Key Points

  • The Ninth Circuit stayed the district court's orders to the extent they prevent Berkeley from abating and clearing the Harrison Encampment or removing vehicles there, citing the public health risk from leptospirosis.
  • The majority otherwise denied the stay without prejudice, holding that the current record, including a July 17, 2026, hearing transcript, did not show the district court impermissibly expanded the permanent injunction to all BHU members citywide.
  • The majority directed the city to raise any miscommunication about the form of the final judgment in the district court, where a stay hearing is set for Oct. 29, 2026.
  • The majority distinguished Grants Pass v. Johnson because Berkeley has represented that it has no camping ban, and held that the ADA interactive-process requirements had not been shown to cause irreparable injury.
  • Judge Bumatay concurred in the partial stay but dissented from the denial, arguing that BHU lacks associational standing and that its Fourth Amendment, ADA and state-created-danger claims are likely to fail.

A federal appeals court on Oct. 26 cleared the way for Berkeley, California, to finish removing a long-running homeless encampment where the city has detected leptospirosis, a disease that can progress to kidney damage, liver failure and death. The same order refused to pause a broader injunction that the city says limits how it may treat members of a homeless advocacy group anywhere in Berkeley.

The Ninth Circuit panel's unsigned, or per curiam, order granted the city a stay pending appeal to the extent those orders kept the city from clearing the camp at 8th and Harrison streets or removing vehicles there. The panel also included Judges Sidney R. Thomas and Morgan B. Christen. Judge Patrick J. Bumatay concurred in that part and dissented from the rest, writing that the panel "should have granted the stay in full and stopped the district court's interference with Berkeley's homelessness policy writ large."

The ruling leaves in force a final judgment, phrased as a permanent injunction, that the district court entered Aug. 20, 2026. According to the dissent, that judgment states that its 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 majority held that the record did not show the trial court had improperly expanded its relief, and it told the city to take that objection to the district court first.

"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 majority wrote. A footnote added: "But this order makes clear that the City may clear the Harrison Encampment without delay."

The Berkeley Homeless Union, known as BHU, sued in February 2025 to stop the city's planned cleanup of the camp, which the city had declared a public nuisance in December 2024, according to the dissent. BHU claimed the cleanup would violate the Fourth Amendment and the Americans with Disabilities Act and would expose residents to a "state-created danger."

Leptospirosis was first detected in the camp in winter 2025, the majority noted, yet the city waited more than ten months to seek emergency relief from the appeals court. After the main cleanup in mid-September 2026, the assistant city manager called the effort "truly impressive" in internal emails. The city later told the district court that at least a few BHU members remained in the camp.

The other stay factors also favored the city, the majority held. BHU had not defended the merits, and residents would not be substantially injured given the city's offer to let them "set up their new tents outside of the Harrison Corridor." The majority read nothing in the district court's orders to bar vehicle removal but stayed any order that did.

The sharper dispute concerned the injunction's reach. The city argued that the Aug. 20 order violated Article III by extending relief to every BHU member in Berkeley. The majority relied on a transcript of a July 17, 2026, hearing that the city filed Oct. 23. At that hearing, the district judge said, "I think the thing to do is enter a final judgment and it be phrased as a permanent injunction." The city replied, "We agree, Your Honor."

"The newly filed transcript does not support the City's contention that the district court sua sponte expanded the scope of relief," the majority wrote, though it acknowledged the court and counsel may have miscommunicated. The city now says it never got to comment on the written judgment, an opportunity the transcript suggests the judge intended. If so, the majority wrote, "the City should direct those concerns to the district court so that it may address them in the first instance."

The majority also rejected the dissent's comparison to Grants Pass v. Johnson, the Supreme Court decision that reversed a Ninth Circuit homelessness ruling. "The record does not support these assertions, and the situation in Berkeley differs from Grants Pass in important ways," the majority wrote. It cited a June 2025 hearing at which a city attorney told the court that Berkeley "does not have a camping ban."

Whether the ADA requires the detailed relocation process ordered for seven disabled camp residents is a merits question, the majority held, and the city had not shown that the process causes irreparable injury. The rest of the stay request was denied without prejudice to renewal if circumstances change.

Early in his dissent, Bumatay wrote that "These difficult problems are for elected officials—not courts—to resolve." He wrote that "BHU doesn't meet the requirements for associational standing under our precedent," referring to the doctrine that lets an organization sue on its members' behalf. He argued that the union's Fourth Amendment, ADA and state-created-danger claims were all likely to fail, and he stated that one person has already died of the disease.

Bumatay wrote that "the district court has manufactured an end run around the Supreme Court's decision" in Grants Pass. Answering the majority directly, he wrote that "the fact that Berkeley has not banned all outdoor camping in public spaces did not give the district court license to crown itself the czar of sidewalks."

A hearing on the city's stay motion is set for Oct. 29, 2026, in the district court. At the parties' joint request, the Ninth Circuit consolidated the city's appeals and placed them on its February calendar. The majority warned that its record was "fragmented at best" and said any party returning for interim relief must supply a sufficient record.