‘Sweeps’ of Homeless Encampments in Parks During COVID-19

January 21, 2021, Department, by James C. Kozlowski, J.D., Ph.D.

2021 February Law Review Sweeps of Homeless Encampments in Parks During COVID 19 410

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In the case of Berry v. Hennepin County, 2020 U.S. Dist. LEXIS 201810 (U.S. Dist. Minn. 10/29/2020), a number of individuals experiencing homelessness and organizations representing individuals experiencing homeless filed suit in federal district court seeking a temporary restraining order against various public entities and officials, including the Minneapolis Park and Recreation Board (MPRB), to prevent police “sweeps” of homeless encampments in public parks throughout Minneapolis, Minnesota.

A temporary restraining order, or “TRO,” is a court order of limited duration made in the early stages of a lawsuit, which maintains the status quo of a situation until the court can hear further evidence and decide whether to issue a preliminary injunction pending final judgment after a trial to resolve a lawsuit.

During these sweeps, Plaintiffs alleged police seized and destroyed the property of persons experiencing unsheltered homelessness encamped in public parks. Plaintiffs challenged Defendants’ treatment of persons experiencing unsheltered homelessness. As noted by the federal district court, this lawsuit arose from a “confluence of two significant societal problems — homelessness and the [coronavirus (COVID-19)] pandemic.”

Facts of the Case

In this case, Plaintiffs alleged Defendants had conducted ‘sweeps’ during which Defendants had “seized and destroyed the property of persons experiencing unsheltered homelessness who currently are living in encampments in public parks throughout Minneapolis.” Defendants included: Hennepin County, the City of Minneapolis, the Minneapolis Mayor, the Minneapolis Chief of Police, the MPRB, the MPRB Superintendent, the MPRB Park Police Chief, the Hennepin County Sheriff and multiple unnamed police officers.

Plaintiffs in this action included individual Plaintiffs and one organizational Plaintiff. The individual Plaintiffs in this action are six individuals experiencing unsheltered homelessness in Hennepin County, Minnesota, including four individuals who currently are not living on public land and two individuals who currently are doing so, within the City of Minneapolis park system. The organizational Plaintiff, Zakah, Aid and Charity Assisting Humanity (ZACAH), is a private nonprofit organization staffed by unpaid volunteers with a mission to provide financial assistance to residents of Minnesota who are on the verge of experiencing homelessness.

COVID-19 Emergency Orders

On April 8, 2020, Minnesota Governor Tim Walz issued Emergency Executive Order 20-33, which states: “Encampments should not be subject to sweeps or disbandment by state or local governments, as such sweeps or disbandment increase the potential risk and spread of COVID-19.”

On April 29, 2020, Governor Walz issued Emergency Executive Order 20-47, which clarified Emergency Executive Order 20-33 with respect to encampments, noting that “both new and existing encampments should not be subject to sweeps or disbandment by state or local governments.” State or local governments, however, could “restrict, limit or close encampment spaces” if “an encampment has reached a size or status that is a documented threat to the health, safety or security of residents.” To do so, however, a local government entity must have been “providing sufficient alternate housing, shelter or encampment space that complies with the Minnesota Department of Health’s guidance and the Centers for Disease Control and Prevention’s (CDC’s) guidance (i.e., Responding to COVID-19 Among People Experiencing Unsheltered Homelessness).”

On May 13, 2020, Governor Walz issued Emergency Executive Order 20-55, which reiterated the guidance to encampments set forth in Emergency Executive Order 20-47.

Park Refuge Resolutions

The MPRB manages the City of Minneapolis park system. On June 17, 2020, the MPRB adopted Resolution 2020-253 declaring Minneapolis parks to be a refuge space for persons experiencing unsheltered homelessness. On July 15, 2020, the MPRB adopted Resolution 2020-267, which limited the number of Minneapolis parks that could be refuge sites to 20 and limited the number of tents located at each site to 25 through a permit process.

In August and September 2020, Minneapolis Park Police disbanded one of several Powderhorn Park encampments, along with the encampments at Peavy Park, Kenwood Park and Elliot Park. Further, the MPRB had issued public statements that “due to health and safety concerns, the MPRB will not be extending temporary encampment permits into cold weather, anticipated to be sometime in October.”

Motion for Temporary Restraining Order

Plaintiffs commenced their lawsuit on October 19, 2020, alleging that Defendants unlawfully seized Plaintiffs’ property in violation of the Fourth Amendment guarantee against unreasonable searches and seizures, as well as violations of due process rights guaranteed by the 14th Amendment.

In their lawsuit, Plaintiffs also filed a motion for a temporary restraining order “to prevent Defendants from taking certain actions against individuals who are experiencing unsheltered homelessness and living in public parks in Minneapolis and throughout Hennepin County,” which included:

(1) clearing encampments in public parks within Hennepin County, (2) seizing Plaintiffs’ property and the property of the putative class members [i.e., affected homeless individuals] without adequate pre-deprivation notice, and (3) destroying Plaintiffs’ property and the property of the putative class members.

In particular, Plaintiffs were seeking a temporary restraining order from the federal district court, “enjoining Defendants from sweeping encampments in violation of Executive Order 20-47 signed by Governor Walz on April 29th.”

Temporary Restraining Order Factors

As cited by the court, the “Federal Rule of Civil Procedure 65(b) authorizes a district court to grant injunctive relief in the form of a temporary restraining order.” In determining whether this “extraordinary remedy” is warranted, the federal district court would consider the following four factors as applied to the “movant,” in this case the Plaintiffs:

(1) the threat of irreparable harm to the movant, (2) the likelihood that the movant will succeed on the merits, (3) the balance between Plaintiffs’ alleged harm and the injury that an injunction would inflict on other parties, and (4) the public interest.

As noted by the court, “the purpose of a temporary restraining order is to maintain the status quo” while claims are being resolved by the court. Further, “the burden rests with the moving party to establish that injunctive relief should be granted.”

Accordingly, the federal district court would first determine whether Plaintiffs had established “the threat of irreparable harm” in the absence of a temporary restraining order. As described by the court: “Irreparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages.” Further, the court acknowledged Plaintiffs had the burden “to establish the need for injunctive relief to prevent irreparable harm.” In so doing, Plaintiffs had to demonstrate “the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” Moreover, the court acknowledged that a “mere possibility of harm is insufficient” to issue the extraordinary remedy of a temporary restraining order.

In this particular instance, the question before the federal district court was “whether any plaintiff would suffer irreparable harm if this Court does not grant a temporary restraining order enjoining Defendants from ‘sweeping’ encampments.”

Irreparable Harm Requirement

In the complaint, the organizational Plaintiff, ZACAH, alleged that board members and volunteers have dedicated countless hours to place people in emergency hotel rooms. ZACAH further alleged that, of the $115,715 in donations it has received, the organization has spent approximately $113,000 to pay for hotel rooms for displaced people on an emergency basis.

ZACAH argued that this expenditure has prevented it from using those funds to advance ZACAH’s core mission to “support people in transitioning from a state of vulnerability, back toward a path of sustainability.” ZACAH acknowledged: “Diverted resources, however, can be compensated through money damages.”

As noted by the federal district court, “costs associated with litigation and use of scarce financial and human resources did not establish irreparable harm.” In particular, the court found an organization’s diversion of resources “amounts to no more than a loss of money and time, which is generally not irreparable harm.” In this instance, ZACAH had effectively conceded that it could be compensated for the financial harm it was allegedly suffering through an award of money damages, assuming ZACAH was able to prevail on the merits of its lawsuit in further trial proceedings. As a result, the federal district court held that ZACAH had not established that it would suffer irreparable harm absent the court’s issuing a temporary restraining order. The federal district court, therefore, denied ZACAH’s motion for a temporary restraining order.

Irreparable Harm: Real or Speculative?

As to the individually named Plaintiffs, the federal district court noted that “the record establishes that some of the individually named Plaintiffs currently are living in encampments and some are not.” In their lawsuit, the individual Plaintiffs were seeking “injunctive relief enjoining Defendants from clearing the encampments in Hennepin County and from seizing and destroying the property of individually named Plaintiffs and the property of the putative class members [i.e., a potential group of similarly situated individuals] in the future.”

Individual Plaintiffs not currently living in encampments claimed they “might resume living in an encampment in Hennepin County at some point.” Since these Plaintiffs were not subject to possible removal from encampments, the federal district court found it would be improper to grant a temporary restraining order to address such “speculative harm”:

The harm as alleged by the Non-Encampment Plaintiffs in the form of removal from encampments is speculative because they currently do not live in encampments. Because speculative harm is not irreparable harm, the Non-Encampment Plaintiffs have not demonstrated that they will suffer irreparable harm absent a temporary restraining order from the Court.

As noted by the court, two of the other individually named Plaintiffs do “currently reside in encampments.” These “Encampment” Plaintiffs alleged that they did not know where they would live if Defendants forced them to leave their encampments in B.F. Nelson Park and Martin Luther King Jr. Park. Accordingly, these Encampment Plaintiffs argued they would “suffer irreparable harm in the form of evictions from their encampments if this Court does not issue a temporary restraining order”:

The Encampment Plaintiffs contend that, if the encampments where they reside in their tents are disbanded, the Encampment Plaintiffs will lose their shelter. And they maintain that loss of housing resulting from an eviction can constitute irreparable harm.

In addition, were they to lose essential possessions, these Encampment Plaintiffs had further argued that the loss would be both devastating and traumatizing. While not minimizing this hardship, the federal district court noted that Plaintiffs had not argued that the harm arising from such a property loss would necessarily be irreparable. On the contrary, the court found the possible seizure or destruction of the Encampment Plaintiffs’ personal property was highly speculative and any such harm was not irreparable because lost personal property could be returned or compensated through monetary damages.

Accordingly, in the opinion of the federal district court, Plaintiffs had failed to demonstrate that the possible loss of essential personal possessions would constitute the requisite irreparable harm to warrant a temporary restraining order.

In addition, Plaintiffs had argued that they would suffer irreparable harm based upon the identified threat of contracting COVID-19 in a shelter. The federal district court rejected this argument. As noted by the court, “the record reflects that the COVID-19 infection rate among individuals in Hennepin County shelters is lower than the infection rate for the general population.” Moreover, under the circumstances of this case, the court found “no deaths due to COVID-19 have occurred among individuals in Hennepin County Shelters.”

Potential Harm Mitigation

In response to Plaintiffs’ claims, Defendants had argued Plaintiffs would not be harmed irreparably if the MPRB determined that those encampments where Plaintiffs reside should be removed. If Plaintiffs’ encampments were subject to removal, MPRB stated it would do so in the same manner as it has with the other encampments. Specifically, MPRB would make a determination that the encampments have become health and safety risks to the campers and the public. Moreover, MPRB would ensure “there is adequate shelter elsewhere” for Encampment Plaintiffs.

In addition, in the event of any encampment removals, Defendants pledged to provide “both notice and outreach services.” According to Defendants: “If shelter space is available for all persons removed from the encampments, the possible harm that the Encampment Plaintiffs might face if encampments are disbanded would be mitigated.”

Further, the City of Minneapolis and Hennepin County claimed shelter options were available. Moreover, the Director of the Hennepin County Office to End Homelessness indicated: “Hennepin County has committed to finding shelter for all families with children, even if family shelters are at capacity.” According to Hennepin County, between July 1, 2020 and October 21, 2020, there were “unused beds for single women every night.” Beginning in September 2020, Hennepin County acknowledged that “shelters for single men in Hennepin County had begun to reach their capacity more frequently.” That being said, Hennepin County claimed that “new beds do become available each day for single adult men.” Accordingly, Hennepin County maintained that “single adult men experiencing homelessness in Hennepin County might be able to find shelter on any given night.”

While Hennepin County claimed shelter options were available if Encampment Plaintiffs were displaced, the federal district court found these prospects were not certain. Further, the court acknowledged: “The potential harm that the Encampment Plaintiffs face as a result of possible disbandment is not minimal.” In the opinion of the court, potential harm, however, was insufficient to satisfy the “certain and concrete” irreparable harm requirement to warrant injunctive relief in the form of a temporary restraining order.

As noted by the federal district court, Defendants had declared that “encampments will not be removed unless three conditions are met”:

(1) the MPRB determines that a health and safety risk to the encampment residents exists, (2) a health and safety risk to the public exists, and (3) adequate shelter exists elsewhere.

Consistent with this declaration, the MPRB Park Police Chief testified that the removal of encampments had been undertaken only when there has been an “actual and demonstrated threat to the public safety or health of camp residents or the neighbors and neighborhoods of the park because of the encampment.” Further, these encampment removal actions were only undertaken after the MPRB superintendent “gave explicate direction after he was satisfied that public health and safety were endangered and that adequate housing for homeless persons existed in the community.” In addition, “when an encampment is to be disbanded,” the MPRB Director of Community Outreach testified that “Community Outreach employees work with the inhabitants and permittees to assist them in finding alternative housing.”

Based on these representations and sworn declarations, Defendants claimed that “the Encampment Plaintiffs will not experience irreparable harm in the event that the MPRB disbands an encampment after the aforementioned circumstances have been established.”

No Evidence of Irreparable Harm

In the opinion of the federal district court, Plaintiffs had “not presented any evidence that persuasively contradicts Defendants’ evidence and representations, so as to establish that Plaintiffs’ alleged harm is sufficiently certain and concrete.” Accordingly, the court concluded that “the Encampment Plaintiffs have not met their burden of demonstrating irreparable harm as required to secure a temporary restraining order.”

In reaching this conclusion, the federal district court recognized the robust efforts of volunteers, nonprofit organizations and governmental entities to assist those who face unsheltered homelessness in the local Twin Cities community, including ZACAH, the Mid-Minnesota Legal Aid and the American Civil Liberties Union, as well as Hennepin County, the City of Minneapolis and MPRB, along with numerous other nonprofit organizations and volunteers. Further, the court acknowledged the prevalence of unsheltered homelessness in the Twin Cities had increased since the beginning of the COVID-19 pandemic:

Both experiencing and addressing unsheltered homelessness are grave challenges in the best of times. The COVID-19 global pandemic has both increased the number of people experiencing unsheltered homelessness and further complicated the means of addressing unsheltered homelessness in light of the CDC’s recommendations to practice social distancing and elevated sanitation procedures.

That being said, the legal issue before the federal district court was not “how best to address unsheltered homelessness.” On the contrary, as identified by the court, the sole issue for judicial consideration was a procedural issue; i.e., “whether Plaintiffs have met the legal standard necessary to secure a temporary restraining order.” In so doing, the federal district court acknowledged that depriving Plaintiffs of a place to live might constitute irreparable harm within the context of a motion for a temporary restraining order. However, under the circumstances of this particular case, the federal district court found Defendants had pledged to mitigate any harm to Plaintiffs by ensuring the availability of an alternative place to live when encampments in public parks had to be removed due to COVID-19 related health and safety concerns.


Having found Plaintiffs had failed to establish the requisite irreparable harm to warrant injunctive relief against Defendants, the federal district court denied Plaintiffs’ motion for a temporary restraining order “without prejudice.” Accordingly, if Plaintiffs could show irreparable harm based on Defendants’ failure to honor their commitment to provide shelter alternatives to encampment removals, Plaintiffs could renew their motion for a temporary restraining order.

The reasoning of the federal district court in this particular case regarding the availability of alternative shelter for individuals experiencing homelessness residing in public parks was consistent with the general view of federal courts on the homeless issue. This approach was apparent in the opinion of the U.S. Court of Appeals for the Ninth Circuit in the case of Martin v. City of Boise, 920 F.3d 584 (9th Cir. 4/1/2019). In this case, the federal appeals court held the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property, in particular public parks, when those people have no home nor other shelter to go to.

The City of Boise had a Camping Ordinance (Boise City Code § 9-10-02) that made it a misdemeanor to use “any of the streets, sidewalks, parks or public places as a camping place at any time.” The Camping Ordinance defined “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging or residence.” While the Eighth Amendment would not require the city to provide sufficient shelter for the homeless, the Ninth Circuit held the government cannot criminalize indigent people experiencing homelessness for sleeping outdoors on public property, like public parks, as long as there is no option for sleeping indoors.

See also: “Camping Ordinance Criminalized Homeless Status,” James C. Kozlowski, Parks & Recreation, Jul. 2019, Vol. 53, Iss. 7 mason.gmu.edu/~jkozlows/lawarts/07JUL19.pdf

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Webpage with link to law review articles archive (1982 to present): mason.gmu.edu/~jkozlows.