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The coronavirus (COVID-19) pandemic has exacerbated the public health challenges associated with homeless encampments in public parks. Throughout 2020 and continuing into 2021, federal courts have considered a number of challenges to public health emergency orders imposing restrictions and shutdown orders to control the pandemic, in particular, the closure of homeless encampments in public parks.
In the case of Santa Cruz Homeless v. Bernal, 2021 U.S. Dist. LEXIS 13839 (Dist. N.D. Calif. 1/20/2021), several organizations and individuals experiencing homelessness petitioned the federal district court to enjoin the implementation of an executive order by the City of Santa Cruz, California, to close homeless encampments in San Lorenzo Park and the Benchlands during “a time when the COVID-19 pandemic is surging and the City’s homeless shelters are full.” According to the plaintiffs, these park closures “would leave the homeless persons camping in those locales more vulnerable to COVID-19 than if they were allowed to remain in the encampments.”
Facts of the Case
On December 3, 2020, the California Department of Public Health issued a Regional Stay at Home Order, stating “all individuals living in the Region shall stay at home or at their place of residence” when intensive care unit capacity falls below 15 percent. On December 16, 2020, the Health Services Agency of the County of Santa Cruz issued a press release stating that the regional stay-at-home order would commence on December 17, 2020.
Santa Cruz County had seen “the largest number of new COVID cases to be recorded in Santa Cruz since the pandemic began” and “the absolute number of positive tests has also increased significantly by about 25 [percent] since before Christmas.”
The individual plaintiffs in this lawsuit, Avalos, Hegel, Ingersoll and Tolley, (Plantiffs) had been residing in the San Lorenzo Park and the Benchlands encampment (Encampment) in Santa Cruz for several months. The Encampment had grown to close to 200 individuals over the past six months. Residents of the Encampment are fed and provided with survival services and items at that locale. As a result, the Plaintiffs argued they would face separation from these vital services if the City is allowed to carry out the Executive Order. The City had allowed San Lorenzo Park to be used for encampments during the past nine months of the COVID-19 pandemic.
In April 2020, the City and County of Santa Cruz (City) attempted to implement a “socially distant” encampment layout “in deference to the CDC [Centers for Disease Control and Prevention] Guidance on encampments,” and the City provided trash services and hygiene resources to the Encampment.
In July 2020, the City and County worked together to establish a managed camp at the Benchlands. The City had continued to provide trash service and hygiene resources to the Encampment residents. In addition to its efforts at the Encampment, the City had partnered with the County to add shelter capacity in the City at Veterans’ Hall, the Golflands, the Pavilion and several motels. Despite these efforts, shelters for people experiencing homelessness in the City and County of Santa Cruz were full.
On or around December 17, 2020, the City issued an Executive Order that authorized and ordered the temporary closure of San Lorenzo Park and the Benchlands. The order stated that these closures would “be accomplished in phases, with the goal of temporarily closing the entire park by January 6, 2021.” Further, “the closure period will end on January 31, 2021, unless an extension of the closure is authorized.”
The Executive Order noted that “[i]n recent weeks, the conditions at San Lorenzo Park have deteriorated to the extent that we feel that a temporary park closure is the City’s best and only realistic option.” Conditions noted in the Executive Order included vandalism, fire safety, criminal activity, tree damage, trash and a lack of physical distancing or wearing of masks.
The Executive Order further stated that the City had a “duty to preserve the park grounds and facilities and to prevent exorbitant rehabilitation expenses from becoming necessary at San Lorenzo Park,” having paid more than $140,000 to clean and start the rehabilitation process of public park areas “during this time of significant budgetary constraints.”
On December 21, 2020, the City executed the first phase of the Executive Order, vacating the areas around the playground in San Lorenzo Park. While the second phase was scheduled to occur on December 28, 2020, the City paused its efforts after large and vocal community protests.
Preliminary Injunction Requirements
As cited by the federal district court, the following legal standard would determine whether the requested preliminary injunction was warranted in this particular case:
To obtain a preliminary injunction, the moving party [in this case, the homeless Plaintiffs] must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest.
The court further acknowledged a preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
Likelihood of Success on the Merits
In their complaint, the Plaintiffs alleged that the authorized closure of San Lorenzo Park and the Benchlands at the height of the COVID-19 pandemic had placed homeless individuals in a position of danger in violation of the 14th Amendment to the United States Constitution, 42 U.S.C. § 1983, which prohibits the government from depriving individuals of their liberty and property without due process of law. According to the Plaintiffs, the City had deprived the Plaintiffs of their rights by placing “unhoused persons at greater risk of COVID-19 infection, injury and death” by “clearing the Encampment and failing to provide alternate safe housing.”
The federal district court noted: “There is no fundamental right to housing.” That being said, the court recognized “liability under substantive due process [i.e., protection of fundamental rights from government interference] where a state or local official acts to place a person in a situation of known danger with deliberate indifference to their personal or physical safety.”
Within the context of substantive due process liability, the court defined “deliberate indifference” as “a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” In considering the existence of deliberate indifference, the court would, therefore, “examine whether the city left the person in a situation that was more dangerous than the one in which they found him.” Accordingly, for purposes of issuing a preliminary injunction, the federal district court would determine “whether Plaintiffs are likely to succeed in demonstrating that the City’s closure of the Encampment at this point in time will put the homeless persons living there at greater risk of contracting COVID-19.”
As noted by the federal district court, CDC had issued “Interim Guidance on Unsheltered Homelessness and Coronavirus Disease 2019 (COVID-19) for Homeless Service Providers and Local Officials.” These CDC Guidelines are provided as follows:
If individual housing options are not available, allow people who are living unsheltered or in encampments to remain where they are. Clearing encampments can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread.
Since “the CDC Guidelines are not binding and do not set constitutional standards,” the City had argued the court should not consider them in its preliminary injunction analysis.
The federal district court, however, found the CDC Guidelines were “clear and specific,” namely, “if there is no alternative housing available, leave the encampments to remain where they are because clearing encampments may increase the potential for infectious disease spread.” Moreover, the court noted cities and states, including the City of Santa Cruz, “routinely look to the CDC for guidance during this novel pandemic,” in particular, “considering the CDC Guidelines in evaluating the relative COVID-19 risk.”
Regional Stay at Home Order
Further, the court found the CDC Guidelines were “consistent with the California Department of Public Health’s most recent Regional Stay at Home Order, also adopted by the County of Santa Cruz.” The Regional Stay at Home Order stated: “all individuals living in the Region shall stay at home or at their place of residence.” In this particular instance, the court further noted that the City of Santa Cruz “offers no alternative authority to that of the CDC in managing the homeless population in this pandemic.”
As described by the federal district court, the Encampments provided services and survival items for individuals experiencing homelessness, including actual or make-shift shelter. In addition to shelter, the court found the population of people experiencing homelessness had access to services and hygiene facilities at the Encampment, including showers, portable toilets, handwashing stations and sharps disposal containers. The court, however, noted “the first phase of Encampment closure led to people losing their tents and tarps,” which had provided shelter.
Most notably, as characterized by the court, “one of the vital services is nurses from Homeless Persons Health Project coming to the park every couple of days to check in with campers and offer medical assistance as needed.” The Plaintiffs also presented evidence that “the homeless persons receive donations at the Encampment, such as clothing, food, masks, and medical supplies.”
No Alternative Housing Options
In this particular instance, the Plaintiffs and the City had agreed that “there are no alternative shelters or individual housing options available for the people residing in the Encampment”:
Despite efforts by the City and County to accommodate the homeless persons during the COVID-19 pandemic, including expanding shelter capacity at multiple locations, the longer-term shelters are generally full. Further, the County has a prioritized referral pool from which vacant shelter beds are quickly filled, and the individuals encamped at San Lorenzo Park do not have priority within that system.
Under these circumstances, the federal district court indicated the CDC Guidelines and the Regional Stay at Home Order were “instructive in evaluating the risk and danger” in determining whether a preliminary injunction was warranted. In the opinion of the court, “the Plaintiffs are likely to succeed in demonstrating that the City’s dispersal of the homeless persons during the current dire situation of the COVID-19 pandemic puts them at greater risk for COVID-19 than if they remain in the Encampment.”
In reaching this conclusion, the court found “the CDC Guidelines are clear and direct stating...where there is no alternative housing available, leave the encampments to remain where they are to prevent the potential for infectious disease spread.” In addition, the court noted the CDC Guidelines discussed sanitation, hygiene materials and handwashing facilities, which were services currently available to persons at the Encampment.
Previous Encampment Dispersals
After previous dispersals of homeless encampments in the COVID-19 era, Santa Cruz claimed “the County did not observe an increase in positive COVID-19 cases among the dispersed populations.” In particular, the City of Santa Cruz pointed to wildfires in August 2020, which had prompted a large-scale evacuation without any significant COVID-19 increase. Further, the City cited an “overall absence of an increase in COVID cases in the August-October time frame.”
The court, however, noted this earlier large-scale evacuation only involved 50 individuals experiencing homelessness from an encampment, in a total evacuation that exceeded 35,000 persons. Further, this evacuation was “not tied to any additional dispersals of homeless encampments.” Moreover, the court found the City’s declaration was “silent as to any COVID increase among the 50 homeless persons” in the earlier evacuation. As a result, the federal district court concluded the City’s evidence did not support the argument that “dispersal of the Encampment homeless population will not lead to an increase in the risk of COVID-19 infection.”
The City had also argued the risk of infection was “mitigated by wearing face masks, avoiding crowds and social distancing,” whether inside or outside the Encampment. The City, however, had presented “evidence of homeless persons in the Encampment gathering in crowds and not wearing face masks.” The federal district court acknowledged the City’s point as to the wearing of face masks and physical distancing was “well taken.” That being said, the court noted there were “dueling declarations and photographs submitted by both sides” as to “how carefully these practices are followed in the Encampment.”
The City had further argued that “the large Encampment itself presents a heightened risk of COVID-19 transmission.” The federal district court rejected this argument:
While COVID-19 transmission is a legitimate risk to any co-habitation setting, here it is outweighed by the risk of dispersing the homeless persons against the CDC Guidelines and the Regional Stay at Home Order, particularly when there are no safe, alternate housing options available.
Accordingly, based upon the CDC Guidelines and the Regional Stay at Home Order during “what could be the height of the COVID-19 pandemic,” the federal district court concluded, “the homeless persons would be placed in a more vulnerable situation and in greater danger without access to shelter or services, particularly medical services, showers, and handwashing stations, that they have been receiving at this central location.” As a result, for purposes of granting the Plaintiffs’ motion for a preliminary injunction, the federal district court determined: “Plaintiffs have shown a likelihood of success on the merits of their due process claim if the City cleans and clears the Encampment.”
As cited by the court, “an alleged constitutional infringement will often alone constitute irreparable harm” to warrant issuance of a preliminary injunction. In this particular instance, the court found: “Plaintiffs have shown the likelihood of being placed in a position of danger in violation of their substantive due process rights during the COVID-19 pandemic.” The court, therefore, concluded, “Plaintiffs have demonstrated that irreparable harm will result in the absence of a preliminary injunction at this time.”
Balance of Equities
For purposes of granting a preliminary injunction, the federal district court also was required to consider a “balancing of the equities in the evidence before the Court.” In this particular instance, numerous community members had expressed their concerns about the Encampment. Moreover, the City contended there were “major public safety concerns, including drug use and major crimes and safety incidents, including two deaths, one attempted murder, and two cases of assault with a deadly weapon.”
The City also raised serious safety concerns regarding “fire hazards, which pose a threat to the health and safety of the encamped individuals, as well as the general public.” Further, the City referenced “public nuisances, including human and animal waste, needles, vandalism, theft of City and County property, and damage to the City’s trees, plantings, and grass.” The City also had cited “additional incidents of violence, retaliation, and vandalism at San Lorenzo Park,” but the court found it was not clear “whether these incidents are properly attributed to the homeless persons living in the park.”
As characterized by the Plaintiffs, many of the City’s emergency health claims were “a product of the City’s own negligence,” which could have been “remedied without forcing the homeless persons out during the COVID-19 pandemic.” While the City had presented “compelling evidence of numerous concerns regarding the Encampment,” the federal district court found the “degree and severity of these issues” was subject to debate and competing declarations by the parties in this case.
In general, the court acknowledged: “the City currently faces multiple crises arising from the pandemic.” With regard to the Encampment, the court recognized “the significant efforts and burden the City has taken on during the pandemic, including coordinating with the County to add shelter capacity at multiple sites and allowing encampments at San Lorenzo Park for the last nine months.”
After balancing the equities in this particular case, the federal district court held: “the City’s interest in cleaning and clearing the Encampment in San Lorenzo Park and the Benchlands at this moment in time is outweighed by Plaintiffs’ interest in their constitutional rights during what the Court can only hope is the peak of the COVID-19 pandemic.”
In addition, the federal district court acknowledged “the legitimate public interest of protecting the public health and safety, as well as the need to protect and preserve San Lorenzo Park and the Benchlands.” The court, however, also recognized the public interest in “maintaining the protections afforded by the Constitution to those most in need of such protection.” Moreover, in the opinion of the court, “this preliminary injunction, tightly tied to the current phase of the COVID crisis, will benefit public health at large”:
Ensuring that the homeless persons have access to shelter and vital services during the COVID-19 pandemic is imperative to help stop the spread of COVID-19 amongst the population impacted by this injunction. Further, it will also help reduce the likelihood that COVID-19 will spread throughout the greater Santa Cruz community, as suggested by the CDC Guidelines.
As a result, the federal district court determined “the public interest also weighs in favor of a preliminary injunction.” In so doing, the court acknowledged “the significant hardship on the City to allow the Encampment to remain.” However, “with the COVID-19 pandemic still raging,” the court held “the balance of hardships tips in favor of the Plaintiffs.”
Having applied the required factors for issuing a preliminary injunction, the federal district court concluded: “Plaintiffs have met their burden to show that a preliminary injunction should issue to enjoin the City from clearing San Lorenzo Park and the Benchlands during the current phase of the COVID crisis.” Accordingly, the federal district court granted the Plaintiffs’ motion for a preliminary injunction.
In so doing, the court noted “the keystone of the preliminary injunction is the current dire state of the COVID-19 pandemic.” As a result, the court indicated “re-evaluation of the injunction will be necessary” as “vaccines roll out and the pandemic eases, dispersal of homeless persons from the encampments may no longer put them at greater risk for COVID-19.” Because it was “possible, indeed highly desirable, that the pandemic eases more quickly than this case proceeds to trial for injunctive relief,” the court further directed “the Parties to keep a watchful eye on the situation and to submit periodic status reports to the Court.”
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).