444 F.3d 1118, 1138 (9th Cir. 2006)
The six appellants are homeless individuals living on the streets of Los Angeles's Skid Row district, including Edward Jones and his wife Janet, Patricia and George Vinson, Thomas Cash, Stanley Barger, and Robert Lee Purrie.1 The defendants are the City of Los Angeles, Police Chief William Bratton, and Captain Charles Beck.2
The ordinance at issue, Los Angeles Municipal Code section 41.18(d), provides that no person shall sit, lie or sleep in or upon any street, sidewalk or other public way, with violations punishable by a fine of up to $1000 and/or imprisonment of up to six months.3 Skid Row covers fifty city blocks immediately east of downtown Los Angeles and has the highest concentration of homeless individuals in the United States.4
For the approximately 11,000-12,000 homeless individuals in Skid Row, space is available in SRO hotels, shelters, and other temporary or transitional housing for only 9000 to 10,000, leaving more than 1000 people unable to find shelter each night.5 In the County as a whole, there are almost 50,000 more homeless people than available beds.6 The monthly welfare stipend for single adults in Los Angeles County is only $221, while the fair market rent for an SRO room in 1999 was $379 per month.7
Each appellant was cited or arrested under the ordinance while homeless and without shelter.8 Robert Lee Purrie was cited at 5:20 a.m. on December 5, 2002, while sleeping on the sidewalk at Sixth Street and Towne Avenue, and was later arrested and convicted.9 Stanley Barger was arrested at 5:00 a.m. on December 24, 2002, while sleeping on the sidewalk at Sixth and Towne.10 Thomas Cash was cited at approximately noon on January 10, 2003, while resting on a tree stump.11 Edward and Janet Jones were cited at 6:30 a.m. on November 20, 2002, while sleeping on the sidewalk at the corner of Industrial and Alameda Streets.12 Patricia and George Vinson were cited at 5:30 a.m. on December 3, 2002, after missing a bus to a shelter and sleeping on the sidewalk near the corner of Hope and Washington Streets.13 Many of the declarants lost much or all of their personal property when they were arrested.14
On February 19, 2003, the appellants filed a complaint in the United States District Court for the Central District of California pursuant to 42 U.S.C. § 1983.15 They seek a permanent injunction barring enforcement of section 41.18(d) in Skid Row between the hours of 9:00 p.m. and 6:30 a.m.16 On cross-motions for summary judgment, the district court granted judgment in favor of the City.17 The appellants timely appealed to the Ninth Circuit.18
Whether plaintiffs who have been cited, arrested, or convicted under a municipal ordinance prohibiting sitting, lying, or sleeping on public sidewalks have standing to bring an Eighth Amendment challenge?19
Article III requires a plaintiff seeking prospective injunctive relief to demonstrate a real and immediate threat of future injury fairly traceable to the challenged conduct and redressable by a favorable decision; the Cruel and Unusual Punishment Clause's substantive limit on criminalization attaches upon subjection to the criminal process through citation, arrest, or conviction, not only after final conviction.20
Yes. The six appellants, including Edward Jones, Patricia and George Vinson, Thomas Cash, Stanley Barger, and Robert Lee Purrie, have each been cited or arrested under section 41.18(d) while homeless on Skid Row streets, with Purrie and Barger also convicted and sentenced, establishing past injury.21 Given the undisputed shortage of more than 1000 shelter beds nightly in Skid Row and nearly 50,000 countywide, they face a real and immediate threat of repeated citation, arrest, jailing, and prosecution for the unavoidable acts of sitting, lying, or sleeping.22 This satisfies the case-or-controversy requirement without need for a necessity defense to be litigated first.23
The plaintiffs possess standing to pursue their Eighth Amendment claim for limited injunctive relief.24
Related opinions on this issue
Judge Rymer contends that standing under the Eighth Amendment requires a conviction because the Clause protects only against cruel and unusual punishment after adjudication of guilt.25 She relies on Ingraham v. Wright for the proposition that the Clause was designed to protect those convicted of crimes.26 Judge Rymer further argues that the plaintiffs have not shown shelter was unavailable on the precise nights of their citations or arrests.27
She maintains that the availability of a necessity defense under California law prevents any future conviction and thus eliminates the threat of punishment needed for standing.28 In her view, the standing inquiry collapses into the merits, and the plaintiffs both lack standing and lose on the merits for this reason as well.29
Whether the Eighth Amendment prohibits enforcement of an ordinance criminalizing sitting, lying, or sleeping on public sidewalks against homeless individuals who have no available shelter?30
The Eighth Amendment, as interpreted in Robinson v. California and the controlling views of five Justices in Powell v. Texas, prohibits the state from criminalizing pure status or involuntary acts that are unavoidable consequences of that status; when the number of homeless persons exceeds available shelter beds, sitting, lying, or sleeping on public sidewalks becomes an unavoidable consequence of being human and homeless.31
Yes. The appellants are homeless individuals living on Skid Row sidewalks because shelter space exists for only 9000 to 10,000 of the 11,000-12,000 nightly homeless there, forcing them to sit, lie, or sleep in public as a biological necessity they cannot avoid.32 The ordinance makes that conduct criminal at all times and places without exception, thereby punishing the status of homelessness in violation of the Clause's substantive limits on what may be criminalized.33 The appellants' prior volitional acts are not sufficiently proximate to the punished conduct.34
The Eighth Amendment prohibits the City from enforcing section 41.18(d) against homeless individuals involuntarily sitting, lying, or sleeping on public sidewalks when no shelter is available.35
Related opinions on this issue
Judge Rymer dissents that the ordinance regulates conduct rather than status because anyone, housed or homeless, can violate it by sitting or sleeping on sidewalks.36 She argues that Robinson applies only to pure status crimes without an actus reus.37 Judge Rymer maintains that the plaintiffs have not demonstrated their presence on the streets was involuntary on the specific occasions at issue.38
She contends that extending the Clause to conditions created by the City's discretionary failure to provide shelter would improperly federalize social policy and intrude on state criminal responsibility determinations.39 In her view, the majority's expansive construction exceeds the boundaries set by the Supreme Court on the Robinson limitation.40