*1 grievous ambiguity that there is a conclude HOUSE, INC.; [Guidelines],” COMMUNITY uncertainty in the Marlene Smith; that, Greg Luther; Jay K. seizing “after A.
point
everything from
D.
derived,
Banta, Plaintiffs-Appellees,
...
which aid can be
we can make
guess
no more than
what [the
Sentencing Commission] intended.” Id. at
BOISE, IDAHO;
CITY OF
Boise
added)
138-39,
(emphases
imprisonment robbery] on [his sentence.” United Appeals, States Court of Thus, Garcia was from impris- “release[d] Ninth Circuit. 20, onment on sentence” on [that] June Argued May and Submitted 2010. years less than two April before date he “committed the instant Filed Oct. offense.” Accordingly, we conclude that
Garcia “committed the instant offense less years
than two after impris- release from
onment on a sentence counted under 4Al.l](a),” §
[U.S.S.G. hold that the correctly
district coui’t added one criminal 4Al.l(e).
history point § under U.S.S.G.
Ill correctly
Because the district court add- history
ed two criminal points under 4Al.l(d) § and one
U.S.S.G. criminal histo-
ry 4Al.l(e), § point under U.S.S.G.
affirm Garcia’s sentence.
AFFIRMED.
part public/private partnership of a building operated CHI homeless shelter and as low-income transitional housing. In and the City CHI agreed agreement to terminate the lease right manage building. and CHI’s City In building leased the (“BRM”), Boise Rescue Mission an organi- operates facility zation that as a home- single less shelter for men and that in- religious cludes its activities Christian pre-meal prayers. services and Belodoff, Legal Howard A. Idaho Aid purchased facility the BRM pursuant Inc., Boise, ID, Services, plain- for the option to an contained in the agree- lease tiffs/appellees. ment. Collaer, Anderson, Phillip J. Julian & agreed After CHI terminate its lease LLP, Boise, ID, Hull the defen- City’s but before the new lease with the dants/appellants. BRM, CHI, along with several individual
plaintiffs, rights complaint filed a civil un- § der 42 against U.S.C. Council, alleging, the Boise among things, anticipated other that the lease of the building to the BRM violated the First Amendment’s anti-Establishment Clause KOZINSKI, ALEX Before: Chief (“FHA”). and the federal Fair Housing Act Judge, STEPHEN Circuit S. TROTT additionally named as defendants the SMITH, Judges. N. RANDY Circuit (1) following Bieter, individuals: David (2) Boise; mayor Maryann *7 TROTT; by Opinion Judge Concurrence Jordan, Bisterfeldt, Clegg, Elaine Vernon by Judge Chief KOZINSKI. Eberle, David Mapp, Jerome and Alan Shealy, City members of the Boise Coun- OPINION (3) cil; Chatterton, Bruce the Director of TROTT, Judge: Circuit Services; Planning Development and and The underlying appeal lawsuit this (4) Birdsall, Manager Jim of Housing Boise, City arises from the of Idaho’s com- Community Development.1 and assumption twenty years ago munal almost Council, City, City and the indi- responsibility of shared for the care and vidual summary defendants moved for housing popu- of a vulnerable sector of its judgment. Of relevance to this limited lation—the homeless. appeal, the district court summary denied In City’s legislative judgment connection with the to the individual defendants as a House, objectives, Community group, determining they Inc. were not en- (“CHI”) City from in legislative qualified leased 1994 as titled either to im- convenience, mеmbers, mayor, City 1. For all refer the Boise Council and Plaintiffs-Appellees collectively as “CHI.” We municipal employees collectively the two City City and refer to Boise the Boise Council “the individual defendants.” collectively City.” as "the We refer to the House, grew quickly. Surveys Inc. v. less conducted in munity. Cmty. Boise, 1154, early 1990s showed a 20% increase in F.Supp.2d 1165-66 (cid:127) (D.Idaho2009) ”), community. II Boise (“Cmty. recog- The court homeless As in issues of material nized its Second Amended genuine determined that Complaint, Boise was in the throes of a qualified immunity on the precluded fact crisis,” claims, citizenry “homeless to which the Establishment Clause but because responded dramatic fashion. CHI de- explicitly did not the individual defendants immunity Paragraphs scribes these efforts 42-46 qualified at that time a raise claims, Complaint: FHA of its Second Amended respect to the defense with the court did not consider that issue. Id. 42.....In Director Michael sponsored Sally Hoffman actress Fields
We are now faced with the second inter- [sic], perform play that raised over locutory appeal this case. Because $70,000. Rotary Club of Boise com- appeal from a individual defendants denial $50,000 $25,000 mitted in in-kind summary on the im- judgment basis of services to address the homeless crisis munity, jurisdiction pursuant we have in Boise. § 1291 and the collateral order 28 U.S.C. York, Community
doctrine. Robinson 43. In June (9th Cir.2009). Center, incorporat- Assistance Inc. was Bylaws adopted ed and for the Mayor hold that Bieter and the We purpose raising develop donations members of the Council are entitled full continuum programs and services immunity for their legislative to absolute address the needs of the home- promoting approving actions in decent, safe, less and to establish a Community lease and sale House to the sanitary community shelter. Additionally, municipal employees BRM. January the Articles Chatterton and Birdsall as individuals are change were amended to the name of entitled to qualified because at House, corporation approved time the the lease and August Inc. In the Articles were sale, a reasonable official would not have clarify amended to purposes known that such actions would violate the corporation. Establishment Clause or the FHA. We therefore reverse and remand to the dis- agencies, 45. Social service communi- proceedings trict court for further leaders, consis- ty corporate community and the opinion. tent with this participated in fundraising, including Clinic, *8 Terry Reilly City/ Health Boise
I County Ada Housing Authority, Job Idaho, Service of Department Idaho of BACKGROUND Welfare, YWCA, Health and Idaho Vo- History Community A. The of Rehabilitation, cational Security Social Boise, cities, Administration, many like other experi- has Veterans Administration Center, enced over time a dramatic increase in its Medical Community El-Ada Ac- population. general popula- Agency, Way homeless The tion United of Ada Coun- ty, tion of Boise increased more than 22% League, Junior Child Care Connec- 1980s, tions, Boise, in driving up Army, City the late the local cost Salvation housing. employment Department, Because Boise’s Boise Police St. Luke’s opportunities keep up Hospital, Neighborhood Housing failed to with its Boise Services, growing population, the County Community number of home- Ada Ser- Services, $650,000 vices, Health nations and over from a loan un- Central District KTVB, der the Federal Home Loan Bank Devel- Oppenheimer Channel (“FHLB”) Affordable Bank, Housing Program. Morrison H.W. opment, WestOne Foundation, and FUNDSY. 1, 1994, City On November Council in- subsequent years, case and
46. Resolution passed approved which from individuals and kind contributions the lease of House to CHI. Albertsons and corporations, including City agreed building The to lease the for Hewlett-Packard, millions amounted to per year years, for fifty keep and $1 condition, of dollars. facility good maintain the in and repairs. to make needed 1990s, City early In the of Boise formally joined community 30, 1994, this effort and parties On November en- design, began working plan, with CHI to Operating Agreement, tered into an in facility help meet City and construct a new which the agreed and CHI “to work population closely together the needs of the homeless in developing compre- 8, 1994, February City strategy problem Boise. On hensive to resolve the 12635, which, City in passed Council Resolution homelessness of Boise.” The City granted right according manage to CHI’s Second Amended Com- CHI facility months, sixty for with a plaint, “recognized importance of es- renewal Thus, sixty renewed, term if very months. tablishing facility for homeless and Operating Agreement expire by income The Resolution low individuals.” its own terms on November City’s to enter agreement set forth the partnership into a with CHI as well. The Throughout management, CHI’s Com- day, City signed and same CHI munity emergency House contained an (“MOU”) Understanding Memorandum shelter, housing, transitional single cooperative public/private to “enter into a (“SROs”). occupancy apartments residence objective partnership primary with the be- men, women, Residents included and fami- ing provide housing comprehensive rent, occupants paid lies. Some and the communi- services for the homeless our $125,000 City per year realized around ty.” facility, The new to be named Com- rental income. From 1995 to House, munity would be located Boise $200,000 City gave year in per CHI over near the corner of 13th downtown funds to run CDBG HOME Communi- parties and River envi- Street Street. House, ty totaling more than million. $2 City would own the build- sioned Operating and CHI renewed the ing and that CHI would lease it from the Agreement five-year after the initial term facility “a City. operate CHI would expired, managed building and CHI ... homeless shelter and resource center nearly years, apparently ten without provide emergency, tempo- [that would] any major City. disagreements with the rary, housing for homeless and transitional Unfortunately, the harmonious relation- families and individuals.” ship between the and CHI did not
Both the contributed to began to Disputes last. arise between the *9 Community the construction of House. regarding obligations each other’s parties City million in The contributed over agreements. under the various In a Feb- $1.6 Community Development Block Grant ruary City, 2004 letter to the CHI Presi- (“CDBG”) and Home Investment Partner- dent Deanna Watson described its situa- (“HOME”) funds, crisis,” ship saying, put and a “financial “To Program CHI tion as $400,000 just nearly private bluntly, money.” do- it we are about out of contributed 2002, through it February In December CHI fired its executive make the month. On City 6, Blickenstaff, and Mаnager director. Watson described Jan for the relationship during this CHI’s business City Department Housing and Commu- time follows: nity Development, responded to Watson’s request. and [C]ity,
The concerned about the adminis- CHI’s Blickenstaff informed legal City liabili- that potential trative issues and CHI had concerns about ties, solvency, withheld federal subcontracts with reporting, CHI’s fiscal controls Board, that until it message compliance, delinquent and and audits and adequate progress saw toward resolu- requests, reimbursement and he asked stability operations, tion and it would to share City plan CHI with the its for into In binding solvency. City refuse to enter new con- order for the to consid- City Community request tracts between the and er the for funding, Blickenstaff stated, City House. would need: Enter the Boise Rescue Mission. The A plan business that includes cash private organization BRM is a Christian projections flow and a sources and uses that provided has services to the homeless sixty statement for at least the next days---- southwest Idaho since 1958. The food, goal “provide BRM’s chief is to shel- 2. A disclosure payables of current and ter, clothing, along with practical pro- insurance, delinquency including status education, grams of teaching, Christian utilities, taxes, payroll, workman’s comp and work discipline with the aim of re- insurance, etc. ... turning poor, needy, and homeless to 3. The staffing plan position with de- self-sufficient, society as productive citi- scriptions for employees the new zens.” their [Please résumés. note that fund- raising eligible is not an grant federal City Management B. The Assumes activity.] Community House City eventually agreed and CHI mid-2003, City while the and CHI replacing short-term, that with a trying were still to work out prob- their third-party manager building of the lems, approached the BRM City about help keep Community open. That House, purchasing Community and the manager interim would be the Salvation City requested that the BRM submit a Army. February On the CHI proposal. August On the BRM Board support plan voted to the interim tentatively proposed operate the build- turn opera- over to the overall ing emergency shelter; as an homeless it responsibility tional House. single residency would also contain occu- pancy and transitional apartments City agreed to “bear all costs and occupied by would be those in a year-long liabilities not covered the interim man- recovery program substance abuse or em- agement operation associated with the ployment program. The BRM it stated upkeep facility during the interim would run Community House as a men’s period.” By signing a March shelter, pursuant policy housing its mayor’s letter from the recounting office separately. men and women agreements, agreed any these Watson 2, 2004, February
On Watson wrote to during period rents received this interim CHI, on behalf requesting paid would be as reimburse- $50,000 in $55,000 short-term help approximately financial to ment for the *10 munity emergency House as an paid expenses. to cover both City the had CHI’s City and transi- also with the homeless shelter a low-income agreed Board The CHI facility. continuing as formed to tional Instead of a a committee should be that facility, Advisory develop- and in mixed-use the Committee “provid[e] input expertise Community that plan management of recommended House permanent a for ing an meeting function “as asset in basic facility.” the in emergency needs of the homeless however, solution, interim This City Advisory of Boise.” The Committee take Army The Salvation did short-lived. that sharing emergency advised also shel- but, for Community House over control organizations with ter services such record, after unclear from the left reasons BRM, Army, the Salvation and local a year For next and only two weeks. might report churches be beneficial. The half, City operated facility, itself Community that recognized sale of $80,000 month to spending per around ought report House be considered. The running. Community up House and keep binding City was not intended to be on officials, help Mayor but to Bieter “in eval- Advisory The Committee C. City uating alternatives [the Boise’s] for mayor formed the Com- agreed, As Community House in the future.” Hoc munity Advisory House Ad Commit- Committee”) (“Advisory “explore tee Community and D. The Lease Sale may and strategies that enhance the role House to the BRM Community The Advi- mission of House.” the City June and CHI entered goal develop rec- sory Committee’s “was to contract, Management Agree- into a new a City that ommendations could assist the ment, which terminated CHI’s lease and future home- challenges Boise address Operating Agreement and transferred a for provide lessness and new framework City Community to the all assets of House. defining potential contributions agreed City parties The Community House make to this ef- could management all March pay costs from were six fort.” There members the programs 2004 “until are transferred vаriety of Advisory Committee with a wide entities,” manage Community to other (1) Reischl, backgrounds: Uwe a universi- long-term until a plan could be de- ty Advisory and Chair of the professor veloped, responsibility and take over on (2) Committee; Allen, architect; Greg FHLB loan. (4) (3) Dunn, corporate manager; a Jill Undaunted, Traylor, county a adminis- began exploring John executive its (5) trator; Wilson, plan Mike care options early health for such in when (6) advocate; Watson, published Request Deanna Presi- it for Interest/Re- (“RFI/RFP”). Proposal quest dent of CHI. sought any party proposals from RFI/RFP Advisory Committee issued its re- management interested direct or owner- port mayor May and the ship programs: of three facilities Recognizing that homelessness is 2004. House, Community kitchen soup run soci- enduring presence “an American Café, out of Baltes and Mello- the homeless “are often ety” Dee Thornton Childcare Center. pub- community forced to use services and very costly proposals due March lic resources inefficient Phase were Advisory required ways,” suggested Responding parties Committee interest, explain role of their describe the team that the re-examine the Com- *11 implement plan, facility the and discuss at that time a public would because auc- by necessary required tion was state statute. “funding and other resources to provide them transition the services response letter, to Chatterton’s the on an A short list of or- ongoing basis.” City BRM assured the that the shelter was ganizations would then be invited sub- anybody, “regardless available of their 2 proposals, mit Phase which were to con- religious affiliation.” The BRM also ex- sources, timetables, funding proposed tain plained why guests its male slept the budgets, manage- and a detailed staff and shelter, Front Street while women and plan. ment slept City children at the Light shelter: population The homeless difficult [a] City proposals received Phase population any serve under circum- organizations, including from several the problems stance. The are exacerbated BRM, Care, Laugh Day Giraffe Supportive gender in a mixed shelter environment. Housing Partnerships, and Innovative Inc. Further, it always appropriate is not (“SHIP”), Ada, February and El Inc. On families, particularly have families with very pro- CHI submitted short young children, sleep vulnerable posal stating City that “Boise ... must be facility the same as other members of ongoing funding partner[ beyond [an] the ] population. the homeless believe We distribution grant money,” of federal but it separate that our shelter facilities for actually any did not contain funding infor- men and women is one of the reasons mation. complete CHI submitted a more why police we have fewer calls our 17, 2005, proposal on April six weeks after Community facilities than House. document, the Phase deadline. In this Defendant Chatterton called the Boise proposed operate Community “to Police, City verified that the Front Street facility originally House as it was envi- nearly shelter had police 60% fewer calls sioned with some alterations.” House, Community than passed this City information on to the Council. proposed The BRM to renovate Commu- nity men, into a single 31, 2005, House shelter for May On City informed the who the time housed at the BRM’s BRM that it could not accept proposal its facility on Front If at that City Street. ac- time. Because the proposal con- cepted, templated House, a sale of proposal require Community City City steps described the it negotiate exclusively would have to with the take if it decided to property sell the Apparently BRM. concerned with the City stated Council would soon be men-only BRM’s policy religious and its voting on a resolution to move services, forward Chatterton, City Director of pursuant requirements. to those Services, Planning and Development asked for more information on these issues. In a law, In compliance with Idaho May letter, requested he clarifica- passed Council Ordinance 6402 on June tion policies on how the BRM’s would af- 2005, represented which superseding pol- fect “emergency shelter services” that icy approach to this issue. The Ordinance proposed the BRM to operate at the facili- First, things. did three the ordinance set ty. He asked for statistical and other decision, forth City’s as required by information on the BRM’s women’s 50-1401, shel- section to declare ter. Chatterton also informed the BRM surplus property that was underuti- that the negotiate could not exclusive- longer necessary lized and no ly with the purchase BRM for the public purposes. City gave *12 (1) it to bid City planning the that was not but its for decision: following reasons purchasing it the that would consider provid- did not include City’s core mission (2) terms services; property price if “the of there later ing shelter emergency purchasе acceptable.” in emergency [are] shelters shortage awas area, Community and use the Boise CHI, On behalf then-President Sue emergency “could an shelter House as Cobley only at the made the bid auction. (3) a community”; of the the needs meet buy property offered the for CHI to $2.5 to an emer- private entity manage trained ownership “equitable million of inter- its be better able to man- would gency shelter House, including in Community est” its shelter; emergency an age facility the as and improvements, personal prop- fixtures (4) converting property the to a use in Cobley alleged erty, accounts. the core that was “within mission accepted affidavit “auction officials the City than could cost more the City” would auction,” Community Inc. at the House bid pay. 26, July meeting, but that a “the bid, 50-1402, City Second, by rejected Council the refused required as section complete to transfer in accordance a minimum value for the the City the set requirements.” with the Ordinance Chat- million. property: $2.5 in a terton stated memorandum the Third, a City placed the deed restriction mayor and members that CHI’s council con- on which reflected its property the non-conforming bid “was auction homeless, a concern for the tinuing formal requirements” and recommended required facility that the restriction which responsive find were no Council there bids “as a kitchen years soup be for ten used stated, auction. Chatterton “CHI 12, July for the homeless.” On and shelter they have ‘equi- has demonstrated City amended deed restric- table interest’ House by passing tion Ordinance 6404. Ordi- pay facility. for the proрerty” sufficient that the be required property nance 6404 Acting authority soup as a and as within its lawful under years for ten kitchen used 50-1403, City decided to single, nego- “a minimum of section shelter for a 66[] men, lease, option, years including purchase tiate a a ages[ ] or older.” homeless[ ] City’s negotiations, with the BRM. In those reiterated intent This Ordinance a the BRM the same rent the existence of shelter for wanted $1 ensure had, homeless, is a of had while the asked market saying, shortage “There for an initially op- rate. The BRM asked designed emergency as shel- structures million. Therefore, price tion while the structure would ters. $1.8 City, meet by it could underutilized The BRM executed a lease and the community if it was sur- the needs of the initial September on 2005. The lease Moreover, plused.” Ordinance 6404 re- year, with nine re- term less than building be in a quired operated that the At year terms each. first the newal of one designed protect “the immedi- manner rent, year BRM would which pay per $1 community as a neighborhood ate and the after to market rent five escalate loitering. and from whole” from harm was million if years. option price $2 After that exercised March 2007. by sections 50-1402 and 50- required As date, sale, price to around $2.7 increased City published notice power million. retained no the auc- informing potential bidders that any control management exercise over July place tion would take facility. the BRM or the BRM informed the Before the auction required ‘dwelling,’” Section 5.2 the lease but did not decide the issue. facility an emergency BRM to use the Id. Based on that Community evidence (undеr control) Al- soup homeless shelter and kitchen. generated CHI’s up only *13 though these were the two services $125,000in annual rent from the transi- required, the lease the BRM was author- SROs, housing tional units and in which building ways, ized to use the in other such occupants resided for a up year “general programs residential uses” and half, a we had “little trouble concluding recovery. for substance abuse Minutes of part that at least facility” was in- a BRM meeting Board of Directors show tended as a residence and that therefore 9, 2005, by August that the BRM was still applied. the FHA Id. considering charging rent for on “SROs that, We held the single-men- because top floor.” only requirement contained in Ordinance City formally Council adopted Reso- facially discriminatory, CHI had 18765, lution approved which the lease to prima made out a facie case of intentional required the BRM. The Resolution that discrimination. Recognizing Id. 1050. operate facility BRM “on the terms that the FHA prohibit every does not in- generally set forth in City Boise Ordinance tentionally differential treatment and that 6404,” No. single-men- which contained the not previously “[w]e ha[d] adopted stan- only City restriction. The closed Commu- dard for determining the propriety or ac- nity 6, September House on 2005. The ceptability justifications for facial dis- reopened facility BRM in October and [FHA],” crimination under the we followed renamed it the River of Life Rescue Mis- espoused by formulation the Sixth and sion. Tenth Circuits: City repaid CHI’s outstanding To allow the circumstance of facial dis- and, so, FHLB loan “by doing obtained a crimination ... a defendant must show
release
liability
on behalf of both the
(1)
either:
that the restriction benefits
City of Boise and CHI.” The BRM exer-
(2)
protected
class or
it re-
purchase
cised
option
its
January
sponds
legitimate
safety concerns
2007.
affected,
raised
the individuals
rather
than being based on stereotypes.
Litigation
E.
only
Id. The
evidence the
had submit-
CHI filed suit
day
the same
as the auc-
regarding safety
ted
concerns was an affi-
in July
tion
2005. The district court de-
davit from
asserting
Roscoe
there
in part
request
nied
its
preliminary
for a
police
were fewer
calls at the BRM’s sin-
injunction, but a previous panel of this
gle-sex facilities
than at Community
court reversed and remanded for reconsid-
House.
Although
Id.
1051.
this was
House,
eration. Cmty.
Inc.
satisfy
insufficient at the time to
our new-
Boise,
(9th Cir.2007)
zoning the denial Pedro generally legis- discretionary was a permit, conditional use the denial the loan parcels act it affects “all public lative because on decision whether disburse area”). within covered party, to a certain decision was funds hoc: not ad unchallenged arrayed facts Part C, I, A, B, opinion D sections of this public sup- funds in disbursement disputed lease and demonstrate that port necessarily means project one City’s inseparable part of the sale were projects being that other are not funded. attempt longstanding continuing always A can legislator’s decision almost problem, community ameliorate serious funding criticized for not some wor- a city indeed “crisis.” CHI’s Second thy group. precisely type This is city- itself describes a Complaint Amended legislator for which a must be decision problem many private to which as wide immunity. To given hold otherwise public responded. interests well expose virtually every municipal would on to the put ask us to blinders funding judicial decision to review. which and lease. spawned context sale Id. We held that the defendant councilman leading Only ignore everything towе was “entitled absolute for vot- up dispute could conclude ing persuading or his to vote colleagues merely affected a few the lease and sale way one approval another people. Id. loan.” is whether Our final consideration distinguish *16 attempt CHI’s to San Pedro mayor council mem the actions of the and It wholly unpersuasive. argues Hotel is policy the formulation of bers involved mayor that the and council members “have merely An “ad ad hoc decisions. were any policy evidence of to produced not particular hoc” decision is made “with a related to address homelessness purpose,” distinguished from “a end or as facially discriminatory their vote a for Inter policy.” coordinated Webster’s New men-only policy approval and of a lease for Dictionary, Unabridged national cramped a below market rent.” CHI’s (2002). decisions, as a Budgetary such limit attempts of our focus to formulation posi an employment decision to eliminate only policy inquiry the here to the men- tion, poli typically involve the formation of only stipulation and the rent These issue. cy. Rappold, Bechard v. See of a subparts two matters are but small (9th Cir.2002). hand, On the other universe, larger examining developing and specific toward individu decisions directed and of the relevant universe the context als, indemnify gov as a such a decision disputed deciding acts assist us in the normally are consid employee, ernment they legislative essentially whether were Gates, ered be ad hoc. Trevino or not. Cir.1994). (9th 1480, 1482 F.3d First, mayor the aсtions of the and coun- again, fact that lease and Once the the up including leading the viewed of context cil members and sale to BRM out the only single parcel and lease sale to BRM involved building involved a the previ- making of to continue dispositive. questions of land is not We have whether public public funds for funds” to CHI. ously held that a denial “disbursements City consistently pub- entity for The contributed single purchase a loan to the Id. operation in the “involved formation of lic resources to assist CHI single hotel the $200,000 Community House: least applied public large.” the San policy Kuzinich, Cir.1982). years. ten per year involving When a case management zoning was forced to the of an emergency took over enactment or- $80,000 dinance, explained why: funnel into House each unsurprisingly— n month, it manifest need rule of [T]he for a abso- determined — transferring management or owner- lute in this illustrated case. ship long-term solution. provide legislators Here are involved in balanc- eventually Its decision lease and sell the ing against social needs constitutional facility organization to an that does not rights, balancing the kind of which often any public preserved receive funds produces opinions, and plurality almost worthy City’s projects. for other coffers always dissenting opinions, the Su- preme legislators These Court. now Second, ongoing policy, had an find themselves sued for the total of latest, helping provide since 1994 at the $2,500,000.00 general damages shelter for and services to Boise’s home- $5,000,000.00 punitive damages by a community. clearly less The MOU states business, plaintiff nearly whose as we City’s cooper- intention to “enter into a record, can from determine has not partnership ative with public/private day. been one shut down primary objective being provide housing Id. comprehensive services for home- community.” City kept less our words, In other it is not the within the looking for keep a solution that would province second-guess of the courts to open. doors of the shelter When it be- policy difficult legislators decisions must came clear that CHI’s financial difficulties simply make because a different decision improving, decided to might have been made weighing after bring in Army the Salvation CHI’s —with disadvantaged immediate needs of a group blessing if a non-profit see different —to of local against possibility citizens group operate facility could with less offending a constitutional or statutory difficulty. Army When Salvation right. City’s ultimate decision in this project weeks, only abandoned the *17 after unmistakably case was not ad hoc. Rath- management the itself took over of er, it City’s was the culmination of the Community House. a And when different repeated to efforts ensure that Boise ad- non-profit organization demonstrated its dressed its homeless crisis and retained a ability desire City’s to take the over homeless shelter. manage efforts to a homeless shelter— CHI casts its fate in large measure with which City’s policy would effectuate the of Kaahumanu, our decision in 315 F.3d at caring saving for the homeless while the case, 1220-24. analyzed In we the City money at the same time—the Maui City Council’s denial aof conditional chose that route. (“CUP”) permit use aрplicant to an who
Finally, the individuals involved in for purposes wished to use commercial her the what decision of to do property with beachfront in an located area weigh important had to social inquiry de zoned for use. residential Our was mands City’s designed ultimately inherent the of policy help to determine whether ing the against significant homeless the by indi denial was Council’s insulated the rights. Legislators vidual involved in such legislative doctrine of from law- balancing generally § are entitled to absolute suits brought pursuant to 1983. Accord- legislative immunity. Kuzinich Santa ingly, we examined whether the denial was Clara County, (9th respect with settled administrative to zon- hand, deny to legislative body, a decision whether it had its policy, on one or ing a laden all hall- policy legisla- of to Barker had the the characteristics isolated CUP decision, the other. Id. implementing tive marks an ad hoc execu- Thus, decision, legislative tive not a one. the concluded that denial Because we is distin- conclude Kaahumanu administrative, we decided the was case, from both this well as guishable were not entitled and its members Council where public from Pedro Hotel the San immunity, we did so for legislative to the aspect tipped funds of the decision two reasons. legislative immunity. scales in favor of First, was on the.cir- the denial “based by enough San Pedro Hotel itself particular case and did cumstances of our decision. support binding create a policy not effectuate discussing long-standing tradition rule of Id. conduct.” legislative immunity, Supreme Court Second, denying single applica- “[i]n legis- has that the frеedom emphasized CUP, change for a the Council did not tion worrying lators make without decisions comprehensive zoning ordinance or Maui’s about personal liability necessary pro- is it, it underlying nor did affect policies just tect the legislators: the citizens—not City’s budgetary priorities or ser- secured, privileges These are thus County provides vices the to residents.” protecting with the intention of by The its Id. at 1223-24. CUP terms against prosecutions members for their parcel applied only to Plaintiff Barker’s benefit, own but support rights rezoning applica- involve or an and did not their people, enabling representa- n. 7. rezoning. for Id. at 1223 tion functions tives to execute the of their in that reasoning To our case articulate prosecutions, without fear of civil office is is to demonstrate that Kaahumanu or criminal. manifestly distinguishable from case 373-74, Here, U.S. at Tenney, of which S.Ct. hand. actions (citation omitted). quotation marks complains specifically super- taken and to how to further policy sede old effectuate new decisions about problem City’s goal approach continuing fighting to a civic laudable homeless- for a searching prime example which reme- ness need to dy. City’s nothing final had city decision allow council members the freedom to administration do with the rote discretionary make important and difficult disputed existing policy. Unlike the deci- being personally without decisions fear of *18 Kaahumanu, discretionary sion the de- doing sued for so. directly important an
cision here affected Mayor B. The a City provided service the to disаdvan- Mayor CHI asserts that Bieter is not residents, segment of its and it did taged immunity legislative because entitled budgetary implica- with so considerable city’s a chief mayor “[a] is administrative 55-56, 118 tions. 523 U.S. at S.Ct. Bogan, official,” public a (“The signing the “act of con- [qualifying legisla- for 966 ordinance ministerial,” he “did vote tract is and not responsible the immunity tive for officials argu- on the Ordinance or lease.” This discretionary, policymak- a it] for reflected ignores Supreme ment the Court’s insis- ing implicating budgetary pri- decision the act question tence that the of whether an city city of orities the services the constituents.”). effect, legislative is turns the nature and char- provides to its act, any normally particular is acter not on although the Maui Council 964 at ernment for a
bright-line Bogan, inquire rule. U.S. court to into the Indeed, 966. the Court held of legislators....” 118 S.Ct. motives Id. an Bogan that executive official’sintroduc- importance legislative The of absolute budget signing tion of a local immunity system to our of government legislative ordinance were acts. Id. cannot be overstated: 118 S.Ct. political passion, In times of dishonest or Here, mayor’s office partici are readily vindictive motives attributed legislative re pated process in the entire legislative readily conduct and are garding Community House. Members of place believed. Courts are not the for mayor’s staff attended various CHI Self-discipline such controversies. meetings potential to discuss solu Board the voters must the ultimate reliance The tions to issues. discouraging correcting for such mayor requested February abuses. if it proposal CHI make needed financial (footnote omitted). 378, 71 Id. at S.Ct. 783 Committee, Advisory assistance. decisions, legislative legislators For their member, which Watson was a stated its citizenry are answerable to the to a —not help Mayor just intent to Bieter —not specters impeach- court of law. The City Council members —evaluate the best ment, recall, elections, lost and criminal respect course of action with Communi prosecution bribery and other crimes law, ty contemplated As by House. state enough against legislator’s are checks signed he approved Ordinances and public malfeasance. As a matter of sound passed Resolutions Coun policy, we must and should not add mayor cil. id. intri See Because personal liability financial to that list. cately City’s involved in policy decision provide homeless, shelter for the he is IV legislative immunity along entitled with members, the council even he though is QUALIFIED IMMUNITY an official. nominally executive actions, §In the doctrine mayor That the and council mem immunity qualified protects city officials a religious organ bers knew BRM was personal liability in from their individual only single ization and would allow men to capacities for their official so long conduct stay shelter does not our change as that objectively conduct is reasonable analysis. Courts be extremely must care does not clearly-established violate ful that of a legislator’s considerations mo rights. federal Fitzgerald, Harlow v. tive do not infect the determination of 800, 818, 102 S.Ct. U.S. 73 L.Ed.2d legislative: whether act is (1982) (citations omitted). Qualified claim unworthy purpose of an necessary to “protect[] destroy privilege. Legisla-
does not
public
timidity
from unwarranted
on the
tors are immune
from deterrents
part
public
officials” and
avoid
*19
discharge
uninhibited
their legislative
“dampen[ing] the ardour of all but
duty,
private
not for
indulgence
their
resolute,
most
or the most irresponsible.”
public
but for the
not
good. One must
399,
McKnight,
Richardson v.
521 U.S.
expect
courage
legis-
uncommon
even in
408,
2100,
(1997)
117 S.Ct.
965
protect
ing
plan
advising the Council.”
judgments’ by
and
room for mistaken
attorney
ing
plainly incompetent
During
argument,
but
oral
CHI’s
‘all
”
the law.’
knowingly
“primary
who
violate
them the
movers” who
those
called
224, 229,
Bryant, 502
112
deliberately
knowing
Hunter v.
U.S.
and in
violation
(1991)
534,
(quoting
stage
dispute,
Given this heated
and because
deleted)
(citation
(em
227,
(By the apparently distinction continues to con- lawyers courts, fuse and confound lower Q. you looking Are money for judg- it attempt to define more clearly against ments the individual de- through examples of prac- concrete fendants? tical and doctrinal differences between (By plaintiffs) counsel for the personal- and official-capacity actions. Well, A. ... It’s what we are Personal-capacity suits seek to impose for, looking question but the is personal liability upon a government of- apply the court has the law as ficial for he takes actions under color of to qualified immunity. ... state Official-capacity suits, law.... Q. So, you’re looking money for contrast, “generally represent only an- judgments against these individu- way pleading other an against action als? entity an of which an officer is an A. If that’s what the evidence re- agent.” long ... government As as the jury flects and the determines entity receives notice and an opportunity that.... respond, official-capacity is, suit Q. If [the all all disap- respеcts name, individuals] than other to be
peared case, from the against is there treated as a entity.... suit you is not anything get cannot It from the against suit the official per- City of sonally, Boise in terms of compen- party the real interest satory injunctive Thus, entity. relief? while an award of
967
beneficial,
mandatory.
it is not
Courts
in
but
per-
an official
his
damages against
in
only may
their sound discretion
can be executed
“exercise
capacity
sonal
assets, a
personal
prongs
the official’s
of the
the
against
deciding which
two
seeking
recover on a dam-
analysis
plaintiff
immunity
should be ad-
qualified
official-capacity
in an
suit
judgment
ages
light
in
of the circumstances
dressed first
entity it-
government
look
Pearson,
must
particular
in the
case at hand.”
self.
Graham, 105 473 U.S. at S.Ct. right omitted). To determine whether (citations and footnotes 3099 established, turns clearly was a court second time on is here for the This case law ex Supreme and Ninth Circuit Court in interlocutory The trial is still basis. act. isting alleged at the time of See Therefore, given future. the distant (9th Kane, 934, v. 936 Osolinski in Hunter Court’s admonishment Supreme Cir.1996). binding prec In the absence of immunity as v. to decide issues Bryant edent, should look to available deci courts 227, U.S. at 112 early possible, see 502 courts sions of other circuits and district 534, this prudent” we “believe it at S.Ct. clearly estab supervisory our ascertain whether law is juncture in an exercise of up apparent to cleai’ this confusion power lished. Id. immunity as qualified and to address
now inquiry and Birdsall— This “must be under it relates Chatterton parties what both ask us to do. specific which is taken context of light in Mattel, Inc., Entertainment, Inc. v. case, general MGA proposition.” not as a broad Cir.2010) (9th 904, (Kozinski, 913 F.3d Saucier, 616 201, 121 533 U.S. S.Ct. 2151. C.J.). ripe The record as it stands established, clearly For the law to be do so. To fail to do so risks adequate to be right must suffi “[t]he contours court, a confusion in the district continuing ciently clear that reasonable official complaint, and a possible new amended that he is doing would understand what in issues not the case. properly trial on right.” Creigh v. violates that Anderson Thus, for CHI his word we take counsel ton, 3034, 107 S.Ct. 97 483 U.S. qualified im- question address (1987). necessary 523 It is not L.Ed.2d munity applies as it to the Establishment previ in “very question action has against and FHA claims Chatter- Clause unlawful,” light “in the ously held but been capaci- their individual and Birdsall ton preexisting law the unlawfulness must ties. relevant, apparent.” disposi “The Id. tive ... is whether it would be inquiry qualified analysis
A clear that his con [official] to a reasonable (1) whether, prongs: “[t]ak of two consists he con duct was unlawful the situation party light en in the most favorable Vance, v. 591 Norwood F.3d facts injury, alleged ... asserting fronted.” Cir.2010) (9th Saucier, (quoting violated a con conduct [official’s] show 2151) (omission 202, 121 (2) 533 U.S. at S.Ct. right”; and whether stitutional cert, original), petition emphasis clearly v. established. Saucier right addition, “[c]ourts filed, April 201, 121 2151, 150 Katz, U.S. S.Ct. of a stat have ... held that existence (2001), Pearson L.Ed.2d modified — authorizing particular U.S. -, 808, ute or an ordinance Callahan, S.Ct. (2009). which militates in favor conduct is a factor Addressing the 172 L.Ed.2d reasonable official conclusion of the test in this order is often prongs two *22 968 that constitutional.” the issue
would find
conduct
forfeited
refuse to consider
Grossman,
note, however,
at 1209.
it. We do
that
33 F.3d
the individu-
al
including
defendants
Chatterton and
A. Jurisdiction
generally
Birdsall did
raise this issue
their
in support
amended memorandum
argues initially
juris-
we lack
their
summary
motion for
judgment.
qualified
to consider
immunity
diction
They argued that their motion
read
fairly
court
Although
issue.
the district
found—
them,
was
all
against
addressed to
claims
qualified
prong
the first
immuni-
including the FHA claim.
ty analysis
genuine
there were
is-
—that
regarding
of material
sues
fact
whether
Appellate courts will generally
there had been a violation
the Establish-
not entertain arguments that
not
Clause,
ment
ended
analysis
the court
its
However,
raised in the
court.
district
we
II,
Cmty.
F.Supp.2d
there.
654
may exercise our
an
discretion to consider
It
go
1166.
did not
toon
determine the
appeal
issue first
if it
pure
raised on
“is a
legal
purely
issue of whether the law was
question of law and the record is sufficient
clearly
so
that a
established
reasonable
to review the issue.” United
v.
States
official would have known his conduct vio-
643,
Alisal Water
431
4
Corp.,
F.3d
654 n.
lated
law—known as the “second
(9th Cir.2005). Qualified immunity is such
Therefore,
prong” of the
goes
test.
CHI’s
an issue.
v. Pac.
Bibeau
Nw. Research
argument, our review cannot be separated
Found., Inc.,
(9th
1111 n. 5
case,
from
merits of
we have
amended,
Cir.1999),
(9th
as
Applied
by
states
to the
Fourteenth
during
period,
“the City only
lease
Amendment,
the Establishment Clause
charged
per year
the BRM rent of
for
$1
all
prohibit
government
does not
involve
...,
building
premises[,]
insured the
religion.
govern
ment with
It allows the
for
paid
necessary repairs.”
Cmty.
organiza
ment to
aid to a
provide
religious
II,
Second,
654 F.Supp.2d
House
at 1162.
tion
long
government
as the
action has
conflicting
the record contained
evidence
purpose
secular
have the
does not
option price
on whether the
of million
$2
primary
religion.
of advancing
effect
was
than
less
the market value of the
I,
Cmty. House
490
at
F.3d
1055. CHI
property.3 Id. We address each in turn.
challenge
does not
this court’s earlier con
clusion that the lease and sale Commu
1. Favorable Lease Terms
nity
House to
BRM had a secular
recognized
As we
in Community House
purpose
provide shelter for the home
—to
I,
lease with
CHI’s
was more
less. Id. at
n. 9.
1055
than
favorable
the BRM’s. 490 F.3d at
religious
Government aid to a
1057. The BRM obligated
pay
was
to
rent
organization will fail the
effect”
“primary
year
per
years,
for the
five
first
after
$1
(1)
if
in government
test
it
results
indoctri
which
to a
rent would escalate
commercial
(2)
nation;
recipients
defines the
aid
rate, аnd the maximum term of the lease
(3)
by
religion;
reference to
creates
only
years.
lease,
was
ten
The CHI
on the
government entanglement”
“excessive
with
hand, required
only
other
per
rent
$1
religion.
Id. at 1055. Because the lease
year
its fifty-year
for
lease term. The
BRM
any
sale to the
did not define
repair
had similar
and insurance re-
body by
religion
reference
and because
sponsibilities under both leases.
under the
no con
lease
retained
that,
trol over
BRM’s
management
correctly
CHI
points out
al
(at
facility,
worst)
our
here
inquiry
though
focuses on indoc
the BRM
lease
Thus,
prove
trination.
lease,
a violation of the
neutral when
compared CHI
Clause,
not,
itself,
Establishment
show
by
must
this fact
sufficient to de
Simply
adopt
previous analysis
summary judgment,
our
on
than
rather
the limited
improvident.
this issue
be
We
preliminary injunction
now
record we had in the
expanded
have
appeal.
the benefit of an
record
offered to commercial tenants. That case
Clause
claim.
an Establishment
feat
(cit
I,
not
whether
violate
1057-58
did
address
it would
Cmty.
Helms,
v.
530 U.S.
838-
ing Mitchell
Clause if such a lease
Establishment
(2000)
147 L.Ed.2d
120 S.Ct.
on the same terms as those
offered
(O’Connor, J.,
But
concurring)).
neutrali
tenants.
non-profit
received
other
in the
very important factor
indoc
ty is a
oral
pressed during
argument
When
inquiry
tends to show that a
trination
issue, plaintiffs’
their
case on this
best
entity’s indoctrination cannot
private
help
this case.
It
counsel cited
does
government.
See Mitch
attributed
them.
ell,
(plu
530 U.S.
S.Ct.
At
court has
such a
least one
decided
(“[I]f the
rality)
government, seeking
case.
Covenant Church
Fairfax
legitimate
purpose,
some
secular
further
(4th
Bd.,
County Sch.
was ly benefitting public the did not have to compared to lease terms when CHI’s its civic, Cultural, pay rent. Id. at 704. lease, actually got BRM the the worse paid educational a “noncom- groups rent at BRM would have been deal. Where the For five churches years mercial” rate. Id. pay to market rent after five required rate, the then paid noncommercial which that—(cid:127) years, guaranteed CHI was to the commercial rate. Id. at escalated fifty-year of throughout entire term charging 705. court held that never its lease—its rent would exceed $1 as churches the same below-market rent year.4 per non-profit groups the other would not vio- to charging If below-market rent a non Clause, late the Establishment but that on religious organization the same profit it charging them commercial rent —which aby worse terms than those received or termed “rent discrimination”—violated previous non-profit secular tenant would Speech Free and Free Clauses. Exercise indoctrination, government that constitute Id. at 706-07. clearly established was of law binding Faced with a dearth cаse Reading Jointly Room Science Christian subject non-profit on the of leases to reli- County City San Maintained (9th gious organizations a Fourth Circuit Francisco, 1015 F.2d Cir. —and (9th “rent amended, holding case that discrimination” 1986), Cir. was 1986), religion based unconstitutional —a leasing public property held that known reasonable official not have religious organization does not violate to Clause, that the as least BRM lease violated the Establish- the Establishment where City ment undertook lease was on the same terms as leases Clause. When rent, $200,000 argues expending over the correct annual rent it was also 4. CHI that comparison Community $1 between the two leases is the annually operations at to fund $125,000 per year paid over, the BRM versus City House. Once the BRM took reported City CHI from the occu- rent money was and use it for able to save ignores pants Community House. projects. other City receiving this fact that when the was Moreover, process, its the BRM was the although might there an RFI/RFP only entity proposed purchase issue as to the of fact market value of the Community property, House. Given that no other it would not have to a been clear non-profit organizations official willing that setting option reasonable keep open, shelter price able doors of the at million would Con- violate the $2 building the decision to lease the to the The appraisal prepared stitution. at the City BRM was reasonable. request accompanied explicit warning was that the million use value was not $3.22 2. The Million Price $2 Sale Knipe market value. City told the respeсt purchase, With option might the figure be used as an opening that, law gen case before 2005 suggested purchase during negotiations, offer but erally, a sale public property a reli required by law to put prop- organization than gious for less market erty auction. up for It could have hardly likely value would violate the Establish set price high- the minimum auction at the See, ment Clause. e.g., Freedom Re from possible est value and expect to receive Found., ligion Marshfield, Inc. v. any bids. The knew only that (7th Cir.2000) (sale F.3d con probable most sale price building stitutional even though city did not solicit $850,000 was somewhere between alternate bids: with complied sale state million. The property failed re- $3.22 law, purchaser value, paid market and the *26 satisfactory ceive a bid at million.5 $2.5 city had no responsi- further maintenance initially The BRM pay only wanted to $1.8 bilities); Southside Fair Hous. Comm. v. Negotiating million. option million $2 City York, New 1348-49 of price, which under the in- lease would (2d Cir.1991) (sale constitutional where on, crease as time went seems a reason- value, party paid market land was trans- able solution the somewhat elusive con- private use, ferred for property and did cept of market value. appear not city any connected to in the Having received no viable bids at the way). But no in case the Ninth Circuit or auction, City was required begin the not elsewhere had held that a below-market process the entire the all over Be- again. would sale be unconstitutional where the facility cause the did not sell at auc- the organization important also executed tion, City the Council was specifically em- city policy and city money saved the —the powered by Idaho law to dispose of the situation with which we are confronted property however it believed was “in the City here. The give did not the BRM a [C]ity.” best interest the Idaho Code fact, in gift; it received substantial consid- 50-1403(1). § And it did so. from eration the BRM. In return for man- agement and ownership property, Even if the auction generated had City the was obligation bid, relieved of the and City viable the would not have been of operating shelter, costs while at required accept it. No Es- principle of same time ensuring City as a matter of tablishment Clause jurisprudence requires policy open. stayed shelter government that the choose a secular enti- Although Thus, purchase prop- CHI City. offered to its assets to was Chatterton erty est,” $2.5 "equitable for million of its inter- informing mayor correct in and council equitable CHI had no to bid. interest It CHI possibly pur- members that could not agreed had in 2004 to terminate the lease and property. chase the Operating Agreement and to transfer all of and Mayor it is Bieter Council members simply one because religious ty over Eberle, Jordan, Bisterfeldt, Clegg, Mapp, Having problems had with CHI’s secular. Shealy absolutely are immune from not past, in the management suit, damages injunctive re either work with CHI to continue to obligated lease and lief. The sale itself. opportunity presented another when BRM, as it was preceded House to the consistently providing late in CHI was City’s long partnership with CHI income financial and rental audits requirеd large funding, “re grants amounts allega- City. CHI faced an reports discretionary, deci policymaking flected a embezzlement, the President tion of implicating budgetary priorities sion that CHI had not been able admitted CHI [C]ity [C]ity pro and the services the money. track all of its properly Bogan, its 523 U.S. vides to constituents.” helping given had CHI a chance 55-56, 118 S.Ct. 966. homeless City ensure the Boise chance that place sleep have a City employees Chatterton and Birdsall —a nearly years. qualified ten Its decision are entitled to with re- lasted BRM did not spect a similar chance to the to CHI’s Establishment Clause and give against First FHA claims them their individu- violate the Amendment. At the capacities. al time of the lease to BRM, a reasonable official would V known that those actions would result have indoctrination or in viola- government CONCLUSION the FHA. tions of City and with the must satisfied and REMANDED. REVERSED the substan- as defendants on the Council KOZINSKI, Judge concurring: Chief case and with raised this
tive issues
official
in their
Birdsall
Chatterton
facts,
light
in the
most
put
The relevant
*27
today has no
only. Our decision
capacities
plaintiffs,
much sim-
favorable to the
are
As
against them.
on CHI’s claims
effect
you’d
reading
think
the
pler than
after
v.
Supreme Court held Owen
majority’s opinion:
wanted to ad-
Boise
liability
“imposing personal
Independence,
homelessness,
it
problem
so
dress
have an undue
public
officials could
It
Community House.
helped establish
deci-
on the exercise of their
chilling effect
over,
the shelter
eventually took
closed
... no
responsibilities, but
sion-making
liv-
everyone, including tenants
and evicted
likely
consequences
pernicious
[are]
such
It then leased
ing
longer-term housing.
recovery
possibility
from the
of a
to flow
year
for a
to a Chris-
building
dollar
622, 653 n.
funds.” 445
public
from
U.S.
Mis-
organization called Boise Rescue
tian
(1980)
673
100 S.Ct.
L.Ed.2d
sion,
at a be-
option
purchase
an
with
immunity from
have no
(municipalities
price.
building,
which
low-market
flowing from their constitutional
damages
had to
eventually bought,
Mission
Rescue
violations).
a matter
only
We hold
that as
a shelter for at least 66 homeless
include
law,
are be-
individual defendants
be
other resi-
could also
used for
men but
pur-
To
purposes.
reach of CHI’s claims.
The Boise
Council
yond the
dential
at oral
Two other
suggested
mayor approved
individuals'—as
the deal.
sue these
plan.
damages,
city
helped implement
officials
by CHI’s counsel'—for
argument
at least one
otherwise,
legally
Rescue Mission resumed
or
serves no
punitive
housing program
permitted
long-term
purpose.
cognizable
overnight.
It
hold
only
stay
expose virtually
also indoc-
otherwise would
men
ev-
religious
guests
ery municipal funding
trinated
with
activities.
judicial
decision to
review.”).
essentially
Yet that’s
what the
facts, agree that the
On those
I
individu-
plaintiffs
mayor
allege
city
council
mayor
al
are
councilmen and
entitled to
legislation
did here: wrongly approve
sub-
But I
legislative immunity.
disagree with
sidizing the
sale of a public
lease and
way
majority
comes to that conclu-
building to the Rescue Mission rather than
sion.
It holds that we have to look at
sell it Community
House. The majority
particular
whether the
lease and sale fit
therefore
right
reaches the
result on legis-
into a
to address
plan
broаder
homeless-
immunity,
lative
not for
right
but
rea-
maj.
961 (examining
ness. See
sons.
“larger developing universe” to determine
“disputed
particular
whether
acts” were
I
disagree
also
the majority’s quali-
with
not”).
“essentially
legislative
ap
That
immunity
fied
analysis,
assuming
even
that
by
proach is
Kaahumanu
foreclosed
v.
plaintiffs
sued Birdsall and Chatter-
(9th
Maui,
County
F.3d
Cir.
ton—the
remaining
individual defen-
2003).
case,
In that
we decided that coun
dants —in
capacities.
their individual
See
ty councilmen
be sued for
could
their vote
Eng
Cooley,
F.3d
1064 n. 1
deny
permit
a conditional use
ad—an
(9th Cir.2009). Addressing the Establish-
(a
]”)
hoc
“disputed
decision
we distin
act[
claims,
ment Clause
the majority acknowl-
guished
county’s
from
zoning
broader
edges that
probably
it’s
unconstitutional to
(the
universe”).
policy
“larger developing
public
sell a
building at a below-market
1218-20,
Id. at
1224. The distinction is
price
an
only
organization
offered
using
important
discrete,
almost any
because
it
religious
Maj.
indoctrination.
narrow
denying
permit—
decision—like
majority
But the
suggests
also
could
part
otherwise
recast as
be
of some
such a sale might
unconstitutional if
bigger legislative plan
by
and shielded
leg
city
it would
money
save the
some
immunity. Legislative
islative
require
religious group
to “execute!]
particular disputed act,
turns on whether a
important
city policy.” Id. at 972. The
rather than some nebulous “universe” of
majority
single
can’t cite a
case or reason
policies,
essentially
related
legislative.
justifies
out
carving
that exception.
precedent.
We’re bound
our
And
every
no wonder: Almost
municipal
Legislative immunity
apply
does
to some
service costs
money, but
doesn’t mean
*28
actions,
very
including
narrow
core bud
city
give
can
away its sanitation depart-
geting
public
decisions that affect the
Muslims,
ment
police
its
department
See,
large.
e.g.,
Pedro
San
Hotel Co. v.
to the Jews or its schools to the Catholics
City
470, 473,
Angeles,
Los
159 F.3d
476
of
in an exclusive
deal.
sweetheart
(9th Cir.1998) (single
public
loan of
mon
ey);
Scott-Harris,
see also
v.
Birdsall and
are
Bogan
Chatterton
entitled to
523
44, 47, 55-56,
qualified
immunity
U.S.
118 S.Ct.
from
140
Establishment
(1998) (city
very
L.Ed.2d 79
Clause
budgeting). Legis
claims for a
basic reason inde-
lators
pendent
should not have to answer
of
every
approving
for
whether
the deal
decision to appropriate public
here
clearly
resources to
was
unconstitutional at the
project
one
of
instead
another.
time: They
See San
didn’t make the decision to
Hotel,
(“This
Pedro
975 depart But I no policies nity. of see reason from only “implementing of them doing precedent our so. Boise,” and we shouldn’t con- City of allegations sider additional Dream
“newly appeal. minted” on See Onsite, Ariz., Inc. v. PC
Games of (9th Cir.2009); 983, 995-96
F.3d Crawford (9th n. F.3d Lungren,
v.
Cir.1996). do, if sim- Even we Chatterton Karey LUCHTEL, R. Plaintiff- processes, auction ran the RFP and ply Appellant, helped prepare the meetings attended and approval. ap- Birdsall lease for Council v. played negotiating no role in
parently HAGEMANN, Officer Clark a Seattle and sale. Their conduct isn’t what lease Officer, Police in his individual and alleged Establishment triggered сapacity; official Officer Thomas Garcetti, v. problem. See Whitaker Clause Hanley, Officer, a Seattle Police in his Cir.2007) (“[A]n (9th 486 F.3d capacity; individual and official SPD quali- of stripped individual defendant is Officers J. # 1 and # Doe J. Doe immunity only if he violat- personally fied identity presently unknown, whose rights.”). plaintiffs ed a constitutional capaci in their individual and official ties; Kerlikowske, Police, Gil Chief of qualified have Birdsall Chatterton capacity; in his individual and official Housing from the Fair Act 3-7, Supervisory # John and Jane Doe They reasons. didn’t claims similar Seattle, Police Officers of the men-only policy authorized approve the identity and number whom are by the Res city implemented council and unknown, presently in their individual California, cue Mission. See Dittman v. capacities; Richard official (9th Cir.1999) 1020, 1027 191 F.3d Doe, municipal policymakers Jane 1-5 (“[W]hen public official acts in reliance city Seattle, identity ordinance, duly on a enacted statute or presently number of whom are un ordinarily quali is entitled to that official known, in individual and their official immunity.”); fied Grossman Seattle, capacities; City of a Munici (9th Portland, 1200, 1209 33 F.3d Cir. pal Corporation, Defendants-Appel 1994). they reasonably And could have lees. justified by policy believed No. 09-35446. Cmty. legitimate safety concerns. See House, Boise, Inc. v. Appeals, States United Court (9th Cir.2007). 1050-51 We need cast Ninth Circuit. does, doubt, majority published as the *29 argument Submitted without that had “little opinion by previous panel 11, 2009. Dec. concluding apply that the Act did
trouble” withdrawn Feb. 2010. Submission operat parts building to at least by the Rescue Mission before the sale. ed May Argued and Submitted 2; maj. n. see at 969. Id. at 1047-48 & 7, 2010. Filed Oct. majority, I would hold that the Like to immu-
individual defendants are entitled