Recent constitutional law developments have complicated the already tangled problems that unhoused people — as well as the cities that host them — must face every day. Some of the nation’s most visible homelessness problems appear in San Francisco, Berkeley, and its neighboring Bay Area cities, due to the region’s ongoing housing crisis. One estimate states that over 62 percent of Berkeley’s unhoused people have at least one physical or mental disability.
In an ongoing lawsuit, a group of disabled homeless people has joined with a nonprofit group to sue the City of Berkeley in federal court following sweeps and clearings of their homeless encampment. The plaintiffs said that their disabilities prevented them from obeying or, in some cases, even understanding instructions from the City or the police. They claimed this left them unable to seek help as the City seized and destroyed irreplaceable property.
The court has issued temporary restraining orders (TROs) and injunctions to address the City’s actions, but the litigation has continued for three years. Most recently, attorneys for the homeless shelters working with the City appeared at oral argument, contending that they could not bear responsibility for the City’s ADA breaches.
Berkeley’s Encampments and the City’s Choices
Until 2024, the Ninth Circuit (which includes California) held that it was “cruel and unusual punishment” under the Eighth Amendment to forbid homeless people from camping in public, unless those people had alternatives. The Supreme Court’s decision that year in City of Grants Pass v. Johnson rejected that holding. With the Court’s removal of that Eighth Amendment barrier, many cities—including Berkeley—continued or expanded encampment enforcement, still constrained by other constitutional and statutory limits such as the ADA and due process.
For years, Berkeley’s unhoused had resorted to an encampment at Eighth and Harrison Streets, eventually creating a community out of necessity. Even so, Eighth and Harrison posed its own hazards to nearby businesses and residents, as the City found: trash, cooking fires, loose syringes, and security concerns. (One local advocate called Berkeley “a de facto open-air insane asylum.”) Most recently, the City has linked homeless encampments on Harrison Street to a fatal outbreak of leptospirosis, a rat-borne disease dangerous to humans and dogs.
After the Supreme Court’s decision in Grants Pass, Berkeley City Council voted to “crack down” on its longstanding encampments—but even by then, it was already facing litigation. Yesica Prado, a journalist and photographer who is herself disabled and homeless, is the named plaintiff in a 2023 lawsuit over the City’s treatment of unhoused residents. Together with the nonprofit Where Do We Go Berkeley and several other homeless plaintiffs, Prado alleges that the City has violated the constitutional and legal rights of disabled homeless residents.
Missing Property and Missing Ramps: Rights on the Edge
The plaintiffs in Prado v. City of Berkeley make painful allegations of loss and upheaval at the City's hands. They claim that the City’s encampment sweeps only came after notice that the disabled residents could not access or understand. As City officials cleared the area, they forced each resident to put all their property into a small square, hardly big enough for a wheelchair; the rest would be destroyed. Some residents were physically unable to move their property, and the City allegedly denied them assistance.
The plaintiffs claimed that the outreach and shelter that the City offered were difficult or impossible to use. For example, residents with cognitive processing issues could not understand the paperwork or process. Shelters without wheelchair ramps, grab bars, or accessible toilets effectively left disabled residents to their own devices.
Prado’s lawsuit sought certification of a class including all affected unhoused residents of Berkeley. It presents four claims against the City under federal law:
- Violations of Title II of the Americans with Disabilities Act, which provides that no disabled person shall “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity”
- Violations of the Fair Housing Act by failing to offer “reasonable accommodations” to disabled people in homeless shelters
- Violating Fourth Amendment and Fourteenth Amendment rights by seizure and destruction of personal property without due process and through the manner of Berkeley’s sweeps and enforcement actions
- Violating the Fourteenth Amendment by exposing the plaintiffs to state-created danger through destroying plaintiffs’ property (including medical equipment) and forcing them to leave encampments without adequate alternative shelter (although some aspects of this state‑created‑danger theory have already been narrowed or dismissed in the ongoing litigation)
The plaintiffs make additional claims under California state law, but a decision on the federal claims could have a broader effect on cities’ homelessness policies.
The Way Forward
The plaintiffs in Prado v. City of Berkeley are not seeking monetary damages in that lawsuit. Rather, they have sought permanent injunctions and specific relief: storage for property, assistance for disabled residents in understanding and seeking care, and other needs. Although some claims have been dismissed, the suit — along with a suit by the Berkeley Homeless Union — has been successful in delaying full clearances and allowing disabled residents to remain in place for some time.
The City has entered a third-party complaint in the suit, claiming that the homeless shelters were responsible for any ADA or Fair Housing Act violations they committed. In that complaint, Berkeley argues that shelter operators bear primary responsibility for complying with ADA and Fair Housing Act requirements in day‑to‑day shelter operations, while the City retains its own separate obligations as a public entity. The attorney representing the shelters argued that the City could not “contract away” its constitutional responsibilities or its core duties under the ADA, even if its agreements require shelter providers to follow disability laws and indemnify the City.
Slow and difficult as it is, this complex litigation could eventually clarify the constitutional rights of unhoused residents and the City’s options to handle homeless encampments.
