Weekly Law Resume - March 21, 2013: Ninth Circuit Holds that Jurisdiction Exists as to Homeless Individuals’ Eighth Amendment Challenges to Local Camping and Sleeping Ordinances

by Low, Ball & Lynch
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Bell, et al. v. City of Boise, et al.
United States Court of Appeals for the Ninth Circuit March 7, 2013

Plaintiffs in this case are seven individuals who either are or have been homeless in Boise. They have all been cited or arrested for violating either one or both of the following local ordinances. Boise’s Camping Ordinance, Boise City Code § 9-10-02 (1993), provided:

It shall be unlawful for any person to use any of the streets, sidewalks, parks or public places as a camping place at any time . . . provided that this section shall not prohibit the operation of a sidewalk café pursuant to a permit issued by the City Clerk.

Violation of the Camping Ordinance resulted in a misdemeanor. The Sleeping Ordinance, Boise City Code § 6-01-05(A), criminalized “disorderly conduct” which includes “[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof.” Violation of the Sleeping Ordinance also resulted in a misdemeanor.

Plaintiffs filed an amended complaint challenging the Camping and Sleeping Ordinances (collectively, “the Ordinances”), alleging that the City of Boise, Boise Police Department, and Michael Masterson in his official capacity as Chief of Police (collectively “Defendants”) used the Ordinances to criminalize homelessness. At the heart of Plaintiffs’ claims was the alleged unavailability of overnight space in Boise’s homeless shelters. As such, the Plaintiffs claimed that the enforcement of these Ordinances constituted “cruel and unusual punishment” under the Eighth Amendment of the Constitution because these Plaintiffs had nowhere else to sleep if the shelters were full. Plaintiffs sought declaratory and injunctive relief to enjoin further enforcement of the Ordinances. Plaintiffs also sought an order compelling the City of Boise to expunge the records of any homeless individuals unlawfully cited or arrested and requiring the reimbursement of any criminal fines or costs of incarceration paid by homeless individuals as a result of their citations and arrests.

After the litigation had commenced, Boise amended its Camping Ordinance to define “camp” and “camping” as the use of public property as a temporary or permanent place of dwelling, lodging or residence at any time between sunset and sunrise. No changes were made to the Sleeping Ordinance, but the Boise Police Department’s Chief of Police issued a Special Order prohibiting police officers from enforcing the Camping and Sleeping Ordinances when a person is on public property and there is no available overnight shelter.

The Defendants brought a motion for summary judgment, which the trial court granted. The trial court analyzed the Plaintiffs’ Eighth Amendment claims by distinguishing between daytime enforcement of the Sleeping Ordinance and the nighttime enforcement of the Sleeping and Camping Ordinances. The trial court found that undisputed facts reflected that the homeless may sleep in the parks during the day whether or not shelter space was available. As such, the court concluded that the daytime aspect of Plaintiffs’ claims failed as a matter of law.

As to the nighttime enforcement of both Ordinances, the court found that the claims for prospective relief (that is, the future enforcement of the Ordinances) were mooted by the adoption of the Special Order. The Special Order allowed the homeless to sleep in parks at night if there was no shelter space available, and thus, it was “no longer reasonable” to expect that the police would continue to enforce the ordinances at night when no shelter space was available.

Moreover, the trial court found that Plaintiffs’ claims for retrospective relief, such as the request to expunge the Plaintiffs’ criminal records, were barred by the Rooker-Feldman doctrine. The Rooker-Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgment and seeking federal court review and rejection of that judgment.

The Plaintiffs appealed the trial court’s decision, but focused the appeal on the court’s findings regarding mootness and the Rooker-Feldman doctrine.

First, the Ninth Circuit found that the trial court erred in dismissing Plaintiffs’ claims under the Rooker-Feldman doctrine. It held that for the doctrine to apply, the Plaintiffs had to have either alleged that the state court committed legal error or sought relief from the state court judgment itself. Plaintiffs did neither, and as such, the doctrine did not apply. The Ninth Circuit then reversed the dismissal of Plaintiffs’ claims for retrospective relief.

Next, the Ninth Circuit addressed the trial court’s decision to dismiss the Plaintiffs’ claims for prospective relief as moot because of the adoption of the Special Order. The Ninth Circuit noted that a case becomes moot only if subsequent events make it “absolutely clear” that the wrongful behavior would not reoccur. Here, the Ninth Circuit observed that the Special Order was not passed by a legislative body and that the Special Order could be easily abandoned or altered because the authority to establish the policy was vested entirely in the Chief of Police. There was no assurance that the voluntary policy would prevent further constitutional violations. Therefore, the Ninth Circuit held that jurisdiction existed as to Plaintiffs’ claims for prospective relief.

After making the foregoing determinations, the Ninth Circuit remanded the case back to the trial court for consideration of the merits of Plaintiffs’ Eighth Amendment challenges.

COMMENT

While the Ninth Circuit did not reach the merits of the Plaintiffs’ Eighth Amendment challenges to the local Camping and Sleeping Ordinances, this case demonstrates that courts will allow such challenges to proceed on their merits. Moreover, subsequent remedial action, such as amendments to ordinances or changes in enforcement policy, will not act as a per se jurisdictional bar to such constitutional challenges. Municipalities should be aware of these kinds of constitutional concerns when drafting and enforcing these types of ordinances.

For a copy of the complete decision see:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/07/11-35674.pdf

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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