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WDWGB v. Caltrans, the 9th Circuit Federal Court of Appeal Over California Held That Clearing High-Risk Homeless Encampments Doesn’t Violate the ADA

Jun 10, 2022

The 9th Circuit published a case establishing that public agencies may clear high-risk homeless encampments that pose an immediate danger.


The 9th Circuit (federal appellate court over California) just published a case conclusively establishing that public agencies may promptly clear high-risk homeless encampments that pose an immediate danger to public safety or infrastructure without violating the ADA. 

Further, the court reaffirmed the proper injunction standards against a governmental entity under federal law and provided valuable insight into balancing the equities involved in clearing homeless encampments.
In WDWGB v. Caltrans, Caltrans served a homeless encampment with a 72-hour notice that it planned to clear the high-risk encampment along the freeway. Through a private homeless advocacy organization, the homeless sought an injunction against Caltrans. 

They argued that clearing the encampment violated the ADA because Caltrans did not provide “reasonable accommodations” by denying the additional homeless time before removing the encampment and by refusing to open an alternative Caltrans site to the homeless.

The court took it as granted that the homeless qualify as disabled persons protected by the ADA, inferring that an ADA analysis seems to require anytime a homeless encampment is removed. 

Further, the court interpreted what qualifies as a “governmental program subject to the ADA” very broadly, including sub-programs to clear homeless encampments, even if that effort is just in support of that governmental entity’s broader mission.

Accordingly, the ADA requires governmental entities to provide “reasonable accommodations” to “homeless” when “clearing encampments” unless those accommodations would be a “fundamental alteration” of the entity’s program or the “balance of the equities” favors the governmental entity.

In the Caltrans case, the court determined, as a matter of law, that the “balance of equities” was in Caltrans’ favor because there was evidence that the encampment was high risk. It posed an imminent danger to public safety or infrastructure, and the homeless did not establish that they would suffer more significant irreparable harm. 

Accordingly, the court held that an injunction requiring Caltrans to wait six months to clear the encampment was not a required “reasonable accommodation” under the ADA. 

Caltrans did not offer alternative housing, and housing is not part of Caltrans’ mission. The requirement for Caltrans to open an alternative site for the homeless as a condition to remove the injunction against clearing the high-risk encampment was improper as that was a “fundamental alteration” of Caltrans’ program.

However, this is a case-specific analysis, so governmental entities will have to assess case-by-case whether the imminent harm to the public is greater than the harm to the homeless when deciding how quickly to clear a homeless encampment.

It’s essential to note that as part of Caltrans’ program to clear homeless encampments, Caltrans did not assume responsibility for sheltering or finding alternative housing for the homeless. This program was vital to the Court’s conclusion that it would be a “fundamental alteration” to Caltrans’ program to require Caltrans to provide alternative locations or shelter to clear the encampment and not merely a “reasonable accommodation.”

Governmental entities should know that offering shelter as part of their homeless encampment clearing programs could become a binding obligation. Binding obligations could lead to being required to provide shelter in other circumstances, or for more extended periods, as a required “reasonable accommodation” under the ADA rather than a prohibited “fundamental alteration.”

Notice: S&W legal alerts are not legal advice. Additional facts or future developments may affect the subject of this alert. Therefore, seek the advice of an attorney before acting or relying upon any information in this alert.

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