 2026, defines the area as “bounded by San Pablo Avenue to the East, the Railroad tracks 4 25-7341 motion for administrative stay and stay pending appeal. (Nos. 26-6170, 26-6177, Dkt. 4). The request for stay pending appeal is GRANTED IN PART, AND DENIED IN PART WITHOUT PREJUDICE. The request for administrative stay is DENIED AS MOOT. “A request for a stay pending appeal is committed to the exercise of judicial discretion.” Doe #1 v. Trump, 957 F.3d 1050, 1058 (9th Cir. 2020). “To secure a stay pending appeal, the Government must show that it is likely to succeed on the merits and that it is likely to suffer irreparable harm without a stay.” Trump v. California, No. 26A124, 2026 WL 2473573, at *2 (U.S. Aug. 24, 2026) (per curiam). Because the “authority to grant stays has historically been justified by the perceived need ‘to prevent irreparable injury to the parties or to the public’ pending review,” “simply showing some possibility of irreparable injury” is insufficient. Nken v. Holder, 556 U.S. 432, 434 (2009) (citation omitted). Our court’s application of the Nken factors “operates on a ‘sliding scale,’ such that ‘if there is a probability or strong likelihood of success on the merits, a relatively low standard of hardship is sufficient.’” California v. Express Scripts, to the West, Codornices Creek to the North, and Gilman St to the South.” We refer to this area as the Harrison Encampment, encampment, and camp. The City did not provide a copy of this Notice of Encampment Closure in its emergency motion, but it is included in the district court docket. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”). 5 25-7341 Inc., 139 F.4th 763, 772 n.8 (9th Cir. 2025) (quoting Golden Gate Rest. Ass’n v. City and Cnty. of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008)). But “Nken instruct[s] ‘that if the petition has not made a certain threshold showing regarding irreparable harm . . . then a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors.” Doe #1, 957 F.3d at 1058 (citation omitted). “We therefore begin our Nken analysis with consideration of irreparable harm.” Id. When a party fails to demonstrate irreparable harm, the Nken analysis can “conclude.” Id. at 1062; see Rubin v. United States, 524 U.S. 1301, 1301 (1998) (Rehnquist, C.J., in chambers) (“An applicant for stay first must show irreparable harm if a stay is denied.”). 1. The most concerning aspect of the City’s motion is the need to clear the Harrison Encampment because the City has detected leptospirosis in the camp and this presents a public health risk.2 We do not question that the need to abate the encampment qualifies as a situation warranting emergency relief. The district court ordered abatement to go forward in mid-September 2026. The parties agree 2 Leptospirosis is a disease that can include fever, headache, body or muscle aches, fatigue, and red eyes, and if left untreated can progress to kidney damage, meningitis, liver failure, and even death. See About Leptospirosis, Center for Disease Control and Prevention, https://www.cdc.gov/leptospirosis/about/index.html [https://perma.cc/L885- V86V]. The disease was first detected in the camp in winter 2025. The City did not seek emergency relief in our court for over ten months, despite having a docketed appeal from the district court’s earlier rulings in November 2025. 6 25-7341 that the primary abatement work was done between September 15 and September 17 of this year but it appears that continued work was contemplated. The City has not updated our court regarding the status of the abatement since filing its motion on September 24, but the City included internal emails in support of its motion for stay pending appeal that provide some additional information. In the emails, the Assistant City Manager described the abatement as “truly impressive” and informed his team that the Harrison area was “completely clear of encampments” as of September 23, except for two individuals temporarily protected by injunctive relief. In the district court, a Special Master entered an order dated October 16 that states, “the abatement of the 8th and Harrison encampment has already occurred.” We are hesitant to peruse the parties’ district court filings on our own, absent guidance from the parties or the district court. But near close of business on October 20, the City filed a declaration in the district court clarifying that at least a few BHU members remain in the encampment as of that date. Even on an incomplete record, we are persuaded that the City must be able to clear the Harrison Encampment because of the public health risk posed by leptospirosis. The remaining Nken factors support the City. BHU waives any argument regarding the likelihood of success on the merits at this stage because it does not defend the merits in its opposition to the City’s motion for stay. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). A stay will not substantially injure 7 25-7341 BHU members or other individuals remaining in the camp given the City’s offer to BHU to “set up their new tents outside of the Harrison Corridor” and its proposal to connect those residents with interim housing. The public interest lies in reducing the risk that disease will spread. Therefore, to the extent the district court’s orders prevent the City from abating and clearing the Harrison Encampment, the motion for stay pending appeal is GRANTED. Our dissenting colleague incorporates outdated photos of the Harrison Encampment taken at the outset or during the abatement process. We agree that the conditions in the encampment warranted intervention without delay, but omitted from the dissent is any mention that, with one exception, the photos it incorporates were all taken prior to or during the September 15 and 16 abatement. The one exception is a photo on page 37 of the dissent. We cannot tell the date that photo was taken. Our record also shows that the pictured debris was “[a]ll discarded” prior to the filing of the City’s motion for stay pending appeal. Our record is silent regarding the current conditions in the encampment. The most recent photo of the encampment in our record is dated September 21. It was also submitted in support of the City’s motion and it shows Harrison between 6th and 8th to be a fully cleared street.3 3 Two days later, on September 23, the City reaffirmed this area was “clear.” We recognize the City has more recently voiced concerns regarding individual 8 25-7341  2. The City’s motion for stay raises concerns regarding re-encampment, but the district court’s orders do not permit re-encampment. The record also reflects that the City has continued to exercise enforcement authority at the site, including arresting at least one individual who attempted to return to the Harrison Encampment. The City’s September 24, 2026 motion states that BHU-member residents’ vehicles remained in or near the encampment as of that date, but the instances of re-encampment. But this order makes clear that the City may clear the Harrison Encampment without delay. 9 25-7341 City’s September 11 Notice of Encampment Closure states “[v]ehicles are not required to relocate at this time.” We do not read the district court’s orders to prohibit the City from removing vehicles, and the City does not argue otherwise. Indeed, it appears that the City’s abatement process included removing at least one vehicle from the Harrison Encampment by “backhoe.” Contrary to our dissenting colleague’s suggestion, our record does not show that the district court required the City to “let BHU members keep their vehicles parked in the camps.” It shows only that the court required the City to engage in certain steps before taking “more drastic measures such as impoundment” of vehicles used as shelter. Nothing in the record tells us how many, if any, vehicles are left in the Harrison Encampment. If any vehicles remain, we clarify that to the extent the district court’s orders prevent the City from removing them, the motion to stay those orders pending appeal is GRANTED. 3. Regarding the removal of the former residents’ personal property, the district court required the City to comply with its existing regulations and, in the context of a “one-time abatement action,” ordered the City to not “summarily” destroy the property of disabled BHU members without providing relocation assistance and property storage. Recognizing the public health risk, the district court specified that the City need not “put its own staff at unreasonable risk” and is “not required to physically handle or store items” that are “observably” 10 25-7341 contaminated. In short, the district court recognized that the removal and storage of personal property warranted special consideration because it implicates the health risk presented by the outbreak of leptospirosis. The City does not argue that complying with these parts of the district court’s order risks irreparable injury. 4. The City argues that the August 20 order expands the relief afforded by the court’s summary judgment ruling and earlier preliminary injunctions. More specifically, the City argues that it will suffer irreparable harm absent a stay because the court’s order violated Article III by extending relief to include all members of BHU, wherever they are located in Berkeley. According to the City, this exceeded the scope of relief that BHU requested. On this point, the City’s motion for emergency stay pending appeal is defeated by the current record. In April 2026, the district court entered summary judgment and preliminary injunction rulings that required the City to engage in certain interactive processes pursuant to the Americans with Disabilities Act (ADA) before proceeding with abatement. The court also ordered limited relief to BHU pursuant to its Fourth Amendment and state-created danger claims. Before proceeding with abatement of the Harrison Encampment, the City requested entry of final judgment in May to facilitate its appeal of the district court’s rulings on BHU’s claims. The City’s motion for stay pending appeal is supported almost entirely by the written record, which leaves much of the relevant litigation story unexplained. 11 25-7341 But on October 23, in conjunction with its supplemental merits briefing, the City filed a transcript of the July 17, 2026 hearing held on the City’s motion for entry of final judgment. The newly filed transcript does not support the City’s contention that the district court sua sponte expanded the scope of relief, but the colloquy does show that the parties and court may have miscommunicated at the hearing on the City’s motion for entry of judgment. By the time the July hearing was held, the terms of the court’s earlier orders were well known to both parties. The City sought entry of final judgment to facilitate the appeal. In response to the City’s motion for entry of final judgment, BHU objected that it had outstanding claims that had yet to be adjudicated and that entry of final judgment at that point would result in piecemeal litigation. That position was consistent with BHU’s amended complaint, which did seek broader relief than its original complaint. The transcript of the July hearing shows that the district court agreed that it would benefit from our court’s review of its merits rulings on BHU’s claims, which present novel legal issues. In an effort to enter a final judgment that would facilitate an appeal of the merits issues as requested by the City, and also to avoid piecemeal litigation, the district court suggested several forms of final judgment and heard the parties’ respective positions. At the beginning of the hearing, the district court asked the City if “there [was] some reason why I can’t enter a final judgment on what I’ve ruled on [at summary 12 25-7341 judgment] and maybe making it clear that it applies . . . to encampments anywhere in Berkeley that now we have a final judgment [because] I mean, that’s what you’re looking for.” The City did not object; it responded, “Yes, Your Honor.” After the district court suggested a final “judgment [that] applies to all members of the BHU for which BHU has standing” and repeated that the order would apply “throughout the city even though there may or not be threatened enforcement,” the City responded “correct” and that such an “order accomplishes” and “support[s] entry of final judgment.” The district court then expressly asked the parties: “Do you have any objection if [the court] were to enter an order to make clear that the summary judgment order applies - - its protection applies to all members of BHU and applies throughout Berkeley . . . [even though] there would[] be future litigation on who’s a member, who’s not, whether they’re violating the actual terms[.]” Again, the City did not object. At the end of the hearing on the City’s motion, the district court concluded that “I think the thing to do is enter a final judgment and it be phrased as a permanent injunction.” The City responded: “We agree, Your Honor.” The City’s motion for stay pending appeal takes the position that the court sua sponte expanded the scope of relief when it entered final judgment. But the motion does not acknowledge that the City requested entry of judgment or the positions the City took at the July 17, 2026, hearing. In its supplemental merits 13 25-7341 brief filed yesterday, the City contends that it was not provided an opportunity to comment on the form of the written final judgment order before it was entered, and the transcript of the July 17 hearing suggests that the court did intend for the parties to have that opportunity. If that is the case, and/or if the court and counsel miscommunicated during their colloquy about the scope of the final judgment that was to be entered, the City should direct those concerns to the district court so that it may address them in the first instance. A hearing is set for October 29, 2026 in the district court on the City’s motion for stay pending appeal. In the meantime, the present record does not support the City’s motion for stay pending appeal on the ground that the district court impermissibly expanded the scope of the permanent injunction. 5. The City’s motion for stay anticipates that the district court will order it to allow BHU members to camp in areas the City has designated as “No Lodging” areas. The dissent suggests that this is already occurring and analogizes to Grants Pass because, in its view, the district court’s orders require the City to allow BHU members to pitch tents throughout the City “regardless of local prohibitions.” The record does not support these assertions, and the situation in Berkeley differs from Grants Pass in important ways. Cf. Grants Pass v. Johnson, 603 U.S. 520, 556 (2024). To begin, Berkeley has not banned outdoor camping in 14 25-7341 public spaces. From the beginning of this litigation, the City has been clear on this point. At a June 2025 hearing, one of the city’s attorneys told the district court that the City “does not have a camping ban” or “a blanket ‘no camping’ ordinance,” and that “our position” is that “[i]f there is no limitation on camping in the city other than certain locations . . . folks are available and free to move in other locations where it may be allowed.” At the March 2026 summary judgment hearing, the City again represented that it “doesn’t have a policy of removing unhoused or homeless individuals from the streets” and emphasized that it did not want unhoused people to “move out of the City.” Indeed, in a recent email dated October 19, 2026 and filed in the district court, a city attorney directed that for those BHU members evicted from the encampment, they “are advised to set up their new tents outside of the Harrison Encampment”; they were not asked to leave the City. This is consistent with Administrative Regulation 10.2, which the City adopted in 2018. As the Deputy City Manager explained to the district court, in the regulation, the City “recognized the need for unsheltered individuals to have a limited amount of personal space and possessions in public spaces.” Despite the dissent’s suggestions, the record does not show that the district court has ever required the City to relocate a BHU member to a “No Lodging” area, or to require the City to allow BHU members to pitch tents regardless of local 15 25-7341 prohibitions.4 The court did provide temporary injunctive relief to seven disabled BHU-member residents of the Harrison Encampment and required the City to engage in an interactive process to facilitate the relocation of these seven people. The City argues that the district court overstepped because the process is excessively detailed. Against the backdrop described above, whether this process (or any other) is legally required under the ADA is a merits determination. We recognize the need to expedite resolution of this dispute. Therefore, pursuant to the parties’ joint request, we consolidated the City’s appeals and added this matter to our February calendar. The parties’ merits briefing is not yet complete. At this stage of the proceedings and on the present record, the City has not met its burden to show that the district court’s requirements that it engage in certain interactive processes to facilitate relocation within the City constitutes irreparable injury. Therefore, except as specified above, the City’s request for stay pending appeal is denied without prejudice to renew if the circumstances change. We remind the parties that our record of the proceedings is fragmented at best. Until October 23, the parties had not provided us with transcripts from the key hearings in the district court, and we do not have recent transcripts for other 4 In addition to denying BHU’s requested right to remain in the Harrison Encampment, the district court denied BHU’s request for guaranteed housing, enforcement-free zones, city-owned campsites, and a map or list of enforcement- free areas. 16 25-7341 hearings in which the district court or Special Master may have addressed the current situation on the ground. If the parties do return to our court to seek interim relief, it will be incumbent upon them to be sure that we have a sufficient record to address their requests. If the parties would like to engage assistance from the Ninth Circuit Mediation Office, they may contact the mediator at ca09_mediation@ca9.uscourts.gov. 17 25-7341  FILED OCT 26 2026 Berkeley Homeless Union v. City of Berkeley, No. 25-7341+ BUMATAY, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS “The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens”—“all have combined to create problems” for governments throughout this country. Frank v. Maryland, 359 U.S. 360, 371 (1959), overruled on other grounds by Camara v. Mun. Ct., 387 U.S. 523 (1967). These difficult problems are for elected officials—not courts—to resolve. Yet the district court injects itself into managing—indeed, micromanaging—the problems of homelessness in the City of Berkeley. A disease plagues one of Berkeley’s homeless encampments—an outbreak of leptospirosis. This “ancient” sickness “flourishe[s]” where rats do. S. Faine et al., Leptospira and Leptospirosis 1–3 (2d ed. 1999) (describing “the extremely unwholesome condition of the Ottoman camp, and the numbers of dead putrid carcas[s]es of animals suffered to remain uncovered,” where the disease broke out in the nineteenth century (simplified)). In humans, “the illness may be mild and self- limiting or severe and possibly fatal.” Id. at 68. Severe leptospirosis means kidney failure, bleeding from the lungs and heart, liver failure, and brain inflammation. David A. Haake & Paul N. Levett, Leptospirosis in Humans, in Leptospira and Leptospirosis 65, 74–78 (Ben Adler ed., 2015); Faine et al., supra, at 68–69. It kills when it’s left untreated. Haake & Levett, supra, at 85–86; Faine et al., supra, at 68. And while modern antibiotics and dialysis 1 save many lives, permanent damage to the kidneys and heart is common—as is brain fog that doesn’t go away. Haake & Levett, supra, at 79. Diseased rats dwell in a Berkeley homeless encampment centered on Harrison Street, polluting the area and making it unsafe for the City’s citizens. One person has already died. Berkeley is trying to abate the situation. As the Court recognized long ago, “a major concern of American government” is “to prevent the spread of disease.” Frank, 359 U.S. at 371. Berkeley seeks to clean the homeless encampment by clearing away the filth and debris creating the rat infestation and exterminating the rats that carry leptospirosis. To do that, it must move and discard all illegally placed cars, tents, and other potential rodent harbors left in the encampment. Only then can Berkeley effectively eradicate the dangers of the disease. 2  The Harrison Encampment, During Abatement Yet a district court prevents Berkeley from completely clearing the encampments. Why? Because an advocacy group calling itself the Berkeley Homeless Union (“BHU”) says that Berkeley’s clean-up deprives its members of constitutional and statutory rights. Based on that, the district court ordered ever- shifting, ever-expanding injunctions that preclude Berkeley from taking certain abatement measures. Under multiple district court injunctions, Berkeley must leave certain tents in the encampment untouched and not remove illegally parked vehicles used as housing in the area. 3  This patchwork of district court restrictions has undermined Berkeley’s ability to effectively eradicate leptospirosis from the homeless camp. Now, the rats have refuge from the traps and rodenticide placed by City workers—allowing the disease to potentially survive and infect more people. As if that weren’t enough, the district court’s final injunction reaches BHU members citywide, hamstringing Berkeley’s efforts to protect its citizens in camps far away from Harrison. Unsurprisingly, Berkeley seeks an emergency stay pending appeal. The City is entitled to a stay for at least three reasons. First, BHU shouldn’t even be in federal court. BHU doesn’t meet the requirements for associational standing under our precedent. The district court simply ignored those requirements and gave BHU a pass. Whether the district court likes our precedent or not, it was not free to defy it. The tell that associational standing was improper? The district court ordered a mismatched remedy—rather than grant BHU any relief, it enjoined the City from taking certain measures against individual homeless non-parties. That defeats the purpose of associational standing. The district court lacked Article III jurisdiction to issue injunctions in this way. Second, BHU is likely to lose on the merits. Its constitutional and statutory claims can’t justify the district court’s unprecedented actions. To begin, based on BHU’s Fourth Amendment argument, the district court enjoined Berkeley from impounding vehicles that violate numerous ordinances, and 4 from cleaning the surrounding areas. But this ignores the well-established and historic “caretaker exception” to warrantless searches and seizures. And in ruling for BHU, the district court invented a new Fourth Amendment test from whole cloth. The district court’s orders should be stayed on this basis alone. Next, the district court weaponized the Americans with Disabilities Act (“ADA”) to force Berkeley to meet unreasonable demands when it clears camps. Yet even if the ADA applies here, it doesn’t require Berkeley to fundamentally alter its abatement program to accommodate homeless persons with disabilities as it battles a public-health risk. Finally, BHU’s “state-created danger” claim goes nowhere. “State-created danger” is a judge-created doctrine untethered from text and history. Given this background, we should be skeptical of its expansion. Yet the district court substantially enlarged its reach to enjoin Berkeley from removing obstructive cars and tents—even though it’s entirely speculative that any homeless person would be actually and particularly harmed by the abatement, and even though Berkeley’s actions don’t evince any deliberate indifference. Yes, Berkeley is removing illegally erected tents and illegally parked vehicles. But that’s to stop the spread of a deadly disease. Third, Berkeley suffers serious, irreparable harm. The district court both prevents the City from achieving its rat-eradication objectives and precludes 5 Berkeley from abating other encampments citywide without its say-so. Enjoining a city from undertaking a basic function of government without judicial approval is an irreparable harm in itself. And the balance of interests tips decisively in Berkeley’s direction. Nothing else outweighs Berkeley’s need to eliminate “the hazards of rodent-caused plague and other serious diseases” on Berkeley’s streets. Dawson v. City of Seattle, 435 F.3d 1054, 1063 (9th Cir. 2006). Given that all stay factors favor Berkeley, we should’ve granted the stay pending appeal in full. See Nken v. Holder, 556 U.S. 418, 426 (2009). Unfortunately, we’ve seen this before. The Ninth Circuit is no stranger to misusing the law to craft misguided homelessness policy. See Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir. 2024), rev’d, 603 U.S. 520 (2025). It took the Supreme Court to slap down our misadventures in homelessness policymaking. No matter how well intentioned, courts have no business dictating to local governments what policies best address this persistent problem. The Ninth Circuit’s Grants Pass ruling was as wrongheaded as it was cruel to that city’s residents. But now the district court has manufactured an end run around the Supreme Court’s decision and started us down this dangerous path again. I concur with the majority in staying the district court’s orders impeding the Harrison abatement. But we should have granted the stay in full and stopped the district court’s interference with Berkeley’s homelessness policy writ large. Because 6 the district court issued lawless orders enjoining Berkeley from effectively cleaning up homeless encampments, I respectfully dissent from the partial denial of the stay pending appeal. I. BACKGROUND The origins of this case are themselves a rat’s nest. Our suit began when BHU filed its complaint in February 2025, but its story stretches back further. In September 2024, Berkeley adopted a new policy that allowed for the abatement of encampments that pose health and safety concerns. And Berkeley soon put the policy to work—in December 2024, it declared an encampment at Eighth and Harrison Streets a public nuisance due to “significant health and safety hazards including loose and scattered syringes; rodent harborage conditions and evidence of extensive and active rodent burrows; unmitigated human and animal waste; and open/rotting sources of food.” And “the accumulation of personal belongings and debris in the area” blocked the sidewalks and vehicle lanes. In mid-January 2025, after Berkeley declared a nuisance, it posted notices announcing a planned abatement. Shortly afterward, it held a hearing, and, by the end of the month, a hearing officer had overruled the objections of those who occupied the encampment. Berkeley could clear the camp. 7  Or so it thought. Enter the “Berkeley Homeless Union.” One of BHU’s leading members, Yesica Prado, previously sued Berkeley in a challenge to its homelessness policy. See Prado v. City of Berkeley, No. 23-cv-04537, 2024 WL 3697037 (N.D. Cal. Aug. 6, 2024), which has been consolidated with this case. This time, BHU’s complaint alleged that shutting down the Harrison encampment would cause a state-created danger, violate the Fourth and Fourteenth Amendments, and offend the ADA. From the beginning, Berkeley has said it closes encampments to enforce the law, keep its citizens safe, and preserve access to public roads and sidewalks. As it turns out, the Harrison encampment provided the ideal conditions for leptospirosis. Roaming rats and standing water meant a brewing storm. And a public-health risk to some is a public-health risk to all: Given the lack of running water, the Harrison homeless bathed in a nearby creek, which sits across from family housing provided by UC Berkeley. Further, the encampment itself was not isolated. Restaurants, a brewery, and even an urban farm sat nearby. When rats tested positive for leptospirosis in December 2025, the abatement took on new importance. Berkeley’s abatement efforts have faced many obstacles from the start. Only three days after BHU sued, the district court issued its first temporary restraining order, preventing Berkeley from moving forward with the abatement. That TRO was extended to the end of April 2025, then to May. And in June 2025, the district 8 court gave Berkeley 60 days to complete the ADA’s “interactive process” for BHU members who occupied the encampment and had submitted accommodation requests. That injunction extended on for months. The district court allowed a limited abatement on the east side of one block to proceed in September 2025. Berkeley had planned a February 2026 abatement to deal with the leptospirosis outbreak, but bad weather postponed it. Another TRO was issued in March 2026 and extended into April. In April 2026, the district court expanded its relief in two related orders. These orders required Berkeley to undertake a new accommodations inquiry related to illegally parked vehicles, permit some camp inhabitants to take up more than nine square feet of public sidewalk space, and affirmatively provide physical assistance and storage for BHU members. And when the district court entered final judgment on August 20, 2026, it expanded relief again. In its final order, the district court issued a permanent injunction sweeping in all BHU members and imposing its orders citywide. The district court stated that “[t]he permanent injunctive relief applies to all BHU members, wherever situated within the City, and is not limited to the Harrison Encampment or to any previously identified claimants.” The result is unprecedented. In addition to imposing a requirement that Berkeley provide 72-hour written notice before beginning an abatement—and use 9 “patient, low-stimulation communication” with BHU’s members—the district court ordered Berkeley to comply with a litany of obligations: Vehicles. Before Berkeley can tow, impound, or otherwise dispose of a vehicle used as shelter, it must make a determination that the specific vehicle poses “a concrete, individualized threat to health and safety”—beyond “mere parking violations, inoperability, or expired registration.” Berkeley must give the owner of the vehicle an opportunity to respond. And Berkeley further must “consider and pursue reasonable, less restrictive alternatives, including targeted cleaning, pest treatment, containment orders, and assisted relocation.” Before destroying any vehicle as a hazard, Berkeley must “additionally show that no reasonable alternative could adequately mitigate the identified hazard.” Sidewalk Space and Tents. The district court ordered that Berkeley could not enforce its general sidewalk restrictions “in a manner resulting in the destruction of a BHU member’s tent or shelter unless the City first conducts an individualized assessment accounting for the member’s disability-related needs, if any, the physical dimensions of the sidewalk or right-of-way at issue, and the public interest in maintaining a reasonable path of travel.” And when enforcing sidewalk rules would lead to loss of shelter, Berkeley must “allow the [BHU] member to retain [the tent] or relocate [it] to a location that does not unreasonably obstruct pedestrian passage, 10 or . . . provide a replacement tent consistent with that standard.” This last requirement applies even if the BHU member isn’t disabled. Property Replacement and Storage. For disabled BHU members who can’t relocate their property, the district court ordered Berkeley to provide them with “reasonable physical assistance.” And the City must provide 90-day storage for any property that isn’t “contaminated.” When Berkeley destroys “[e]ssential survival property” because of contamination, it must replace it. These orders directly impacted an abatement that Berkeley had initially scheduled for early August 2026. After a month of delays, the district court let the abatement proceed in mid-September 2026—subject to the court’s restrictions. The district court allowed all “[r]esidents of the Harrison Encampment” to submit r